Annotated family law legislation [4th edition.] 9780409346848, 0409346845

Table of contents :
Full Title
Copyright
Publisher’s Note
Table of Cases
Table of Statutes
Table of Contents
Family Law Act 1975
Table of Provisions
Table of Amendments
Transitional Information
Family Law Act 1975
Family Law Rules 2004
Table of Provisions
Table of Amendments
Transitional Provisions
Family Law Rules 2004
Federal Circuit Court Rules 2001
Table of Provisions
Table of Amendments
Transitional Provisions
Federal Circuit Court Rules 2001
Comparative Table of Rules
Comparative Table of Rules
Index

Citation preview

LEXISNEXIS ANNOTATED ACTS

ANNOTATED FAMILY LAW LEGISLATION 4th edition

2017

Current to 1 May 2017

LEXISNEXIS ANNOTATED ACTS

ANNOTATED FAMILY LAW LEGISLATION 4th edition

Richard Chisholm BA, LLB (Sydney); BCL (Oxford); AM Adjunct Professor, ANU School of Law

Susanne Christie BA (Hons I) (Syd), LLB (Hons I) (Syd) Grad Dip Legal Prac (UTS) Barrister, NSW

Julie Kearney LLB Hons (JCU) Barrister, NSW

LexisNexis Australia 2017

AUSTRALIA

ARGENTINA AUSTRIA BRAZIL CANADA CHILE CHINA CZECH REPUBLIC FRANCE GERMANY HONG KONG HUNGARY INDIA ITALY JAPAN KOREA MALAYSIA NEW ZEALAND POLAND SINGAPORE SOUTH AFRICA SWITZERLAND TAIWAN UNITED KINGDOM USA

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ISBN: 9780409346848 (pbk). 9780409346855 (ebk). ©2017 Reed International Books Australia Pty Limited trading as LexisNexis 1st edition, 2013; 2nd edition, 2014; 3rd edition, 2015. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Publisher’s Note Legislation The publisher, authors, contributors and endorsers of this publication each excludes liability for loss suffered by any person resulting in any way from the use of, or reliance on, this publication. © LexisNexis. The legislation reproduced in this work does not purport to be an official or authorised version.

Currency The legislation in this book is consolidated to include amendments in force as at 1 May 2017.

Cross references The text of this book has been extracted from the four-volume looseleaf service, Australian Family Law and follows the internal arrangement of the looseleaf service. This book therefore contains cross-references to other areas of the looseleaf service that have not been extracted. Where this occurs, reference should be made to Australian Family Law.

Table of Cases A v A [1976] VR 298 …. [s 60CC.40] — v A; Relocation Approach (2000) 26 Fam LR 382; FLC 93035; [2000] FamCA 751 …. [S 60CC.140] — v HM and WM (1979) 4 Fam LR 776 …. [s 4.505.27] — v Liverpool City Council [1982] AC 363; [1981] 2 All ER 385 …. [s 60CC.5] A and B (Infants), Re [1897] 1 Ch 786 …. [s 60CC.5] A and BV Maunder, In the Marriage of (1999) 25 Fam LR 579; FLC 92-871 …. [s 55A.5], [s 55A.13] A, In the Marriage of (1984) FLC 91-590 …. [s 75.52] — (1986) 10 Fam LR 485 …. [s 97.3] — (1998) 22 Fam LR 756; FLC 92-800 …. [s 60CC.40] Aaron v Robinson (2013) 274 FLR 296 …. [23,372.10] Abbott, In the Marriage of (1995) 123 FLR 424; 18 Fam LR 550; FLC 92-582 …. [23,640.30], [s 94AA.5] Abdo, In the Marriage of (1989) 12 Fam LR 861; FLC 92-013 …. [s 93A.8], [s 93A.10] Abdullah, In the Marriage of (1981) 6 Fam LR 654; FLC 91-003 …. [s 79.205], [s 106B.65], [s 106B.75] Abduramanoski v Abduramanoska (2005) 191 FLR 360; 33 Fam LR 1; (2005) FLC 93-215 …. [s 112AP.30] Abood, In the Marriage of (1981) 7 Fam LN 21; FLC 91-081 …. [s 80.9] Abrecht, In the Marriage of (1984) 10 Fam LR 22; FLC 91-590 ….

[s 79.157] Abuse (W) Allegations, Re; Expert Evidence (2001) 164 FLR 18; (2001) 28 Fam LR 45; FLC 93-085 …. [23,376.15], [r 15.52.1], [r 15.45.2], [s 67ZB.10] Acheson v Acheson (1985) 11 WN (NSW) 185 …. [s 106B.45] Adam v Dickeson [1974] VR 77 …. [Pt 13.3.5] — v Newbigging (1888) 13 App Cas 308 …. [s 87.57] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; 35 ALR 625 …. [s 94AA.10] Adamopoulos, Re; Ex parte Adamopoulos (1987) 11 Fam LR 801; FLC 91-851 …. [s 93A.14] Adamson v West Perth Football Club Inc (1979) 27 ALR 475 …. [s 31.4] Addison v Brown [1954] 2 All ER 213 …. [ss 86-87.0.12] Ahmad, In the Marriage of (1979) 24 ALR 621; 34 FLR 501n; 5 Fam LR 15; FLC 90-633 …. [s 60CC.97], [s 62G.12] — (1994) 18 Fam LR 514; (1995) FLC 92-571 …. [s 79.169] Ahmed v Governing Body of the University of Oxford [2003] 1 All ER 915 …. [r 15.38.1] AI and AA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 943 …. [s 67ZC.20] Aitken v Deakin [2010] FMCAfam 35; BC201000125 …. [23,476.10] Akbar v Mali [2015] FamCAFC 244; BC201551199 …. [23,296.15], [r 11.02.3], [r 11.02.5], [r 11.03.1], [r 11.03.3] Alati v Kruger (1955) 94 CLR 216 …. [s 87.55] Albany, In the Marriage of (1980) 6 Fam LR 461; FLC 90-905 …. [s 79.161], [s 79.199], [s 79.213]

Aldous, In the Marriage of (1996) 21 Fam LR 142; FLC 92-715 …. [s 79.133] Aldred, In the Marriage of (1984) 9 Fam LR 539; (1984) FLC 91510 …. [s 44.18], [s 44.19], [s 44.20], [s 114.24], [s 114.4], [s 114.6] Aldred, In the Marriage of (No 2) (1985) 9 Fam LR 1091; (1985) FLC 91-602 …. [s 44.19], [s 114.31], [s 114.32] Aldridge v Keaton (2009) 235 FLR 450; 42 Fam LR 369 …. [s 60CC.16], [s 60CC.31], [s 60H.1] Aldridge & Keaton [2009] FamCAFC 106; BC200950355 …. [23,312.30] Aleksovski, In the Marriage of (1996) 20 Fam LR 894; FLC 92705 …. [s 79.199], [s 79.205], [s 79.257] Alesch v Maunz (2000) 203 CLR 172; 173 ALR 648; 26 Fam LR 237 …. [23,648.10] Alex, Re (2004) 31 Fam LR 503; FLC 93-175 …. [s 61B.20], [s 67ZC.3] Alexander v Cambridge Credit Corp (Receivers Appointed) (1985) 2 NSWLR 685; 10 ALCR 42 …. [23,312.30], [r 22.11.9] Alexander and Taylor; R v [1975] VR 741 …. [23,588.30], [r 15.04.15] Alexander, In the Marriage of (1977) 3 Fam LR 11,286; 29 FLR 239; (1977) FLC 90-257 …. [23,532.10], [23,532.15], [cl 6.05.5], [cl 6.05.7], [r 19.05.5], [r 19.05.7], [s 117.25], [s 117.26] — (1982) 8 Fam LR 289; FLC 91-244 …. [s 107.10] Allcard v Skinner (1887) 36 Ch D 145 …. [s 87.74] Alldrice v Masters [2012] FMCAfam 914; BC201206515 ….

[23,626.25] Allen v Allen (1984) 9 Fam LR 440; FLC 91-531 …. [s 60CC.25], [s 60CC.45], [s 60CC.125] Allesch v Maunz (2000) 26 Fam LR 237; FLC 93-033 …. [s 79A.7], [s 93A.1], [s 93A.2] Alliance Petroleum Australia (NL) v Australian Gas Light Co (1982) 44 ALR 124 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Allison, In the Marriage of (1981) 7 Fam LR 953 …. [Pt VIII.11] Althaus, In the Marriage of (1979) 8 Fam LR 169; (1982) FLC 91233 …. [s 44.17], [s 44.20], [s 44.23] Aly, In the Marriage of (1978) 4 Fam LR 565; FLC 90-519 …. [s 114.43] AM (Adult Child Maintenance), Re (2006) 198 FLR 221; 35 Fam LR 319; (2006) FLC 93-262; [2006] FamCA 351 …. [s 66L.1] American Cyanamid Co v Ethicon Ltd [1975] AC 396 …. [s 114.31] American Flange & Manufacturing Co Inc v Rheem (Aust) Pty Ltd (No 2) [1965] NSWR 193 …. [Pt 13.3.20] Ames v Ames (2009) 42 Fam LR 95 …. [s 64B.85], [s 69W.1], [s 69W.2] AMEV Finance v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486 …. [s 117.21] AMS v AIF (1999) 24 Fam LR 756; FLC 92-852 …. [S 60CC.140] Anast and Anastopoulos, In the Marriage of (1981) 7 Fam LR 728; (1982) FLC 91-201 …. [s 72.18], [s 72.20], [s 75.47], [s 79.161], [s 79.163], [s 79.233], [s 79.311], [s 80.4], [s 83.3] Anastasio, In the Marriage of (1981) 7 Fam LN 8; FLC 91-093 ….

[s 72.11], [s 75.51], [s 79.204] Anderson v McIntosh (2013) 283 FLR 361; 50 Fam LR 609 …. [s 44.14] Anderson, In the Marriage of (1981) 8 Fam LR 161; FLC 91-104 …. [Pt VIII.11], [s 79.295], [s 79.31], [s 80.4] — (1999) 26 Fam LR 348; (2000) FLC 93-016 …. [s 79.115], [s 79A.14] Anderson; Ex parte Bateman; R v (1978) 21 ALR 56 …. [s 95.7] Andrew, Re (1996) 20 Fam LR 538; FLC 92-692 …. [s 60CC.40] Angelis, In the Marriage of (1978) 4 Fam LR 337; FLC 90-503 …. [s 112AB.10] Anger, In the Marriage of (1981) 8 Fam LR 333; (1982) FLC 91248 …. [s 44.13] Ansah, In the Marriage of [1977] Fam 138 …. [r 5.12.3] Antmann, In the Marriage of (1980) 6 Fam LR 560; FLC 90-908 …. [s 72.11], [s 75.39], [s 75.51], [s 79.131], [s 79.205], [s 79.97] Anton Piller KG v Manufacturing Processes Ltd [1976] 2 WLR 162 …. [r 14.04.1] Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC 90-063 …. [s 21.5], [s 114.33], [s 114.34], [s 114.35], [s 114.36] ANZ Banking Group v Harper (1988) 11 Fam LR 649; FLC 91938 …. [s 106B.40], [s 106B.50] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 258 ALR 14; 83 ALJR 951 …. [23,008.10], [23,010.15], [23,158.10], [23,296.10], [r 1.07.1], [r 1.12.3], [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20], [r 11.10.3]

Apathy, In the Marriage of (1977) 3 Fam LN 22; FLC 90-250 …. [s 81.1] Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581 …. [s 33.3] Archbold, In the Marriage of (1984) 9 Fam LR 798; FLC 91-532 …. [s 60CC.110] Armitage v Parsons [1908] 2 KB 410 …. [23,458.10], [r 17.02.4] Armour v Walker (1883) 25 Ch D 673 …. [r 15.73.1] Armstrong v Armstrong (1977) 3 Fam LN 16 …. [s 75.21] Army & Navy Hotel, Re (1886) 31 Ch D 644 …. [23,458.10], [r 17.02.3] Arnett v Holloway [1960] VR 22 …. [23,458.10], [r 17.02.3] Arnott, In the Marriage of (1976) 1 Fam LR 11,429; FLC 90-054 …. [s 9.13] Aroney, In the Marriage of (1979) 5 Fam LR 535; FLC 90-709 …. [s 75.16], [s 75.2], [s 75.32], [s 75.35], [s 75.39], [s 75.40], [s 75.47], [s 75.9], [s 79.213], [s 79.271] Arpas, In the Marriage of (1989) 13 Fam LR 314; FLC 92-042 …. [s 79A.6], [s 79A.13], [s 79A.20] Arthur & Comben, In the Marriage of (1977) 29 FLR 262; 3 Fam LR 11,199; FLC 90-245 …. [s 60CC.135] Arthur, In the Marriage of (1986) 10 Fam LR 732; FLC 91-717 …. [s 37A.15], [s 112AA.10] Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91-000 …. [s 79.75], [s 84.8], [s 85A.11], [s 90AA.5], [s 90AE.20], [s 92.6], [s 106B.25], [s 114.25], [s 114.34], [s 114.35], [s 114.36], [s 114.37], [s 114.38]

Ashburton Oil (NL) v Alpha Minerals (1971) 123 CLR 614 …. [s 114.31] Ashley v Taylor (1878) 38 LT 44 …. [Pt 13.3.15] Ashton, In the Marriage of (1982) 8 Fam LR 675; FLC 91-285 …. [s 77.1], [s 77.4], [s 77.6], [s 80.13], [s 80.14] — (1986) 11 Fam LR 457; FLC 91-777 …. [s 79.213], [s 79.75] Astbury, In the Marriage of (1978) 4 Fam LR 395; FLC 90-494 …. [s 72.12], [s 75.21], [s 83.25], [s 83.3], [s 83.5], [s 83.6] Attorney-General v Gaskill (1882) 20 Ch D 519 …. [Pt 13.3.5], [Pt 13.3.10] Attorney-General (Cth) v Kevin (2003) 30 Fam LR 1; FLC 93-127 …. [s 43.9], [s 51.15], [s 113.7] Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; [1962] ALR 673; (1962) 36 ALJR 104 …. [s 60F.11] Atwill, In the Marriage of (1981) 7 Fam LR 573; (1981) FLC 91107 …. [r 1.09.1], [s 38.6], [s 44.17], [s 44.19], [s 44.21], [s 72.12], [s 72.15] Atwood v Chichester (1878) 3 QBD 722 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] Audet, In the Marriage of; Official Trustee in Bankruptcy (Intervener) (1994) 19 Fam LR 291; (1995) FLC 92-607 …. [s 79A.0] Australian Blue Metal Ltd v Hughes [1960] NSWR 673 …. [Pt 13.3.5], [Pt 13.3.20] Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 …. [s 93A.5], [s 93A.6], [s 94.10] Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of

Queensland (1982) 46 ALR 398 …. [s 114.31] Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 …. [s 112AP.40] Australian Gas Light Company v Australian Competition and Consumer Commission (2003) ATPR 41-956 …. [23,424.30] Australian Gaslight Company v the Australian Competition and Consumer Commission (2003) 137 FCR 317; ATPR 41-966 …. [23,424.25] Australian Securities and Investments Commission v Rich [2003] FamCA 1114 …. [s 4.505.24] Australian Tape Manufacturers v Commonwealth of Australia (1993) 112 ALR 53 …. [s 90AK.5] AVA v BVB [2000] 1 FLR 701 …. [s 79.385] Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86 …. [r 1.12.3], [r 1.14.5], [r 3.05.10], [r 3.05.20] — v No.2 Public Service Appeal Board [1973] 2 NZLR 86 …. [r 1.14.1] Axon v Axon (1937) 59 CLR 395 …. [s 102.2] Axtell, In the Marriage of (1982) 7 Fam LR 931; FLC 91-208 …. [s 66C.5], [s 66C.9], [s 75.33], [s 75.34] B v B (2003) 172 FLR 286; 31 Fam LR 7; (2003) FLC 93-136; [2003] FamCA 105 …. [s 60CA.20], [s 60CA.22] B (Infants) & B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181; (2003) FLC 93-141 …. [s 60B.15], [s 67ZC.10], [s 67ZC.20], [s 68B.6] B and B v — [2003] FamCA 621 …. [s 67ZC.20] B and B (Access) (1986) FLC 91-758 …. [s 60CC.40]

B and B, In the Marriage of (2000) FLC 93-002 …. [s 79.91] B and B, Re (No 2) (2000) 26 Fam LR 437; FLC 93-031 …. [s 75.41], [s 79.240A] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92-755 …. [S 60CC.140] B and B: Family Law Reform Act 1995 (1997) 140 FLR 11; 21 Fam LR 676; (1997) FLC 92-755 …. [s 60B.10], [s 60B.15], [s 60B.28], [s 60B.35], [s 60B.40], [s 60B.45], [s 60B.50], [s 60CC.4], [s 61B.1], [s 61C.5], [s 61C.6], [s 64B.15], [s 65D.25] B and B: Re Family Law Reform Act 1995 (Costs) (1997) 22 Fam LR 453; 142 FLR 430; (1997) FLC 92-788 …. [s 117.0] B and F-B [2007] FamCA 377 …. [S 60CC.140] B and J, Re (1996) 21 Fam LR 186; FLC 92-716 …. [s 60H.7] B and R, In the Marriage of (1995) 19 Fam LR 594; FLC 92-636 …. [r 8.02.3], [s 60CC.65][s 61F.1] B, In the Marriage of (1985) 10 Fam LR 8; FLC 91-610 …. [s 4.505.9], [s 4.505.15], [s 79A.0] — (1986) FLC 91-749 …. [23,532.15], [cl 6.05.7], [r 19.05.7], [s 117.26] Baba and Jarvinen, In the Marriage of (1980) 6 Fam LR 276; FLC 90-882 …. [Pt VIII.3], [Pt VIII.5], [s 114.29], [s 114.9] Baber, In the Marriage of (1980) 6 Fam LR 796; FLC 90-901 …. [s 66C.5], [s 75.13], [s 75.21], [s 75.34], [s 77.4] Baby D, Re (No 2) (2011) 258 FLR 290; 45 Fam LR 313 …. [r 4.09.1], [r 4.10.1], [s 67ZC.25] Bach v Allison [2013] FCCA 661; BC201310689 …. [23,426.5] Badcock, In the Marriage of (1979) 5 Fam LR 672; FLC 90-723

…. [s 114.9] Baff v New South Wales Commissioner of Police [2013] NSWSC 1205; BC201312419 …. [23,424.40], [r 15.31.6], [r 26B.25.30] Bagala & Sacco [2013] FCCA 1330; BC201313360 …. [23,312.30] Bagley v Bagley (SSAT Appeal) [2010] FMCAfam 215; BC201002146 …. [23,680.10], [r 4.20.3], [r 4.22.1], [r 4.23.1] Bailey v Marinoff (1971) 125 CLR 529 …. [r 17.02.5] Bailey, In the Marriage of (1978) 4 Fam LR 86; FLC 90-424 …. [s 4.750.3], [s 75.11], [s 75.38], [s 75.40], [s 75.8], [s 79.63], [s 80.4] — (1981) 7 Fam LR 165; FLC 91-041 …. [s 75.36], [s 87.20] — (1989) 13 Fam LR 652; (1990) FLC 92-117 …. [s 79.133], [s 79.329], [s 79.97] — (1990) 99 FLR 419; 14 Fam LR 125; (1990) FLC 92-145 …. [23,458.10], [r 17.02.3], [r 17.02.5] Baines, In the Marriage of (1981) 7 Fam LR 226; FLC 91-045 …. [s 60CC.290] Bainrot, In the Marriage of (1976) 1 Fam LN 2; FLC 90-003 …. [s 60CC.265] Bak, In the Marriage of (1979) 6 Fam LR 411; (1980) FLC 90-877 …. [Pt VIII.3], [s 4.505.21], [s 114.24], [s 114.29], [s 114.9] Baker v Bowketts Cakes Ltd [1966] 2 All ER 290; [1966] 1 WLR 861 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] — v Landon (2010) 238 FLR 210; 43 Fam LR 675 …. [s 4AA.1] Baker, Re; Ex parte Johnson (1980) 6 Fam LR 667; FLC 90-914 …. [s 94.8]

Balnaves v Balnaves (1988) 12 Fam LR 488; FLC 91-952 …. [s 78.18], [s 78.4], [s 106B.85], [s 106B.90] Balogh v Crown Court at St Albans (1975) QB 73; [1974] 3 All ER 283 …. [s 112AP.62] Bande v Cade (2011) 45 Fam LR 376 …. [r 21.08.1], [s 112AP.18], [s 112AP.30] Bangkok Bank Ltd v Swatow Lace Co Ltd [1963] NSWR 488 …. [r 15.72.1] Banh, In the Marriage of (1981) 6 Fam LR 643; FLC 91-010 …. [s 93A.8], [s 93A.10], [s 93A.13], [s 102.2] Banhidy, In the Marriage of (1982) 8 Fam LR 821; (1983) FLC 91-302 …. [s 87.38], [s 87.61], [s 87.80] Bank of New South Wales v Withers (1981) 35 ALR 21; 52 FLR 207 …. [r 15.23.1], [23,420.10], [r 26B.18.15] Bank of Victoria v Mueller [1925] VLR 642 …. [s 87.75] Baranski v Baranski [2012] FAMCAFC 18; BC201250070 …. [s 69ZX.5] Barder v Barder [1987] 2 All ER 440 …. [s 79A.21] — v Caluori [1988] AC 20 …. [s 79A.5] Barkely, In the Marriage of (1976) 1 Fam LR 11,554; (1977) FLC 90-216 …. [s 4.750.4], [s 72.11], [s 75.21], [s 75.4], [s 75.5], [s 75.51], [s 79.89], [s 79.195], [s 119.2] Barker v Barker (1976) 13 ALR 123; 2 Fam LR 11,453 …. [s 4.505.32], [s 9.13], [s 75.45], [s 79.295], [s 117.10], [s 117.3] Barker & Barker (2007) 36 FamLR 650; [2007] Fam CA 13 …. [s 79.3], [s 79.67] Barnden v Tadrosse (No 2) [2013] FCCA 744; BC201311221 …. [23,544.25], [r 19.10.10]

Barnes v Cmr of Taxation (2007) 242 ALR 601; 67 ATR 284 …. [r 13.13.5], [r 26B.06.15] Barnes, Re [1968] 1 NSWR 697; (1968) 87 WN (Pt 1) (NSW) 479 …. [23,420.10], [r 15.23.1], [r 26B.18.15] Barnett v Barnett [1973] 2 NSWLR 403; (1973) 2 ALR 19; 21 FLR 335 …. [s 60CC.87], [s 60CC.97] Barone v Barone [2012] FamCAFC 108; BC201250457 …. [s 64B.50] Barrack v Barrack [1964] QWN 30 …. [s 75.21] Barrell Insurance Pty Ltd v Pennant Hills Restaurants Pty Ltd (1981) 34 ALR 162 …. [s 80.5] Barrett, In the Marriage of (1977) 3 Fam LR 11,573 …. [s 40.5] Barriga, In the Marriage of (1979) 5 Fam LR 488; FLC 90-690 …. [Pt VIII.7], [s 71.3], [ss 86-87.0.9] Barrios and Sanchez, In the Marriage of (1989) 13 Fam LR 477; FLC 92-054 …. [s 60CC.45] Barro, In the Marriage of (1982) 8 Fam LR 855; (1983) FLC 91300 …. [s 92.3], [s 92.4], [s 106B.95] Barro, In the Marriage of (No 2) (1983) 47 ALR 338; 8 Fam LR 931; (1983) FLC 91-317 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Barton v Armstrong [1976] AC 104 …. [s 79A.12], [s 86.9] — v Official Receiver (1986) 66 ALR 355 …. [s 79.355] Bartucciotto v Western Health Care (2007) 94 ALD 387 …. [23,268.5] Bass v Bass (2008) FLC 93-366 …. [23,372.15], [r 15.59.2], [r 15-64.3], [r 15-64.5] Bassola, In the Marriage of (No 2) (1985) 10 Fam LR 413; FLC

91-623 …. [s 106B.50] Bastard, Re [1932] SASR 155 …. [23,062.15], [r 1.21.5] Bate v Priestley (1989) 13 Fam LR 376; (1990) FLC 92-102 …. [s 4.505.27] Bateman and Patterson, In the Marriage of (1981) 51 FLR 263; 7 Fam LR 33; FLC 91-057 …. [s 121.3], [s 121.6] Bates and Sawyer, In the Marriage of (1977) 3 Fam LN 71; FLC 90-319 …. [s 48.28], [s 48.29] Bates, In the Marriage of (1976) 2 Fam LR 11,407; FLC 90-123 …. [s 75.52], [s 79.175], [s 87.13], [ss 86-87.0.16] — (1985) 10 Fam LR 420; FLC 91-627 …. [s 79.215], [s 79.255], [s 79.271] Batey-Elton v Elton (2010) 43 Fam LR 62 …. [s 93A.14] Batty, In the Marriage of (1987) 10 Fam LR 688; FLC 91-703 …. [s 48.15], [s 48.18] Bau, In the Marriage of (1986) 10 Fam LR 897 …. [s 121.2], [s 121.6] Bauer v Bauer [2013] FCCA 1125; BC201312075 …. [23,370.10] Baulderstone Pty Ltd; Fair Work Building Industry Inspectorate, The v [2013] FCCA 1792; BC201314344 …. [23,414.20] Baxter, Re (1986) 10 Fam LR 758; FLC 91-715 …. [s 79.353] Baynes, In the Marriage of (1978) 4 Fam LN N23; (1978) FLC 90451 …. [s 44.17] BBT and JMT (1980) FLC 90-809 …. [s 60CC.45] Beach & Stemmler, In the Marriage of (1979) 5 Fam LN N13; FLC 90-692 …. [s 60CC.135] Bearup, In the Marriage of (1993) 16 Fam LR 797; FLC 92-412 …. [s 80.19]

Beasley v Beasley [1968] 1 NSWR 741 …. [s 79A.15] Beck v Beck (2004) 31 Fam LR 467; (2004) FLC 93-181 …. [r 10.12.2] — v Sliwka (1992) 15 Fam LR 520; FLC 92-296 …. [s 66K.7], [s 66K.13], [s 75.27] Beck, In the Marriage of (1982) 8 Fam LR 340; FLC 91-235 …. [s 75.42], [s 75.43], [s 75.52] Beck, In the Marriage of (No 2) (1983) 8 Fam LR 1017; FLC 91318 …. [s 75.43], [s 75.44], [s 75.49], [s 75.50], [s 75.8], [s 79.233] Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501; BC201109863 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Bedford, In the Marriage of (1977) 3 Fam LR 11,421; 29 FLR 332; FLC 90-287 …. [s 55A.5] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 …. [s 114.31] Behrooz v The Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 79 ALD 176 …. [23,424.25] Bell v Kennedy (1868) LR 1 Sc & Div 307 …. [s 39.7] Bell, In the Marriage of (1979) 5 Fam LR 216; FLC 90-662 …. [s 48.17] — (1993) FLC 92-347 …. [s 79.153] Bell, Re; Ex parte Lees (1980) 30 ALR 489; 6 Fam LR 208; FLC 90-850 …. [s 21.3], [s 114.2], [s 114.38] Bement v Swallow (2010) 241 FLR 74; (2010) FLC 93-441 …. [r 1.12.3], [r 1.14.1], [r 3.05.10] Beneke, In the Marriage of (1996) 20 Fam LR 841; FLC 92-698

…. [s 79.197], [s 79.205] Benjamin v Benjamin (1976) 11 ALR 211 …. [s 106B.115] Bennett v Bennett [1952] 1 KB 249 …. [ss 86-87.0.1] Bennett and Bennett [2001] FamCA 462 …. [s 68.4] Bennett J in G v C [2006] FamCA 994 …. [s 60CC.30] Bennett, In the Marriage of (1985) 10 Fam LR 68; (1985) FLC 91617 …. [s 44.12], [s 93A.16], [s 94AA.5] — (1990) 14 Fam LR 397; (1991) FLC 92-191 …. [r 8.02.3], [s 60CC.95], [s 60CC.97], [s 60CC.220], [s 68L.42], [s 68LA.5], [s 79.155], [s 93A.17] Bennett, In the Marriage of (No 2) (1991) 17 Fam LR 561; FLC 92-463 …. [s 68L.75], [s 68LA.23] Benson v Hughes (1994) 17 Fam LR 761; FLC 92-483 …. [s 60CA.65] Bentley v Nelson [1963] WAR 89 …. [r 5.12.3] Berry, In the Marriage of (1977) 6 Fam LN 17 …. [s 112AM.10] — (1989) 13 Fam LR 680; (1990) FLC 92-118 …. [s 79.329] Berry, Re [1903] WN 125 …. [r 6.08.3] Berta, In the Marriage of (1988) 12 Fam LR 191; (1988) FLC 91916 …. [s 44.13], [s 75.52] Berwick Ltd v Deputy Commissioner of Taxation (1976) 8 ALR 580 …. [s 7.1] Beryl, The (1884) 9 PD 137 …. [r 15.38.1] Best, In the Marriage of (1993) 16 Fam LR 937; FLC 92-418 …. [s 79.69], [s 79.81], [s 79.87], [s 79.89], [s 94AA.10] Bevan v Bevan (2013) 279 FLR 1; 49 Fam LR 387 …. [s 79.255] Bevan, In the Marriage of (1993) 19 Fam LR 35; (1995) FLC 92-

600 …. [s 72.12], [s 74.1], [s 75.39], [s 75.47], [s 80.2] Bidder v Bridges (1885) 29 Ch D 29 …. [Pt 13.3.15] Biddulph, In the Marriage of (1977) FLC 90-243 …. [s 72.10], [s 72.7] Bieganski, In the Marriage of (1993) 16 Fam LR 353; FLC 92-357 …. [s 60CC.40], [s 60CC.265] Bigg v Suzi (1998) 22 Fam LR 700; (1998) FLC 92-799 …. [r 10.12.2], [r 10.12.3], [s 28.10], [s 79A.10] Biggs v Dienes [1976] 2 NSWLR 463; (1975) 2 Fam LR 11,273 …. [s 83.22] Bignold, In the Marriage of (1979) 5 Fam LR 97; FLC 90-620 …. [s 75.42], [s 75.47] Bilal v Omar [2015] FamCAFC 30 …. [s 90G.1] Biltoft, In the Marriage of (1995) 19 Fam LR 82; FLC 92-614 …. [s 79.133], [s 90AE.40] Birch, In the Marriage of (1976) 26 FLR 378; 2 Fam LN N8; (1976) FLC 90-088 …. [s 44.7] Bird, In the Marriage of (1979) 5 Fam LR 370; FLC 90-678 …. [s 72.15], [s 75.38], [s 75.8], [s 80.5] Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; 38 AAR 55 …. [r 4.21.5] Birkbeck v Birkbeck (1970) 16 FLR 78 …. [s 79A.14] Birmingham City Council v H (A Minor) [1994] 2 AC 212; [1994] 1 All ER 12 …. [s 68L.50] Bishop, In the Marriage of (1981) 6 Fam LR 882; FLC 91-016 …. [s 60CC.25], [s 61B.10] — (2003) 30 Fam LR 108; FLC 93-144; [2003] FamCA 240 …. [s 31.10], [s 31.3], [s 31.6A]

Bizannes, In the Marriage of (1977) 16 ALR 524; 3 Fam LR 11,555; FLC 90-313 …. [s 34.2], [s 94.3] Black & Kellner, In the Marriage of (1992) 106 FLR 154; 15 Fam LR 343; (1992) FLC 92-287 …. [23,608.10] Black and Black (2008) 38 Fam LR 503; (2008) FLC 93-357 …. [s 90J.1], [s 90K.1] Black and Kellner, In the Marriage of (1992) 15 Fam LR 343; FLC 92-287 …. [s 79.66], [s 79.67], [s 117.2] Blackman, In the Marriage of (1998) 22 Fam LR 416; FLC 92-791 …. [s 87.51], [s 87.66], [s 87.76], [s 87.77], [s 94AA.5] Blamey, In the Marriage of (1994) 122 FLR 377; 18 Fam LR 481; (1995) FLC 92-554 …. [23,452.5], [23,534.25], [cl 6.08.7], [r 19.08.7] Bland, In the Marriage of (1994) 19 Fam LR 325 …. [s 79.121], [s 79.132], [s 79.255] Blann, In the Marriage of (1983) 72 FLR 320; 9 Fam LR 69; (1983) FLC 91-322 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064 …. [s 60B.10], [s 60CC.21], [s 60CC.25], [s 60CC.31] Blueseas Investments Pty Ltd v Mitchell (1999) 25 Fam LR 65; FLC 92-856 …. [r 5.12.5], [s 114.31A] Boaler, Re [1915] 1 KB 21 …. [s 68.4] Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 …. [s 21.7] Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458 …. [S 60CC.140] Bolton, In the Marriage of (1992) 15 Fam LR 615; FLC 92-309 …. [s 75.5], [s 79.320] Boman, In the Marriage of (1981) 7 Fam LR 586; FLC 91-077 ….

[s 60CC.45], [s 60CC.97], [s 93A.12], [s 93A.13] Bonaventura v Bonaventura [2008] FMCAfam 297; BC20082834 …. [23,174.15] Bondelmonte v Bondelmonte (No 3) [2016] FamCA 553; BC201650628 …. [23,412.10], [r 15.34.2], [r 26B.27.10] Bonnici, In the Marriage of (1991) 15 Fam LR 138; (1992) FLC 92-272 …. [s 79.155], [s 93A.17] Bonser, In the Marriage of (1988) 12 Fam LR 299 …. [s 79.115], [s 79A.14] Booth v Attenborough (1900) 21 ALT 205 …. [Pt 13.3.15] Borg, In the Marriage of (1991) 14 Fam LR 706; FLC 92-215 …. [s 79.320] Borriello, In the Marriage of (1988) 13 Fam LR 415; (1989) FLC 92-049 …. [s 79.117] Borthwick, Re [1949] Ch 395 …. [s 75.28] Bortolus v Samazan (1983) 9 Fam LR 174 …. [s 60CC.25] Borzak, In the Marriage of (1979) 5 Fam LR 571; FLC 90-688 …. [s 87.20], [s 87.38], [s 87.9], [s 114.16], [s 114.41], [s 114.9] Bosworthick v Bosworthick [1927] P 64 …. [s 85A.3] Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 …. [23,424.25], [r 15.31.5], [r 26B.25.25] Bourne, In the Marriage of (1977) 3 Fam LR 11,114 …. [s 79.295] Bowman, In the Marriage of (1984) 9 Fam LR 619; FLC 91-574 …. [s 79.75] Bozinovic, In the Marriage of (1989) 13 Fam LR 804 …. [s 48.11] BP v KS (2002) 31 Fam LR 436; (2003) FLC 93-157 …. [s 90AC.5]

BP and KS, In the Marriage of [2002] FamCA 1454 …. [s 79.75] Brady, In the Marriage of (1978) 4 Fam LN 54; FLC 90-513 …. [s 72.10], [s 72.15], [s 75.28], [s 75.36], [s 75.39], [s 80.4], [s 83.13], [s 83.21] Braithwaite v Braithwaite and Stocks (1991 unreported) …. [s 60CC.125] Branchflower, In the Marriage of (1979) 6 Fam LR 188; (1980) FLC 90-857 …. [s 72.3], [s 74.5], [s 79.311], [s 80.4], [s 83.12], [s 83.3] Brandt, In the Marriage of (1997) 22 Fam LR 97; FLC 92-758 …. [s 75.22], [s 79.155], [s 79.235] Brazel, In the Marriage of (1984) 9 Fam LR 1147; FLC 91-586 …. [s 79.307], [s 93A.17] Brear and Corcoles-Alfaro, In the Marriage of (1997) 22 Fam LR 219; FLC 92-768 …. [s 60CC.45] Brease, In the Marriage of (1997) 22 Fam LR 518; (1998) FLC 92793 …. [s 79.204] Bremner, In the Marriage of (1994) 18 Fam LR 407; (1995) FLC 92-560 …. [s 79.199] Brennan v Brennan (1953) 89 CLR 129 …. [s 59.1] Brennan, In the Marriage of (1991) 14 Fam LR 725; FLC 92-229 …. [s 79.119] Brew, In the Marriage of (2002) 30 Fam LR 591; (2003) FLC 93140 …. [s 79.213] Brianna v Brianna (2010) 43 Fam LR 309; (2010) FLC 93-437 …. [s 64B.85], [s 69W.1], [s 69W.2], [s 69W.10] Briers, In the Marriage of (1978) 4 Fam LN 52; FLC 90-483 …. [s 114.16], [s 114.41]

Briese, In the Marriage of (1985) 82 FLR 369; 10 Fam LR 642; (1986) FLC 91-713 …. [23,608.10], [s 117.14] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100 …. [s 48.31], [s 60CC.40] British South Africa Co v Companhia de Mocambique [1893] AC 602 …. [s 4.750.5], [s 79.41] Broman and Clarke (1989) 13 Fam LR 676; (1990) FLC 92-115 …. [r 1.04.1] Brook, In the Marriage of (1977) 3 Fam LN N81; FLC 90-325 …. [s 60CC.127] Brooke v Mostyn (Lord) (1864) 33 Beav 457 …. [s 87.54] Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432 …. [ss 86-87.0.1] Brott v Abeles (2007) 36 Fam LR 543; (2007) FLC 93-310; [2007] FamCA 28 …. [23,552.15], [r 19.32.3], [r 19.56.1], [cl 6.33.3], [cl 6.55.1] Brouwer v Titan Corp Ltd (1997) 73 FCR 241; 149 ALR 50 …. [s 94AA.5] Brown v Brown [1959] P 86 …. [s 85A.3] — v Dean [1910] AC 373 …. [s 93A.10] — v Lethbridge (1876) 14 SCR (NSW) 315 …. [23,358.15] — v Teare (1902) 22 NZLR 155 …. [s 4.750.4] Brown & Co v Watkins & Co (1885) 16 QBD 125 …. [r 11.07.1] Brown and Brown [2005] FamCA 1165 …. [s 72.6] Brown and Pedersen, In the Marriage of (1991) 105 FLR 83; 15 Fam LR 173; (1992) FLC 92-271 …. [s 60CC.4] Brown, In the Marriage of (1976) 2 Fam LR 11,147; FLC 90-090 …. [s 75.49]

— (1978) 4 Fam LR 385 …. [s 105.8] — (1991) 15 Fam LR 69; 105 FLR 329; (1991) FLC 92-265 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 117.25] — (1998) 23 Fam LR 349; FLC 92-822 …. [s 117.7] Browne v Dunn (1893) 6 R 67 …. [s 93A.18] — v Green (2002) 170 FLR 411; 29 Fam LR 428; (2002) FLC 93115 …. [23,534.20], [r 19.08.5], [s 117.13], [s 117.21], [s 117.9], [cl 6.08.5] Browne and Green, In the Marriage of (1999) 25 Fam LR 482 …. [s 72.11], [s 75.51], [s 79.195] Bruce F McLaren Holdings Pty Ltd v McLaren (2000) 155 FLR 403; 26 Fam LR 294; (2000) FLC 93-030 …. [23,424.30], [r 15.31.5], [r 26B.25.25], [s 94AA.5] Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 …. [23,532.10], [r 19.05.5], [s 117.25], [cl 6.05.5] Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 …. [r 22.11.11] Buckeridge, In the Marriage of (1981) 6 Fam LR 718; FLC 91-005 …. [s 106B.30], [s 114.24], [s 114.35] Buckeridge, In the Marriage of (No 2) (1981) 7 Fam LR 958; FLC 91-114 …. [s 4.505.31], [s 106B.25], [s 106B.30], [s 106B.75], [s 106B.80], [s 106B.95], [s 114.35] Buckingham v KSN Engineering Pty Ltd (2008) 177 IR 427 …. [23,296.5] Bugg, In the Marriage of (1989) 13 Fam LR 471; (1990) FLC 91110 …. [s 79.291] Buljubasic v Buljubasic (1999) 150 FLR 215; 25 Fam LR 371; (1999) FLC 92-865 …. [23,648.5], [23,648.10]

Bunn, Re; Ex parte Bunn (1989) 14 Fam LR 69 …. [s 80.9] Burdon and Nikou, In the Marriage of (1977) 3 Fam LN 44; FLC 90-293 …. [s 79.237] Burgess v Lennon [2014] FCCA 130 …. [23,458.10] Burgoyne, In the Marriage of (1978) 4 Fam LR 204; FLC 90-467 …. [s 83.3], [s 86.2], [s 86.3], [s 86.4], [s 86.5], [s 86.6], [s 88.5], [s 88.7] Burhop, In the Marriage of (1979) 37 FLR 237; 5 Fam LR 345; FLC 90-672 …. [s 69ZV.1] Burke, In the Marriage of (1981) 7 Fam LR 121; FLC 91-055 …. [s 66C.5], [s 75.34], [s 79.159], [s 93A.7] — (1992) 16 Fam LR 324; (1993) FLC 92-356 …. [s 79.253], [s 79.94] Burnett v Burnett [1936] P 1 …. [s 85A.4] Burns v Burns (1967) 10 FLR 441 …. [s 106B.15] — v Grigg [1967] VR 871 …. [r 1.14.5] Burns Philp and Co Ltd v Bhatat [1993] 1 VR 203 …. [s 117.27] Burridge, In the Marriage of (1980) 6 Fam LR 513; FLC 90-902 …. [s 79.379], [s 80.13], [s 80.17], [s 80.19], [s 114.2], [s 114.28], [s 114.34] Burton, In the Marriage of (1978) 24 ALR 378; 4 Fam LR 783; FLC 90-622 …. [s 60CC.95] — (1978) 4 Fam LR 783; (1979) FLC 90-622 …. [s 60CC.95], [s 72.14], [s 75.22], [s 80.13] Butler and Glendowan, In the Marriage of; Re Bowden’s Bill of Costs (1980) 6 Fam LR 502; FLC 90-855 …. [s 8.6] Butler, In the Marriage of (1978) 4 Fam LN 51 …. [s 75.46] Byrd v Byrd (2012) 48 Fam LR 117; (2012) FLC 93-516 ….

[23,544.10], [r 19.08.3], [r 19.10.3] — v Byrd (Conditional Admission of Expert’s Evidence) (2011) 46 Fam LR 511 …. [r 15.63.1] Byrne v Byrne (1965) 7 FLR 342 …. [s 79A.11], [s 79A.15] C v B (2006) 35 Fam LR 285; [2006] Fam CA 513 …. [s 60CC.87] — v C (1962) 4 FLR 461 …. [s 66L.17] — v C (Accrued jurisdiction) (2001) 28 Fam LR 253; FLC 93-076 …. [s 31.3] — v D (1983) 9 Fam LR 161 …. [s 60CC.125] — v S [1979] 2 NSWLR 598; (1980) FLC 90-846 …. [s 60CC.135] C and C (1995) 20 Fam LR 24; 128 FLR 100; (1996) FLC 92-651 …. [r 1.07.1], [s 60CC.225], [s 60CC.226] — (1998) 23 Fam LR 491; FLC 92-824 …. [s 97.4], [s 97.5] C and D, Re (1998) 23 Fam LR 375; (1998) FLC 92-815 …. [s 60CC.132] C and J, Re (1996) 20 Fam LR 930; FLC 92-697 …. [s 60CC.40] C and V, Re (1983) 50 ALR 441; 9 Fam LR 31; FLC 91-333 …. [s 60CC.45], [s 60CE.1], [s 69W.10], [s 114.5] C, In the Marriage of (1998) 22 Fam LR 776; 143 FLR 400; (1998) FLC 92-801 …. [r 5.09.1], [s 60CC.225], [s 60CC.226], [s 65DAA.30] C, Re (No 2) (1992) 106 FLR 82; 15 Fam LR 355; FLC 92-284 …. [s 69W.12] Cacek, In the Marriage of (1978) 5 Fam LR 377; (1979) FLC 90637; …. [Pt VIII.3] Caddy and Miller, In the Marriage of (1985) FLC 91-625 …. [s

79.35] Cahill v Cahill [2013] FamCA 339 …. [r 15.23.5], [r 26B.18.35] Cain, In the Marriage of (1987) 11 Fam LR 540; FLC 91-808 …. [s 4.505.18], [s 79.23] Calabrese v Miuccio (1984) 9 Fam LR 526; FLC 91-548 …. [ss 86-87.0.14] Calder v Charlton (1983) 9 Fam LR 285; FLC 91-523 …. [s 60CC.25] Callow, In the Marriage of (1976) 2 Fam LR 11,167; FLC 90-093 …. [s 58.6], [s 79A.17] Cameron v Cameron [1968] VR 459; (1968) 12 FLR 22 …. [s 106B.40], [s 106B.50], [s 106B.65] Cameron, In the Marriage of (1988) 12 Fam LR 265; FLC 91-946 …. [s 87.57] Camilleri and Camilleri [2002] FamCA 1157 …. [s 117C.10] Campbell v Kuskey (1998) 22 Fam LR 674; FLC 92-795 …. [s 79.133] Candlish and Pratt, In the Marriage of (1980) 6 Fam LR 75; FLC 90-819 …. [s 75.28], [s 79.173], [s 79.175], [s 86.3], [s 86.5], [ss 86-87.0.15] Candlish, In the Marriage of (1979) 5 Fam LN 11; FLC 90-668 …. [s 75.28] Cann v Commonwealth Bank of Australia (No 2) [2011] FMCA 242; BC201102726 …. [23,268.5] Cannon v Acres [2014] FamCA 104 …. [s 102QB.1], [s 118.1] Cantarella, In the Marriage of (1976) 11 ALR 189; 26 FLR 32; 1 Fam LR 11,483; FLC 90-056 …. [s 38.5], [s 38.7], [s 74.3], [s 75.1], [s 75.47], [s 78.4], [s 79.271], [s 79.295], [s 79.3], [s

80.3], [s 81.4], [s 93A.8], [s 93A.10], [s 94.10], [23,008.10] Cape v Cape (2013) 278 FLR 212; 50 Fam LR 1; [2013] FamCAFC 114 …. [S 60CC.140] Capodici v Capodici (1967) 12 FLR 129 …. [s 61B.3] Caretti, In the Marriage of (1977) 3 Fam LR 11,374; FLC 90-270 …. [s 48.17] Carew, In the Marriage of (1979) 37 FLR 452; 5 Fam LR 513; (1979) FLC 90-698 …. [23,534.10], [cl 6.08.1], [r 19.08.1], [r 22.53.1], [s 4.505.22], [s 87.93] Carla (Medical Procedure), Re (2016) 54 Fam LR 576; [2016] FamCA 7 …. [s 64B.80], [s 67ZC.25] Carlin, In the Marriage of (1977) 3 Fam LN N52; (1977) FLC 90320 …. [r 22.11.9], [r 22.11.11], [s 43.11] Carlon, In the Marriage of (1982) 8 Fam LR 729; (1982) FLC 91272 …. [s 44.18], [s 44.20], [s 93A.8], [s 93A.10], [s 93A.12] Carlson v Bowden (2008) 40 Fam LR 327; [2008] FamCA 1064 …. [s 61DA.1], [s 65C.7] Carmel-Fevia v Fevia (2010) 43 Fam LR 405; [2010] FamCA 502 …. [23,608.15], [r 13.01.2] Carpenter v Lunn (2008) FLC 93-377; [2008] FamCAFC 128 …. [r 15-64.5] Carpenter, In the Marriage of (1994) 18 Fam LR 542; (1995) FLC 92-583 …. [s 66L.5], [s 66M.1], [s 66S.1], [s 66S.11], [s 83.4A] Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246; 34 ALR 499 …. [s 94AA.5] Carriel v Lendrum (2015) 53 Fam LR 157; [2015] FamCAFC 43 …. [s 60CC.220]

Carroll, In the Marriage of (1979) 5 Fam LR 212 …. [s 114.22] Carruthers v Carruthers (1996) 134 FLR 407; 21 Fam LR 12; (1996) FLC 92-707 …. [23,452.5], [s 79.132] Carson v Carson (1999) 24 Fam LR 360; FLC 92-835 …. [s 79.377] Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 …. [s 31.4] — v Sheffield Estates Pty Ltd [2011] FMCA 402; BC201103574 …. [23,268.10], [23,268.5] Carter, In the Marriage of (1981) 7 Fam LR 41; 7 Fam LN 11; FLC 91-061 …. [s 79.65], [s 117.17] Carthew v Carthew (1966) 8 FLR 301 …. [s 87.9] Cartlege, In the Marriage of (1977) 3 Fam LR 11,339; FLC 90-254 …. [s 60CC.45] Caruana and Fenech, Re; Ex parte DCT (1988) FLC 91-903 …. [s 86.14], [s 86.8] Carvill, In the Marriage of (1984) 9 Fam LR 1055 …. [s 4.750.4], [s 79.377], [s 79.89] Casella v Casella [1969] ALR 103 …. [s 84.4] Casias v Wallace [1971] 1 NSWLR 331; (1971) 17 FLR 490 …. [s 4.505.5] Caska, In the Marriage of (1998) 23 Fam LR 659; FLC 92-826 …. [s 77A.20], [s 83.16] — (2001) 28 Fam LR 307; (2002) FLC 93-092 …. [s 83.3] Cassidy v Murray (1995) 19 Fam LR 492; (1995) FLC 92-633 …. [s 117.31] Casson, In the Marriage of (1988) 12 Fam LR 455; FLC 91-962 …. [s 94.5]

Catlin and Kent, In the Marriage of (1986) 11 Fam LR 639; (1987) FLC 91-815 …. [s 44.19], [s 78.16], [s 78.7] Cattarossi, In the Marriage of (1976) 2 Fam LR 11,436; FLC 90106 …. [Pt VIII.3], [s 4.505.15] Cavanough, In the Marriage of (1980) 6 Fam LN N3; FLC 90-851 …. [s 70NAC.5], [s 70NAE.25] Cawthorn, In the Marriage of (1998) 23 Fam LR 86; FLC 92-805 …. [s 79A.21], [s 79A.25] CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; (1998) 23 Fam LR 755; (1998) FLC 92-828 …. [s 60CA.15], [s 60CA.40], [s 60CA.45], [s 60CA.60], [s 60CA.65], [s 68B.9], [s 69ZM.30], [s 93A.1], [s 93A.8], [s 93A.9] CDW v LVE (2015) 54 Fam LR 297; [2015] WASCA 247 …. [s 64B.6] Centacare Central Queensland and Downing v G and K (1988) 23 Fam LR 476; 146 FLC 2252; (1998) FLC 92-821; [1998] FamCA 109 …. [s 10E.1], [s 10J.1] Chambers v Smith (1843) 12 M and W 2; 7 Jur 1019; 13 LJ Ex 25; 2 LTOS 101 …. [23,062.15], [r 1.21.5] Chance and Bryant, In the Marriage of (1986 unreported) …. [s 79.209] Chandler, In the Marriage of (1981) 6 Fam LR 736; FLC 91-008 …. [s 60CC.37], [s 61B.3] Chaplin v Burnett (1912) 29 TLR 256 …. [r 14.01.5] Chapman v Pointon (1741) 2 Stra 1150 …. [r 26B.18.15] — v — (1741) 93 ER 1093 …. [23,420.10], [r 15.23.1] Chapman & Palmer, In the Marriage of (1978) 34 FLR 405; 4 Fam LR 462; FLC 90-510 …. [s 60CC.135]

Chapman, In the Marriage of (1979) FLC 90-671 …. [s 77.3] Charring v Bunt [2015] FamCAFC 149; BC201550592 …. [r 22.03.5], [r 22.03.10] Chemaisse & Commissioner of Taxation (No 3) (1990) 97 FLR 176; 13 Fam LR 724; FLC 92-133 …. [s 75.40A], [s 79.97], [s 86.14], [s 117.15], [ss 86-87.0.17] Chemaisse, In the Marriage of (1988) 12 Fam LR 48; FLC 91-915 …. [s 86.14], [s 87.46A], [s 87.53], [s 87.54] Chernischoff, In the Marriage of (1979) 6 Fam LR 155; (1980) FLC 90-848 …. [s 80.1], [s 80.9], [s 83.12] Cherry v Cherry [1971] 1 SASR 148 …. [s 42.4], [s 53.1] Chessum & Sons v Gordon [1901] 1 KB 694 …. [23,458.10], [r 17.02.3] Chia v Bwa Group Services Pty Ltd (BankWest) [2013] FCCA 765 …. [23,268.10], [23,268.5], [23,268.15] Chick, In the Marriage of (1987) 12 Fam LR 64 …. [s 79.117] Child Support Registrar v Raneri [2014] FamCAFC 159; BC201451418 …. [r 22.45.2] Chisholm v Chisholm [1966] ALR 1101; (1966) 7 FLR 347 …. [s 60CC.27] CHJ v Child Support Agency [2004] FMCAfam 149 …. [23,126.10], [r 7.11.2] Chorn v Hopkins (2004) 186 FLR 240; 32 Fam LR 518; (2004) FLC 93-204; [2004] FamCA 633 …. [s 79.80], [s 79.255] Chranley v Smart (2012) 47 Fam LR 581 …. [r 21.05.1] Christie & Christie (2007) 37 Fam LR 181; [2007] FamCA 125 …. [s 90AF.10] Church v Overton (2008) 40 Fam LR 357; [2008] FamCA 952 ….

[s 60B.40], [s 65C.7] — v Perry (1877) 36 LT 573 …. [Pt 13.3.25] Cilento, In the Marriage of (1980) 6 Fam LR 35; FLC 90-847 …. [s 60CC.226] Cipars, In the Marriage of (1989) 13 Fam LR 793; (1990) FLC 92122 …. [s 93A.8], [s 93A.9], [s 93A.10] Clark v Gill (1854) 69 ER 351 …. [23,420.10], [r 15.23.1], [r 26B.18.15] Clarke v Clarke (1961) 2 FLR 7 …. [s 55A.16] Clarke, In the Marriage of (1986) 11 Fam LR 364; FLC 91-778 …. [s 48.13], [s 48.20] Clarkson v Clarkson (1972) 19 FLR 112 …. [s 60CC.290] Clauson, In the Marriage of (1995) 18 Fam LR 693; FLC 92-595 …. [s 72.18], [s 72.20], [s 79.165], [s 79.235], [s 79.311], [s 80.2] Cleary, In the Marriage of (1976) 27 FLR 280 …. [s 79.205] Clemett and Clemett (1980) 50 FLR 248; (1981) FLC 91-013 …. [23,312.25], [23,312.30], [r 22.11.7], [r 22.11.11] Clift, In the Marriage of (1976) 2 Fam LR 11,369 …. [s 50.2] Clifton and Stuart, In the Marriage of (1990) 14 Fam LR 511; (1991) FLC 92-194 …. [s 79A.10], [s 79A.15] Cobbin, In the Marriage of (1976) 1 Fam LN 14; FLC 90-017 …. [s 40.8], [s 45.5], [s 47.1] Cock v Allcock (1888) 21 QBD 178 …. [r 15.72.1] Cocks v Junken (1947) 74 CLR 277 …. [s 46.6] Coco v R (1994) 179 CLR 427; 120 ALR 415 …. [s 68.4] Cole v Quest Software Pty Ltd [2013] FCCA 1160 …. [23,424.30]

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248; 28 IPR 561 …. [23,544.15], [r 19.10.5], [s 117.4] Collins and the Victorian Legal Aid Commission, Re (1984) FLC 91-508 …. [s 117.22] Collins, In the Marriage of (1977) 3 Fam LR 11,424; FLC 90-286 …. [s 74.5], [s 75.16], [s 75.41], [s 75.43], [s 75.52], [s 79.291], [s 79.301], [s 80.1], [s 80.2], [s 80.6] — (1985) 75 FLR 84; 9 Fam LR 1123; (1985) FLC 91-603 …. [23,544.5], [r 19.10.1] — (1985) 9 Fam LR 1123; 75 FLR 84; FLC 91-603 …. [cl 6.10.1], [s 117.0], [s 117.3], [s 117.6], [s 117.27], [s 117.31] — (1987) 11 Fam LR 382; FLC 91-800 …. [s 106B.1], [s 106B.15], [s 106B.25], [s 106B.30], [s 106B.80], [s 106B.115] — (1990) 14 Fam LR 162; FLC 92-149 …. [r 1.04.1], [s 75.22], [s 79.161], [s 79.233], [s 79.239], [s 79.65], [s 97.4] — (1992) 16 Fam LR 261; (1993) FLC 92-343 …. [s 66K.33] Collins, MH and Olsthoorn, QPW (2005) FLC 93-216 …. [23,702H.10], [r 20.07.2] Cominos v Cominos (1972) 46 ALJR 593 …. [s 79A.27] Commercial Banking Co of Sydney Ltd v Worrall (1917) 35 WN (NSW) 5 …. [s 118.3] Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 …. [23,424.30], [r 15.31.5], [r 26B.25.25], [r 26B.25.35] Commissioner for Taxes v Liveris (1990) 14 Fam LR 336; FLC 92-174 …. [s 90.2] Commissioner of Taxation v Darling (2014) 285 FLR 428; 50 Fam LR 637 …. [23,040.20], [23,378.10], [23,588.25], [r 15.04.10],

[r 15.48.2], [r 24.13.5] Commonwealth v Bank of New South Wales (1949) 79 CLR 947 …. [s 93A.3] — v McCormack (1984) 155 CLR 273; 55 ALR 185; 58 ALJR 513 …. [23,458.10], [r 17.02.4] — v Milledge (1953) 90 CLR 157 …. [s 79.117], [s 79.129] — v Northern Land Council (1993) 176 CLR 604; 112 ALR 409; 67 ALJR 405 …. [r 15.26.2] Commonwealth Bank of Australia v Staatz (1988) 12 Fam LR 745; FLC 91-942 …. [s 106B.90] Commonwealth Scientific and Industrial Research Organisation v Perry (1988) 92 FLR 182 …. [23,458.10] Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55 …. [Ch 13.1] Compton v Compton [1960] P 201 …. [s 85A.3], [s 85A.10] Conan Doyle’s Will Trusts, Re [1971] 1 Ch 982 …. [23,138.20], [r 7.18.7] Conde v 2KY Broadcasters Pty Ltd [1982] 2 NSWLR 221 …. [Pt 13.3.15] Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 …. [s 93A.20] Connolly and Gilbert M Johnstone & Co (1982) 8 Fam LR 248; FLC 91-217 …. [s 4.505.31] Connor v Hulett [2011] FamCA 196 …. [23,246.25] — v Oswald [2012] FamCA 857; BC201251125 …. [r 14.07.5], [r 18.08.1] Connors v Douglas (1981) 7 Fam LR 360 …. [s 60CC.65] Conroy, In the Marriage of (1976) 2 Fam LR 11,223 …. [s 117.11]

Contempt and McJarrow and McJarrow (No 2) (1980) FLC 90-913 …. [r 21.03.1] Cook v Cook [1962] P 235 …. [s 85A.3] Cook and Maxwell JJ, Re; Ex parte C (1985) 60 ALR 661; 10 Fam LR 99; FLC 91-619 …. [s 55A.2], [s 60F.5], [s 60F.9] Cooke and Stehbens, In the Marriage of (1998) 148 FLR 52; 24 Fam LR 5; (1999) FLC 92-839 …. [r 8.01.5], [s 60CC.245], [s 64B.30], [s 97.5] Coombs and More, In the Marriage of (1990) 14 Fam LR 388; FLC 92-175 …. [s 87.27], [s 94.5] Coon and Cox (1993) 17 Fam LR 692; (1994) FLC 92-464 …. [s 66J.25] Cooper v Cooper and Rogers (1976) 2 Fam LN 24 …. [s 83.5], [s 83.8] Corbett v Corbett [1953] P 205 …. [s 93A.8] — v — [1971] P 83 …. [s 113.7] Cordell, In the Marriage of (1977) 3 Fam LR 11,588; FLC 90-322 …. [s 4.750.4], [s 72.11], [s 75.51], [s 79.195], [s 79.81] Cormick, In the Marriage of; Salmon (Respondent) (1984) 156 CLR 170; 56 ALR 245; 9 Fam LR 880; 59 ALJR 151; FLC 91554 …. [s 55A.2], [s 60F.5] Corner, In the Marriage of (1978) 4 Fam LN 1; FLC 90-438 …. [s 72.10], [s 72.12], [s 72.7], [s 75.6], [s 83.22], [s 83.5] Corporation (X) Pty Ltd v Jess [2016] FamCAFC 43 …. [r 13.13.5], [r 13.13.7] Corry, In the Marriage of (1983) 9 Fam LR 201; FLC 91-343 …. [s 79.335], [s 84.3] Cosgrove v Cosgrove (1995) 134 FLR 374; 20 Fam LR 751;

(1996) FLC 92-700 …. [s 66L.15] — v Cosgrove (No 2) (1996) 20 Fam LR 761; FLC 92-701 …. [s 66J.31] Cottard & Crichton [2016] FamCA 819 …. [r 10.02.5] Coulton v Holcombe (1986) 162 CLR 1 …. [s 93A.20] Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 …. [s 60CA.42] Cousins v Harper (2007) 38 Fam LR 461 [2007] FamCA 1135 …. [s 69W.5], [s 69W.6] Cox, In the Marriage of (1981) 7 Fam LR 627; (1981) FLC 91-068 …. [s 44.18] Cozanitis, In the Marriage of (1979) 4 Fam LR 709; 34 FLR 523; FLC 90-643 …. [s 79.113] CP, Re (1997) 21 Fam LR 486; (1997) FLC 92-741 …. [s 60CC.65], [s 61F.1] Crabtree v Crabtree (1964) 5 FLR 307 …. [s 48.13] Crapp, In the Marriage of (1978) 4 Fam LR 213; FLC 90-460 …. [s 66J.15] — (1979) 5 Fam LR 47; FLC 90-615 …. [s 4.750.4], [s 75.11], [s 75.38], [s 75.9], [s 79.377], [s 79.69] Craven, In the Marriage of (1976) 10 ALR 148; 1 Fam LR 11,276; 26 FLR 131; FLC 90-049 …. [s 43.10], [s 61B.3] — (1980) 5 Fam LR 641; FLC 90-802 …. [s 114.22], [s 114.9] Crawford, In the Marriage of (1979) 5 Fam LR 106; FLC 90-647 …. [s 72.4], [s 75.47], [s 79.163], [s 79.205], [s 79.213] Cretanor Maritime Co Ltd v Irish Marine Management Ltd (1978) 1 WLR 966 …. [23,458.10] Cripps v Cripps [2000] FamCA 1502 …. [s 117.29A]

Crossan, In the Marriage of (1976) 2 Fam LR 11,374; FLC 90-116 …. [s 72.9], [s 83.2], [s 83.5], [s 83.7], [s 83.8] CSN v JBN (1998) 24 Fam LR 174; (1998) FLC 92-833 …. [r 22.11.11] Cullen, In the Marriage of (1980) 6 Fam LR 480; FLC 90-899 …. [s 106B.45], [s 106B.75], [s 114.10], [s 114.34] Cummings v 2KY Broadcasters Pty Ltd [1981] 1 NSWLR 246 …. [r 14.04.1] — v Claremont Petroleum NL (1996) 185 CLR 124; 137 ALR 1 …. [s 79.357] — v Matheson (1970) 92 WN (NSW) 339 …. [Pt 13.3.15] Cummings, In the Marriage of (1976) 2 Fam LR 11,243; FLC 90100 …. [s 112AP.25], [s 112AP.65] Cummins v Cummins (1977) 2 Fam LR 11,621; FLC 90-209 …. [s 83.14], [s 83.3], [s 86.3] Cumper v Pothecary [1941] 2 KB 58 …. [s 117.21] Cuncliffe and Younger (1983 unreported) …. [s 60CC.87] Cureton, In the Marriage of (1976) 1 Fam LR 11,177; FLC 90-019 …. [s 40.8] Curnow v O’Sullivan (No 3) (1977) 2 Fam LN 30 …. [s 9.13] Curr, In the Marriage of (1978) 4 Fam LN 63; (1979) FLC 90-611 …. [s 60CC.45], [s 60CC.95], [s 62G.8] Curran v Roper [2011] FMCAfam 859; BC201107442 …. [23,450.25] Currey, In the Marriage of (1976) 2 Fam LR 11,723; (1977) FLC 90-211 …. [s 40.5] Currie, In the Marriage of (1976) 2 Fam LR 11,307; FLC 90-101 …. [s 79.157]

CW, In the Marriage of (1998) 22 Fam LR 750; FLC 92-802 …. [s 60CA.65] D v B (otherwise D) (child: surname) [1979] Fam 38; 1 All ER 92; [1978] 3 WLR 573 …. [s 60CC.135] D (a child) (Abduction: Rights of Custody), Re [2007] 1 AC 619; [2006] All ER (D) 218 (Nov); [2007] 1 All ER 783 …. [s 68L.45] D (A Minor), Re [1976] 2 WLR 279; 1 All ER 326 …. [s 67ZC.5] D (an infant), Re [1977] AC 602 …. [s 55A.12] D and SV (2003) 30 Fam LR 91; FLC 93-137 …. [S 60CC.140] D and Y, In the Marriage of (1995) 18 Fam LR 662; FLC 92-581 …. [s 60CC.220], [s 60CC.225] D’Agostino, In the Marriage of (1976) 2 Fam LR 11,322; 30 FLR 510; FLC 90-130 …. [s 114.10], [s 114.41], [s 114.9] D, In the Marriage of (1984) 10 Fam LR 73; FLC 91-593 …. [s 106B.40], [s 106B.50], [s 106B.65], [s 106B.75], [s 106B.85] — (2001) 27 Fam LR 736 …. [23,640.20] Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 123 CLR 192 …. [s 94.10] Dadic, In the Marriage of (1987) 11 Fam LR 796; FLC 91-825 …. [s 79.201] Daff, In the Marriage of (1984) 9 Fam LR 546; FLC 91-516 …. [s 79.307], [s 94A.3] Dain v Mark Group Australia Pty Ltd (No 3) [2013] FCCA 78 …. [23,194.10] Daines, In the Marriage of (1986) 10 Fam LR 597; FLC 91-705 …. [s 60CC.45] Daley v Daley (1964) 7 FLR 70 …. [s 75.36]

Dalgliesh v Lowther [1899] 2 QB 590 …. [Pt 13.3.25] Dalkeith Investments Pty Ltd, Re (1985) 9 ACLR 247 …. [s 79.125] Danell v Saller [2015] FamCA 859 …. [r 15-64.3], [r 15-64.5] David, Re (1997) 22 Fam LR 489; FLC 92-776 …. [s 60CC.85], [s 60CC.95] David, Re (No 2) Costs (1998) 23 Fam LR 139; 144 FLR 472; (1998) FLC 92-809 …. [s 117.29A] Davidson v Shearer (1992) 15 Fam LR 635 …. [s 118.5] Davidson, In the Marriage of (1990) 14 Fam LR 817; (1991) FLC 92-197 …. [s 79.75] — (1994) 17 Fam LR 656; FLC 92-469 …. [s 80.1], [s 93A.20], [s 106B.40] Davies v Davies (1919) 26 CLR 348 …. [ss 86-87.0.1] — v Taylor [1974] AC 207; [1972] 3 All ER 836 …. [s 79.133] Davis v Davis (2007) 38 Fam LR 671; [2007] FamCA 1149 …. [s 60CC.65], [s 61F.1] Davis, In the Marriage of (1976) 1 Fam LR 11,409; (1976) FLC 90-050 …. [s 97.2] — (1976) 1 Fam LR 11,522; FLC 90-062 …. [s 4.505.21], [s 114.14], [s 114.15], [s 114.16], [s 114.22], [s 114.41], [s 114.9] — (1982) 8 Fam LR 975; (1983) FLC 91-319 …. [s 114.15], [s 114.16], [s 114.18], [s 114.22] Davut and Raif, In the Marriage of (1994) 18 Fam LR 237; FLC 92-503 …. [s 79.155] Davy v Garrett (1878) 7 Ch D 473 …. [r 15.13.1] Dawes, In the Marriage of (1989) 13 Fam LR 599; (1990) FLC 92-

108 …. [s 79.178], [s 79.65], [s 79.69] Dawson v Beasley (2015) 293 FLR 155; 52 Fam LR 402 …. [23,244.10], [23,246.7] — v Westpac Banking Corporation (1991) 104 ALR 295; 66 ALJR 94 …. [s 93A.6] DC v RC [2006] FMCAfam 229; BC200606663 …. [23,544.15], [r 19.10.5] DC Payments Pty Ltd v Fitzpatrick [2013] FCCA 1415; BC201313049 …. [23,172.10] De Angelis v De Angelis (2000) 27 Fam LR 133; FLC 93-067 …. [s 114AB.1] De L v Director-General, New South Wales Dept of Community Services (1996) 20 Fam LR 390; FLC 92-706 …. [s 111B.4] — v Director-General, NSW Dept of Community Services (No 2) (1997) 190 CLR 207; 143 ALR 171; 71 ALJR 588; 21 Fam LR 432; FLC 92-744 …. [s 68L.45], [s 117AA.1] De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 …. [s 94AA.10] de Mooy, In the Marriage of (1978) FLC 90-411 …. [s 75.21], [s 79.205] De Roma v De Roma [2013] FamCA 566; BC201350380 …. [s 117.0], [s 117.29], [s 117.29A] De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544; 30 ALD 782; 114 ALR 708 …. [23,544.15], [r 19.10.5] De Winter, In the Marriage of (1979) 4 Fam LR 583; FLC 90-605 …. [s 93A.6] Dean, In the Marriage of (1977) 2 Fam LR 11,691; FLC 90-213

…. [r 5.12.3], [s 43.2], [s 43.7], [s 114.15], [s 114.16], [s 114.43] — (1988) 12 Fam LR 633; FLC 91-982 …. [s 79.117] Debs, In the Marriage of (1978) 4 Fam LN 48; 34 FLR 1 …. [s 4.750.4], [s 66C.1], [s 79.77] Deguara, In the Marriage of (1976) 8 ALR 688; 1 Fam LR 11,103 …. [s 43.1] Dein, In the Marriage of (1989) 12 Fam LR 853; FLC 92-014 …. [s 77A.7], [s 79.163], [s 87A.11] Delly, In the Marriage of (1976) 2 Fam LR 11,643; (1977) FLC 90-215 …. [s 40.5] Demack, Re; Ex parte Plummer (1977) 3 Fam LR 11,250; FLC 90244 …. [s 92.10] Demetriou, In the Marriage of (1976) 27 FLR 93 …. [s 68L.28] Dench, In the Marriage of (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90-469 …. [s 75.21], [s 75.22], [s 75.5], [s 79.233], [s 79.237], [s 80.2], [s 80.3], [s 80.4], [s 81.3] Department of Human Services v Brigham [2010] FamCA 937; BC201051038 …. [s 69ZW.5] Deputy Child Support Registrar v Gill (1992) 15 Fam LR 493; FLC 92-294 …. [s 117.18], [s 117.5] — v Harrison (1995) 20 Fam LR 101; (1996) FLC 92-656 …. [s 105.1] Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383; 43 ATR 621 …. [23,544.15], [r 19.10.5] — v Rowell (1989) FLC 92-026 …. [s 79.97] Deputy Federal Commissioner of Taxation (WA) v Spanjich (1988) 12 Fam LR 313; FLC 91-936 …. [s 79.97]

— v — (1988) 12 Fam LR 541; FLC 91-974 …. [s 79A.0] Derry v Peek (1889) 14 App Cas 337 …. [s 79A.11], [s 86.8], [s 87.55], [s 87.57] Dewar v Dewar (1960) 106 CLR 170 …. [s 85A.3] Dewley v Dewley [1971] 1 NSWLR 264 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Dey v Victorian Railways Cmrs (1949) 78 CLR 62; [1949] ALR 333; 23 ALJR 48 …. [23,244.10] Di Mento v Visalli (1973) 1 ALR 351 …. [s 53.1] Dickson, In the Marriage of (1999) 24 Fam LR 460; FLC 92-843 …. [s 79.240] Dickson, In the Marriage of (No 2) (1999) 25 Fam LR 79; FLC 92857 …. [s 117.2] Diddams v Commonwealth Bank of Australia [1998] FCA 9497 …. [23,424.30] Dimov v Dimov (1970) 17 FLR 462 …. [s 4.750.2] Ding, In the Marriage of (1976) 1 Fam LR 11,231 …. [s 31.14] Director General, Department of Family and Community Services v Williams [2013] NSWSC 1448; BC201313587 …. [23,424.40], [r 15.31.6], [r 26B.25.30] Director of the Fair Work Building Industry Inspectorate v Zion Tiling Pty Ltd [2013] FCCA 769 …. [23,296.10] Director of the Fair Work Building Industry Inspectorate, The v Linkhill Pty Ltd (No 5) [2013] FCCA 476 …. [23,414.25] Director-General NSW Dept of Community Services v JLM (2001) 28 Fam LR 243; FLC 93-090 …. [s 117.2B], [s 117AA.1] Director-General, Dept of Community Services v Adoptive Parents

(2005) 64 NSWLR 268; 34 Fam LR 372 …. [s 60CC.135] Director-General, Dept of Community Services (NSW) v C and L and Legal Services Commission (2006) 35 Fam LR 363 …. [s 60CC.242] Director-General, Dept of Human Services (NSW) v Tran (2010) 242 FLR 1; 44 Fam LR 1; (2010) FLC 93-443 …. [s 60CC.255], [s 91B.2] Dixon, In the Marriage of (1977) FLC 90-318 …. [s 38.6] DJL v Central Authority (2000) 170 ALR 659; 26 Fam LR 1; FLC 93-015 …. [s 93A.30], [s 95.4] DJM and JLM, In the Marriage of (1998) 23 Fam LR 396; FLC 92-816 …. [s 72.17], [s 75.21], [s 79.133], [s 79.80], [s 79.97], [s 80.3], [s 81.2] DKI and OBI, In the Marriage of (1979) 5 Fam LR 223; FLC 90661 …. [s 60CC.87], [s 60CC.265] Dobbs v Brayson (2007) 215 FLR 30; (2007) FLC 93-346; [2007] FamCA 1261 …. [s 70NAF.5] — v Brayson (No 2) (2007) FLC 93-354; [2007] FamCA 1511 …. [s 69ZBN.1], [s 69ZM.20] Docters van Leeuwen, In the Marriage of (1990) 14 Fam LR 130; FLC 92-148 …. [s 79.153], [s 79.155], [s 79.161], [s 79.299] Dodds v Walker [1980] 2 All ER 507; [1980] 1 WLR 1061 …. [23,062.15], [r 1.21.5] Doherty, In the Marriage of (1995) 20 Fam LR 137; (1996) FLC 92-652 …. [s 79.161], [s 79.195] Doig v Doig (1999) 25 FamLR 572; FLC 92-869 …. [s 77A.6] Domroese and Leggett, In the Marriage of (1995) 20 Fam LR 213 …. [s 70J.1], [s 70J.5]

Donaghey v Donaghey (2011) 45 Fam LR 183 …. [s 60CC.40], [s 69ZX.5] — v Donaghey (Costs) (2012) 47 Fam LR 306 …. [s 117.13] Donaldson v Donaldson [1968] 1 NSWR 534 …. [s 50.2] Donnell v Dovey (2010) 237 FLR 53; 42 Fam LR 559; (2010) FLC 93-428 …. [s 4.580], [s 60CC.21], [s 60CC.31], [s 60CC.65], [s 61F.1], [s 61F.5], [s 69ZX.5] Donovan v Official Trustee in Bankruptcy (1991) 15 Fam LR 253; FLC 92-276 …. [s 79A.10] Dougherty v Dougherty (1987) 11 Fam LR 577; FLC 91-823 …. [s 4.505.8], [s 79.21], [s 79.33] — v Stockwell (1900) 26 VLR 198; 6 ALR 161 …. [23,062.15], [r 1.21.5] Douglas v Morning Post Ltd (1923) 39 TLR 402 …. [Pt 13.3.25] Douglas, In the Marriage of (1978) 4 Fam LR 107; FLC 90-427 …. [s 105.2], [s 105.3] Dow-Sainter, In the Marriage of (1980) 6 Fam LR 684; FLC 90890 …. [s 72.15], [s 75.13], [s 75.5] Dowal v Murray (1978) 4 Fam LR 641; FLC 90-516 …. [s 4.505.22], [s 4.505.26] Dowrick v Sissons (1996) 20 Fam LR 466 …. [s 79.115] Doyle, In the Marriage of (1980) 6 Fam LR 14; FLC 90-845 …. [s 79.215] — (1989) 13 Fam LR 200; FLC 92-027 …. [s 79.325], [s 79.327], [s 79.331] — (1992) 15 Fam LR 274; FLC 92-286 …. [s 60CC.127] DPP v Channel Four Television (1993) 2 All ER 517 …. [s 112AP.62]

Drew, In the Marriage of (1985) 10 Fam LR 87; FLC 91-601 …. [s 87.18], [s 87.38], [s 87.46], [s 87.53], [s 87.64], [s 87.66], [s 87.77], [s 87.78], [s 87.80], [s 87.81], [s 87.96] — (1993) 16 Fam LR 536; FLC 92-360 …. [s 60CC.125] Duckworth v Jamison (2014) 51 Fam LR 471 …. [s 111CD.1] Duff, In the Marriage of (1977) 3 Fam LR 11,211; FLC 90-217 …. [s 4.750.3], [s 4.750.4], [s 79.301], [s 79.69], [s 79.87], [s 95.5] Dunbar, In the Marriage of (1987) 11 Fam LR 901; FLC 91-846 …. [s 79.115], [s 79.117], [s 79.129] Duncan, In the Marriage of (1978) 4 Fam LR 282; FLC 90-479 …. [s 86.13] Dunstan v Jarrod (2009) 41 Fam LR 535; [2009] FamCA 480 …. [s 60CC.65], [s 61DA.1], [s 69ZK.25] Dupont, In the Marriage of (1980) 6 Fam LR 395; FLC 90-881 …. [s 86.8], [s 86.9], [s 87.55], [s 87.58], [s 87.60], [s 87.75] Dupont, In the Marriage of (No 2) (1981) 7 Fam LR 147; FLC 91037 …. [s 84.5], [s 88.6], [ss 86-87.0.10] Dupont, In the Marriage of (No 3) (1981) 7 Fam LR 747; FLC 91103 …. [s 79.173], [s 79.177], [s 79.213], [s 86.5], [ss 8687.0.15] Durieu and Wiggins (1997 unreported) …. [s 79.385] Duroux v Martin (1993) 116 FLR 141; 17 Fam LR 130; (1993) FLC 92-432 …. [s 69W.5], [s 94AA.10] Dutton v Gorton (1917) 23 CLR 362 …. [s 86.8] Dyason, In the Marriage of (1976) 1 Fam LN 15; FLC 90-026 …. [s 61B.3] E, In the Marriage of (No 2) (1979) 5 Fam LR 244; 36 FLR 12; FLC 90-645 …. [r 8.02.3], [s 43.11], [s 60CC.27], [s

60CC.87], [s 60CC.125], [s 68LA.5], [s 92.8] Eaton v Storer (1882) 22 Ch D 91 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] Ebbage, In the Marriage of (2000) 27 Fam LR 209; FLC 93-057 …. [s 105.5] Echlin v Kagan [2011] FMCAfam 272; BC201101988 …. [23,040.5], [r 24.13.1] Edelsten (Bankrupt), Re; Donnelly v Edelsten (1988) 18 FCR 434; 80 ALR 704; 12 Fam LR 294 …. [s 121.3] Edwards v Edwards [1958] P 235; [1958] 2 All ER 179 …. [23,544.15], [23,544.5], [cl 6.10.1], [r 19.10.1], [r 19.10.5] — v Noble (1971) 125 CLR 296; [1972] ALR 385; (1971) 45 ALJR 682 …. [s 93A.6], [s 94.10] Efthimiadis, In the Marriage of (1993) 16 Fam LR 384; FLC 92362 …. [s 79.67] Egan, In the Marriage of (1985) 10 Fam LR 577; FLC 91-608 …. [s 79.33] EJK v TSL (2006) 202 FLR 240; 35 Fam LR 559; (2006) FLC 93287; [2006] FamCA 730 …. [s 60CA.22], [s 60CC.251] — v TSL (No 2) (2006) 35 Fam LR 590 …. [r 22.11.11], [s 60CC.251] El Alami, In the Marriage of (1987) 11 Fam LR 852; (1988) FLC 91-930 …. [s 60CA.30] El Kalza, In the Marriage of (1982) FLC 91-200 …. [s 79.215] El Oueik v El Oueik (1977) 3 Fam LR 11,351; FLC 90-224 …. [s 104.10], [s 104.6] Eliades, In the Marriage of (1980) 6 Fam LR 916; (1981) FLC 91022 …. [s 72.12], [s 72.5]

Elias v Elias [2014] FCCA 457 …. [23,328.5], [23,608.5] Elias, In the Marriage of (1977) 3 Fam LR 11,496; FLC 90-267 …. [s 4.750.4], [s 79.111], [s 79.178], [s 79.213], [s 79.81] Ellershaw v Survant [2013] FamCA 510 …. [s 121.8] Ellinas, In the Marriage of (1978) 4 Fam LR 65; FLC 90-419 …. [s 4.505.31], [s 40.5] — (1979) 5 Fam LR 114; FLC 90-649 …. [s 4.505.22], [s 87.93] Elliott and Willcox, In the Marriage of (1996) 20 Fam LR 567; FLC 92-687 …. [s 79A.10] Ellison v Karnchanit (2012) 48 Fam LR 33 …. [Div 4.2.8.1], [r 4.37.05], [s 64B.85], [s 64B.90] Elsey, In the Marriage of (1996) 21 Fam LR 249; FLC 92-727 …. [s 79.123] Elspeth and Peter [2006] FamCA 1385 …. [S 60CC.140] Elspeth, Mark and John v Peter (Penalty and Costs) (2007) 214 FLR 116; 37 Fam LR 696; (2007) FLC 93-341; [2007] FamCA 1072 …. [s 70NEB.20] Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385; 133 ALR 206; 14 ACLC 50 …. [23,458.10], [r 17.02.3] Emamy and Marino, In the Marriage of (1994) 122 FLR 161; 18 Fam LR 44; (1994) FLC 92-487 …. [s 44.15], [s 94AA.5] Emery’s Investment Trusts, Re (1959) 1 Ch 410 …. [s 79.178] Engels, In the Marriage of (1982) 7 Fam LR 813; FLC 91-203 …. [Pt 13.3.5], [Pt 13.3.15] English, In the Marriage of (1986) 10 Fam LR 808; FLC 91-729 …. [s 112AP.30], [s 114.11] Ensabella, In the Marriage of (1980) 6 Fam LR 174; FLC 90-867

…. [s 117.16] Entsch v Smith and Kerr (1992) 15 Fam LR 387 …. [s 86.5] Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No 2) (1984) 54 ALR 730 …. [s 114.31] Ernest v Newer [2011] FamCA 116; BC201150159 …. [s 64B.50] Esmore, In the Marriage of (1979) 5 Fam LR 762; FLC 90-711 …. [Pt VIII.3], [Pt VIII.6], [s 114.10], [s 114.24], [s 114.29], [s 114.3], [s 114.9] Espie, In the Marriage of (1983) 9 Fam LR 123; FLC 91-347 …. [Pt VIII.1], [s 4.505.5], [s 4.505.13], [s 4.505.16], [s 4.505.18], [s 113.3], [s 113.6], [s 114.6] Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; 168 ALR 123 …. [23,424.30], [r 13.13.5], [r 15.31.5], [r 26B.06.15], [r 26B.25.25] Evans v Bartlam [1937] AC 473 …. [s 93A.5] — v Public Trustee (WA) (1991) 14 Fam LR 646; FLC 92-223 …. [s 79.322], [s 79.325] — v Rochford (2003) 177 FLR 127; 30 Fam LR 336; (2003) FLC 93-147 …. [23,532.10], [23,532.25], [cl 6.05.5], [cl 6.05.11], [r 19.05.5], [r 19.05.11], [s 117.25], [s 117.26B] — v Spicer, In the Marriage of (1992) 15 Fam LR 749; FLC 92319 …. [s 77A.8] Evans, In the Marriage of (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90-435 …. [s 66J.15], [s 66J.19], [s 72.12], [s 75.21], [s 75.22], [s 75.28], [s 75.39], [s 75.4], [s 75.40], [s 79.295] — (1985) 11 Fam LR 129; (1986) FLC 91-711 …. [s 96.4] — (1990) 14 Fam LR 136; FLC 92-150 …. [s 55A.5] Evelyn, Re (1998) 145 FLR 90; 23 Fam LR 53; (1998) FLC 92-

807 …. [23,364.5], [23,376.10], [r 15.45.1], [s 60CC.125], [s 60CC.132], [s 60CC.210] Evelyn, Re (No 2) (1998) 23 Fam LR 73; FLC 92-817 …. [s 60CC.125], [s 95.3] Everett v Everett (2014) 52 Fam LR 1 …. [s 66L.1], [s 66L.9], [s 66L.10], [s 66L.15] Ewart v Royds (1954) 72 WN (NSW) 58 …. [23,440.5], [r 15.76.1] Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 303 ALR 199; 50 Fam LR 353 …. [23,008.10], [r 13.13.5], [r 26B.06.15] F v Langshaw (1983) 8 Fam LR 833 …. [s 60CC.65] — v M1 and M2 (1994) 18 Fam LR 221; FLC 92-493 …. [s 68L.48], [s 68L.50] F & R, In the Marriage of (1992) 107 FLR 74; 15 Fam LR 533; (1992) FLC 92-300 …. [s 69W.6] F (Litigants in Person Guidelines), Re (2001) 161 FLR 189; 27 Fam LR 517; FLC 93-072; [2001] FamCA 348 …. [s 69ZBN.1], [s 97.5] F and N, In the Marriage of (1987) 11 Fam LR 664; (1987) FLC 91-813 …. [s 60CC.220] F and R, In the Marriage of (No 2) (1992) 15 Fam LR 662; FLC 92-314 …. [s 68L.42], [s 68L.64] F, In the Marriage of (1982) 8 Fam LR 29; FLC 91-214 …. [s 75.36], [s 75.46] — (1989) 96 FLR 118; 13 Fam LR 189; (1989) FLC 92-031 …. [s 64B.100], [s 114.5], [s 114.9] F, Re; Ex parte F (1986) 66 ALR 193; 10 Fam LR 940; FLC 91-

739 …. [s 55A.2], [s 60F.5] Fagan, In the Marriage of (1984) 9 Fam LR 1140; (1985) FLC 91607 …. [s 79A.8], [s 79A.10], [s 93A.20] Fahmi, In the Marriage of (1995) 19 Fam LR 517 …. [s 48.10] FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; 77 ALR 411; 62 ALJR 216 …. [23,458.10], [r 17.02.3] Fair Work Ombudsman v ACN 146 435 118 Pty Ltd [2013] FCCA 803; BC201311002 …. [23,296.10] — v Finetune Holdings Pty Ltd [2010] FMCA 889; BC201008576 …. [23,196.10] Falk, In the Marriage of (1977) 3 Fam LR 11,238; FLC 90-247 …. [s 43.2], [s 48.10], [s 48.13], [s 48.17], [s 48.18], [s 48.19], [s 48.27] Family Court of Australia, Re; Ex parte Herbert (1991) 15 Fam LR 308; (1992) FLC 92-280 …. [s 95.7] Fane-Thompson, In the Marriage of (1981) 7 Fam LR 660; FLC 91-053 …. [s 75.52] Faraone and Shabalah, In the Marriage of (1988) 12 Fam LR 577; FLC 91-956 …. [s 79.173], [s 87.13] Farmer and Bramley, In the Marriage of (2000) 27 Fam LR 316; FLC 93-060 …. [s 79.204], [s 79.239], [s 79.96] Farnell, In the Marriage of (1996) 20 Fam LR 513; FLC 92-681 …. [s 79.195], [s 79.255] Farr, In the Marriage of (1976) 2 Fam LR 11,300; FLC 90-133 …. [s 4.505.21], [s 114.22], [s 114.5], [s 114.9] Farrell v Farrell [1921] SASR 168 …. [s 117.11] Fauna Holdings Pty Ltd v Mitchell (2000) 27 Fam LR 81; FLC 93-

053 …. [s 112AB.15], [s 112AP.65] Fawcett v Fawcett [1973] 1 NSWLR 585 …. [s 80.18] Fedele, In the Marriage of (1986) 10 Fam LR 1069; FLC 91-744 …. [s 114.16] Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; 64 ALR 325; 60 ALJR 300 …. [23,312.30], [r 22.11.9] Felton v Mulligan (1971) 45 ALJR 525 …. [ss 86-87.0.2] Feltus, In the Marriage of (1977) 2 Fam LR 11,665; FLC 90-212 …. [s 48.17], [s 48.22], [s 50.2], [s 50.3], [s 50.5] Fencott v Muller (1983) 46 ALR 41; 57 ALJR 317 …. [s 31.4], [s 31.5], [s 31.6], [s 33.3] Fenech, In the Marriage of (1976) 1 Fam LR 11,250; FLC 90-035 …. [s 48.19] Ferguson, In the Marriage of (1978) 4 Fam LR 312; FLC 90-500 …. [s 72.11], [s 75.39], [s 75.48], [s 75.49], [s 75.50], [s 75.51], [s 79.157], [s 79.195], [s 79.311], [s 80.4] Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93-054 …. [s 28.10], [s 79.389] Ferrand v Mayor, Aldermen and Burgesses of Bradford (1856) 8 De GM & G 93; 44 ER 324 …. [23,010.10], [r 1.12.3] Ferraro, In the Marriage of (1992) 16 Fam LR 1; (1993) FLC 92335 …. [s 79.153], [s 79.161], [s 79.178], [s 79.193], [s 79.201], [s 79.203], [s 79.213], [s 79.215], [s 79.65], [s 79.69], [s 79.97] Ferretto, In the Marriage of (1986) FLC 91-770 …. [s 44.13], [s 44.13A] Fickling, In the Marriage of (1996) 20 Fam LR 258 …. [s 79A.0]

Fields v Smith (2015) FLC 93-638 …. [s 79.193] Figgins, In the Marriage of (2002) 29 Fam LR 544; FLC 93-122 …. [s 72.20], [s 79.193] Filipovic, In the Marriage of (1977) FLC 90-266 …. [s 60CC.265] Finlayson v Finlayson (2002) 29 Fam LR 460; FLC 93-121 …. [s 31.3] Finlayson, In the Marriage of (2001) 27 Fam LR 428; 160 FLR 370; (2001) FLC 93-068 …. [cl 6.05.9], [r 19.05.9], [s 117.26A] Finneran v Eyre (1893) 9 WN (NSW) 148 …. [s 118.3] Finnie v Dalglish [1982] 1 NSWLR 400 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Finnis, In the Marriage of (1978) 4 Fam LN 15; FLC 90-437 …. [s 75.38], [s 75.4], [s 75.5], [s 79.377] Firth, In the Marriage of (1988) 12 Fam LR 547; FLC 91-971 …. [s 60CC.130] Fischer v City Hotels Pty Ltd (1970) 92 WN (NSW) 322 …. [Pt 13.3.15] Fisher v Fisher (1976) 2 Fam LN 22 …. [s 75.21] Fisher, In the Marriage of (1986) 57 ALR 513; 11 Fam LR 11; FLC 91-767 …. [s 4.505.8], [s 79.21], [s 79.23], [s 79.325], [s 79.331] — (1990) 99 FLR 357; 13 Fam LR 806; (1990) FLC 92-127 …. [s 79.195], [s 117.13], [s 117.18], [s 117.9] Fitzgerald v Sapico (No 2) (2005) 33 FamLR 37 …. [23,648.10] Fitzgerald and Robinson, In the Marriage of (1978) 3 Fam LN 78; 30 FLR 550; FLC 90-401 …. [s 60CC.45] Flanagan v Handcock (2001) 27 Fam LR 615; FLC 93-074; [2000]

FamCA 150 …. [s 60CC.135] Fleming v Fleming (1963) 4 FLR 493 …. [s 80.18] — v — (2009) 42 Fam LR 29; [2009] FamCA 552 …. [s 117.4] Fletcher v Bealey (1885) 28 Ch D 688 …. [s 114.32] Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375; 305 ALR 522 …. [23,458.10], [r 17.02.3] Florie, In the Marriage of (1988) 12 Fam LR 7; FLC 91-913 …. [s 78.8] Flower & Hart v White Industries (1999) 87 FCR 134; 163 ALR 744 …. [23,544.15], [r 19.10.5] Foda, In the Marriage of (1997) 21 Fam LR 653; FLC 92-753 …. [s 79.133], [s 79.83] Fogwell v Ashton (1993) 17 FamLR 94; FLC 92-429 …. [s 60G.5] Fong, In the Marriage of (1977) 3 Fam LN 67 …. [s 81.3] Forrest, In the Marriage of (1977) 3 Fam LN 41 …. [s 79.295] Forster v Jododex Australia Pty Ltd (1972) 46 ALJR 701; 127 CLR 421; [1972-73] ALR 1303 …. [23,062.15], [r 1.21.5] Forton Automotive Treatments Pty Ltd v Jones (2008) 222 FLR 1 …. [23,450.10] Foster, In the Marriage of (1977) 6 Fam LN 8; FLC 90-281 …. [s 93A.12] Fountain v Alexander (1982) 150 CLR 615; 8 Fam LR 67; FLC 91-218 …. [s 4.505.27], [s 4.505.28], [s 4.505.35], [s 79.29], [s 114.6] Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 …. [s 117.4] Fowler, In the Marriage of (1980) 5 Fam LR 750; FLC 90-808 …. [s 79A.33], [s 83.12], [s 83.3]

Fox v Public Trustee (1984) 9 Fam LR 275 …. [s 102.2] Franklin and McLeod, In the Marriage of (1993) 17 Fam LR 793; (1994) FLC 92-481 …. [s 79A.21] Franks, In the Marriage of (1976) 10 ALR 126; 1 Fam LR 11,341; FLC 90-032 …. [s 48.14] Fraser v Deputy Commissioner of Taxation and Official Trustee (1996) 138 ALR 689; 20 Fam LR 914 …. [s 79A.0] Freeman, In the Marriage of (1979) 5 Fam LR 16; FLC 90-697 …. [s 79.205] Frener, In the Marriage of (1981) FLC 91-086 …. [Pt 13.3.5] Frew, In the Marriage of (1977) 4 Fam LN 2; (1978) FLC 90-422 …. [s 79.295] Friar v Friar [2011] FamCAFC 71; BC201150184 …. [r 10.12.2] — v — [2014] FamCA 689; BC201451394 …. [23,076.10], [r 2.01.3] Frieda and Geoffrey, Re (2009) 40 Fam LR 608 …. [s 60CC.40] Friis v Friis (2000) 26 Fam LR 205 …. [s 31.8] Fritz v Hobson (1880) 14 Ch D 542 …. [23,458.10], [r 17.02.3] Frost and Nicholson, In the Marriage of (1981) 7 Fam LN N9; (1981) FLC 91-051 …. [s 44.17], [s 44.19], [s 44.20], [s 44.21] Fry v Moore (1889) 3 QBD 395 …. [23,138.20], [r 7.18.7] Fryda v Johnson (1979) 5 Fam LN 2; FLC 90-634 …. [s 60CC.220] Fryda and Johnson, In the Marriage of (No 2) (1981) 7 Fam LR 238; FLC 91-058 …. [s 86.8], [s 87.27], [s 87.30], [s 87.47], [s 87.48], [s 87.59], [s 87.60], [s 87.86] Fuller v Prentice (1788) 126 ER 31 …. [23,420.10], [r 15.23.1], [r

26B.18.15] Fullicks v Fullicks (1929) 46 WN (NSW) 158 …. [s 106B.15] Fust, In the Marriage of (1991) 15 Fam LR 77; FLC 92-264 …. [s 38.2] G v G (2000) 26 Fam LR 592; FLC 93-043 …. [s 79.197] — v H (1994) 181 CLR 387; 124 ALR 353; 68 ALJR 860; 18 Fam LR 180 …. [s 69W.12], [s 69Y.5] G & S (2007) FamCA 102 …. [S 60CC.140] G (a minor), Re [1987] 1 WLR 1461 …. [s 60CC.40] G (Children’s Schooling), Re (2000) 26 Fam LR 143; FLC 93-025 …. [s 61B.10] G, In the Marriage of (1978) 4 Fam LR 537; FLC 90-498 …. [s 48.16], [s 48.32] — (1981) 7 Fam LR 267; FLC 91-042 …. [s 112AP.25] — (1984) FLC 91-582 …. [s 79.155] — (1988) 12 Fam LR 185; FLC 91-939 …. [s 60CC.127] Gabel v Yardley (2008) 40 Fam LR 66; 221 FLR 270 …. [s 79.379] Gadens Ridgeway v Paroulakis (1992) 15 Fam LR 586; (1992) FLC 92-311 …. [cl 6.15.5], [s 117.36], [s 117.37] Gaffney v Erikson [2011] FMCAfam 1177; BC201108782 …. [23,308.5] Gallienne v Gallienne (1965) 83 WN (Pt 1) (NSW) 5 …. [s 80.12] Gallo v Dawson (1990) 93 ALR 479; 64 ALJR 458 …. [23,680.10], [cl 6.22.3], [r 1.12.3], [r 1.12.5], [r 1.14.1], [r 1.14.3], [r 1.14.15], [r 3.05.10], [r 3.05.15], [r 4.20.3], [r 4.22.1], [r 22.03.10], [r 4.23.1], [r 15.65.3], [r 19.21.3], [r 19.21.5], [r 22.03.3], [r 22.03.5], [r 22.03.10]

Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] Gamble, In the Marriage of (1978) 32 FLR 198; 4 Fam LN N28; FLC 90-452 …. [s 66L.11], [s 66L.15], [s 75.39] Gamer, In the Marriage of (1988) 12 Fam LR 73; FLC 91-932 …. [s 79.117], [s 79.121], [s 79.123], [s 79.125], [s 79.155] Gamser v Nominal Defendant (1977) 136 CLR 145; 13 ALR 387; 51 ALJR 315 …. [23,458.10], [r 17.02.2] Ganas v Ganas (1971) 18 FLR 298 …. [s 106B.75] Gannon v Gannon (1971) 46 ALJR 57 …. [Pt 13.3.10] Gardiner v Gardiner (1925) 25 SR (NSW) 274 …. [s 75.28] Gardiner, In the Marriage of (1977) 3 Fam LR 11,596; (1977) FLC 90-304 …. [23,544.5], [cl 6.10.1], [r 19.10.1] — (1978) 4 Fam LR 517; FLC 90-440 …. [s 79.175], [s 86.2], [s 87.10], [s 87.11], [s 87.12], [s 87.13], [s 87.25], [s 87.30], [s 96.4], [ss 86-87.0.3], [ss 86-87.0.16] Garland, In the Marriage of (1976) 2 Fam LN 4 …. [s 60CC.265] Garmonsway, In the Marriage of (1986) 10 Fam LR 1026; FLC 91-746 …. [s 78.6], [s 79.353] Garratt v Garratt [1922] P 230 …. [s 85A.3] Garrett v Cowell [2013] FamCAFC 91 …. [r 19.08.3] Garrett, In the Marriage of (1984) FLC 91-539 …. [s 79.159], [s 79.175] Garrey & Crosby [2007] FamCA 696 …. [r 8.03.1] Garside, In the Marriage of (1978) 4 Fam LN 53; FLC 90-488 …. [s 78.17], [s 79.295] Gartner, In the Marriage of [2000] FamCA 793 …. [s 79.322]

Gascoigne v Gascoigne [1918] 1 KB 223 …. [s 79.178] Gates, In the Marriage of (1976) 1 Fam LR 11,452 …. [s 9.10], [s 75.1] Gaunt, In the Marriage of (1978) 4 Fam LR 305; FLC 90-468 …. [s 70NAC.5], [s 70NAE.25] Gazzo v Comptroller of Stamps (Vic); Ex parte Attorney-General for Victoria (1981) 38 ALR 25; 7 Fam LR 675; FLC 91-101 …. [s 90.1] Gebert, In the Marriage of (1990) 14 Fam LR 62; FLC 92-137 …. [s 79A.10], [s 79A.15] Gelley, In the Marriage of (No 1) (1992) 15 Fam LR 474; FLC 92290 …. [s 106B.150], [s 106B.155] Gelley, In the Marriage of (No 2) (1992) 15 Fam LR 483; FLC 92291 …. [s 106B.55], [s 106B.65], [s 106B.85], [s 106B.90] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 …. [s 118.3] George v Radford (1976) 11 ALR 428; 25 FLR 461; 1 Fam LR 11,510; FLC 90-060 …. [s 60CC.135] Georgeson, In the Marriage of (1995) 19 Fam LR 302; FLC 92618 …. [s 72.20], [s 79.119], [s 79.123], [s 79.237] Georgine v Electric Power Transmission Pty Ltd [1963] NSWR 258 …. [r 15.73.1] Georginis v Kastrati (1988) 49 SASR 371 …. [s 79.385] Georgopoulos, In the Marriage of (1982) 8 Fam LR 807; FLC 91305 …. [s 112AB.10] Gerbino and Hsu, In the Marriage of (1982) 8 Fam LR 618 …. [s 79.215] Gerszt, In the Marriage of (1979) 5 Fam LR 118; FLC 90-641 ….

[s 72.17] Giammona, In the Marriage of (1985) 10 Fam LR 17; FLC 91-600 …. [s 43.1] Gibb, In the Marriage of (1978) 6 Fam LN N7; (1978) FLC 90-405 …. [s 121.8] — (1979) 5 Fam LR 694; FLC 90-694 …. [s 86.2], [s 88.1], [s 114.10], [s 114.3], [s 114.7], [s 114.9], [ss 86-87.0.5] Gibson, In the Marriage of (1981) FLC 91-049 …. [s 93A.14] Gikas v Papanayiotou [1977] 2 NSWLR 944 …. [23,458.10], [r 17.02.3] Gilbert and the Estate of Gilbert (dec’d), Re (1989) 13 Fam LR 632; (1990) FLC 92-125 …. [s 79.321], [s 79.325], [s 79.333], [s 79A.0], [s 79A.5], [s 79A.18], [s 79A.34], [s 85A.14] Gilbert, In the Marriage of (1988) 12 Fam LR 503; FLC 91-966 …. [s 81.18A] Gilder v Gilder (1967 unreported) …. [s 60CC.220] Gill, In the Marriage of (1984) 9 Fam LR 969; FLC 91-582 …. [s 75.38], [s 79.169], [s 79.197], [s 79.213] Gillen, In the Marriage of (1973) 7 SASR 569 …. [s 55A.4] Gillespie v Bahrin; Herald and Weekly Times Ltd (intervener) (1993) 16 Fam LR 642; FLC 92-388 …. [s 121.6] Gillie, In the Marriage of (1978) 4 Fam LR 127; FLC 90-442 …. [s 114.15], [s 114.16], [s 114.18], [s 114.30] Gillies, In the Marriage of (1981) 7 Fam LR 106; FLC 91-054 …. [Pt VIII.6], [s 79.31], [s 114.34], [s 114.35] Gilmore, In the Marriage of (1993) 16 Fam LR 285; FLC 92-353 …. [s 39.1A], [s 94AA.5] Gilpin v Gilpin (1969) 17 FLR 131 …. [s 58.6], [s 79A.15], [s

79A.17] Gipps v Gipps [1974] 1 NSWLR 259 …. [s 87.22], [s 87.24], [ss 86-87.0.2] Gipps, In the Marriage of (1978) FLC 90-523 …. [s 87.55] Giunti, In the Marriage of (1986) 11 Fam LR 160; (1986) FLC 90142 …. [s 79.66] Gludau & Gludau (No 2) [2013] FamCAFC 181 …. [r 17.02.4] Goldberg, In the Marriage of (1977) FLC 90-233 …. [s 87.7] Goldrick v Goldrick [2007] FamCA 1260; BC200750345 …. [s 60CC.80], [s 65DAA.10] Goldsworthy v Goldsworthy (1982) 31 SASR 121 …. [s 4.505.15] Goldy v Goldy (No 2) [2011] FamCA 418; BC201150638 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Good, In the Marriage of (1982) 8 Fam LR 354; (1982) FLC 91249 …. [s 44.13A], [s 78.4], [s 78.16], [s 79.3] Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422; (2006) FLC 93-286 …. [r 5.09.1], [S 60CC.140], [s 60CC.225], [s 60CC.226], [s 61C.5], [s 61C.6], [s 61DA.1], [s 61DA.10], [s 61DA.20], [s 64B.50], [s 65DAA.1], [s 65DAA.30] Goode, In the Marriage of (1976) 2 Fam LR 11,422 …. [s 75.39] Goodwin and Goodwin Alpe, In the Marriage of (1990) 14 Fam LR 801; (1991) FLC 92-192 …. [s 79.75] Gordon v Goertz (1996) 134 DLR (4th) 321 …. [s 60CC.4] — v Gordon (1821) 3 Swan 400; (1821) 36 ER 910 …. [s 87.58] Gornalle, In the Marriage of (1992) 110 FLR 158; 16 Fam LR 101; (1993) FLC 92-334 …. [s 44.10] Gosper, In the Marriage of (1987) 11 Fam LR 601; FLC 91-818 …. [s 79.205]

Goudge, In the Marriage of (1984) 54 ALR 514; (1984) 9 Fam LR 500; FLC 91-534 …. [s 60CC.65] Gould v Gould; Swire Investments Ltd (1993) 115 FLR 371; 17 Fam LR 156; (1993) FLC 92-434 …. [23,076.10], [r 2.01.3], [s 90AK.5] — v Vaggelas (1985) 157 CLR 215; 62 ALR 527; 60 ALJR 49 …. [23,458.10], [r 17.02.3] Gould, In the Marriage of (1993) 17 Fam LR 156; FLC 92-434 …. [s 90AA.5], [s 94AA.10], [s 106B.1], [s 106B.25], [s 106B.60], [s 106B.70], [s 106B.95] — (1995) 20 Fam LR 1; (1996) FLC 92-657 …. [s 75.15], [s 79.161], [s 79.253] Grabar, In the Marriage of (1976) 2 Fam LR 11,581; FLC 90-147 …. [s 75.46], [s 75.49], [s 83.13], [s 93A.6] Grace, In the Marriage of (1990) 14 Fam LR 332; FLC 92-170 …. [r 6.09.1] — (1997) 22 Fam LR 442; (1998) FLC 92-792 …. [s 79.377] Graham, In the Marriage of (1991) 104 FLR 184; 14 Fam LR 893; (1991) FLC 92-243 …. [23,648.5] Grant, In the Marriage of (1994) FLC 92-506 …. [s 60CC.37] Gray v Formasa [1963] P 259; [1962] 3 WLR 1246 …. [s 104.6], [s 104.10] — v Williams (2008) 39 Fam LR 313; 217 FLR 1 …. [s 67U.2], [s 68B.6], [s 69ZH.2], [s 69ZH.3] Grayden, In the Marriage of (2003) 30 Fam LR 459; FLC 93-146 …. [s 94AAA.10] Greedy, In the Marriage of (1982) 8 Fam LR 669; (1982) FLC 91250 …. [23,534.25], [cl 6.08.7], [r 19.08.7], [s 75.9], [s

117.13], [s 117.14], [s 117.34], [s 117.5], [s 117.9] Green v Green (1912) 13 SR (NSW) 126 …. [Pt 13.3.15] — v Sommerville (1979) 141 CLR 594 …. [s 93A.20] Green and Kwiatek, In the Marriage of (1982) 8 Fam LR 419; FLC 91-259 …. [s 79A.11], [s 79A.13], [s 86.8], [s 87.55], [s 87.59] Greenwood v Greenwood (1863) 2 De GJ & S 28; 46 ER 285 …. [s 87.58] Greer, In the Marriage of (1985) 10 Fam LR 528; FLC 91-645 …. [s 78.6], [s 78.8] Greval, In the Marriage of (1990) 13 Fam LR 829; FLC 92-132 …. [s 85A.14] Gribow v Gribow (1963) 5 FLR 51 …. [s 87.24] Griebart v Morris [1920] 1 KB 659 …. [23,424.30] Griffin v South Australia (1925) 36 CLR 378 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Griffiths, In the Marriage of (1981) 7 Fam LR 322; (1981) FLC 91-064 …. [s 60CC.226] Grimshaw, In the Marriage of (1981) 8 Fam LR 346; FLC 91-090 …. [s 43.2], [s 60CC.130] Grist and Ford, In the Marriage of (1978) 4 Fam LR 498; FLC 90515 …. [s 114.9] — (1979) 5 Fam LR 235; FLC 90-683 …. [s 4.505.15] Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719; FLC 90-716 …. [23,312.30], [s 60CC.27], [s 60CC.127], [s 60CC.132], [s 93A.6], [s 93A.19] Groutsch, In the Marriage of (1978) 4 Fam LN 35; FLC 90-461 …. [s 75.28], [s 75.39], [s 79.305], [s 80.2], [s 80.4] Grummett v Grummett [1966] QWN 5 …. [s 42.4], [s 53.1]

Gubbay, In the Marriage of (1984) 9 Fam LR 758; FLC 91-545 …. [s 31.10], [s 33.4] Guillesser, In the Marriage of (1976) 2 Fam LN 19; FLC 90-127 …. [s 43.11], [s 60CC.45] Guirguis v Guirguis and Official Trustee (1997) 21 Fam LR 356; FLC 92-726 …. [s 79.357] Guthrie, In the Marriage of (1995) 19 Fam LR 781; (1995) FLC 92-647 …. [s 60CC.210] Gwatkin, In the Marriage of (1978) 4 Fam LR 287; FLC 90-474 …. [s 75.39], [s 75.46] GWP Aarons & Co and Knowles (1995) 19 Fam LR 462; FLC 92627 …. [s 94AA.10] GWW and CMW, In the Marriage of (1997) 21 Fam LR 612; FLC 92-748 …. [r 4.08.1] H v Children’s Court (1988) 12 Fam LR 285 …. [23,226.5], [r 6.02.1] — v H, In the Marriage of (2003) 198 ALR 383; 30 Fam LR 264; FLC 93-162 …. [s 60CC.87], [s 60CC.130] — v T [2012] FMCAfam 485 …. [23,040.15], [r 24.13.3] H, In the Marriage of (1981) 7 Fam LR 451; (1981) FLC 91-083 …. [s 66J.19], [s 66L.1], [s 66L.11], [s 66L.15], [s 66L.17] Habib, In the Marriage of (1988) 12 Fam LR 127; FLC 91-931 …. [s 66R.7], [s 77A.7], [s 87A.11] Hack, In the Marriage of (1980) 6 Fam LR 425; FLC 90-886 …. [s 75.5], [s 79.257], [s 80.4] Hadley v Hadley (1967) 10 FLR 459 …. [s 106B.75] Hagedorn, In the Marriage of (1988) 12 Fam LR 569; FLC 91-965 …. [s 66C.5], [s 66C.7], [s 66K.15]

Haggerty v Parry [2013] FCCA 615; BC201310737 …. [23,608.10] Hagon, In the Marriage of (1976) 1 Fam LN 41 …. [s 75.39] Hagos v Volvo Group Australia Pty Ltd [2013] FCCA 513 …. [23,450.25] Hains v Hains (1970) 16 FLR 185 …. [s 75.7] Halabi and Artillaga (1993) 17 Fam LR 675; (1994) FLC 92-470 …. [s 106B.65], [s 106B.70], [s 106B.81] Hall v Nominal Defendant (1966) 117 CLR 423; [1966] ALR 705; (1966) 40 ALJR 102 …. [23,458.10] Hall, In the Marriage of (1979) 29 ALR 545; 5 Fam LR 609; FLC 90-713 …. [s 60CC.25], [s 62G.10], [s 62G.12] — (1979) 5 Fam LR 411; (1979) FLC 90-679 …. [s 44.17], [s 44.18], [s 44.19], [s 44.20], [s 44.21] Hallett v Hallett (SSAT Appeal) [2015] FCCA 2462; BC201509001 …. [23,314] Halsen v Nasser Talbet (2010) 44 Fam LR 248 …. [23,424.40], [r 15.31.6], [r 26B.25.30], [s 69ZW.5] Hamilton v Oades (1989) 166 CLR 486; 85 ALR 1; 15 ACLR 123 …. [23,424.30] Hampson v Hampson (1974) 5 ALR 359 …. [s 75.36], [s 83.13] Hankinson v De Vries (2013) 50 Fam LR 79 …. [23,226.5], [r 6.02.1] Hannah, In the Marriage of; In the Marriage of Tozer (1989) 13 Fam LR 531; FLC 92-052 …. [s 79.97] Hannema, In the Marriage of (1981) 7 Fam LR 542 …. [s 86.13], [s 86.5], [ss 86-87.0.4], [ss 86-87.0.13] Hardie Rubber Co Pty Ltd v General Tyre and Rubber Co (1973)

47 ALJR 462 …. [r 15.73.1] Harding and Gibson, In the Marriage of (1979) 5 Fam LN 10; FLC 90-665 …. [s 84.5], [s 88.1], [s 88.2], [s 88.3] Hargreaves v Hargreaves [1926] P 42 …. [s 85A.4] Harman v Home Department State Secretary; sub nom Home Office v Harman (ALLER) [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338 …. [23,348], [23,412.10], [r 15.34.2], [r 26B.27.10] Harper v Brymer (1987) FLC 91-804 …. [s 4.505.31] Harper, In the Marriage of (1982) 8 Fam LR 521 …. [s 107.10] Harrington v Lowe (1996) 190 CLR 311; 136 ALR 42; 20 Fam LR 145; (1996) FLC 92-668 …. [23,214.30], [r 12.07.6] Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92-217 …. [s 26B.1], [s 26C.1], [s 37A.1A], [s 37A.1B], [s 37A.11], [s 87.37], [s 96.2], [s 96.4] — v Harris (1980) FLC 90-842 …. [s 4.505.31] — v — [2000] FamCA 2141 …. [s 117.29A] Harris, In the Marriage of (1977) 3 Fam LR 33; 29 FLR 289; FLC 90-276 …. [s 62G.10] — (1980) 5 Fam LR 852; FLC 90-812 …. [s 114.17] — (1987) 11 Fam LR 629 …. [s 117.21] — (1991) 15 Fam LR 26; FLC 92-254 …. [s 79.121], [s 79.133], [s 79.215], [s 79.75], [s 117.6], [s 117C.10] — (1993) 16 Fam LR 579; FLC 92-378; 113 FLR 472 …. [s 79.379], [s 80.13], [s 80.19] Harris, In the Marriage of; Re Banaco Pty Ltd (1980) 6 Fam LR 450; FLC 90-906 …. [s 92.3], [s 106B.95], [s 114.11] Harris, Re; Ex parte Hasluck [1899] 2 QB 97 …. [s 79A.14]

Harris; Re Banaco Pty Ltd, In the Marriage of (No 2) (1981) 7 Fam LR 515; FLC 91-100 …. [s 114.33], [s 114.34] Harrison and Woollard, In the Marriage of (1995) 18 Fam LR 788; (1995) FLC 92-598 …. [s 60CC.45], [s 61C.5] Harrison, In the Marriage of (1976) 1 Fam LN 16; FLC 90-014 …. [s 40.8] — (1978) 4 Fam LR 18; FLC 90-407 …. [s 80.10], [s 84.4] — (1996) 20 Fam LR 322; FLC 92-682 …. [s 75.15], [s 79.121], [s 79.123], [s 79.132], [s 79.155], [s 79.253] Hart & Sellwood [2016] FamCAFC 254; BC201651152 …. [s 11F.3] Hart, In the Marriage of (1980) 5 Fam LR 844; FLC 90-833 …. [s 75.46] Hartcher and Vick, In the Marriage of (1991) 15 Fam LR 149; FLC 92-262 …. [s 66C.5], [s 66K.17], [s 75.27] Hartig, In the Marriage of (1983) 9 Fam LR 250; FLC 91-361 …. [s 87.37], [s 96.4] Hartnett v Sampson (2009) 222 FLR 340; (2009) 40 Fam LR 632 …. [s 93A.1] Harvey v Cresswell (1991) 104 FLR 121; 14 Fam LR 809; (1991) FLC 92-232 …. [s 112AA.15] Haset Sali v SPC Ltd [1993] HCA 47 …. [23,008.10] Hastings, In the Marriage of (1990) 14 Fam LR 373 …. [s 42.6] Hatton v Attorney-General (2000) 158 FLR 31; 26 Fam LR 570; (2000) FLC 93-038 …. [23,424.15], [r 15.31.3], [r 26B.25.15] — v Harris [1892] AC 547 …. [23,458.10], [r 17.02.3] Hauff, In the Marriage of (1986) 10 Fam LR 1076; FLC 91-747 …. [s 79.204]

Hawkins, In the Marriage of (1979) 5 Fam LR 364; FLC 90-663 …. [s 79A.33] Hay, In the Marriage of (1998) 23 Fam LR 247; FLC 92-819 …. [s 112AB.15], [s 112AP.30], [s 112AP.65] Hayes, In the Marriage of (1982) 7 Fam LR 808; FLC 91-205 …. [s 87.38], [s 87.8], [s 87.9], [s 114.29] Hayman, In the Marriage of (1976) 14 ALR 216; 2 Fam LR 11,558; 28 FLR 51; FLC 90-140 …. [s 43.11], [s 60CC.25], [s 60CC.95], [s 60CC.220] Hayne, In the Marriage of (1977) 3 Fam LN 25; FLC 90-265 …. [s 4.750.4], [s 79.113], [s 79.271], [s 79.295], [s 79.81] Hazan v Elias (2011) 45 Fam LR 475 …. [r 1.19.1], [s 11C.3] Healey, In the Marriage of (1979) FLC 90-706 …. [s 114.15], [s 114.16] Heard and De Laine, In the Marriage of (1996) 20 Fam LR 315; FLC 92-675 …. [s 68L.70] Hearn v Woolcott [2014] FamCA 42 …. [r 10.17.4] Hearne v Street (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259 …. [23,040.20], [23,378.10], [23,430.5], [23,588.25], [r 13.07A.1], [r 15.04.10], [r 15.48.2], [r 24.13.5], [r 26B.03.05] Heath, In the Marriage of (1983) 9 Fam LR 97; FLC 91-362 …. [s 106B.40], [s 106B.85], [s 106B.90], [s 114.36] Heath, In the Marriage of (No 2) (1984) 9 Fam LR 642; FLC 91517 …. [s 106B.1], [s 106B.50], [s 106B.65], [s 106B.70], [s 106B.80], [s 106B.85], [s 106B.90] Heaton v Goldney [1910] 1 KB 754 …. [Pt 13.3.15] Hector Whaling Ltd, Re [1936] Ch 208 …. [r 1.21.5] Heeks, In the Marriage of (1980) FLC 90-804 …. [s 72.14], [s

75.10], [s 75.21], [s 75.45] Heidt, In the Marriage of (1976) 11 ALR 594; 1 Fam LR 11,576; FLC 90-077 …. [s 60CC.37], [s 60CC.87], [s 60CC.97] Hein v Hein (1976) 9 ALR 22; 1 Fam LR 11,128 …. [s 48.17] Helbig v Rowe (No 2) [2014] FAmCAFC 241 …. [23,362.10], [r 11.16.5] Helliar, In the Marriage of (1978) 5 Fam LR 432; (1979) FLC 90684 …. [s 78.10], [s 78.17], [s 78.4] Helliar, In the Marriage of (No 3) (1980) 5 Fam LR 756; FLC 90805 …. [s 107.1], [s 107.10] Hellier, In the Marriage of (1976) 2 Fam LR 11,446 …. [s 75.28], [s 75.42], [s 79.203] Hemiro v Simla [2009] FamCA 181 …. [s 60CC.40] Henderson, In the Marriage of (1987) 11 Fam LR 529 …. [s 79.215] — (1989) 13 Fam LR 40; (1989) FLC 92-011 …. [s 66L.15], [s 66L.17] Hendrikse, In the Marriage of (1976) 1 Fam LN 18; FLC 90-069 …. [s 72.17], [s 80.2] Hennessy v Wright (1888) 21 QBD 509 …. [23,424.30] Hennessy and Dunne, In the Marriage of (1984) 9 Fam LR 828; FLC 91-583 …. [s 87.102], [s 87.107], [s 87.37], [s 96.4] Henry v Henry (1996) 185 CLR 571; 135 ALR 564; 20 Fam LR 171 …. [23,640.25], [s 39.1A], [s 79.4] Henry, In the Marriage of (1977) 5 Fam LN 8; (1979) FLC 90-653 …. [s 83.12], [s 83.2] HG v R (1999) 197 CLR 414; 160 ALR 554; 73 ALJR 281 …. [23,372.10]

Hickey, In the Marriage of (2003) 30 Fam LR 355; FLC 93-143 …. [s 78.4], [s 79.153] Hickox v Hickox [1964] ALR 1095 …. [s 106B.40], [s 106B.120] Higginbotham and Robinson, In the Marriage of (1991) 14 Fam LR 559; FLC 92-209 …. [s 117.6], [s 117.21] Hilaire v Harvey (1950) 68 WN (NSW) 61 …. [23,138.30], [r 7.18.11] Hill v Hart-Davis (1884) 26 Ch D 470 …. [r 15.13.1] — v Hill [2007] FamCA 1657 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10] Hillman v Hillman (1977) 4 Fam LR 274; 2 NSWLR 739; FLC 90-316 …. [s 4.505.35], [s 40.6], [s 87.110] Hinchcliffe v Cmr of Police of the Australian Federal Police (2001) 118 FCR 308 …. [s 121.3] Hing, In the Marriage of (1980) 6 Fam LR 907 …. [s 88.4] Hipgrave v Hipgrave (1934) 51 WN (NSW) 79 …. [s 106B.15] Hirst and Rosen, In the Marriage of (1982) 8 Fam LR 251; FLC 91-230 …. [s 75.42], [s 75.43], [s 75.52], [s 79.199], [s 79.215] Hitch v Hitch (2012) 47 Fam LR 603 …. [r 1.08.5] Hobbs, In the Marriage of (1976) 12 ALR 443; 2 Fam LR 11,380; 29 FLR 101; FLC 90-119 …. [s 60CC.95], [s 60CC.132] Hoch v R (1988) 165 CLR 292; 81 ALR 255 …. [s 60CC.270] Hock Hing v Foster (No 1) (1989) 13 Fam LR 79 …. [r 22.11.9], [r 22.11.11] Hodak v Newman (1993) 17 Fam LR 1; FLC 92-421 …. [s 60CC.125] Hodgens, In the Marriage of (1983) 10 Fam LR 538; (1984) FLC 91-502 …. [s 55.4], [s 59.3], [s 113.4]

Hodges, In the Marriage of (1977) 2 Fam LR 11,524; FLC 90-203 …. [s 49.3] — (1993) FLC 92-413 …. [s 79.21] Hoffman v Hoffman (2014) FLC 93-591 …. [s 79.193] Hogan, In the Marriage of (1986) 10 Fam LR 681; FLC 91-704 …. [s 117.4] Hogue, In the Marriage of (1976) 2 Fam LN 6; 26 FLR 306; FLC 90-097 …. [s 60CC.255], [s 92.9] — (1977) 3 Fam LR 11,290; FLC 90-259 …. [s 4.505.28] Holden, In the Marriage of (1987) 11 Fam LR 835; FLC 91-842 …. [s 79.87], [s 79.89] Holden, Re; Ex parte Holden (1989) 13 Fam LR 328 …. [23,703JA], [Pt 20.5.1] Holland, In the Marriage of (1982) 8 Fam LR 233; FLC 91-243 …. [s 79.307], [s 79A.9], [s 79A.10], [s 79A.15], [s 79A.18], [s 79A.31], [s 79A.33] Holley, In the Marriage of (1982) FLC 91-257 …. [s 79.353], [s 106B.75], [s 106B.105] Holmes, In the Marriage of (1976) 2 Fam LN 14; FLC 90-129 …. [s 66C.5], [s 75.32], [s 75.34], [s 75.36], [s 83.11], [s 83.13] — (1988) 12 Fam LR 331; FLC 91-944 …. [s 79.69], [s 79.79] — (1988) 90 FLR 319; (1988) 12 Fam LR 103; (1988) FLC 91918 …. [s 60CC.20] Hooper v Rogers [1975] Ch 43 …. [s 114.32] Hooton v Dalby [1907] 2 KB 18 …. [Pt 13.3.15] Hope, In the Marriage of (1977) 3 Fam LN 61; FLC 90-294 …. [s 75.39], [s 75.40], [s 79.295], [s 80.13], [s 80.4]

Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 …. [s 31.4] Horman, In the Marriage of (1976) 5 Fam LR 796; FLC 90-024 …. [s 60CC.87], [s 60CC.265] Horne, In the Marriage of (1997) 21 Fam LR 363; FLC 92-734 …. [s 94AAA.10] Horner v Horner [1982] 2 All ER 495; [1982] Fam 90 …. [s 114.11] Horridge v Attorney-General (Cth) (1995) 18 Fam LR 829; FLC 92-597 …. [s 110.1] Horsley, In the Marriage of (1991) 14 Fam LR 550; FLC 92-205 …. [s 79.155], [s 79.159], [s 79.231], [s 79.233], [s 93A.17] Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41; 55 ALR 417 …. [cl 6.18.1] Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109 …. [s 90A.3], [s 90G.1] House v R (1936) 55 CLR 499; 10 ALJR 202 …. [23,312.30], [s 93A.5], [s 94.10], [s 94AAA.5] Houston v Sedorkin (1979) FLC 90-699 …. [s 60CC.220] Howard v Howard [1945] P 1; [1945] 1 All ER 91 …. [s 75.20], [s 85A.3] Howard, In the Marriage of (1982) 8 Fam LR 441; FLC 91-279 …. [s 114.34], [s 114.35] Howes, In the Marriage of (1981) 7 Fam LR 650; FLC 91-044 …. [s 79.113], [s 79.237], [s 79.313] Howey & Co Pty Ltd v Created Projects International Pty Ltd [1973] 2 NSWLR 898 …. [r 1.21.1] HR and DR and the Minister for Immigration and Multicultural

and Indigenous Affairs (2003) 31 Fam LR 123; FLC 93-156 …. [s 67ZC.20] Hudson v Gray (1927) 39 CLR 473 …. [s 86.8] Hudson, In the Marriage of (1986) 11 Fam LR 189; FLC 91-768 …. [s 106B.50], [s 106B.95], [s 106B.120], [s 118.5] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 …. [r 1.12.3], [r 1.14.1], [r 1.14.3], [r 1.14.5], [r 3.05.10], [r 3.05.15] — v Western Australian Cricket Association Inc (1986) 66 ALR 541; (1986) ATPR 40-725 …. [23,424.35] Hughes, In the Marriage of (1984) 9 Fam LR 610; FLC 91-549 …. [s 79.297], [s 114.23] Hull, In the Marriage of (1983) 9 Fam LR 241; FLC 91-360 …. [s 79.115], [s 79.121], [s 79.123] Humby, Re; Ex parte Rooney (1973) 129 CLR 231 …. [s 80.12] Hunt v Hunt (2006) 36 Fam LR 64 …. [s 90AE.2], [s 90AF.2] Hunt, In the Marriage of (2001) 27 Fam LR 422; FLC 93-064 …. [s 81.18A] Hutcheson, In the Marriage of (1976) 2 Fam LN 25 …. [s 75.49] Hutchings v Clarke (1993) 113 ALR 709; 16 Fam LR 452; FLC 92-373 …. [s 60CA.65] Hutchinson, In the Marriage of (1978) 4 Fam LR 446; FLC 90-492 …. [s 87.35], [s 87.36], [s 88.7], [s 96.2] — (1979) 5 Fam LR 476; FLC 90-691 …. [s 4.505.22], [s 87.22], [s 87.35] Hyde v Hyde (1866) LR 1 P & D 130 …. [s 43.9] — v Wrench (1840) 3 Beav 334; 49 ER 132 …. [s 117.21] Hyman v Hyman [1929] AC 601 …. [s 79.173], [ss 86-87.0.1], [ss

86-87.0.2], [ss 86-87.0.12] I and I, In the Marriage of (No 2) (1995) 22 Fam LR 557; FLC 92625 …. [s 117.5], [s 117.6] Ibbotson and Wincen, In the Marriage of (1994) 18 Fam LR 164; FLC 92-496 …. [s 112AD.35], [s 112AE.2], [s 112AP.30], [s 112AP.65] ICI and ANZ Ltd v Murphy (1973) 47 ALJR 122 …. [s 93A.6] In the Adoption of X (1993) 17 Fam LR 594 …. [s 60G.5] In the Marriage of Uriarau; Director General of Social Welfare, NZ (Intevener) (1986) 11 Fam LR 657; FLC 91-728 …. [s 69ZK.25] Ingham-Rhodes, In the Marriage of (1984) FLC 91-538 …. [s 87.103] Inland Revenue Commissioners v Muller & Co’s Margaring Ltd [1901] All ER 413 …. [s 79.127] Ioppolo and Conti, In the Marriage of (1987) 11 Fam LR 866; FLC 91-852 …. [s 106B.20], [s 106B.55], [s 106B.95], [s 106B.115], [s 106B.120] Ireland, In the Marriage of (1986) 11 Fam LR 104; FLC 91-731 …. [s 31.8], [s 79.31] Irvine, In the Marriage of (1995) 19 Fam LR 374; FLC 92-624 …. [s 60CC.40] Isdale and Dore, In the Marriage of (1997) 22 Fam LR 560; (1998) FLC 92-798 …. [s 66E.2] Issom, In the Marriage of (1977) 7 Fam LR 305; FLC 90-238 …. [s 75.50], [s 79.195] Ivanfy, In the Marriage of (1978) 4 Fam LR 542; FLC 90-512 …. [s 106B.75], [s 106B.95], [s 106B.120]

Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642 …. [23,458.10], [r 17.02.3] Ivanovic, In the Marriage of (1996) 20 Fam LR 445; FLC 92-689 …. [s 79.195] J v C [1970] AC 668; [1969] 1 All ER 788 …. [s 60CC.5] — v J [1955] P 215; [1955] 2 All ER 617 …. [s 72.17], [s 75.43], [s 75.6] — v Lieschke (1987) 162 CLR 447; 69 ALR 647; 11 Fam LR 417 …. [23,226.5], [r 6.02.1] J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261; 7 ACLR 790; 1 ACLC 924 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 117.25] J and M: Residence Application, Re (2004) 32 Fam LR 668 …. [s 60H.7], [s 65C.8] J and P, In the Marriage of (1985) 80 FLR 126; 10 Fam LR 490 …. [s 69V.5] J W Challand Pty Ltd, Re (1945) 62 WN (NSW) 166 …. [23,458.10], [r 17.02.4] J, In the Marriage of (1979) 5 Fam LR 547; FLC 90-718 …. [s 114.40], [s 114.42], [s 121.7] — (1988) 12 Fam LR 836; (1988) FLC 91-940 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Jacenko, In the Marriage of (1986) 11 Fam LR 341; (1986) FLC 91-776 …. [s 44.17], [s 44.18] Jachimowicz v Jachimowicz (1986) 81 FLR 459; 10 Fam LR 566; (1986) FLC 91-702 …. [23,544.5], [23,544.15], [cl 6.10.1], [r 19.10.1], [r 19.10.5] Jackson v Balen [2011] FamCA 519; BC201150699 …. [r 5.06.2],

[r 16.05.2] — v Hamer (1993) 17 Fam LR 34; 113 FLR 216; (1993) FLC 92419 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 117.25] Jackson and Fordham, In the Marriage of (1994) 18 Fam LR 336; (1995) FLC 92-561 …. [s 94AA.10] Jacobsen, In the Marriage of (1987) 11 Fam LR 990; (1988) FLC 91-901 …. [s 79.325] Jacobson, In the Marriage of (1988) 12 Fam LR 828; (1989) FLC 92-003 …. [s 79.201], [s 79.65], [s 93A.6] Jacombe v Jacombe (1961) 105 CLR 355 …. [s 102.2] Jaeger, In the Marriage of (1994) 18 Fam LR 126; FLC 92-492 …. [s 60CC.37] Jajko, In the Marriage of (1976) 2 Fam LN 7; FLC 90-136 …. [s 78.12] James, Ex parte; Re Condon (1874) 9 Ch App 609 …. [s 79.355] James, In the Marriage of (1977) 3 Fam LN 28; FLC 90-260 …. [s 75.1], [s 79.305], [s 80.4] — (1978) 4 Fam LR 401; FLC 90-487 …. [s 79.113], [s 79.205], [s 79.271] — (1984) FLC 91-537 …. [s 4.750.4], [s 79.89], [s 80.4] Jane v Jane [2012] FamCA 1029 …. [r 24.14.1] Janion v Janion [1929] P 237 …. [s 85A.3] Jarman v Lloyd [1982] 2 NSWLR 836; 8 Fam LR 878 …. [s 60CC.127] Javes and Dwyer, In the Marriage of (1979) FLC 90-675 …. [s 78.10], [s 78.17], [s 78.4] Jayne v National Coal Board [1963] 2 All ER 220 …. [s 87.83]

Jeffrey v Jeffrey (No 2) [1952] P 122 …. [s 85A.4] JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119; FLC 93-083 …. [s 117.21], [s 117.4] JEL and DDF, In the Marriage of (2000) 28 Fam LR 1; (2001) FLC 93-075 …. [s 79.155], [s 79.193] Jenkins v Public Trustee (WA) (1981) FLC 91-075 …. [s 105.7] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; 69 ALR 265 …. [23,312.30], [r 22.11.11] Jennings, In the Marriage of (1997) 139 FLR 273; 22 Fam LR 510; (1997) FLC 92-773 …. [23,640.20], [s 79.4A] Jensen, In the Marriage of (1982) 8 Fam LR 594; FLC 91-263 …. [s 75.9], [s 117.0], [s 117.13], [s 117.34], [s 117.5], [s 117.9] Jess v Scott (1986) 12 FCR 187; 70 ALR 185; 14 IR 341 …. [r 1.12.3], [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] JG and BG, In the Marriage of (1994) 18 Fam LR 255; FLC 92515 …. [s 60CC.37], [s 60CC.87] JJT, Re; Ex parte Victoria Legal Aid (1998) 195 CLR 184; 155 ALR 251; 23 Fam LR 1; FLC 92-812 …. [s 68L.70], [s 117.28], [s 117.30], [s 117.5] JL v PTL (2006) 35 Fam LR 686 …. [s 102.2] JLS v JES (1996) 20 Fam LR 485 …. [r 4.08.1] Joannou, In the Marriage of (1985) FLC 91-642 …. [s 60CC.45] Johns v James (1879) 13 Ch D 370 …. [Pt 13.3.15] Johns and Makepeace, In the Marriage of (1990) 14 Fam LR 16; FLC 92-138 …. [s 87.27], [s 94.5] Johnson v Johnson (1997) 139 FLR 384; 22 Fam LR 141; (1997) FLC 92-764 …. [r 15.65.5]

— v — [1964] VR 604 …. [s 49.3] — v Johnson (No 3) (2000) 201 CLR 488; (2000) 174 ALR 655; (2000) 26 Fam LR 627; [2000] HCA 48 …. [23,372.15], [r 15.59.2] — v Tobacco Leaf Marketing Board [1967] VR 427 …. [r 14.01.5] Johnson and Page [2007] Fam CA 1235; (2007) FLC 93-344 …. [s 60CC.40] Johnson, In the Marriage of (1997) 22 Fam LR 141; FLC 92-764 …. [s 97.5] Johnston, In the Marriage of (1979) FLC 90-693 …. [s 83.3] Jolly, In the Marriage of (1978) 4 Fam LN 24; FLC 90-458 …. [s 114.16], [s 114.43] Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395 …. [r 13.13.7] — v Jones (1960) 77 WN (NSW) 682 …. [s 60CC.95] — v — (1962) 79 WN (NSW) 716 …. [s 106B.45] — v — [1968] 1 NSWR 206 …. [s 80.18] — v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155; [1957] 2 WLR 760 …. [23,098.15] Jones, In the Marriage of (1976) FLC 90-148 …. [s 92.9] — (1990) 14 Fam LR 19; FLC 92-143 …. [s 79.65], [s 117B.1] — (2001) 27 Fam LR 632; (2001) FLC 93-080 …. [23,532.20], [cl 6.05.7], [r 19.05.7], [s 117.26] Jordan v Callaghan [2011] FamCA 1070; BC201150784 …. [s 69ZW.5] — v Fielding [2013] FCCA 725 …. [r 3.05.20]

Jordan, In the Marriage of (1996) 21 Fam LR 382; (1997) FLC 92736 …. [s 79.111], [s 79.178] Joshua v Joshua (1997) FLC 92-767 …. [s 94.5] Joshua, In the Marriage of (1997) 22 Fam LR 203; FLC 92-767 …. [s 79.153] JRL, Re; Ex parte CJL (1986) 161 CLR 342; 66 ALR 239; 10 Fam LR 917; FLC 91-738 …. [s 60CC.290], [s 62G.12], [s 62G.15], [s 93A.14] JRN & KEN v IEG & BLG (1998) 72 ALJR 1329; [1998] 16 Leg Rep 16 …. [23,312.30], [r 22.11.11] Judd v Judd (1957) 75 WN (NSW) 147 …. [s 39.8] Jukes v Doyle (2005) 32 Fam LR 617; [2005] FamCA 39 …. [s 68B.5], [s 68B.9], [s 94AA.3] Jurss, In the Marriage of (1976) 9 ALR 455; 1 Fam LR 11,203; FLC 90-041 …. [s 60CC.95], [s 60CC.130] K v B (1994) 17 Fam LR 722, WK v SR (1997) 22 Fam LR 592 …. [s 60CC.40] — v — (2006) 37 Fam LR 1; (2006) FLC 93-288 …. [r 22.11.11], [s 60CC.251] — v K (1979) 5 Fam LR 179; 34 FLR 525; FLC 90-680 …. [s 60CC.130] — v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756 …. [s 67ZC.5] — v P (1978) 4 Fam LN 45 …. [s 39.8] — v S (2001) 27 Fam LR 498 …. [r 5.07.1] K and Z, In the Marriage of (1997) 22 Fam LR 382; FLC 92-783 …. [s 60CC.25], [s 60CC.45], [s 60CC.95], [s 60CC.120] K, Re (1994) 17 Fam LR 537; FLC 92-461 …. [s 68L.5], [s

68L.42], [s 68L.53], [s 68L.55] — [1990] 3 All ER 795 …. [s 60CC.125] Kajewski, In the Marriage of (1978) 4 Fam LN 42; FLC 90-472 …. [s 72.12], [s 72.17], [s 75.10], [s 75.36], [s 75.5] Kalenjuk, In the Marriage of (1977) 3 Fam LR 11,137; FLC 90218 …. [s 114.24], [s 114.33], [s 114.34] Kaljo, In the Marriage of (1978) 4 Fam LR 190; FLC 90-445 …. [s 79.301], [s 79.307], [s 79A.33], [s 80.1], [s 80.2], [s 83.3] Kallinicos v Hunt (2005) 64 NSWLR 561 …. [r 8.03.1] KAM v CM (2006) 35 Fam LR 377 …. [s 60CC.40] Kam v MJR (1998) 24 Fam LR 656; FLC 92-847 …. [s 65C.8] Kandal v Khyatt (2010) 43 Fam LR 344 …. [s 65C.6], [s 68B.1] Kane v Kane (2013) FLC 93-569 …. [s 79.193] Kannis, In the Marriage of (2002) 172 FLR 464; 30 Fam LR 83; (2003) FLC 93-135; [2002] FamCA 1150 …. [23,246.5], [r 6.10.1], [s 79.67] Kapadia, In the Marriage of (1991) 14 Fam LR 883; FLC 92-245 …. [s 51.15] Karen and Rita, Re (1995) 19 Fam LR 528; FLC 92-632 …. [s 60CC.40] Karim v Khalid (2007) 38 Fam LR 300; (2007) FLC 93-348 …. [s 60CA.22] Kassis v Kassis [2014] FamCA 1067; BC201451595 …. [r 18.10.3] Katavic, In the Marriage of (1977) 3 Fam LR 11,507; FLC 90-296 …. [s 42.5] Kauiers, In the Marriage of (1986) 11 Fam LR 41; FLC 91-708 …. [s 75.36]

Kavan v Hawkins [2012] FMCAfam 1421; BC201221038 …. [23,588.20] — v Mallery (2015) 54 Fam LR 17 …. [s 45.8] KB v TC [2010] FMCAfam 1109; BC201009452 …. [23,112.25] KD Bassi and KD Sales Force Specialists Pty Ltd v Maas (1999) 25 Fam LR 678; FLC 92-867 …. [s 106B.50] Keaton, In the Marriage of (1986) FLC 91-745 …. [s 60CC.87] Keene v King (2011) 254 FLR 115 …. [23,158.10] Kelada, In the Marriage of (1984) 9 Fam LR 576; (1984) FLC 91503 …. [s 44.6], [s 44.7], [s 44.8] Kelly v Lomax (2013) 50 Fam LR 538 …. [r 6.04.3] Kelly, In the Marriage of (1980) 48 FLR 428; 6 Fam LR 741; (1981) FLC 91-007 …. [r 22.11.9] — (1981) FLC 91-033 …. [s 75.9] — (1996) 20 Fam LR 502; FLC 92-680 …. [s 66S.1], [s 83.4A] Kelly, In the Marriage of (No 2) (1981) 7 Fam LR 762; FLC 91108 …. [Pt VIII.4], [s 75.10], [s 75.11], [s 75.16], [s 75.19], [s 75.9], [s 79.132], [s 79.159], [s 79.377], [s 79.63], [s 79.75], [s 114.37], [s 117.13], [s 117.14], [s 117.5], [s 117.9] Keltie v Keltie (2002) 29 Fam LR 114; FLC 93-106 …. [s 66M.1] Kemeny, In the Marriage of (1998) 23 Fam LR 105; FLC 92-806 …. [s 79.4] Kemp, In the Marriage of (1976) 2 Fam LR 11,289; FLC 90-109 …. [s 43.11], [s 75.22], [s 79.237] — (1985) 10 Fam LR 111 …. [s 93A.18] Kemsley, In the Marriage of (1984) 10 Fam LR 125; FLC 91-567 …. [s 114.11], [s 114.19]

Kendling v Kendling (Contempt) (2008) 220 FLR 399; (2008) 40 Fam LR 134 …. [s 112AP.65] Kennedy v Thorne [2016] FamCAFC 189 …. [r 13.01.3] Kennedy, In the Marriage of (1976) 1 Fam LR 11,194; FLC 90010 …. [s 4.505.3], [s 4.725.2], [s 21.3] — (1976) 25 FLR 305; FLC 90-057 …. [s 45.2] — (1993) 17 Fam LR 324; FLC 92-409 …. [r 5.12.3], [s 60CC.215] Kennon, In the Marriage of (1997) 22 Fam LR 1; FLC 92-757; 139 FLR 118 …. [s 75.1], [s 75.49], [s 79.195], [s 79.215], [s 79.235], [s 79.239], [s 79.257] Kenny v Hornberg (No 1) (1963) 37 ALJR 126 …. [s 46.6] Kenny and Parker, In the Marriage of (1984) 9 Fam LR 749; FLC 91-546 …. [s 79.321], [s 79.333], [s 79.335], [s 79A.5], [s 94.6], [s 94.7] Kenny, In the Marriage of (1983) 9 Fam LR 140; FLC 91-350 …. [s 79.175] Kent and Pigot, In the Marriage of (1982) 8 Fam LR 537; FLC 91240 …. [s 114.29] Kercher, In the Marriage of (1981) 7 Fam LR 216; (1981) FLC 90040 …. [s 44.20] Kernot v Matson (2008) 39 Fam LR 695 …. [r 15-64.5] Kerr, In the Marriage of (1983) 8 Fam LR 1023; FLC 91-329 …. [23,702H.15], [r 20.07.3], [s 79A.9] Kessey, In the Marriage of (1994) 18 Fam LR 149; FLC 92-495 …. [s 79.204], [s 79.205] Kest v Olsson [2012] FamCA 148 …. [s 117.29A] Kevin: Validity of Marriage of Transsexual, Re (2001) 28 Fam LR

158; FLC 93-087 …. [s 4.505.5], [s 113.5], [s 113.7] Keyssner, In the Marriage of (1976) 1 Fam LR 11,562; FLC 90075 …. [s 50.4] Khalil v Tahir-Ahmadi (2012) 47 Fam LR 347; (2012) FLC 93506 …. [s 69ZT.5] Khan v Khan [1963] VR 203 …. [s 6.1] Kiefer v Kiefer [2009] FMCAfam 279; BC200910564 …. [23,368.5] Killick v Killick (1996) 21 Fam LR 331 …. [s 79.195] Kimber, In the Marriage of (1980) 7 Fam LR 483; (1981) FLC 91085 …. [s 79.91] King v AAmes [2013] FamCA 263; BC201350306 …. [r 4.21.5] — v King [2014] FCCA 163 …. [23,372.15], [r 15.59.2] King, In the Marriage of (1976) 2 Fam LR 11,398; FLC 90-113 …. [s 83.12] King, In the Marriage of (No 2) (1977) 3 Fam LR 11,564; FLC 90299 …. [s 3.7], [s 74.3], [s 78.8], [s 79.293], [s 79A.33], [s 79A.37], [s 83.12], [s 83.3], [s 114.22], [s 114.9] Kingley v Arndale [2008] FMCAfam 600; BC200813790 …. [23,332.5] Kioa v West; sub nom Kioa v Minister for Immigration and Ethnic Affairs (ALR) (1985) 159 CLR 550; 9 ALN N28; 60 ALJR 113 …. [23,098.10] Kirby, In the Marriage of (1977) 3 Fam LR 11,318; FLC 90-261 …. [s 102.2] Kistler v de Tettmar [1905] 1 KB 45 …. [r 7.01.1] KLD v SCVG [2009] FamCAFC 56 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10]

Klesnik and Klesnik (1987) FLC 91-837 …. [s 87.13] KN v SD (2003) 30 Fam LR 394; FLC 93-148 …. [s 67ZC.20] KN and Child Representative v NN and JN (2006) 35 Fam LR 518; FLC 93-284 …. [s 60CC.40] Knapp v Harvey [1911] 2 KB 725 …. [Pt 13.3.15] Knight v FP Special Assets Ltd (Knight’s case) (1992) 174 CLR 178; 107 ALR 585; 66 ALJR 560 …. [23,544.15], [r 19.10.5], [s 117.27], [s 117.31] Knight & Alesi [2007] FamCA 126 …. [s 90AE.40] Knight, In the Marriage of (1987) 11 Fam LR 890; FLC 91-854 …. [s 85A.9] Knitschke, In the Marriage of (1984) FLC 91-566 …. [s 87.100], [s 87.101], [s 87.96], [s 87.97], [s 87.98] Koch, In the Marriage of (1977) 3 Fam LN 66; FLC 90-312 …. [s 66J.15], [s 66J.31], [s 72.10], [s 74.8], [s 75.22] Kohan, In the Marriage of (1992) 112 FLR 151; 16 Fam LR 245; (1993) FLC 92-340 …. [s 117.4] Kokl, In the Marriage of (1981) 7 Fam LR 591; FLC 91-078 …. [s 79A.10], [s 79A.11], [s 79A.12], [s 79A.14], [s 79A.15], [s 79A.19], [s 90K.1] Kollmorgan, In the Marriage of (1984) FLC 91-551 …. [s 34.3] Komaromi, In the Marriage of (1977) 2 Fam LR 11,590; (1976) FLC 90-142 …. [s 4.750.3], [s 79.69] Korsky v Bright [2007] FamCA 245 …. [r 6.15.1] Kousal v Tack (2002) 30 Fam LR 581; (2003) FLC 93-134 …. [s 97.5], [s 102.2] Kowaliw, In the Marriage of (1981) 7 Fam LN N13; FLC 91-092 …. [s 72.11], [s 75.51], [s 79.195]

Kowalski, In the Marriage of (1992) 16 Fam LR 235; (1993) FLC 92-342 …. [s 4.505.9], [s 79.197], [s 79.201], [s 79A.0] — (1994) 18 Fam LR 193; FLC 92-501 …. [s 117C.1] Krebs, In the Marriage of (1976) 2 Fam LR 11,341; FLC 90-117 …. [s 58.6], [s 79A.14] Kress, In the Marriage of (1976) 13 ALR 309; 2 Fam LR 11,230; 30 FLR 508b; FLC 90-126 …. [s 60CC.27], [s 60CC.87] Kriwoschejew v Kriwoschejew (1975) 6 ALR 260 …. [s 106B.75], [s 106B.95] Krotofil, In the Marriage of (1980) 6 Fam LR 725; FLC 90-909 …. [s 92.14] Kubica v Hussein [2013] FCCA 1957 …. [23,358.10] Kutcher, In the Marriage of (1978) 4 Fam LN 32; FLC 90-453 …. [s 75.21], [s 75.28], [s 75.36], [s 75.38], [s 75.39], [s 75.5] L v B (2004) 32 Fam LR 169; 185 FLR 305 …. [r 4.08.1] — v Director of Family Services (1997) 22 Fam LR 275 …. [s 60CC.226] — v Human Rights and Equal Opportunity Commission (2006) 91 ALD 258; 233 ALR 432 …. [23,246.5] — v L [1961] 3 All ER 834 …. [ss 86-87.0.1] — v T (1999) 154 FLR 211; 25 Fam LR 590; FLC 92-875; [1999] FamCA 1699 …. [s 81.18A], [s 67ZC.30], [s 68B.5] L, In the Marriage of (1978) FLC 90-493 …. [s 75.28] — (1982) 8 Fam LR 360; FLC 91-245 …. [s 112AP.25] — (1983) FLC 91-353 …. [s 60CC.127] — (1984) 9 Fam LR 1033; FLC 91-563 …. [s 75.46], [s 87.101] — (1989) 15 Fam LR 157 …. [s 60CC.220], [s 60CC.240]

La Rocca, In the Marriage of (1991) 14 Fam LR 715; FLC 92-222 …. [s 79A.10], [s 79A.21] LAC v TRF (2005) 33 Fam LR 123; 191 FLR 294 …. [s 117.7], [s 117.29], [s 117.29A] Lad v Gittings (2014) 52 Fam LR 71 …. [s 117.21] Laidley, In the Marriage of (1976) 2 Fam LN N26; FLC 90-120 …. [s 60CC.132] Lakajev, In the Marriage of (1978) 4 Fam LR 228; FLC 90-448 …. [s 86.2], [s 87.110], [s 87.2] Lamb v Ariss (2006) 229 ALR 685 …. [23,098.20] Lamb, In the Marriage of (No 2) (1977) FLC 90-232 …. [s 38.5], [s 38.6] Lamereaux v Noirot (2008) 216 FLR 432; (2008) FLC 93-364 …. [s 69ZX.5] Lanceley, In the Marriage of (1994) 18 Fam LR 71; FLC 92-491 …. [s 78.19] Lane, In the Marriage of (1976) 10 ALR 204; 1 Fam LR 11,385; FLC 90-055 …. [s 48.15], [s 48.18] — (1986) 10 Fam LR 1018; FLC 91-734; Re J (1990) 14 Fam LR 584 …. [s 69ZK.25] Lang v Lang (1976) 1 Fam LR 11,283 …. [s 75.21], [s 75.40], [s 75.52] Langan & Langan [2013] FCCA 258 …. [23,424.25], [23,424.30] Lange and Moores, In the Marriage of (1979) FLC 90-651 …. [s 75.17], [s 79.113], [s 79.237] Langford and Coleman, In the Marriage of (1992) 16 Fam LR 228; (1993) FLC 92-346 …. [s 93A.15] Langham, In the Marriage of (1981) 6 Fam LR 862; FLC 91-014

…. [s 60CC.220] Lansell v Lansell (1964) 110 CLR 353 …. [s 4.505.13], [s 4.505.15], [s 79.301] Law-Smith and Seinor, In the Marriage of (1989) 13 Fam LR 397; FLC 92-050 …. [s 79.43] Lawecki v Marcel Kalfus & Co (1985) 10 Fam LR 464; (1985) FLC 91-644 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10] Lawler, In the Marriage of (1988) 12 Fam LR 319; FLC 91-927 …. [s 79.165] Lawrie v Lees (1881) 7 App Cas 19 …. [23,458.10], [r 17.02.3] Lawrie, In the Marriage of (1981) 7 Fam LR 560; FLC 91-102 …. [s 75.28], [s 75.5], [s 83.6] Laws v Laws (1964) 6 FLR 202 …. [s 106B.15] LC v TC [1998] FamCA 47 …. [s 93A.18] LC and MRC (1978) FLC 90-518 …. [s 60CC.265] Lea, In the Marriage of (1981) 7 Fam LR 553; FLC 91-115 …. [s 93A.12], [s 93A.13] — (1990) 14 Fam LR 293; 101 FLR 66; (1990) FLC 92-172 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Leach v Leach (1965) 7 FLR 195 …. [s 84.3], [s 84.4] Lee v Angas (1866) LR2Eq 59; [1866] WN 131a …. [23,424.30], [r 15.31.5], [r 26B.25.25] Lee and Tse, In the Marriage of (2005) 33 Fam LR 167 …. [s 69W.5], [s 69W.6] Lee Steere, In the Marriage of (1985) 10 Fam LR 431; FLC 91626 …. [s 75.36], [s 79.153], [s 79.178], [s 79.203], [s 79.205], [s 79.215], [s 79.255], [s 79.271] Lee, In the Marriage of (1977) 3 Fam LR 11,609; FLC 90-314 ….

[r 5.12.3], [r 5.12.5], [s 43.12], [s 114.13], [s 114.15], [s 114.43] Lehman, In the Marriage of (1977) 3 Fam LN N73; FLC 90-321 …. [s 60CC.130] Leibinger, In the Marriage of (No 1) (1985) 11 Fam LR 33; (1986) FLC 91-727 …. [s 4.505.9], [s 44.17], [s 44.18], [s 44.20] Leibinger, In the Marriage of (No 2) (1986) FLC 91-775 …. [s 4.505.9], [s 4.505.21] Lenehan, In the Marriage of (1987) 11 Fam LR 615; FLC 91-814 …. [s 79.115], [s 79.117], [s 79.123], [s 79.129], [s 79.169] Lengyel v Rasad (1989) 13 Fam LR 648; (1990) FLC 92-112 …. [s 4.505.5], [s 4.505.20] Lengyel and Rasad, In the Marriage of (1990) 14 Fam LR 198; FLC 92-154 …. [s 71.3], [s 102.5] Leonards v Leonards (1961) 2 FLR 111 …. [s 52.1] Lepre v Lepre [1965] P 52; [1963] 2 All ER 49; [1963] 2 WLR 735 …. [s 104.6], [s 104.10] Lester v Garland (1808) 15 Ves Jun 248; [1803–13] All ER Rep 438; 33 ER 748 …. [23,062.15], [r 1.21.5] Lester & Lester [2007] FamCA 186 …. [s 102.2] Levene v IRC [1928] AC 217 …. [s 39.8] Leveque v Leveque (1983) 54 BCLR 164 …. [s 60CC.40] Lever Brothers v Associated Newspapers [1907] 2 KB 626 …. [Pt 13.3.15] LGM v CAM (2006) 200 FLR 360; 35 Fam LR 124; (2006) FLC 93-267 …. [s 112AP.30], [s 112AP.62] — v CAM (Contempt) (No 2) (2008) 38 Fam LR 229; (2008) FLC 93-355; [2008] FamCAFC 1 …. [s 112AP.18], [s 117.4]

Licul v Corney (1976) 180 CLR 213; 8 ALR 437; 50 ALJR 439 …. [23,458.10] Limousin v Limousin [2008] FamCA 315 …. [23,544.15], [r 19.10.5] — v Limousin (Costs) (2007) 38 Fam LR 478; [2007] Fam CA 1178 …. [s 117.4] Lind, In the Marriage of (1980) 6 Fam LR 225; FLC 90-858 …. [s 87.24] Lindner, In the Marriage of (1978) 4 Fam LR 27; FLC 90-417 …. [s 87.20], [s 87.24], [s 87.35], [s 87.59] Lindon v Commonwealth (No 2) (1996) 136 ALR 251; 70 ALJR 541; [1996] 8 Leg Rep 11 …. [23,314.10], [r 10.12.3], [s 118.4] Lindsey, In the Marriage of (1995) 19 Fam LR 649; FLC 92-638 …. [s 112AD.20], [s 112AD.25] Litchfield, In the Marriage of (1987) 11 Fam LR 435; FLC 91-840 …. [s 60CC.130] Little, In the Marriage of (1990) 13 Fam LR 118; FLC 92-147 …. [s 79.117] Liu, In the Marriage of (1984) 9 Fam LR 1060; FLC 91-572 …. [s 79A.7], [s 79A.9], [s 79A.15], [s 79A.25], [s 79A.29] Liveris v Commissioner of Taxes (1989) 13 Fam LR 65 …. [s 86.2] Livesey & Jenkins [1985] 1 All ER 106 …. [s 79A.10] Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 …. [Pt VIII.8] Lloyd v Lloyd (1980) FLC 90-816 …. [s 60CC.25] Lock, In the Marriage of (1977) 3 Fam LN 40; FLC 90-282 …. [s

87.36] Lockett v Lockett (No 2) (1920) 37 WN (NSW) 272 …. [s 85A.4] Loder v Aysom (1987) 12 Fam LR 644; (1988) FLC 91-954 …. [s 106B.1], [s 106B.90] — v — (1988) 12 Fam LR 659; FLC 91-955 …. [s 106B.25], [s 106B.90] Lonard, In the Marriage of (1976) 2 Fam LR 11,116; FLC 90-066 …. [s 97.4] Lonard, In the Marriage of (No 2) (1977) 13 ALR 596; 2 Fam LR 11,657; 30 FLR 529; FLC 90-202 …. [s 60CC.87] Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627 …. [23,608.15.3], [23,610.7], [r 13.07.2], [r 26B.02.10] Lopatinsky v Official Trustee in Bankruptcy (2002) 29 Fam LR 274; FLC 93-119 …. [s 79.355] Lording, In the Marriage of (1977) 3 Fam LN 14 …. [s 4.750.4] Lorreck v Watts [2013] FCCA 39 …. [r 22.11.9] — v — [2016] FamCAFC 5 …. [r 22.31.3] Loutfi v Czarnikow Ltd [1952] 2 All ER 823 …. [23,158.15], [r 11.10.5] Louth v Diprose (1992) 175 CLR 621; 110 ALR 1 …. [s 93A.6] Love v Henderson (1995) 125 FLR 129; 20 Fam LR 128; (1996) FLC 92-653 …. [s 64B.95] Love, In the Marriage of (1989) 17 Fam LR 263; (1994) FLC 92441 …. [s 79.322] Lovell v Lovell (1950) 81 CLR 513; [1950] ALR 944 …. [s 93A.5] Lovich and Legovini, In the Marriage of (1977) 3 Fam LR 11,105 …. [s 45.6]

Lowe and Harrington (1997) 21 Fam LR 583; FLC 92-747 …. [s 79A.10] LSH, Re; Ex parte RTF (1987) 164 CLR 91; 75 ALR 469; 11 Fam LR 805; 61 ALJR 621; FLC 91-843 …. [s 114.29] Ltd (Z) v A-Z [1982] 2 WLR 288 …. [s 114.27] Luadaka, In the Marriage of (1998) 148 FLR 421; 24 Fam LR 340; (1998) FLC 92-830 …. [23,532.10], [23,532.25], [cl 6.05.5], [cl 6.05.11], [r 19.05.5], [r 19.05.11], [s 117.25], [s 117.26B] Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; 45 FLR 174 …. [23,408.5], [23,424.12], [23,424.30], [r 15.16.1], [r 15.23.1], [r 15.26.3], [r 15.31.5], [r 26B.12.05], [r 26B.18.15], [r 26B.25.25] Lumsden v Lumsden [1964] VR 210 …. [s 94.10] Lun, In the Marriage of (1998) 23 Fam LR 154 …. [s 79.133] Lusby, In the Marriage of (1977) 3 Fam LN 85; FLC 90-311 …. [s 72.15], [s 75.28], [s 83.2], [s 83.7] Lutzke, In the Marriage of (1979) 5 Fam LR 553; FLC 90-714 …. [s 66C.5], [s 66J.31], [s 75.28], [s 75.30], [s 75.32], [s 75.33], [s 75.34], [s 83.11], [s 83.4], [s 83.5], [s 83.6] Lyall, In the Marriage of (1977) FLC 90-223 …. [s 83.4] Lye, In the Marriage of (1983) 8 Fam LR 999; FLC 91-324 …. [s 31.8], [s 33.4] Lynch v Lynch (1977) 3 Fam LR 11,110 …. [s 80.2] Lynch and Slater, In the Marriage of (1977) 3 Fam LR 11,515; FLC 90-309 …. [s 4.505.20], [s 71.3], [s 114.7] Lynette, Re (1999) 25 Fam LR 352; FLC 92-863 …. [s 60CC.125] Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 117.25]

Lyons and Boseley, In the Marriage of (1978) 4 Fam LN 17; 32 FLR 386; FLC 90-423 …. [s 68LA.5], [s 72.19] Lyons, In the Marriage of (1978) 4 Fam LN 37; FLC 90-459 …. [s 75.40], [s 78.4], [s 79.301] Lyris and Hatziantoniou, In the Marriage of (1998) 24 Fam LR 391; (1998) FLC 92-840 …. [s 117.29] Lythow, In the Marriage of (1976) 1 Fam LN 3; FLC 90-007 …. [s 60CC.87], [s 61B.3] McAlpin, In the Marriage of (1993) 16 Fam LR 888; 114 FLR 452; (1993) FLC 92-411 …. [s 117.0], [s 117.6], [s 117.9], [s 117.27] McBride v Sandland [1917] SALR 249 …. [Pt 13.3.15] McBride & Walton [2009] FamCA 1003 …. [23,098.30] McCabe, In the Marriage of (1995) 19 Fam LR 579; FLC 92-634 …. [s 79A.31] McCall v Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483 …. [s 60CC.30] McCall and State Central Authority; Attorney-General (Cth) (Intervener) (1994) 18 Fam LR 307; (1995) FLC 92-551 …. [s 111B.4] McCarney, In the Marriage of (1976) 2 Fam LR 11,680; FLC 90105 …. [s 114.10] — (1977) 2 Fam LR 11,670; FLC 90-200 …. [s 4.505.21], [s 21.6], [s 114.29], [s 114.3], [s 114.40], [s 114.6] McCarron and Unsworth, In the Marriage of (1978) 32 FLR 55; 4 Fam LR 112; (1978) FLC 90-444 …. [s 44.20] MacCarthy v Agard [1933] All ER Rep 991; [1933] 2 KB 417 …. [23,458.10], [r 17.02.3], [r 17.02.5]

McCauley, In the Marriage of (1996) 22 Fam LR 538; (1997) FLC 92-780 …. [s 79A.0] McClintock & Levier [2009] FamCAFC 62; (2009) 41 Fam LR 245 …. [s 70NFB.10] McCoy v Wessex (2007) 38 Fam LR 513 …. [s 60CC.40] McCulloch v McCulloch (1983) 1 SR(WA) 424; 9 Fam LR 214 …. [s 69V.5] McDermott, In the Marriage of (1976) 1 Fam LN 20; FLC 90-034 …. [s 50.2] McDonald & Co Ltd v Wells (1931) 45 CLR 506 …. [s 87.57] McDonald, In the Marriage of (1976) 1 Fam LR 11,391; FLC 90047 …. [s 79.307] — (1977) 31 FLR 426; (1977) 3 Fam LN N72; (1977) FLC 90-317 …. [s 44.21] — (1994) 18 Fam LR 265; 122 FLR 401; (1994) FLC 92-508 …. [s 117.0], [s 117.5], [s 117.6], [s 117.29], [s 117.29A] McDougall, In the Marriage of (1976) 1 Fam LR 11,581; FLC 90076 …. [s 78.10], [s 78.9], [s 79.157], [s 79.199], [s 79.203], [s 79.295] McEnearney, In the Marriage of (1980) 7 Fam LN N5; (1980) FLC 90-866 …. [s 60CC.87], [s 60CC.110], [s 61B.3] McGillivray and Mitchell, In the Marriage of (1998) 23 Fam LR 238; (1998) FLC 92-818 …. [r 8.03.1] McGrath (Infants), Re [1893] 1 Ch 143 …. [s 60CC.25] McGregor v McGregor (2012) 47 Fam LR 498; (2012) FLC 93507; [2012] FamCAFC 69 …. [r 15-64.5], [s 69ZT.5] MacGregor, In the Marriage of (1996) 21 Fam LR 57; FLC 92-710 …. [s 79.117], [s 79.199]

McGuire v Tull (1981) 7 Fam LR 195 …. [s 60CC.95] McHarg, In the Marriage of (1980) 7 Fam LN 4; FLC 90-811 …. [s 75.38], [s 75.39], [s 75.45] McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 …. [23,414.25], [23,424.30] McIntyre and Malezer, In the Marriage of (1986) 11 Fam LR 597; (1987) FLC 91-816 …. [s 79.157], [s 94AA.5] McJarrow, In the Marriage of (1980) 6 Fam LR 746; FLC 90-913 …. [s 112AP.40] McK v K (2001) FLC 93-089; [2001] FamCA 990 …. [s 69W.5] McKay Shoe Machinery Co Ltd v Turner (1900) 16 WN (NSW) 192 …. [r 15.72.1] McKay, In the Marriage of (1984) 9 Fam LR 850; FLC 91-573 …. [s 31.10], [s 33.4] McKee v McKee (1986) 10 Fam LR 754 …. [s 79.303] McKenna v McKenna (1971) 18 FLR 15 …. [s 58.6], [s 79A.10], [s 79A.15], [s 79A.17] McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472 …. [r 8.01.5], [s 60CC.245], [s 92.1], [s 97.5] Mackenzie, In the Marriage of (1978) 34 FLR 56; 4 Fam LR 374; (1978) FLC 90-496 …. [s 44.17], [s 44.19], [s 44.21], [s 75.5] Mackie, In the Marriage of (1981) 7 Fam LR 365; FLC 91-069 …. [s 79.113], [s 79.204], [s 87.9] McL, In the Marriage of (1989) 15 Fam LR 7; (1991) FLC 92-238 …. [s 60CC.65] McLay v McLay (1997) FLC 92-751 …. [s 79.193] McLay, Re (1996) 20 Fam LR 239; FLC 92-667 …. [s 79.153], [s 79.155], [s 79.161], [s 79.193]

McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90-655 …. [s 87.93], [s 89.9], [s 114.7], [s 114.8], [ss 86-87.0.12], [ss 8687.0.14] McLean, In the Marriage of (1978) 4 Fam LR 181; FLC 90-502 …. [Pt VIII.3] McLeod, In the Marriage of (1976) 1 Fam LR 11,280; (1976) FLC 90-043 …. [s 48.19] McMahon, In the Marriage of (1976) 1 Fam LR 11,260; FLC 90038 …. [s 94.5] — (1976) 2 Fam LR 11,267; FLC 90-128 …. [s 75.40] — (1976) 9 ALR 517; 25 FLR 292; 1 Fam LR 11,260; (1976) FLC 90-038 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10] — (1977) 3 Fam LN 12 …. [s 72.19], [s 72.8], [s 75.28] — (1995) 19 Fam LR 99; FLC 92-606 …. [s 79.169] McManus v McManus (1969) 13 FLR 449 …. [s 60CC.220] McMaster, Re; Ex parte McMaster (1991) 15 Fam LR 215 …. [s 79A.38] McMillan v McMillan (2000) 26 Fam LR 653; 159 FLR 1; (2000) FLC 93-048 …. [r 8.03.1] McMillan and Jackson (1995) 19 Fam LR 183; FLC 92-610 …. [s 60CC.87] McMinn; R v [1982] VR 53 …. [s 114.11], [s 114.30] McOmish v McOmish [1968] VR 524 …. [s 66C.5], [s 75.33] McPherson v McPherson (1988) 13 RFL (3rd) 1 …. [s 79.132] Macpherson and Clarke, In the Marriage of (1978) FLC 90-446 …. [s 92.14] Macrae v Macrae (1967) 9 FLR 441 …. [s 48.13], [s 48.20]

Macsok, In the Marriage of (1976) 1 Fam LR 11,264; FLC 90-045 …. [s 4.505.19], [s 87.15], [s 87.17], [ss 86-87.0.3] Macura, In the Marriage of (1982) FLC 91-252 …. [s 44.13A] Macvean, In the Marriage of (1980) 7 Fam LR 8; FLC 90-912 …. [Pt VIII.3] McVey v Denis (1984) 9 Fam LR 580; FLC 91-521 …. [s 79.303] M v DB (2006) 36 Fam LR 454; (2006) FLC 93-293 …. [r 14.05.3], [s 114.24] — v L (Aboriginal Culture) (2007) 37 Fam LR 317; [2007] FamCA 396 …. [s 60CC.65] — v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91-979 …. [s 60B.40], [s 60CC.27], [s 60CC.40], [s 60CC.200] — v — (2004) 35 Fam LR 1; (2005) FLC 93-238; [2004] FamCA 1374 …. [r 15.06.5] — v — (2006) 36 Fam LR 12; FLC 93-298; [2006] FamCA 1453 …. [s 79.155], [s 79.157] — v — [2002] FMCAfam 140 …. [23,476.10] — v — [2002] FMCAfam 321 …. [23,400.20] — v S (2006) 37 Fam LR 32; (2007) FLC 93-313 …. [S 60CC.140] M and H (1993) 121 FLR 41; 17 Fam LR 416; (1994) FLC 92-453 …. [s 69V.5] M and H and Separate Representative (1996) 20 Fam LR 625; FLC 92-695 …. [s 60CC.40] M, In the Marriage of (1978) 4 Fam LN 16; 30 FLR 562n; FLC 90-429 …. [s 60CC.265], [s 62G.10] — (1987) 11 Fam LR 765 …. [s 60CC.40]

M, Re (1982) 8 Fam LR 909; (1983) FLC 91-314 …. [s 92.4] Mabo v Queensland (No 2) (1992) 175 CLR 1 …. [s 79.69] Maday, In the Marriage of (1985) 10 Fam LR 357; (1985) FLC 91636 …. [s 60CC.20] Madden, In the Marriage of (1979) 5 Fam LR 520; (1979) FLC 90710 …. [23,703JA], [Pt 20.5.1], [s 117.35] Maddison v Qualtime Association Inc (2010) 113 ALD 390 …. [23,288.15] Maddocks, In the Marriage of (1981) 6 Fam LR 877; FLC 91-031 …. [s 84.3], [s 84.5], [s 86.4], [s 88.6], [ss 86-87.0.10] Maddox, Re; Ex parte the Debtor (1979) 4 Fam LR 731; FLC 90630 …. [s 4.725.3] Madin v Palis (2016) 55 Fam LR 59; [2016] FamCAFC 25 …. [s 117.21], [s 117.22] Madjeric, In the Marriage of (1984) 9 Fam LR 825; FLC 91-552 …. [s 4.750.4], [s 79.89], [s 119.2] Magas, In the Marriage of (1980) FLC 90-885 …. [s 79.271] Magill v Magill (2006) 36 Fam LR 1; FLC 98-033 …. [s 119.2], [s 120.1] Mahadervan v Mahadervan [1964] P 233 …. [s 102.2] Maher, In the Marriage of (1980) 6 Fam LR 429; FLC 90-834 …. [s 72.14] Mahon, In the Marriage of (1982) 8 Fam LN 4; FLC 91-242 …. [s 79.193], [s 93A.6] Mahony & McKenzie, In the Marriage of (1993) 117 FLR 107; 16 Fam LR 803; (1993) FLC 92-408 …. [s 60CC.135] Main v Main (1949) 78 CLR 636 …. [s 48.12], [s 48.13], [s 48.14] Mains v Redden (2011) 46 Fam LR 400; (2011) FLC 93-478 …. [r

4.08.1], [r 4.09.1] Makin, In the Marriage of (1980) 5 Fam LR 825; FLC 90-818 …. [s 88.3] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; 25 NSWCCR 218 …. [r 15-64.5] Malcolm, In the Marriage of (1977) 3 Fam LN 8; FLC 90-220 …. [s 46.9], [s 75.28], [s 77.1], [s 77.4] Maldera v Orbel (2014) 287 FLR 283; 52 Fam LR 24 …. [s 60B.10], [s 60CC.4] Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638 …. [s 60CC.40] Mallet, In the Marriage of (1981) 7 Fam LR 1027; (1981) FLC 91091 …. [23,424.30], [r 15.31.5], [r 26B.25.25] — (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91-507 …. [s 75.22], [s 75.49], [s 79.1], [s 79.117], [s 79.121], [s 79.123], [s 79.155], [s 79.161], [s 79.193], [s 79.213], [s 79.215], [s 79.235], [s 93A.6], [s 93A.19], [s 117.5] Malouf v Malouf (1999) 167 ALR 383 …. [s 94AA.5] Malpass v Mayson (2000) 27 Fam LR 288; FLC 93-061 …. [s 79.385] Malyszko, In the Marriage of (1979) 35 FLR 186; 5 Fam LN N7; (1979) FLC 90-650 …. [s 44.5], [s 44.7] Mangano v Mangano (1974) 4 ALR 303 …. [s 58.6] Mann v Carnell (1999) 201 CLR 1; 168 ALR 86 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Manna, In the Marriage of (1996 unreported) …. [s 79.195] Manning, In the Marriage of (1977) 3 Fam LR 11,518; FLC 90298 …. [s 21.3], [s 21.9]

Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 117.25] Mapstone, In the Marriage of (1979) 5 Fam LR 205; FLC 90-681 …. [s 75.11], [s 75.38], [s 75.4], [s 80.4] Marin v Salmon [2013] FamCAFC 88 …. [23,246.5] Marinko, In the Marriage of (1983) 8 Fam LR 849; FLC 91-307 …. [s 117.13], [s 117.14], [s 117.9] — (1985) 10 Fam LR 41; FLC 91-609 …. [s 37A.10], [s 37A.11] Marion, Re (No 2) (1992) 17 Fam LR 336; (1994) FLC 92-448 …. [r 4.08.1], [r 4.09.1] Mariti, In the Marriage of (1978) 4 Fam LN 36; FLC 90-464 …. [s 35.1], [s 35.10], [s 38.5], [s 38.8] Mark, Re (2003) 31 Fam LR 162; [2003] FamCA 822 …. [s 60H.7] Marko, In the Marriage of (1977) 3 Fam LN 42 …. [s 80.17] Markoska v Markoska (Costs) (2011) 46 Fam LR 598 …. [r 15.23.1], [r 15.23.2], [r 15.23.4], [r 26B.18.15], [r 26B.18.20], [r 26B.18.30] Marquet v Marquet BC8701132 …. [23,364.5], [23,376.10], [r 15.45.1] Marras, In the Marriage of (1984) 10 Fam LR 47; (1985) FLC 91635 …. [s 79A.26], [s 79A.29] Marren v Dawson, Bentley & Co Ltd [1961] 2 QB 135 …. [r 1.21.1] Marriage of C and D (1979) 5 Fam LR 636; FLC 90-636 …. [s 51.15], [s 51.22] Marriage of F (1989) 13 Fam LR 189; FLC 92-031 …. [s 67ZC.35]

Marriage of Gaudry (2004) 33 Fam LR 342; FLC 93-202 …. [s 79A.25] — (2004) 33 Fam LR 346; FLC 93-203 …. [s 117.4] Marriott v Chamberlain (1886) 17 QBD 154 …. [Pt 13.3.15], [Pt 13.3.20] Marsden v Winch (2013) 50 Fam LR 409; [2013] FamCAFC 177 …. [s 118.3] — v — [2009] FamCAFC 152; (2009) 42 Fam LR 1 …. [s 60CC.220] Marsh v Marsh (1878) 47 LJ (P) 78 …. [s 85A.8], [s 85A.10] Martin v Andrews (1856) 7 El & Bl 1; 2 Jur NS 1121; 26 LJQB 39; 26 LJGB 39 …. [23,420.10], [r 15.23.1], [r 26B.18.15] — v Matruglio (1999) FLC 92-876 …. [S 60CC.140] Martin, In the Marriage of (1985) 10 Fam LR 558 …. [s 4.750.4] Martiniello, In the Marriage of (1981) 7 Fam LR 299; FLC 91-050 …. [r 5.12.3], [s 80.9], [s 114.22], [s 114.24], [s 114.25], [s 114.9] Martino, In the Marriage of (1981) 7 Fam LR 613; FLC 91-089 …. [s 4.505.15] Marvel v Marvel (2010) 240 FLR 367; 43 Fam LR 348 …. [s 61DA.1], [s 61DA.10], [s 65DAA.1] Mason v Hammett [2011] FMCAfam 1004; BC201108686 …. [23,330.5], [23,342.5] — v Hannaford (1993) 16 Fam LR 648; FLC 92-398 …. [s 79.325], [s 79.327], [s 79.329], [s 79.333] — v Mason [2013] FMCAfam 99; BC201300503 …. [23,476.10] Mason, In the Marriage of (1993) 17 Fam LR 269 …. [s 79.322] Masoud v Masoud (2016) 54 Fam LR 245 …. [23,608.15.3],

[23,610.7], [r 13.07.2], [r 26B.02.10] Matar v Matar (1977) 2 Fam LR 11,632 …. [s 72.18] Mathieson, In the Marriage of (1977) 6 Fam LR 116; FLC 90-230 …. [s 60CC.25], [s 60CC.95] Matthews v Chapman (1981) 7 Fam LR 982; FLC 91-237 …. [s 60CC.125] — v Hunston (1906) 23 WN (NSW) 212 …. [r 15.72.1] — v Matthews [1932] P 103 …. [s 79.173] — v Millar (1988) 12 Fam LR 205 …. [s 70NAC.5] Matthews, In the Marriage of (1980) 6 Fam LR 142; FLC 90-887 …. [s 75.36], [s 75.38], [s 75.40], [s 79.205], [s 79.239], [s 80.4] Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90-481 …. [Pt VIII.8], [s 4.750.4], [s 78.12], [s 78.13], [s 78.4], [s 79.87] Maurer v Maurer [2004] FamCA 234 …. [r 10.17.3], [r 10.17.4] Maurice v Barry (2010) 44 Fam LR 62 …. [s 60CC.1], [s 60H.1] May v May [1929] 2 KB 386 …. [ss 86-87.0.1] May, In the Marriage of (1987) 11 Fam LR 847 …. [s 83.13A] Mazein, In the Marriage of (1976) 1 Fam LR 11,417; FLC 90-053 …. [s 114.22], [s 114.9] Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 …. [s 60CC.30], [S 60CC.140] Mazur, In the Marriage of (1976) 2 Fam LR 11,311; FLC 90-132 …. [s 43.11] — (1991) 15 Fam LR 574; (1992) FLC 92-305 …. [s 79.67] Mead (2007) 235 ALR 197; 81 ALJR 1185; 36 Fam LR 608 …. [s 112AP.30]

Mead, In the Marriage of (1983) 9 Fam LR 193; FLC 91-354 …. [s 79.195], [s 79.97] Measures v McFadyen (1910) 11 CLR 723; 17 ALR 391 …. [23,062.15], [r 1.21.5] Medlon v Medlon (No 6) (2015) 54 Fam LR 1; [2015] FamCAFC 157 …. [s 117.22], [s 117.4], [s 117.9] Mee and Ferguson, In the Marriage of (1986) 10 Fam LR 971; FLC 91-716 …. [s 66C.1], [s 66H.3], [s 66J.11], [s 66J.15], [s 66J.19], [s 66J.21], [s 66J.23], [s 66J.25], [s 66J.29], [s 66J.31], [s 66K.7], [s 66K.15] Mehmet, In the Marriage of (No 2) (1986) 11 Fam LR 322; (1987) FLC 91-801 …. [s 79.213] Mehrtens, In the Marriage of (1977) 3 Fam LN 46; FLC 90-288 …. [s 75.36] Meller v Meller (1967) 10 FLR 12 …. [s 85A.3], [s 85A.4], [s 85A.9], [s 85A.12] Melsom v Mullen (1985) 10 Fam LR 481; FLC 91-611 …. [s 86.14] Melvill v Melvill [1930] P 159 …. [s 85A.3], [s 85A.4] Menz, In the Marriage of (1980) 6 Fam LR 325; FLC 90-852 …. [s 75.21], [s 79.237], [s 106B.75] Menzies v Evans (1988) 12 Fam LR 519; FLC 91-969 …. [s 79.331] Mercer v Mercer [2010] FMCAfam 269; BC201001959 …. [23,458.10] — v Whall (1845) 5 QB 447; 114 ER 1318 …. [23,358.15] Mercer, In the Marriage of (1976) 1 Fam LR 11,179; FLC 90-033 …. [s 66J.21], [s 66J.31], [s 66L.11], [s 66L.13]

— (1976) 9 ALR 237; 1 Fam LR 11,179; (1976) FLC 90-033 …. [s 66L.15] Merriman, In the Marriage of (1993) 17 Fam LR 22; FLC 92-422 …. [s 79.155], [s 93A.17] Merryman, In the Marriage of (1994) FLC 92-497 …. [s 60CC.37] Meyer v Meyer [1971] 1 All ER 378 …. [s 104.10], [s 104.6] Meyer, In the Marriage of (1978) 4 Fam LR 233; FLC 90-465 …. [s 8.4], [s 40.6] Mezzacappa, In the Marriage of (1987) 11 Fam LR 957; FLC 91853 …. [s 79.66], [s 79.67] MG, In the Marriage of (2000) 26 Fam LR 497; FLC 93-034 …. [r 8.01.5] Michael, Re (1994) 17 Fam LR 584; FLC 92-471 …. [r 4.08.1] — (2009) 41 Fam LR 694; [2009] FamCA 691 …. [s 60H.1], [s 60H.7] Migotti v Colvil (1879) 4 CPD 233 …. [23,062.15], [r 1.21.5] MIL v EL (2005) 35 Fam LR 5; (2005) FCL 93-244 …. [23,532.20], [cl 6.05.7], [r 19.05.7], [s 117.26] Milford v Milford (No 2) [2008] FMCAfam 1239; BC200810390 …. [23,504.15] Milham v Stanford (2001) 27 Fam LR 556; (2001) FLC 93-073 …. [23,458.10], [r 17.02.3], [r 17.02.5] Milland, In the Marriage of (1981) 7 Fam LR 478; FLC 91-065 …. [s 106B.105] Millar, In the Marriage of (1983) 9 Fam LR 5; (1983) FLC 91-326 …. [23,312.25], [r 22.11.7] Miller v Baker (1990) 14 Fam LR 303 …. [s 79.117] — v Bury (1986) FLC 91-714 …. [s 4.505.27], [s 4.505.28], [s

4.505.35] — v Harrington (2008) 39 Fam LR 654; (2008) FLC 93-383; [2008] FamCAFC 150 …. [s 60CC.220] — v Miller (1968) 11 FLR 226; 88 WN (Pt 1) (NSW) 94 …. [s 60CC.25] — v — (1978) 4 Fam LR 474 …. [s 38.5], [s 38.9] Miller and Caddy, In the Marriage of (1986) 10 Fam LR 858; FLC 91-720 …. [s 79.177], [s 79.21], [s 79.35], [s 79.39] Miller, In the Marriage of (1977) 3 Fam LN 80; FLC 90-326 …. [s 4.750.4] — (1977) 4 Fam LR 34; (1978) FLC 90-418 …. [s 93A.8], [s 93A.10] — (1983) 9 Fam LR 10; FLC 91-328 …. [Pt VIII.7], [s 4.505.5], [s 56.1], [s 57.2], [s 59.1], [s 59.2], [s 59.3], [s 71.3] — (1984) FLC 91-542 …. [s 79.155], [s 79.233] Miller, In the Marriage of (No 1) (1976) FLC 90-018 …. [s 40.8] Miller, In the Marriage of (No 2) (1976) 1 Fam LR 11,466; FLC 90-042 …. [s 38.5], [s 38.9] Mills and Mills (1978) FLC 90-404 …. [s 60CC.87], [s 101.2] Mills, In the Marriage of (1976) 1 Fam LR 11,592; FLC 90-079 …. [s 4.505.21], [s 66C.1], [s 114.9] Milson v Carter [1893] AC 638; 14 LR (NSW) Eq 237; 10 WN (NSW) 9 …. [23,458.10], [r 17.02.3] MIMIA; R v (2003 unreported) …. [s 67ZC.20] Minchin v McDonald [2012] FMCAfam 1328; BC201209782 …. [23,476.10] Minister for Aboriginal and Torres Strait Island Affairs v Chapman (1995) 57 FCR 451; 89 LGERA 1; 133 ALR 226 ….

[s 65DAA.10] Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; (2004) FLC 93-174 …. [s 60B.15], [s 64B.80], [s 67ZC.3], [s 67ZC.5], [s 67ZC.10], [s 67ZC.20], [s 68B.6], [s 69ZH.1], [s 69ZH.3] Minister of Community Welfare v B Y (1988) 12 Fam LR 477; 93 FLR 104; (1988) FLC 91-973 …. [s 117.0], [s 117.13], [s 117.14] Mistilis, In the Marriage of (1988) 12 Fam LR 175; FLC 91-914 …. [s 93A.8], [s 93A.10], [s 93A.13] Mitchell v Mitchell (1983) 9 Fam LR 267; (1984) FLC 91-531 …. [s 60CC.45] Mitchell, In the Marriage of (1995) 19 Fam LR 44; FLC 92-601 …. [s 72.11], [s 72.12], [s 72.15], [s 72.7], [s 75.21], [s 75.4], [s 75.8], [s 79.240A] Mitchell, Re; Ex parte Official Trustee v Mitchell (1992) 15 Fam LR 375 …. [s 86.14] Mitchelson v Mitchelson (1977) 17 ALR 633; 3 Fam LR 11,344 …. [s 4.505.20], [s 4.505.34], [s 40.5], [s 105.2], [s 105.8] — v — (1979) 24 ALR 522; 37 FLR 289 …. [r 1.14.5] MJH Pty Ltd v Hannes (1990) 14 Fam LR 231 …. [s 4.505.27], [s 85A.5] Mobasser and Nankervis, In the Marriage of (1982) 8 Fam LR 1049; (1983) FLC 91-335 …. [r 5.12.3], [s 60CC.220] Moge v Moge (1992) 43 RFL (3d) 345 …. [s 72.15] Mohammed v Minister for Immigration and Border Protection [2013] FCCA 1977 …. [23,294.5] Molier and Van Wyk, In the Marriage of (1980) 7 Fam LR 18;

FLC 90-911 …. [s 78.8], [s 79.307], [s 79A.9], [s 79A.10], [s 79A.15], [s 79A.21], [s 79A.37], [s 80.1], [s 80.4], [s 80.9], [s 83.12] — (1981) 7 Fam LR 474; 50 FLR 423; FLC 91-001 …. [s 28.5A], [s 43.11] Molier and Van Wyk, In the Marriage of (No 2) (1981) 50 FLR 423; 7 Fam LR 474; (1981) FLC 91-001 …. [r 22.11.9] Money, In the Marriage of (1977) 3 Fam LN 37; FLC 90-284 …. [s 75.39] — (1994) 17 Fam LR 814; FLC 92-485 …. [s 79.199] Monte, In the Marriage of (1986) FLC 91-757 …. [s 79.67] Monticelli v McTiernan (1995) 19 Fam LR 108; FLC 92-617 …. [s 68B.6], [s 68B.7], [s 68B.9] Monticone, In the Marriage of (1989) 13 Fam LR 592; (1990) FLC 92-114 …. [s 79.307], [s 79A.19], [s 79A.27] Moon v JLG Industries (Aust) (2011) 249 FLR 348; 210 IR 72 …. [23,194.10] Moor, Re; Ex parte Sonenco (No 77) Pty Ltd and Trustee in Bankruptcy (1989) 13 Fam LR 27; FLC 92-028 …. [s 86.14] Moore v Hendler (1992) 15 Fam LR 770; FLC 92-321 …. [s 93A.20] — v Moore (1976) 11 ALR 222; 1 Fam LR 11,473 …. [s 58.5] — v — [1962] NSWR 522 …. [s 79A.17] — v — [2014] FamCAFC 113; BC201451253 …. [23,608.15], [r 13.01.2] Moore, In the Marriage of (1996) 20 Fam LR 495; 125 FLR 420; (1996) FLC 92-670 …. [23,534.25], [cl 6.08.7], [r 19.08.7] Moran, In the Marriage of (1994) 18 Fam LR 534; (1995) FLC 92-

559 …. [s 78.19], [s 78.4] Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] ALR 313; (1929) 47 WN (NSW) 107 …. [23,440.5], [r 15.76.1] Morgan & Miles [2007] Fam CA 1230 …. [S 60CC.140] Moriarty v Moriarty (2009) 243 FLR 409; 41 Fam LR 336 …. [r 15.23.1], [r 26B.18.15] Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR (NSW) 141; 31 WN (NSW) 63 …. [23,010.15] Morris v Morris [1972] ALR 893 …. [s 48.13], [s 48.18], [s 48.24] Morris and Jones, In the Marriage of (1990) 14 Fam LR 203; FLC 92-157 …. [s 87.27] Morris, In the Marriage of (1982) 8 Fam LR 740; FLC 91-271 …. [s 72.20], [s 75.47], [s 79.161], [s 79.311] Morrison, In the Marriage of (1994) 18 Fam LR 519; (1995) FLC 92-573 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10], [s 79A.0], [s 79A.6], [s 79A.10] — (1995) 19 Fam LR 662; FLC 92-639 …. [s 60CC.130] Morrissey, In the Marriage of (1986) 10 Fam LR 906; FLC 91-742 …. [s 87.18], [s 87.20] Morton v Hampson [1962] VR 364 …. [23,062.15], [r 1.21.5] Moss v Moss (1867) 15 WR 532 …. [s 75.20] Mottee, In the Marriage of (1976) 2 Fam LR 11,177; FLC 90-099 …. [s 75.28], [s 80.4] MRR v GR (2010) 240 CLR 461; 263 ALR 368; 42 Fam LR 531; 84 ALJR 220; FLC 93-424 …. [s 60CC.1], [s 65DAA.5] Mueller and Hegedues, In the Marriage of (1979) 5 Fam LN 14; FLC 90-708 …. [s 75.48], [s 79.237]

Mulally, In the Marriage of (1989) 96 FLR 398; 13 Fam LR 499; (1990) FLC 92-106 …. [s 112AP.25], [s 112AP.62] Mulcahy, In the Marriage of (1978) 4 Fam LN 5; FLC 90-425 …. [s 62G.15] Mulhern v Pearce [2013] FMCA 229; BC201312876 …. [23,532.10] Mulholland v Mitchell [1971] AC 666 …. [s 93A.13] Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91303 …. [s 4.750.3], [s 46.7], [s 74.11], [s 79.291], [s 79.293], [s 79.297], [s 79.69], [s 79.95], [s 79A.37], [s 114.22] Mullane, In the Marriage of (1980) 5 Fam LR 801; FLC 90-826 …. [s 79.291], [s 94A.2] Mullen & De Bry (2007) 36 Fam LR 501 …. [23,424.20], [r 15.31.4], [r 15.31.5], [r 26B.25.20], [r 26B.25.25] Mulligan, In the Marriage of (1976) 11 ALR 561; 26 FLR 51; 1 Fam LR 11,599; FLC 90-080 …. [s 60CC.132] Mulvany v Lane (2009) 41 Fam LR 418; (2009) FLC 93-404 …. [s 60CC.16], [s 60CC.30], [s 60CC.31], [s 60CC.120] Munday and Bowman, In the Marriage of (1997) 22 Fam LR 321; FLC 92-784 …. [s 117.4] Mundell, Re; Fenton v Cumberlege (1883) 52 LJ Ch 756; 48 LT (NSW) 776 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Murdoch v Brown (No 2) [2013] FamCA 732; BC201352520 …. [r 6.15.1] Murkin, In the Marriage of (1980) 5 Fam LR 782; FLC 90-806 …. [Pt VIII.1], [s 4.505.21], [s 4.750.4], [s 66C.5], [s 72.12], [s 75.34], [s 75.38], [s 114.11], [s 114.4], [s 114.9] Murphy and Armstrong, In the Marriage of (1978) 4 Fam LN 66;

(1979) FLC 90-623 …. [s 83.12] Murphy, In the Marriage of (1977) 3 Fam LR 11,511; 30 FLR 538; FLC 90-291 …. [s 55A.13], [s 55A.16] Murray v Sitwell [1902] WN 119 …. [r 6.08.3] Murray and Tam, In the Marriage of; Director, Family Services (ACT) (intervener) (1993) 16 Fam LR 982; FLC 92-416 …. [s 68L.55] Murray, In the Marriage of (1990) 14 Fam LR 311; FLC 92-173 …. [s 117.21], [s 117C.10] Murtagh v Murtagh [1960] NZLR 895 …. [s 106B.65] MWJ v R (2005) 222 ALR 436; (2005) 80 ALJR 329 …. [s 93A.18] Myers v Elman [1940] AC 282; [1939] 4 All ER 484; (1939) 109 LJKB 105; 162 LT 113 …. [23,544.15], [23,544.5], [cl 6.10.1], [r 19.10.1], [r 19.10.5] Myerthall, In the Marriage of (1977) 3 Fam LR 11,324; FLC 90273 …. [s 75.21], [s 79.113], [s 79.157] MZXCV v Minister for Immigration and Citizenship [2007] FCA 1158; BC200706535 …. [23,030.10] MZZKH v Minister for Immigration & Border Protection [2013] FCCA 2297 …. [23,288.10], [23,290.5] N and N (1977) 2 Fam LN 31; 30 FLR 516; FLC 90-208 …. [s 60CC.45] N and R, In the Marriage of (1991) 15 Fam LR 39; FLC 92-252 …. [s 60CC.240] N and S, In the Marriage of (1995) 19 Fam LR 837; FLC 92-655 …. [s 60CC.40] N, In the Marriage of (No 2) (1981) 7 Fam LR 889; FLC 91-111

…. [s 60CC.130] Napier v Hepburn (2006) 36 Fam LR 395 …. [s 60CC.40] Napthali, In the Marriage of (1988) 13 Fam LR 146; (1989) FLC 92-021 …. [s 79.193], [s 79.213], [s 79.65] NAQR v Minister for Immigration (No 1) [2002] FMCA 271 …. [23,008.10] National Employer’s Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 …. [23,424.30], [r 15.31.5], [r 26B.25.25], [r 26B.25.35] National Mutual Holdings Pty Ltd v Sentry Corp (1988) 83 ALR 434 …. [23,172.10], [s 94AA.10] National Provincial Bank v Ainsworth [1965] AC 1175 …. [s 79.69] National Trustees Executors and Agency Co of Australasia Ltd v FCT (1954) 91 CLR 540 …. [s 79.69] Naughton, In the Marriage of (1983) 9 Fam LR 47; FLC 91-327 …. [s 79.173], [ss 86-87.0.15] Navarro v Jurado (2010) 247 FLR 374; 44 Fam LR 310 …. [23,640.25] Neale, In the Marriage of (1991) 14 Fam LR 861; FLC 92-242 …. [s 79.177], [s 79.4A] Neil v Nott (1994) 121 ALR 148 …. [s 97.5] Nelson v Nelson (1995) 184 CLR 538; 132 ALR 133 …. [s 79.178] — v — [1965] NSWR 793 …. [s 66C.5], [s 75.12], [s 75.33] Nelson, In the Marriage of (1977) 2 Fam LR 11,628; FLC 90-204 …. [s 4.750.3], [s 4.750.4] Nemeth, In the Marriage of (1987) FLC 91-844 …. [s 79.197]

Newbery, In the Marriage of (1977) 2 Fam LR 11,652; FLC 90205 …. [s 61B.3], [s 61B.10] Newbigging v Adam (1886) 34 Ch D 582 …. [s 87.55] Newitt v Falcone (2012) 49 Fam LR 596 …. [r 10.12.5], [r 10.14.2] Newling and Mole, In the Marriage of (1987) 11 Fam LR 974; FLC 91-856 …. [s 60CC.220] Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 …. [s 79.195] Nieuwstraten, In the Marriage of (1987) 11 Fam LR 681; FLC 91826 …. [s 94.2], [s 112AP.20] Ninnis v Miller [1905] VLR 669; (1905) 11 ALR 479 …. [23,458.10], [r 17.02.4] Noble, In the Marriage of (1983) 9 Fam LR 55; FLC 91-338 …. [s 87.93] Nocton v Lord Ashburton [1914] AC 932; [1914-15] All ER Rep 45 …. [cl 6.18.1], [s 86.8], [s 87.56], [s 87.57] Noel, In the Marriage of (1981) 6 Fam LR 816; (1981) FLC 91035 …. [23,578.25], [s 75.36], [s 75.38], [s 79.113] Noetel v Quealey (2005) 34 Fam LR 190; (2005) FLC 93-230; [2005] FamCA 677 …. [r 15-64.5] Nol v Nol [2000] FamCA 688 …. [23,458.10] Nolan and Ingram, In the Marriage of (1984) 9 Fam LR 808; FLC 91-585 …. [s 79.253], [s 79.299], [s 93A.20] Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; 10 Fam LR 819; FLC 91-712 …. [s 79.155], [s 79.169], [s 93A.19] Norbis, In the Marriage of (1983) 9 Fam LR 385; (1984) FLC 91543 …. [s 79.81]

Norgard v Norgard (1996) 20 Fam LR 428 …. [s 4.505.27] Norman v Norman (No 3) (1969) 16 FLR 231 …. [s 39.8] North, In the Marriage of (1987) 11 Fam LR 735; FLC 91-831 …. [s 79.327], [s 79.331] Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; 24 Fam LR 253; FLC 92-838 …. [23,424.30], [r 15.31.5], [r 26B.25.25], [s 60CA.15], [s 60CA.65], [s 69ZW.1], [s 69ZW.5], [s 70NAE.1], [s 112AC.2] Norton v Locke (2013) 284 FLR 51; 50 Fam LR 517 …. [23,098.30], [23,602.10], [23,606.10], [23,608.20], [23,610.10], [23,612.10], [Ch 13.2], [r 13.02.2], [r 13.04.2], [r 13.05.2], [r 13.07.3], [r 26B.01.10], [r 26B.02.15] Noske v Noske (1967) 10 FLR 192 …. [s 74.7] Notaro v Notaro [2011] FMCAfam 525; BC201105154 …. [23,308.10] Nowland, In the Marriage of (1977) 3 Fam LR 11,262; FLC 90236 …. [s 96.2] Noye, In the Marriage of (1977) 4 Fam LR 41; 30 FLR 557; (1978) FLC 90-409 …. [s 43.11] Nuell, In the Marriage of (1976) 9 ALR 533; 25 FLR 315; 1 Fam LR 11,239; (1976) FLC 90-031 …. [s 44.5], [s 44.7] Nutting, In the Marriage of (1978) 4 Fam LN 7; FLC 90-410 …. [s 72.12], [s 75.39], [s 80.5], [s 81.3] Nygh, Re; Ex parte Bar-Mordecai (1983) 9 Fam LR 199; FLC 91366 …. [s 93A.14] O’ Brien v Komesaroff (1982) 150 CLR 310 …. [s 93A.20] O’Brien v Michel’s Patisserie (WA) Pty Ltd v Michel’s Patisserie (WA) Pty Ltd [2010] FMCA 7; BC201000082 …. [23,296.10]

— v Tanning Research Laboratories Inc (1988) 14 NSWLR 601; 84 ALR 221 …. [cl 6.18.1] O’Brien, In the Marriage of (1981) 7 Fam LR 919; FLC 91-094 …. [s 86.9], [s 87.75] — (1982) 8 Fam LR 691; (1983) FLC 91-316 …. [s 72.18], [s 79.233], [s 80.4] — (1992) 16 Fam LR 723; (1993) FLC 92-396 …. [s 70NAC.5], [s 70NAE.25] O’Conner v A and B [1971] 2 All ER 1230; [1971] 1 WLR 1227 …. [s 60CC.25] O’Dea, In the Marriage of (1980) 6 Fam LR 675; FLC 90-896 …. [s 114.13], [s 114.15] O’Malley v Blease (1869) 20 LT 899 …. [ss 86-87.0.1] O’Neill v Kaddatz [1964] NSWR 1280; (1963) 80 WN (NSW) 1576 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] O’Neill, In the Marriage of (1998) 23 Fam LR 326 …. [s 79.357] O’Regan v Douglass [1969] ALR 836; (1969) 13 FLR 417 …. [s 82.5] O’Reilly, In the Marriage of (1977) 3 Fam LN N53; (1977) FLC 90-300 …. [s 60CC.127], [s 60CC.265] O’Shea, In the Marriage of (1977) 3 Fam LN 23 …. [s 79.295] O’Toole, In the Marriage of (1991) 15 Fam LR 265; (1992) FLC 92-285 …. [r 7.04.3], [s 79.321] Oastler, In the Marriage of (1989) 16 Fam LR 674; (1993) FLC 92-390 …. [s 79A.0], [s 79A.39] Oates, In the Marriage of (1980) FLC 90-853 …. [r 5.12.3] Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; 79 ALR 9; 62 ALJR 389 …. [23,424.30], [23,640.25]

Official Solicitor to the Supreme Court v K (infants) [1965] AC 201; [1963] 3 All ER 191; 3 WLR 408 …. [s 69ZV.1] Official Trustee in Bankruptcy v Donovan (1996) 20 Fam LR 802; FLC 92-703 …. [s 79A.0], [s 79A.6], [s 79A.10] — v Donovan & Stevens (No 2) (1996) FLC 92-703 …. [r 14.07.5] Official Trustee in Bankruptcy and Bassola (1986) 11 Fam LR 557; FLC 91-760 …. [s 79.353], [s 106B.50], [s 106B.60], [s 106B.110] Official Trustee in Bankruptcy, Ex parte (1987) FLC 91-835 …. [s 79.355] Ogle, In the Marriage of (1976) 11 ALR 107; 1 Fam LR 11,413 …. [s 4.60] Oliver v Gall [2008] FMCAfam 164; BC200801176 …. [23,240.5], [23,400.15] Oliver, In the Marriage of (1977) 4 Fam LR 252; (1977) FLC 90227 …. [s 66L.15], [s 66L.17] — (1978) 4 Fam LR 238; FLC 90-482 …. [s 87.22], [s 87.35], [s 87.47], [s 87.55], [s 87.58], [s 88.7] Olliver, In the Marriage of (1978) 4 Fam LR 360; FLC 90-499 …. [s 72.15], [s 75.52], [s 75.6], [s 78.16], [s 79.3], [s 80.4], [s 80.5] Ongal v Materns (2015) 54 Fam LR 86 …. [s 70NAE.10] Oorloff v Lee [2004] FMCA 893; BC200409110 …. [23,294.10], [23,296.5] OP v HM (2002) 168 FLR 465; 29 Fam LR 251; (2002) FLC 98017 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10], [s 69W.6], [s 69W.10], [s 94.5]

Oppenheim v Sheffield [1893] 1 QB 5 …. [Pt 13.3.15] Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249; [1975] 1 All ER 538; [1975] 2 WLR 347; [1975] STC 91 …. [s 104.8] Opperman, In the Marriage of (1978) 4 Fam LR 135; 33 FLR 248; (1978) FLC 90-275 …. [s 55A.3], [s 55A.5], [s 55A.7], [s 55A.9], [s 55A.10], [s 55A.11], [s 55A.12], [s 55A.13], [s 55A.16], [s 112AA.10] Oriolo v Oriolo (1985) 10 Fam LR 665; FLC 91-653 …. [s 79.115], [s 79.66], [s 79.67], [s 117.14] Orr v Holmes (1948) 76 CLR 632 …. [s 93A.8], [s 93A.10] Orwell & Watson [2008] FamCAFC 62 …. [s 60CC.40] Osborne v Osborne [1972] 1 NSWLR 469 …. [s 66L.17] — v Sparke (1907) 7 SR (NSW) 460 …. [Pt 13.3.5] Osman and Mourrali, In the Marriage of (1989) 13 Fam LR 444; (1990) FLC 92-111 …. [s 51.22] Ostasheen Pty Ltd v Deputy Registrar of Child Support (1998) 145 FLR 346; 23 Fam LR 220; (1998) FLC 98-001 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Ostrofski, In the Marriage of (1979) 5 Fam LR 685; FLC 90-730 …. [s 66C.5], [s 75.33], [s 75.34] Overton v Martinez (No 2) (1978) 3 Fam LN N79; FLC 90-406 …. [s 60CC.125] P v P (1994) 181 CLR 583; 120 ALR 545; 17 Fam LR 457; FLC 92-462 …. [r 4.08.1] P & P, In the Marriage of (1985) 9 Fam LR 1100; FLC 91-605 …. [s 79.113], [s 79.175], [s 79.195], [s 79.385], [s 87.13] P and P and Legal Aid Commission (1995) 19 Fam LR 1 …. [r

4.08.1], [r 8.02.3], [s 68LA.2] Page v Vanker (1990 unreported) …. [s 79.385] Page, In the Marriage of (1978) 4 Fam LR 663; FLC 90-525 …. [s 85A.2], [s 106B.10], [s 106B.45], [s 114.22], [s 114.25], [s 114.34] — (1980) 6 Fam LR 669; (1981) FLC 91-025 …. [s 114.15], [s 114.41], [s 114.5] Page, In the Marriage of (No 2) (1982) 8 Fam LR 316; FLC 91241 …. [s 79.133], [s 79.353], [s 79.357], [s 79.63] Pagliarella, In the Marriage of (1993) 16 Fam LR 688; FLC 93400 …. [r 8.02.3], [s 68L.75], [s 68LA.23] Pailas, In the Marriage of (1976) 11 ALR 493; 26 FLR 149; 1 Fam LR 11,545; FLC 90-083 …. [s 60CC.97] Paisio, In the Marriage of (1978) 4 Fam LR 689; (1979) FLC 90659 …. [s 43.11] Paisio, In the Marriage of (No 2) (1978) 5 Fam LR 281; (1979) 26 ALR 132; FLC 90-659 …. [s 60CC.130] Palmer, In the Marriage of (1985) 10 Fam LR 406; FLC 91-606 …. [s 4.750.4], [s 79.89] Palsboll, In the Marriage of (1976) 2 Fam LR 11,171; FLC 90-094 …. [s 4.750.4], [s 72.17], [s 93A.5] Papas, In the Marriage of (1983) FLC 91-358 …. [s 87.31] Paradine, In the Marriage of (1981) 7 Fam LR 125; FLC 91-056 …. [s 66J.21], [s 66J.25] Paradoxos v Paradoxos [2010] FamCA 653; BC201050725 …. [23,040.10], [r 24.13.2] Paramasivam v New South Wales (No 2) [2007] FMCA 1033; BC200705524 …. [23,532.10]

Park, In the Marriage of (1978) 4 Fam LR 488; FLC 90-509 …. [s 79.237], [s 79.313], [s 80.4], [s 83.3] Parker v Arcus and Castiglione (1984) FLC 91-581 …. [s 79A.5] — v Parker (2012) 260 FLR 284; (2012) FLC 93-499 …. [s 90G.1] Parker, In the Marriage of (1983) 9 Fam LR 323; FLC 91-364 …. [s 74.11], [s 79.295], [s 79.297], [s 79.69], [s 79A.2], [s 79A.3], [s 79A.4], [s 79A.31], [s 79A.32], [s 79A.37], [s 87.82] Parkes & Parkes, In the Marriage of (1980) 8 Fam LR 375; (1982) FLC 91-231 …. [s 60CC.135] Parkinson & Co Ltd v Triplan Ltd [1973] QB 609; [1973] 2 All ER 273; [1973] 2 WLR 632 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 117.25] Parry v Crooks (1981) 6 Fam LR 824; (1982) FLC 91-258 …. [s 114.11], [s 114.40] Parsons and Punchon, In the Marriage of (1978) 4 Fam LR 331; 31 FLR 513n; FLC 90-490 …. [s 43.10], [s 43.11] Partington & Cade (No 2) [2009] FamCAFC 230 …. [s 60CC.40] Pascarl v Oxley (2013) 49 Fam LR 364 …. [s 60CA.22] Pascoe v Liprini [2013] FCCA 1958; BC201315125 …. [23,492.5] Paskandy v Paskandy (1999) FLC 92-878 …. [S 60CC.140] Pastrikos, In the Marriage of (1979) 6 Fam LR 497; (1980) FLC 90-897 …. [s 72.20], [s 75.47], [s 79.153], [s 79.161], [s 79.165], [s 79.233], [s 79.311] Patching, In the Marriage of (1995) 18 Fam LR 675; FLC 92-585 …. [s 79A.0] Patison v Farington-Manning [2011] Fam CAFC 167 …. [r 5.06.1], [r 16.05.1]

Patrick, Re (2002) 28 Fam LR 579; FLC 93-096 …. [s 60H.7] Patsalou, In the Marriage of (1994) 18 Fam LR 426; FLC 92-580 …. [s 60CC.37] Patterson, In the Marriage of (1979) FLC 90-705 …. [s 72.14], [s 72.8], [s 75.21], [s 75.28], [s 75.39], [s 75.4], [s 75.46], [s 75.52], [s 80.13] Patzak v Lytton and Registrar of Titles (1984) 9 Fam LR 737; FLC 91-550 …. [s 79.303] Pavey, In the Marriage of (1976) 1 Fam LR 11,358; FLC 90-051 …. [s 48.13], [s 48.17], [s 48.21], [s 48.26], [s 48.31], [s 48.32], [s 49.3], [s 72.2] Pavli v Beffa [2013] FamCA 144 …. [s 64B.50] Paxton, In the Marriage of (1977) 6 Fam LR 417; (1980) FLC 90879 …. [s 114.34] Pearce, In the Marriage of (1982) 8 Fam LR 723; (1982) FLC 91276 …. [s 4.505.12], [s 4.505.13], [s 4.505.15], [s 44.19] Pearn & Appleby, Re (1977) FLC 90-231 …. [s 92.9] Peck, In the Marriage of (1977) 17 FLR 433 …. [s 4.505.37] Pedersen v Pedersen (2001) 27 Fam LR 397; (2001) FLC 93-065 …. [23,240.10], [r 6.08.5] Peer v Peer (1968) 11 FLR 329 …. [s 83.5] Pelbart, In the Marriage of (1976) 1 Fam LR 11,124; FLC 90-002 …. [s 3.7], [s 40.8], [s 47.1], [s 105.2] Pelerman, In the Marriage of (2000) 26 Fam LR 505; FLC 93-037 …. [r 6.04.3], [r 10.12.2], [s 28.10], [s 79A.15] Pellegrino, In the Marriage of (1997) 22 Fam LR 474; FLC 92-789 …. [s 79.205] Pemberton v Hughes [1899] 1 Ch 781; (1899) 15 TLR 211 …. [s

104.2], [s 104.7] Penberthy, In the Marriage of (1977) 3 Fam LR 11,302; FLC 90255 …. [s 87.110], [s 87.2] Penfold and Penfold (1980) 144 CLR 311; 5 Fam LR 579; FLC 90-800 …. [s 117.0], [s 117.14], [s 117.15], [s 117.5], [s 117.6] Pennisi, In the Marriage of (1997) 22 Fam LR 249; FLC 92-774 …. [s 117.21] Penza, In the Marriage of (1988) FLC 91-949 …. [s 77A.7] Perkins, In the Marriage of (1979) 35 FLR 356; 4 Fam LR 634; (1979) FLC 90-600 …. [s 44.17] Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91-500 …. [Pt VIII.2], [s 4.505.13], [s 4.505.22], [s 4.505.27], [s 39.17], [s 87.93], [s 88.3] Perlman, In the Marriage of (1983) 8 Fam LR 811; FLC 91-308 …. [s 4.505.22], [s 87.93] Permanent Finance Corp Ltd v Euro-Pacific (Plant Hire) Pty Ltd [1970] QWN 45 …. [Pt 13.3.15] Perrett and Perrett (1989) 13 Fam LR 464; (1990) FLC 92-101 …. [s 79.69], [s 79.93] Perry, In the Marriage of (1979) 5 Fam LR 454; FLC 90-701 …. [Pt VIII.11], [s 4.750.5], [s 79.237], [s 79.313], [s 79.41], [s 80.4] Perta, In the Marriage of (1977) 3 Fam LN 27 …. [s 40.5] Pertsoulis, In the Marriage of (1979) 4 Fam LR 613; FLC 90-613 …. [s 21.7], [s 79.237], [s 79.303], [s 79.335], [s 92.14], [s 94.6] Petchem Ltd (in liq) v BF Goodrich Chemical Ltd [1982] VR 485 …. [Pt 13.3.20]

Peters v Peters [1968] P 275 …. [s 104.10], [s 104.6] Peters (aka Eustace) and Castuera (1994) 117 FLR 388; 18 Fam LR 203; (1994) FLC 92-500 …. [s 60CC.20], [s 60CC.95] Peters, In the Marriage of (1981) 7 Fam LR 722; (1982) FLC 91202 …. [s 4.505.14], [s 4.505.15] Petersens, In the Marriage of (1981) 7 Fam LR 402; FLC 91-095 …. [s 75.28], [s 79.81], [s 79.97] Petta, In the Marriage of (1979) FLC 90-608 …. [s 79.237] Petterd, In the Marriage of (1976) 1 Fam LR 11,496; FLC 90-065 …. [s 75.21], [s 75.42], [s 75.50] Petterson, In the Marriage of (1979) 5 Fam LR 628; FLC 90-717 …. [s 80.5] Pettit v Dunkley [1971] NSWLR 376 …. [s 93A.17] Pfeiffle, In the Marriage of (1989) 13 Fam LR 692; (1990) FLC 92-123 …. [s 79.303] Pflugradt, In the Marriage of (1981) 7 Fam LR 188; FLC 91-052 …. [s 106B.65], [s 106B.75], [s 114.36] Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465; 55 ALJR 120 …. [s 31.4], [s 31.7], [s 33.3] Philippe, In the Marriage of (1977) 20 ALR 381; 4 Fam LR 153; 34 FLR 436; (1978) FLC 90-433 …. [s 55A.14] Phillips, In the Marriage of (1985) 10 Fam LR 310; (1985) FLC 91-634 …. [s 44.24], [s 79.323], [s 79A.5], [s 79A.35] Pickard, In the Marriage of (1981) 7 Fam LR 636; FLC 91-034 …. [s 79.65] Pickering, In the Marriage of (1978) 4 Fam LR 349; FLC 90-507 …. [s 102.4]

Picton v Picton [2009] FamCA 867 …. [r 15.65.5] Pierce, In the Marriage of (1998) 24 Fam LR 377; FLC 92-844 …. [s 79.199] Piers v Piers (1849) 2 HL Cas 331 …. [s 102.2] Pietkowski, In the Marriage of (1981) 7 Fam LR 292; FLC 91-032 …. [s 82.11], [s 83.5], [s 83.7] Piggott v Toogood [1904] WN 130 …. [r 6.13.1] Piper, In the Marriage of (1977) 3 Fam LN 17; 30 FLR 536 …. [s 66J.31], [s 75.35] Pizzey Properties Pty Ltd v Edelstein [1977] VR 161 …. [r 14.01.5] PJ and NW [2005] FamCA 162 …. [s 117.29A] Pleym, In the Marriage of (1986) 11 Fam LR 451; FLC 91-762 …. [s 4.750.4], [s 79.89] Plowman v Plowman (1970) 16 FLR 447 …. [s 114.16] Plows, In the Marriage of (1979) 4 Fam LR 764; FLC 90-607 …. [s 43.11] Plows, In the Marriage of (No 2) (1979) 5 Fam LR 590; FLC 90712 …. [s 60CC.130], [s 114.11] Plut, In the Marriage of (1987) 11 Fam LR 687; FLC 91-834 …. [s 79.177], [s 85A.13] Pockran and Crewes, In the Marriage of (1982) 8 Fam LR 893; (1983) FLC 91-311 …. [s 114.34] Poisat v Poisat [2014] FamCAFC 128 …. [s 60CC.220] Poletti, In the Marriage of (1990) 15 Fam LR 794 …. [s 80.15], [s 117.4] Polik v Polik (2012) 48 Fam LR 66 …. [r 10.12.3], [s 79.4A]

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 …. [cl 6.18.1], [s 87.51] — v Anshun Pty Ltd (No 1) (1980) 147 CLR 35; 33 ALR 248; 55 ALJR 96 …. [23,458.10] Porter v Freudenberg [1914-15] All ER Rep 918; [1915] 1 KB 857; (1915) 112 LT 313; 32 RPC 109 …. [23,138.30], [r 7.18.11] Portuguese Cultural & Welfare Centre v Australian Media and Communications Authority (AMCA) [2011] FMCA 144; BC201101362 …. [23,294.10], [23,296.5] Potter v Potter (2007) 37 Fam LR 208 …. [s 60CC.40] Potter’s Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101 …. [Pt 13.3.20] Potter, In the Marriage of (1976) 2 Fam LR 11,554; FLC 90-146 …. [s 48.17] Poulos, In the Marriage of (1984) FLC 91-515 …. [s 72.9] Poulton v Commonwealth (1953) 89 CLR 540 …. [s 4.750.4] Pounds v Pounds [1994] 4 All ER 777 …. [s 79.177] Powell v Anderson (1976) 1 Fam LN N38; FLC 90-235 …. [s 60CC.25], [s 60CC.27], [s 60CC.125] Powell, In the Marriage of (1978) 4 Fam LN 22; FLC 90-443 …. [s 79.301], [s 80.6] Power, In the Marriage of (1980) 6 Fam LR 296; FLC 90-878 …. [s 88.3] — (1988) 12 Fam LR 97; FLC 91-911 …. [s 93A.17] Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; 16 ACSR 227 …. [r 15-64.5] Pozzi, Re (1982) 8 Fam LR 157; FLC 91-262 …. [ss 86-87.0.5]

Prentice v Bellas (2012) 47 Fam LR 262 …. [s 121.7] Prentice, In the Marriage of (No 2) (1978) 4 Fam LR 47; FLC 90416 …. [s 40.6], [s 59.2] Prescott v Fellowes [1958] P 260 …. [s 85A.3] Prestwich, In the Marriage of (1984) 9 Fam LR 1069; FLC 91-569 …. [s 75.38], [s 79.195], [s 80.4] Price v Underwood [2009] FamCAFC 127; (2009) 41 Fam LR 614 …. [s 55.4], [s 93.2], [s 113.2] Price, In the Marriage of (1976) 2 Fam LN 21; FLC 90-125 …. [s 60CC.45], [s 60CC.97] Prince, In the Marriage of (1984) 9 Fam LR 481; FLC 91-501 …. [s 31.8], [s 33.4], [s 79.97] Prinsep v Prinsep [1929] P 225 …. [s 85A.3], [s 85A.4], [s 85A.8], [s 85A.9], [s 85A.11] Prior, In the Marriage of (2002) 30 Fam LR 72; FLC 93-105 …. [s 28.10], [s 79A.10] Pritchard, In the Marriage of (1982) 8 Fam LR 805; FLC 91-286 …. [s 77.1], [s 77.3], [s 77.4], [s 77.6], [s 80.13], [s 80.14] Pritchard, In the Marriage of; Redwood Banner Pty Ltd (in liq) Intervener (1988) 12 Fam LR 219; FLC 91-929 …. [s 79.31] Prowse, In the Marriage of (1994) 118 FLR 135; 18 Fam LR 348; (1995) FLC 92-557 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10], [s 79A.0], [s 79A.6] Pty (B) Ltd v K (2008) 219 FLR 107; 39 Fam LR 488 …. [23,076.10], [r 2.01.3] Pty (X) Ltd v Merhi [2015] FamCA 622; BC201550718 …. [23,424.12], [r 15.26.3] Public Guardian (Qld) v Beasley (No 2) [2015] FamCAFC 201;

BC201550931 …. [23,242.1] Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC 92-211 …. [s 79A.9], [s 79A.15], [s 79A.29] — v Grivas [1974] 2 NSWLR 316 …. [s 79.303] Public Trustee (SA) and Keays, Re (1985) 10 Fam LR 610; FLC 91-651 …. [s 4.750.4], [s 79.63] Pugh v Duke of Leeds (1777) 2 Cowp 714; 98 ER 1323 …. [23,062.5], [r 1.21.1] Pulford v Pulford [1923] P 18 …. [s 48.13] Pullman v Pullman [2013] FCCA 31; BC201313016 …. [23,214.30], [23,314.10], [r 12.07.6] Puls, In the Marriage of (1976) 1 Fam LR 11,252; FLC 90-036 …. [s 72.15], [s 80.4], [s 80.5] Purnell v Purnell [1961] P 141 …. [s 85A.10], [s 85A.12] Putrino & Jackson, In the Marriage of (1978) 33 FLR 94; 4 Fam LR 71; FLC 90-441 …. [s 60CC.135] Pylarinos and Reklitis, In the Marriage of (1979) 4 Fam LR 629; FLC 90-609 …. [s 40.6], [s 60CC.135] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 141 ALR 353; 71 ALJR 294 …. [23,158.10], [cl 6.22.3], [r 11.10.3], [r 19.21.3], [r 22.03.10] Quigley, In the Marriage of (1976) FLC 90-074 …. [s 48.17] Quinn, In the Marriage of (1979) FLC 90-677 …. [s 79.113], [s 79.159], [s 79.207] Qureshi v Qureshi [1972] Fam 173; [1971] 1 All ER 325 …. [s 6.4] R v B [2007] FamCA 406 …. [S 60CC.140] — v Baines [1909] 1 KB 258; (1908) 72 JP 524; 78 LJKB 119;

110 LT 78 …. [23,424.30], [r 15.31.5], [r 26B.25.25] — v Barton [1981] 2 NSWLR 414 …. [23,424.30], [r 15.31.5], [r 26B.25.25] — v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 …. [s 31.4] — v Bow County Court; Ex parte Pelling [1999] 4 All ER 751 …. [r 8.01.5] — v Brentwood; Superintendent Registrar of Marriages; Ex parte Arias [1968] 2 QB 956 …. [s 104.11] — v Carter; Ex parte Kisch (1934) 52 CLR 221 …. [s 31.4] — v Cook; Ex parte Twigg (1980) 6 Fam LR 161; FLC 90-859 …. [s 94.8], [s 94AAA.10], [s 95.7] — v Copestake; Ex parte Wilkinson [1927] 1 KB 468 …. [s 93A.10] — v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90-616 …. [Pt VIII.1], [s 4.505.21], [s 114.10], [s 114.22], [s 114.24], [s 114.25], [s 114.34], [s 114.4], [s 114.9] — v Gray; Ex parte Marsh (1985) 157 CLR 351; 62 ALR 17 …. [s 94AA.5] — v Howe and Howe (1978) 4 Fam LR 166 …. [s 121.6] — v Kensington Income Tax Commissioner [1917] 1 KB 504 …. [r 5.12.3] — v Lambert; Ex parte Plummer (1980) 146 CLR 447; 6 Fam LR 355; FLC 90-904 …. [s 69ZK.25] — v Lusink; Ex parte Shaw (1980) 6 Fam LR 230; FLC 90-884 …. [s 93A.14], [s 117.34] — v M [2002] FMCA fam 279 …. [s 65C.8] — v MIMIA (2003 unreported) …. [s 67ZC.20]

— v R (2000) 155 FLR 29; 25 Fam LR 712; FLC 93-000 …. [s 60CC.45] — v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90-606 …. [Pt VIII.3], [Pt VIII.8], [s 4.505.13], [s 4.505.15], [s 4.750.4], [s 33.4], [s 79.81], [s 80.20], [s 94.8] — v Turner [1910] 1 KB 346; (1909) 26 TLR 112 …. [23,062.15], [r 1.21.5] — v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297; FLC 90-059 …. [r 1.04.1], [s 4.275], [s 21.2], [s 75.21], [s 93A.14], [s 93A.18], [s 94.3], [s 95.7], [s 97.4] — v White (1976) 13 SASR 276 …. [r 26B.25.35] R (Children’s wishes), In the Marriage of (2002) 29 Fam LR 230; FLC 93-108 …. [s 60CC.45] R and R, In the Marriage of (1985) FLC 91-615 …. [s 60CC.65] Raby, In the Marriage of (1976) 12 ALR 669; 2 Fam LR 11,348; 27 FLR 412; FLC 90-104 …. [s 43.10], [s 60CC.25], [s 60CC.95], [s 60CC.132] Racine and Hemmett, In the Marriage of (1982) 8 Fam LR 716; FLC 91-277 …. [s 79.237], [s 79.313], [s 80.4], [s 80.5] Radcliffe v Bartholomew [1892] 1 QB 161; [1891] All ER Rep 829 …. [23,062.15], [r 1.21.5] Radford and Alpe, In the Marriage of (1985) 10 Fam LR 135; FLC 91-622 …. [s 60CC.45] Radwan, In the Marriage of (1985) 11 Fam LR 1; (1986) FLC 91755 …. [s 79.385], [s 87.26], [s 87.54] Rafter, In the Marriage of (1982) FLC 91-261 …. [s 79.335], [s 105.6]

Ragatta Developments Pty Ltd v Westpac Banking Corporation (1993 unreported) …. [s 117.4] Rahman v Hedge [2012] FCA 68; BC201200358 …. [r 24.10.2] Rainbird, In the Marriage of (1977) 3 Fam LR 11,368; FLC 90256 …. [s 75.22], [s 75.49], [s 79.205] Rainer, In the Marriage of (1982) 8 Fam LR 210; (1982) FLC 91239 …. [r 5.12.7], [s 60CC.226] Raja Bahrin, In the Marriage of (1986) 11 Fam LR 233 …. [23,532.10], [cl 6.05.5], [r 19.05.5], [s 93A.8], [s 117.25] Ralph, In the Marriage of (1977) FLC 90-292 …. [s 60CC.135] Rampling, In the Marriage of (1987) 12 Fam LR 33; (1988) FLC 91-902 …. [s 79.323] Ramsay v Ramsay (1997) FLC 92-742 …. [s 79.123], [s 79.125] Ramsey, In the Marriage of (1978) 4 Fam LN 20; FLC 90-449 …. [s 75.22], [s 75.40], [s 79.215], [s 80.4] — (1982) 8 Fam LR 863; (1983) FLC 91-301 …. [23,702H.10], [r 20.07.2], [s 79A.9], [s 84.3], [s 87.101] Ramsey, In the Marriage of (No 2) (1983) 8 Fam LR 1005; (1983) FLC 91-323 …. [23,702H.10], [r 20.07.2], [s 4.505.15], [s 31.8], [s 33.4], [s 78.8], [s 79A.9] Randle, In the Marriage of (1987) 11 Fam LR 753; FLC 91-828 …. [s 78.14], [s 79.331] Rastall v Ball (2010) 44 Fam LR 256; [2010] FMCAfam 1290 …. [s 10D.8], [s 10E.5], [s 10H.2], [s 10J.4], [s 13D.1] Ratnam v Cumarasamy [1964] 3 All ER 933; [1965] 1 WLR 8 …. [r 1.12.5], [r 1.14.1], [r 1.14.15], [r 3.05.10], [r 15.65.3], [r 19.21.5] Ravasini, In the Marriage of (1982) 8 Fam LR 903; (1983) FLC

91-312 …. [s 79.307] Rayburn v Pritchard [2014] FamCAFC 13 …. [cl 6.22.3], [r 19.21.3] Raymond v Tapson (1882) 22 Ch D 430 …. [23,424.30], [r 15.31.5], [r 26B.25.25] RB Harbottle (Mercantile) Ltd v National Westminster Bank Ltd [1978] QB 146 …. [23,458.10] RCB v Forrest (2012) 48 Fam LR 236; 292 ALR 617 …. [s 68L.1] Re: Trade Practices Commission v Milreis Pty Ltd: Application by Thompson Publications (Aust) Pty Ltd (1978) 18 ALR 7 …. [23,008.10] Re; Minister for Immigration and Multicultural Affairs, Ex parte Lam (2003) 214 CLR 1; 77 ALJR 699 …. [23,098.15] Read and Read (1984) FLC 91-527 …. [s 79.157], [s 79.205] Read, In the Marriage of (1977) 2 Fam LR 11,596; 27 FLR 392; FLC 90-201 …. [Pt VIII.1], [s 4.505.5], [s 113.3] Redgrave v Hurd (1881) 20 Ch D 1 …. [s 87.57] Redman, In the Marriage of (1987) 11 Fam LR 411; FLC 91-805 …. [s 66J.25], [s 74.2] Reed, In the Marriage of (1977) 3 Fam LR 11,362; FLC 90-269 …. [s 87.5], [s 87.7], [s 87.9] Reed, In the Marriage of; M J Draper (Intervener) (1995) 20 Fam LR 229; FLC 92-649 …. [s 94AA.10] Rehfeld, In the Marriage of (1986) 10 Fam LR 373; FLC 91-725 …. [s 37A.11] Reid, In the Marriage of (1982) 8 Fam LR 11; FLC 91-211 …. [s 46.2], [s 46.4], [s 46.5], [s 46.6], [s 46.7], [s 114.6] Reihana, In the Marriage of (1980) 6 Fam LR 134; FLC 90-835

…. [s 60CC.27] Reilly, In the Marriage of (1995) 19 Fam LR 213; FLC 92-616 …. [s 112AD.20], [s 112AD.25] Reinking, Re (1976) 1 Fam LN 12; FLC 90-012 …. [s 40.8] Relationships Australia v Pasternak (1996) 133 FLR 462; 20 Fam LR 604; (1996) FLC 92-699 …. [23,410.15], [23,424.40], [r 15.18.2], [r 15.31.5], [r 15.31.6], [r 26B.15.10], [r 26B.25.25], [r 26B.25.30] Relationships Australia (Qld) v M (2006) 204 FLR 440; 37 Fam LR 12; (2006) FLC 93-305 …. [s 10E.1], [s 10J.2] Rennie and Higgon, In the Marriage of (1981) 7 Fam LR 715; FLC 91-087 …. [Pt VIII.3], [s 4.505.13], [s 4.505.15], [s 114.24], [s 114.29], [s 114.9] Renshaw and Reschke, In the Marriage of (1997) 22 Fam LR 354; FLC 92-777 …. [s 62G.5] Reynolds v Kilpatrick (1992) 16 Fam LR 601; FLC 92-351 …. [s 60CA.65] — v Reynolds (1973) 1 ALR 318; 47 ALJR 499 …. [s 69ZV.1] — v — (1977) 3 Fam LR 11,529; (1979) FLC 90-728 …. [Pt VIII.3], [s 40.6], [s 114.29] Reynolds, In the Marriage of (1984) 10 Fam LR 388; (1985) FLC 91-632 …. [s 75.10], [s 79.121], [s 79.123] Rhodes v Swithenbank (1889) 22 QBD 577 …. [23,244.10], [r 6.13.1] Rice v Miller (1993) 16 Fam LR 970; FLC 92-415 …. [s 60CC.125], [s 60CC.132] Rice and Asplund, In the Marriage of (1978) 6 Fam LR 570; (1979) FLC 90-725 …. [s 1.0.40], [s 60CC.220]

Richards, In the Marriage of (1976) 1 Fam LR 11,345; FLC 90037 …. [s 93A.6] — (1988) 12 Fam LR 405; FLC 91-951 …. [r 10.01.5] Richardson v Richardson [1985] P 276 …. [s 117.11] Richardson, In the Marriage of (1979) 4 Fam LN 58; FLC 90-603 …. [s 72.14], [s 72.15], [s 72.19], [s 75.15], [s 75.22], [s 75.38], [s 75.4], [s 75.9] Richmond v Dwyer (2006) 197 FLR 1 …. [23,458.10] Rickie, In the Marriage of (1979) 4 Fam LR 737; FLC 90-626 …. [s 106B.10], [s 106B.45], [s 114.22], [s 114.24], [s 114.9] Ridley v Whipp (1916) 22 CLR 381 …. [s 31.3] Rieck, In the Marriage of (1981) 7 Fam LR 391; FLC 91-067 …. [Pt VIII.3], [s 114.1], [s 114.24], [s 114.33], [s 114.34], [s 114.35] Ring-grip (Australasia) Pty Ltd v HPM Industries Pty Ltd [1971] 1 NSWLR 798 …. [Pt 13.3.20] Rittman v Rittman (No 3) (2011) 46 Fam LR 147 …. [s 117.4] Riznic, In the Marriage of (1984) 10 Fam LR 385; (1984) FLC 91589 …. [s 92.5], [s 117.0] Robb, In the Marriage of (1994) 18 Fam LR 489; (1995) FLC 92555 …. [s 75.22], [s 75.49], [s 79.213], [s 79.215], [s 79.235], [s 79.257] Roberts v Roberts [1970] P 1 …. [s 66C.5], [s 75.33] Roberts, In the Marriage of (1977) 3 Fam LN 59 …. [s 75.46] — (1989) 14 Fam LR 329; (1990) FLC 92-165 …. [s 87.41] Robertson, In the Marriage of (1977) 15 ALR 145; 2 Fam LR 11,699; 28 FLR 129; FLC 90-214 …. [s 92.9], [s 94A.3], [s 114.33]

Robins v Bridge (1837) 150 ER 1079; 3 M & W 114 …. [23,420.10], [r 15.23.1], [r 26B.18.15] Robinson v Blackheart Industries Pty Ltd (2013) 281 FLR 289 …. [23,432.25], [r 15.30.5], [r 26B.24.25] — v Robinson [1982] 2 All ER 699 …. [s 87.59] Robinson and Willis, In the Marriage of (1982) 8 Fam LR 131; FLC 91-215 …. [s 79A.18], [s 93A.15], [s 96.2], [s 96.3], [s 96.4] Robson, In the Marriage of [2003] Fam CA 217 …. [s 79.63], [s 79A.2] Roche v Glenn (2002) 30 Fam LR 68 …. [s 66W.1] Rochfort v Trade Practices Commission (1981) 37 ALR 439; 53 FLR 364; (1982) ATPR 40-283 …. [23,424.30], [r 15.31.5], [r 26B.25.25] — v — (1982) 153 CLR 134; 43 ALR 659; 57 ALJR 31 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Rocks, In the Marriage of (1983) FLC 91-340 …. [s 60CC.290] Rodgers v Rodgers (1964) 114 CLR 608; [1965] ALR 109; (1964) 38 ALJR 27 …. [s 117.13], [s 117.21] Rodway and Napier, In the Marriage of (1979) 5 Fam LR 585; FLC 90-722 …. [s 106B.45] Rogers and Fernandez, In the Marriage of (1988) 12 Fam LR 467; FLC 91-963 …. [s 92.1] Rogers, In the Marriage of (1980) FLC 90-874 …. [s 75.51], [s 79.157] — (1988) 92 FLR 448 …. [r 8.01.5] Rohde, In the Marriage of (1984) 10 Fam LR 56; FLC 91-592 …. [s 79A.6], [s 79A.14], [s 79A.15], [s 79A.20], [s 79A.21], [s

79A.27] Rolfe, In the Marriage of (1977) 5 Fam LR 146; (1979) FLC 90629 …. [s 79.213] Rosati, In the Marriage of (1998) 23 Fam LR 288; FLC 92-804 …. [s 72.20], [s 79.132] — (1997 unreported) …. [s 79.195] Rose, In the Marriage of (1976) 12 ALR 107; 2 Fam LR 11,101; FLC 90-064 …. [s 60CC.265] — [2003] FamCA 93 …. [23,458.10], [r 17.02.7] Ross-Jones and Marinovich, Re; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91-555 …. [s 4.505.13], [s 4.505.15], [s 4.505.27], [s 4.505.28], [s 21.10], [s 21.3], [s 21.6], [s 33.4], [s 85A.11], [s 94.8], [s 95.7], [s 114.29], [s 114.34], [s 114.35], [s 114.36], [s 114.37] Rothwell, In the Marriage of (1993) 18 Fam LR 454; (1994) FLC 92-511 …. [s 79.132] Rouse, In the Marriage of (1981) 7 Fam LR 780; FLC 91-073 …. [s 72.14], [s 75.14], [s 79.207], [s 80.4], [s 82.7], [s 117.14], [s 117.18], [s 117.9] Rouse, In the Marriage of (No 2) (1981) 7 Fam LN 22; (1982) FLC 91-226 …. [s 75.14], [s 75.52], [s 82.7], [s 117.14], [s 117.18] Rowan, In the Marriage of (1977) 3 Fam LN 76; FLC 90-310 …. [s 72.8], [s 75.41], [s 75.6], [s 75.8], [s 79.301], [s 80.1], [s 80.2] Rowe, In the Marriage of (1979) 5 Fam LN N25 …. [s 60CC.87] — (1980) 6 Fam LR 435; FLC 90-895 …. [s 114.15], [s 114.18], [s 114.42], [s 114.5]

RS v ALMC (2006) 200 FLR 213; 35 Fam LR 234 …. [s 64B.80] Ruane v Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369; BC201250422 …. [s 31.3], [s 31.7] Rubie v Rubie (1991) 104 FLR 426; 15 Fam LR 47; (1991) FLC 92-253 …. [23,008.10] Ruffles v Alston (1875) LR 19 Eq 539 …. [ss 86-87.0.1] Rules of the Supreme Court, Re; Re Masterson (1978) 4 Fam LR 660 …. [s 88.1], [ss 86-87.0.1] Ruscoe v Walker (2001) 28 Fam LR 566 …. [s 93A.1] Rushby v Sherry [2005] FMCAfam 260 …. [23,476.10] Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90-039 …. [Pt VIII.1], [s 4.505.2], [s 4.505.6], [s 4.505.7], [s 4.505.8], [s 4.505.10], [s 4.505.20], [s 60F.11], [ss 86-87.0.3], [ss 8687.0.6], [s 87.15], [s 97.2], [s 97.4] — v Russell (1999) 154 FLR 171; 25 Fam LR 629; (1999) FLC 92-877 …. [23,458.10], [r 17.02.3], [r 17.02.5] — v — [1924] AC 687; 40 TLR 713 …. [s 69V.5] Russell, In the Marriage of (1983) 9 Fam LR 259; FLC 90-279 …. [s 112AP.35] Ruth v Hutton (2011) 45 Fam LR 399 …. [s 60CC.40] Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383; FLC 92-866 …. [s 65D.25], [s 112AB.15], [s 112AD.37], [s 112AP.30], [s 112AP.65] Rutherford, In the Marriage of (1991) 15 Fam LR 1; FLC 92-255 …. [s 94AA.5], [s 94AA.10] Ryan & CGU Professional Insurance & Rees & Rees [2010] FamCAFC 147 (FC) …. [s 117.31]

Ryan, In the Marriage of (1976) 1 Fam LN 32 …. [s 45.5] — (1976) 14 ALR 466; 2 Fam LR 11,510; FLC 90-144 …. [s 60CC.45], [s 75.41] — (1988) 12 Fam LR 529; FLC 91-970 …. [s 66C.5], [s 66C.7], [s 66K.15] S v A Solicitor and A Firm of Solicitors (1998) 23 Fam LR 641 …. [s 112AP.25] — v Australian Crime Commission (2005) 144 FCR 431; 89 ALD 12; 225 ALR 123 …. [s 60B.10] — v McC; W v W [1972] AC 24; [1970] 3 All ER 107 …. [s 69V.5] — v R and the Children’s Representative (1999) 24 Fam LR 213; FLC 92-834 …. [s 97.5] S and P, In the Marriage of (1990) 14 Fam LR 251; FLC 92-159 …. [s 97.4] S, In the Marriage of (1980) 5 Fam LR 831; (1980) FLC 90-820 …. [s 43.11], [s 68L.70], [s 79A.12], [s 117.28] Saba, In the Marriage of (1984) 9 Fam LR 780; FLC 91-579 …. [s 4.750.4], [s 31.10], [s 33.4], [s 79.377], [s 79.89], [s 119.2] Sabbagh, In the Marriage of (1982) 8 Fam LR 88; FLC 91-224 …. [s 87.19], [s 87.20], [s 87.6], [ss 86-87.0.5] Sabri v ANZ Banking Group Ltd (1996) 21 Fam LR 213; (1997) FLC 92-732 …. [s 79.355] Sacco v Bagala [2011] FMCAfam 834; BC201107852 …. [23,476.10] Sahadi v Savva [2016] FamCAFC 65 …. [23,378.10], [23,588.25], [r 15.04.10], [r 15.48.2] Sahari, In the Marriage of (1976) 2 Fam LR 11,126; FLC 90-086

…. [s 81.3], [s 107.1], [s 112AB.10], [s 112AP.35], [s 112AP.40], [s 112AP.65] Saif Ali v Sydney Mitchell [1980] AC 198 …. [s 60CC.290] Sajdak, In the Marriage of (1992) 16 Fam LR 280; (1993) FLC 92348 …. [s 93A.18], [s 97.5] Salmon v Marin (No 2) [2011] FamCA 664 …. [r 6.10.1] Sampson v Hartnett [2014] FCCA 99 …. [23,430.5] — v Hartnett (No 10) (2007) FLC 93-350 …. [S 60CC.140] Sanders v Sanders (1967) 116 CLR 366; [1968] ALR 43 …. [s 4.750.2], [s 4.750.3], [s 72.20], [s 74.5], [s 75.47], [s 79.311], [s 114.33], [s 114.34] Sanders, In the Marriage of (1976) 10 ALR 604; 1 Fam LR 11,433; 26 FLR 474; (1976) FLC 90-078 …. [r 22.11.11], [s 48.17], [s 60CC.25], [s 60CC.65], [s 60CC.132], [s 93A.5] Sandrk, In the Marriage of (1991) 15 Fam LR 197; FLC 92-260 …. [s 79A.29] Sangara v Hamwood (2007) 39 Fam LR 237; 222 FLR 359 …. [s 117.2B] Santos v Santos [1972] Fam 247 …. [s 48.18] Sapir v Sapir (No 2) (1989) 13 Fam LR 362; FLC 92-047 …. [s 79.115], [s 79.121], [s 79.123] Sargent: Director of Dept of Youth and Community Services (Intervener), In the Marriage of (1985) 10 Fam LR 867; (1986) FLC 91-718 …. [s 69ZK.25] Saunders v Pawley (1885) 14 QBD 234 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] Savage and Hodgson, In the Marriage of (1982) 46 ALR 198; 8 Fam LR 658; FLC 91-281 …. [Pt VIII.1], [s 4.505.5], [s

4.505.18], [s 113.3], [s 114.24], [s 114.6] — (1982) 7 Fam LR 803; FLC 91-222 …. [s 114.24] Scanlen’s New Neon Ltd v Tooheys Ltd (1944) 62 WN (NSW) 53 …. [s 118.3] Scarborough, In the Marriage of (1978) FLC 90-501 …. [s 79A.31] Schafer v Blyth [1920] 3 KB 140 …. [r 1.14.1], [r 1.14.5], [r 3.05.10], [r 3.05.20] Schefe, In the Marriage of (1978) 4 Fam LR 292; FLC 90-473 …. [s 72.7], [s 79.173], [ss 86-87.0.15] Scheibner-Grover & Ryan, In the Marriage of (1987) 11 Fam LR 727; (1987) FLC 91-833 …. [23,410.15], [23,424.30], [r 15.18.2], [r 15.31.5], [r 26B.15.10], [r 26B.25.25] Schenck, In the Marriage of (1981) 7 Fam LR 170; (1981) FLC 91-023 …. [s 60CC.27], [s 60CC.87] Schiliro v Gadens Ridgeway (1995) 19 Fam LR 196; (1995) FLC 92-608 …. [cl 6.15.3] Schmidt v Geller (SSAT Appeal) [2012] FMCAfam 735; BC201205928 …. [r 4.21.5] Schmidt (A Mastrone, Intervener), In the Marriage of (1980) 6 Fam LR 488; FLC 90-873 …. [s 106B.10], [s 106B.45], [s 114.33] Schmidt, In the Marriage of (1976) 1 Fam LR 11,355; FLC 90-052 …. [s 42.5], [s 51.25], [s 52.1] — (1979) 28 ALR 84; 5 Fam LR 421; FLC 90-685 …. [s 60CC.45], [s 60CC.97], [s 60CC.127] Schokker and Edwards, In the Marriage of (1986) 11 Fam LR 446; FLC 91-723 …. [s 79.157], [s 79.177], [s 79.373]

Schorel, In the Marriage of (1990) 14 Fam LR 105; FLC 92-144 …. [s 55A.2] Schreiber and Dixon, In the Marriage of (1977) 3 Fam LR 11,379; FLC 90-274 …. [Pt VIII.8], [s 4.750.4], [s 79.87], [s 80.17] Schumann v Schumann (1962) 4 FLR 129 …. [s 87.58] Schwarz, In the Marriage of (1985) 10 Fam LR 235; FLC 91-618 …. [s 93A.21], [s 117.10], [s 117.12] Schwarzkopff, In the Marriage of (1992) 15 Fam LR 545; FLC 92303 …. [s 112AD.4], [s 112AD.12], [s 112AE.1], [s 112AE.2] — (1992) 16 Fam LR 539; (1993) FLC 92-381 …. [s 121.8] Schweitzer v Schweitzer [2012] FamCA 445; BC201250630 …. [23,608.15.3], [23,610.7], [r 13.07.2], [r 26B.02.10] Scott v Briggs (1991) 14 Fam LR 661, 670; DFC 95-106 …. [s 79.3] Scott, In the Marriage of (1977) 3 Fam LN 19; FLC 90-251 …. [s 79.271] — (1991) 14 Fam LR 873; FLC 92-241 …. [s 60CA.30] Scribe v Scribe (2006) FLC 93-302; [2006] FamCA 1378 …. [23,608.15], [r 13.01.2] SCVG v KLD (2014) FLC 93-582 …. [s 60CC.220] — v — [2014] FamCAFC 42 …. [s 65DAA.10] Seabridge v Searl [2015] FamCAFC 131; BC201550552 …. [r 22.03.10] Seaford (dec’d), Re [1968] P 53 …. [s 55.3] Sean and Russell (Special Medical Procedures), Re (2010) 258 FLR 192; 44 Fam LR 210 …. [s 64B.80], [s 67ZC.25] Secretary, Department of Health and Community Services v JMB and SMB (1992) 175 CLR 218; 106 ALR 385; 15 Fam LR

392; 66 ALJR 300; (1992) FLC 92-293 …. [r 4.08.1], [s 11F.3], [s 61B.20], [s 67ZC.3], [s 67ZC.5], [s 67ZC.25] Secretary, Department of Health and Human Services v Ray (2010) 247 FLR 455; 45 Fam LR 1 …. [Div12A.1], [s 64B.25], [s 67ZC.21], [s 91B.1] Sedgley, In the Marriage of (1995) 19 Fam LR 363; FLC 92-623 …. [s 60CC.40] Seggio v Durante (2012) FLC 93-498 …. [s 80.20B], [s 106B.50] Seidler v Cerny (No 3) [2015] FCCA 2119; BC201509195 …. [23,400.7], [23,424.45], [r 15.31.6], [r 26B.25.30] Sellen, Re; Ex parte Shirlaw (1989) 13 Fam LR 324; FLC 92-034 …. [s 79.351] Semmens v Commonwealth (1989) 13 Fam LR 715; (1990) FLC 92-116 …. [s 79.31], [s 79A.15] Senior v Holdsworth [1976] QB 23; [1975] 2 All ER 1009 …. [23,424.20], [r 15.31.4], [r 26B.25.20] Separate Representative v JHE and GAW (1993) 16 Fam LR 485; 114 FLR 1; (1993) FLC 92-376 …. [s 60CC.200], [s 68L.64], [s 68L.75], [s 102A.1], [s 102A.9], [s 117.0], [s 117.29] Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 …. [23,424.30] Sewell v Wilson (2010) 242 FLR 402; 44 Fam LR 71 …. [s 4.505.9] SFTB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 222 …. [23,246.25] Shaddock (L) & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; 43 ALR 473; 56 ALJR 875 …. [23,458.10], [r 17.02.3], [r 17.02.4]

Sharari, In the Marriage of (1977) 3 Fam LN 84 …. [s 80.2] Sharp v Sharp (1978) 4 Fam LN 38; FLC 90-470 …. [s 72.15], [s 75.38], [s 75.4], [s 79.63], [s 80.4] Sharpe v Smail (1975) 5 ALR 377; 49 ALJR 130 …. [Pt 13.3.20], [Pt 13.3.25] Sharpe and Dalton, In the Marriage of (1990) 100 FLR 115; 14 Fam LR 339; (1990) FLC 92-167 …. [23,410.15], [23,424.30], [r 15.18.2], [r 15.31.5], [r 26B.15.10], [r 26B.25.25] Shaw v Shaw (1965) 113 CLR 545 …. [s 87.110], [s 87.14], [s 87.22], [ss 86-87.0.2] — v — (1965) 6 FLR 455; 66 SR(NSW) 30 …. [s 87.10], [s 87.24], [ss 86-87.0.2] Shaw, In the Marriage of (1982) 8 Fam LR 432; (1984) FLC 91540 …. [s 79.325] — (1989) 12 Fam LR 806; FLC 92-010 …. [s 79.115], [s 79.131], [s 79.161], [s 79.213], [s 79.65] Shearer & Defazio [2013] FCCA 1596 …. [23,314.5] Shedden v Patrick (1869) LR 1 Sc & D 470 …. [s 93A.8] Sheehan & Sheehan, Re (1990) 97 FLR 190; 13 Fam LR 736; (1990) FLC 92-129 …. [23,532.5], [cl 6.05.3], [r 19.05.3], [s 117.24] Sheehan, In the Marriage of (1983) 9 Fam LR 115; FLC 91-352 …. [r 15.13.1] Sheen v Paulo [2007] FamCA 1175 …. [23,172.10] Sheludko v Sheludko [1972] VR 82 …. [s 102.2] Shephard, George v Thyer, Re [1904] CH 456 …. [s 102.2] Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385 …. [s 4.750.4]

Shepherd, In the Marriage of (1979) 5 Fam LN N20; (1979) FLC 90-729 …. [s 60CC.127] Sheppard v Foyle (1984) 9 Fam LR 876; FLC 91-533 …. [s 110.4] Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 …. [s 114.31] Sheridan, In the Marriage of (1994) 18 Fam LR 415; FLC 92-517 …. [s 60CC.87] Sherif v Sherif (2012) 47 Fam LR 280 …. [s 60CC.35] Shewring, In the Marriage of (1988) 12 Fam LR 139; FLC 91-926 …. [s 79.193] Shipwright v Clements [1890] WN 134 …. [23,458.10], [r 17.02.4] Shulsinger, In the Marriage of (1976) 2 Fam LR 11,611; FLC 90207 …. [s 43.5], [s 59.4], [s 112AA.10], [s 117.10] Sieling, In the Marriage of (1979) 24 ALR 357; 35 FLR 458; 4 Fam LR 713; (1979) FLC 90-627 …. [23,098.30], [23,102.5], [Pt VIII.1], [Pt VIII.3], [Pt VIII.6], [r 5.12.3], [r 5.12.7], [s 60CC.215], [s 77.5], [s 79.97], [s 114.22], [s 114.24], [s 114.29], [s 114.42], [s 114.9] Siewert, In the Marriage of (1980) 6 Fam LR 474; FLC 90-892 …. [s 87.20], [s 87.21], [s 87.24], [s 87.25], [s 87.26], [s 87.36] Sillars, In the Marriage of (1985) 11 Fam LR 193; (1986) FLC 91756 …. [s 45.1], [s 45.4], [s 45.5], [s 45.6], [s 45.7] Silver v Consumer Claims Tribunal (1978) 4 Fam LN 55; FLC 90514 …. [s 8.6] Simmonds v Simmonds (1973) 21 FLR 484 …. [s 75.7] Simpson v Brockmann (2010) 43 Fam LR 32 …. [s 60CC.31], [s 93A.5A]

Simpson and Hamlin, In the Marriage of (1984) 9 Fam LR 1040; FLC 91-576 …. [s 79.307], [s 79A.1], [s 79A.4], [s 79A.6], [s 79A.29], [s 79A.30] Simpson, In the Marriage of (1982) 8 Fam LR 467; (1983) FLC 91-349 …. [s 79A.10], [s 79A.18] Simpson, Re; Ex parte Morrison (1984) 9 Fam LR 596; FLC 91513 …. [s 93A.14] Sims, In the Marriage of (1980) 6 Fam LR 20 …. [s 55.3] — (1981) 7 Fam LR 667; FLC 91-072 …. [s 79.321], [s 79.323], [s 79.335] Sinnott v Firth (No 2) [2013] FamCAFC 159 …. [23,294.15], [23,296.20], [r 10.12.4] Sitwell (2014) 51 Fam LR 159 …. [s 121.8] Skinner, In the Marriage of (1977) FLC 90-237 …. [s 66J.21], [s 83.2], [s 83.7] Skipworth, Re; Maney & Skipworth (1989) 13 Fam LR 137; FLC 92-018 …. [s 60CC.135] Skoflek and Baftirovski, In the Marriage of (1988) 90 FLR 126; 12 Fam LR 55; (1988) FLC 91-906 …. [s 4.505.9], [s 44.17] Skone v Skone [1976] 2 All ER 528 …. [s 93A.13] Skrabl & Leach, In the Marriage of (1988) 13 Fam LR 83; (1989) FLC 92-016 …. [s 60CC.135] Slapp, In the Marriage of (1989) 13 Fam LR 158; 96 FLR 236; (1989) FLC 92-022 …. [r 1.14.1], [r 3.05.10], [r 3.05.20], [s 79.307], [s 79A.8], [s 79A.31] Slater v Light (2011) 45 Fam LR 41 …. [s 4.15.4], [s 4.15.5], [s 60CC.16], [s 60CC.35] — v Slater (1987) 12 Fam LR 1 …. [s 79.303]

Slater, In the Marriage of (1979) 4 Fam LR 704; FLC 90-621 …. [ss 86-87.0.16] — (1985) 10 Fam LR 381; (1985) FLC 91-641 …. [s 44.16], [s 44.24], [s 79.323] Slattery, In the Marriage of (1976) 1 Fam LR 11,395 …. [s 4.750.3] — (1976) 2 Fam LR 11,251; FLC 90-110 …. [s 72.7], [s 74.5], [s 74.9], [s 75.41], [s 79.301], [s 80.2], [s 81.1] Smee v Smee (1965) 7 FLR 321 …. [s 4.750.2] Smirnov v Turova [2009] FMCAfam 1083 …. [s 10D.8], [s 10E.5], [s 10J.4] Smith v Duke [2015] FamCA 990 …. [23,424.30], [r 15.31.5], [r 26B.25.25] — v R (1985) 159 CLR 532; 71 ALR 631 …. [r 8.01.5] — v Smith [1945] 1 All ER 584 …. [s 85A.3] — v — [1970] 1 WLR 155 …. [s 85A.12] — v Smith and Graves (1887) 12 PD 102 …. [s 85A.2] — v Wickstein (1996) 21 Fam LR 118; FLC 92-714 …. [s 66J.33], [s 66L.5], [s 66M.1] Smith and Jorgensen, In the Marriage of (1980) 5 Fam LN 22; FLC 90-807 …. [s 70NAC.5] Smith and Saywell, In the Marriage of (1980) 6 Fam LR 245; FLC 90-856 …. [Pt VIII.3], [Pt VIII.6], [r 6.07.1], [s 114.24], [s 114.29], [s 114.34], [s 114.37] Smith and Swaine (1978) FLC 90-400 …. [s 60CC.110] Smith, In the Marriage of (1976) 1 Fam LN 11; FLC 90-020 …. [s 3.7], [s 105.2] — (1979) 5 Fam LR 169; FLC 90-642 …. [s 21.3], [s 87.110], [s

87.2], [s 88.2] — (1982) 8 Fam LR 426; FLC 91-256 …. [s 87.37], [s 87.38], [s 87.80], [s 96.4] — (1984) 9 Fam LR 675; FLC 91-525 …. [s 87.34], [s 87.91] — (1984) FLC 91-512 …. [s 87.59], [s 93A.15] — (1985) 10 Fam LR 283; FLC 91-604 …. [s 31.8] — (1990) 102 FLR 335; 14 Fam LR 521; (1991) FLC 92-200 …. [s 44.13A], [s 78.14], [s 78.16], [s 78.17], [s 78.7] — (1991) 15 Fam LR 206; FLC 92-261 …. [s 93A.9] — (1994) 122 FLR 479; 18 Fam LR 55; (1994) FLC 92-488 …. [s 60CC.20] — (1994) 18 Fam LR 133; FLC 92-494 …. [s 38.10], [s 66K.33], [s 66K.35], [s 66S.11] — (1994) 18 Fam LR 55; FLC 92-488 …. [s 93A.17] Smith, In the Marriage of (No 3) (1986) 161 CLR 217; 10 Fam LR 769; FLC 91-732 …. [s 31.8], [s 33.4], [s 79.325], [s 79.329] Smythe, In the Marriage of (1983) 48 ALR 677; 8 Fam LR 1029; FLC 91-337 …. [s 60CC.27], [s 60CC.87] Soblusky, In the Marriage of (1976) 2 Fam LR 11,528; FLC 90124 …. [s 8.5], [s 43.6], [s 66C.5], [s 72.11], [s 72.17], [s 75.1], [s 75.33], [s 75.34], [s 75.48], [s 75.49], [s 75.50], [s 79.195], [s 79.257] Solomons, In the Marriage of (1984) 11 Fam LR 429; FLC 91-505 …. [s 93A.14], [s 94.3] Sommerville, In the Marriage of (1999) 27 Fam LR 233; (2000) FLC 93-042 …. [s 79A.31] Sonenco (No 77) Pty Ltd v Silvia (1989) 13 Fam LR 511; FLC 92051 …. [s 86.14]

Sorbo v Soulos [2015] FamCAFC 90 …. [r 12.10A.1] Soukmani, In the Marriage of (1989) 13 Fam LR 441; (1990) FLC 92-107 …. [s 51.22] South Australian Telecasters Ltd, Re (1998) 23 Fam LR 692; (1998) FLC 92-825 …. [s 112AP.25], [s 121.8] Spano, In the Marriage of (1979) 5 Fam LR 506; FLC 90-707 …. [s 72.18], [s 75.36], [s 80.4] Spanos, In the Marriage of (1980) 6 Fam LR 345; FLC 90-871 …. [s 48.17] Spellson and George, In the Marriage of (1989) 13 Fam LR 242; FLC 92-046 …. [s 79.33], [s 79.87], [s 85A.9] Spellson, In the Marriage of (1989) FLC 92-046 …. [23,008.10] Spencer v Commonwealth (1907) 5 CLR 418 …. [s 79.115], [s 79.121], [s 79.129] — v Commonwealth of Australia (2010) 241 CLR 118; 269 ALR 233; 84 ALJR 612 …. [23,314.5] Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 …. [s 39.1A] Spiteri, In the Marriage of (2005) 33 Fam LR 109; FLC 93-214 …. [s 79.195] Spratley, In the Marriage of (1976) 3 Fam LR 11,131; (1977) FLC 90-222 …. [s 55.4], [s 93.2], [s 113.2] Spratley, In the Marriage of (No 2) (1978) 4 Fam LR 52; FLC 90414 …. [s 55.4], [s 58.7], [s 59.1], [s 79A.10], [s 79A.17] Springbett and Miles, In the Marriage of (1990) 14 Fam LR 359; FLC 92-177 …. [s 40.8], [s 87.2]

Spry, In the Marriage of (1977) 3 Fam LN 50; FLC 90-301 …. [s 105.2] — (1977) 3 Fam LR 11,330; 30 FLR 537; FLC 90-271 …. [s 60CC.45], [s 60CC.122] SPS v PLS (2008) 39 Fam LR 295; (2008) FLC 93-363 …. [s 60CC.220] St John v St John (1974) 6 Fam LN 14 …. [s 72.17], [s 75.7] Stack v Coast Securities (No 9) Pty Ltd (1983) 49 ALR 193; 57 ALJR 731 …. [s 31.4], [s 31.7], [s 33.3] Stacy, In the Marriage of (1977) 3 Fam LN 70; FLC 90-324 …. [s 66J.31], [s 72.8], [s 75.11], [s 75.19], [s 75.38], [s 79.75] Stamp v Stamp (2007) 37 Fam LR 235; FLC 93-314 …. [s 79A.17] Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; (2012) FLC 93-518 …. [23,302.15], [s 70NAE.10], [s 79.255], [s 79.325], [s 79.329], [s 79.331], [s 79.4A] Starkey v Starkey (2009) 41 Fam LR 177 …. [s 117.4] State Central Authority v Best (No 2) (2012) 48 Fam LR 357 …. [s 68L.45] Stathopoulos, In the Marriage of (1977) FLC 90-289 …. [s 79.3] Stavros, In the Marriage of (1984) 9 Fam LR 1025; FLC 91-562 …. [s 65D.25], [s 70NAC.5] Stay, In the Marriage of (1997) 21 Fam LR 626; FLC 92-751 …. [s 79.193], [s 79.67] Stead v State Government Insurance Commission (1986) 161 CLR 141 …. [s 93A.20] Steamship New Orleans Co v London and Provincial Marine and General Insurance Co [1909] 1 KB 943 …. [r 14.01.5]

Steel v Galloway [2012] FamCAFC 25; BC201250073 …. [r 1564.5] Steel, In the Marriage of (1992) 15 Fam LR 556; FLC 92-306 …. [s 117.21] Stegman v Bland, In the Marriage of (1977) 3 Fam LN 35; FLC 90-290 …. [s 87.10] Stein v Stein (2000) 25 Fam LR 727; FLC 93-004 …. [s 75.29] Stein, In the Marriage of (1986) 11 Fam LR 353; FLC 91-779 …. [s 79.67], [s 79.75] Steinmetz, In the Marriage of (1981) 6 Fam LR 554; FLC 91-079 …. [s 75.14], [s 75.52] Stephens v Stephens (2010) 43 Fam LR 106 …. [s 93A.14] — v — (2010) 44 Fam LR 117 …. [s 117.4] Stewart v Miller [1979] 2 NSWLR 128 …. [r 14.04.1] Stiffle, In the Marriage of (1988) 12 Fam LR 620; FLC 91-977 …. [s 93A.14] Stojanovic, In the Marriage of (1990) 13 Fam LR 849; FLC 92134 …. [s 66K.9] Stokoe, In the Marriage of (1976) 2 Fam LR 11,151; FLC 90-092 …. [s 48.14], [s 49.2], [s 75.18], [s 75.47] Stone v Stone and Ralph (1977) 3 Fam LR 11,101; 30 FLR 520 …. [23,703JA], [Pt 20.5.1], [s 3.7], [s 4.505.32], [s 40.6], [s 105.2], [s 105.8] Stone, In the Marriage of (1976) 2 Fam LR 11,235; FLC 90-134 …. [s 43.10], [s 43.4], [s 114.16], [s 114.43] Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 …. [23,458.10], [r 17.02.3], [r 17.02.4] Storie v Storie (1945) 80 CLR 597 …. [s 93A.5]

Storrer v Storrer [2012] FamCA 448; BC201250622 …. [r 6.04.3] Stowe, In the Marriage of (1980) 6 Fam LR 757; (1981) FLC 91027 …. [23,098.25], [r 5.12.3], [r 5.12.7], [s 79.301], [s 79.311], [s 80.2], [s 114.24], [s 114.25], [s 114.32], [s 114.33], [s 114.9] Strahan v Strahan (2013) 50 Fam LR 434 …. [r 13.13.5], [r 26B.06.15] — v Strahan (Interim Property Orders) (2009) 42 Fam LR 203; 241 FLR 1 …. [s 79.379], [s 80.19] Stratton, In the Marriage of (1993) 16 Fam LR 551; FLC 92-374 …. [s 66K.7] Stredwick, In the Marriage of (1985) 10 Fam LR 964; (1986) FLC 91-724 …. [s 37A.11], [s 96.2], [s 96.4] Streets, In the Marriage of (1994) 18 Fam LR 275; FLC 92-509 …. [s 66J.25], [s 66K.7], [s 66K.13] Strelys, In the Marriage of (1988) 12 Fam LR 437; FLC 91-961 …. [s 79.325], [s 79.329] Strudwick v Baker Johnson (1996) 130 FLR 113; 20 Fam LR 789; (1996) FLC 92-683 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10] Stubbs, In the Marriage of (1976) 1 Fam LN 10; FLC 90-016 …. [s 40.8] Su and Chang, In the Marriage of (1999) 25 Fam LR 558; FLC 92859 …. [s 97.5] Suell v Suell (2009) 40 Fam LR 690 …. [s 69ZBN.1], [s 69ZM.30] Suiker, In the Marriage of (1993) 17 Fam LR 236; FLC 92-436 …. [s 79.66], [s 79.67], [s 79A.10], [s 79A.15], [s 79A.18] Superstar Australia Pty Ltd v Coonan and Denlay Pty Ltd (1981)

40 ALR 183 …. [s 33.3] Suria, In the Marriage of (1977) 3 Fam LR 11,541; 29 FLR 308; FLC 90-305 …. [s 42.5], [s 43.12], [s 43.2] Sutcliffe, In the Marriage of (1988) 12 Fam LR 794; (1989) FLC 92-004 …. [s 112AD.18] Suters, In the Marriage of (1983) 9 Fam LR 340; FLC 91-365 …. [s 87.11], [s 87.20], [s 87.22], [s 87.24], [s 87.25], [s 87.26], [s 87.27], [s 87.29], [s 87.36], [s 87.59] Sutton, In the Marriage of (No 2) (1976) 2 Fam LR 11,256; FLC 90-121 …. [s 94.10], [s 96.2] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 …. [s 93A.20] Swire, Re (1885) 30 Ch D 239 …. [23,458.10], [r 17.02.3] Sydney Ferries Ltd v SS “Tahiti” (1928) 28 SR (NSW) 307 …. [r 15.73.1] Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; 55 IPR 354 …. [r 15-64.5] Sykes, In the Marriage of (1978) 4 Fam LN 49; (1979) FLC 90652 …. [s 74.3], [s 86.2], [s 86.3], [s 86.5], [s 86.6], [ss 8687.0.13] Sylvester, In the Marriage of (1976) 10 ALR 566; 1 Fam LR 11,420 …. [s 43.10] Symes v Commonwealth (1987) 89 FLR 356 …. [23,458.10], [r 17.02.3] Symonds v Raphael (1998) 24 Fam LR 20; 148 FLR 171 …. [cl 6.18.1], [cl 6.18.3] SZEJB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1667; BC200509948 …. [23,458.10], [23,246.20]

SZHLV v Minister for Immigration [2008] FMCA 134; BC200800663 …. [23,536.10] SZRTP v Minister for Immigration and Citizenship (No 2) (2013) 277 FLR 469 …. [23,550.10] SZSNU v Minister for Immigration, Multicultural Affairs and Citizenship (No 2) [2013] FCCA 1603; BC201313676 …. [23,550.10] T v F (1999) 25 Fam LR 36; FLC 92-855 …. [s 60CC.275] — v L (2000) 27 Fam LR 40; FLC 93-056 …. [s 68L.75], [s 68LA.23] — v N (2003) 31 Fam LR 257; FLC 93-172 …. [r 10.17.3], [s 60CC.1], [s 68LA.40] — v S (2001) 28 Fam LR 342; FLC 93-086 …. [s 60CC.200], [s 68LA.23], [s 93A.9] T, In the Marriage of (1984) FLC 91-588 …. [s 94.4] Tabe v Tabe (1984) 9 Fam LR 730 …. [s 60CC.27] Taffa v Taffa (summary dismissal) [2012] FamCA 181 …. [s 44.14] Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300; [1973] 1 All ER 569 …. [23,458.10], [r 17.02.3] Talbot, In the Marriage of (1979) 5 Fam LR 766; FLC 90-696 …. [s 79.271], [s 117.19] — (1993) 16 Fam LR 910; (1993) FLC 92-397 …. [s 61C.5] — (1994) 18 Fam LR 685; (1995) FLC 92-586 …. [r 14.04.1], [s 34.4] Tallack v Tallack [1927] P 211 …. [s 31.14] Tallents, In the Marriage of (1977) 14 ALR 648; 2 Fam LR 11,688 …. [s 4.505.33]

Tansell v Tansell (1977) 3 Fam LR 11,441; FLC 90-280 …. [Pt VIII.3], [s 114.30] Tansell, In the Marriage of (1977) 3 Fam LR 11,466; 31 FLR 87; FLC 90-307 …. [Pt VIII.1], [s 4.505.5], [s 4.505.14], [s 4.505.15], [s 4.505.16], [s 21.4], [s 113.3], [s 113.6], [s 114.10], [s 114.22], [s 114.24], [s 114.29], [s 114.3], [s 114.9], [s 118.5] Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189; FLC 92-156 …. [s 79.157], [s 79.325], [s 79.327], [s 79.331] Tate and Tate (2002) 169 FLR 190; 29 Fam LR 195; (2002) FLC 93-107; (2002) FamCA 356 …. [s 112AP.30] — [2003] FamCA 112 …. [s 112AP.65] Tate, In the Marriage of (1996) 22 Fam LR 530; (1997) FLC 92724 …. [s 60CC.226] — (2000) 26 Fam LR 731; (2000) FLC 93-047 …. [r 1.07.1] — (2002) 29 Fam LR 195; FLC 93-107 …. [s 112AP.12] Tate, In the Marriage of (No 3) (2003) 30 Fam LR 427; FLC 93138 …. [s 112AP.30], [s 112AP.65] Tate, In the Marriage of (No 4) (2003) 30 Fam LR 552; (2003) FLC 93-139 …. [r 22.11.13] Taylor v Taylor (1969) 16 FLR 7 …. [s 61B.3] — v — (1979) 5 Fam LR 289; FLC 90-674 …. [s 21.3], [s 21.5], [s 79.311], [s 79A.6], [s 79A.7], [s 79A.10], [s 79A.11], [s 79A.13], [s 79A.17], [s 79A.37], [s 83.3], [s 106B.45] Taylor (deceased) Taylor v Taylor, Re [1961] All ER 9 …. [s 102.2] Taylor and Barker (2007) 37 Fam LR 461; [2007] FamCA 1246 …. [S 60CC.140]

Taylor, In the Marriage of (1977) 3 Fam LR 11,220; FLC 90-226 …. [s 58.2], [s 72.3], [s 74.3], [s 74.5], [s 79.233], [s 79A.14], [s 79A.37], [s 80.18], [s 83.12], [s 83.3], [s 86.5] — (1988) 12 Fam LR 423; FLC 91-943 …. [s 60CA.30] Telfer, In the Marriage of (1996) 20 Fam LR 619; 130 FLR 212; (1996) FLC 92-688 …. [s 117.29A] Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241; BC9905791 …. [23,196.10] Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187; BC9103657 …. [23,544.15], [r 19.10.5], [s 117.4] Teves III and Campomayor, In the Marriage of (1994) 18 Fam LR 844; FLC 92-578 …. [s 51.22] Thallon, In the Marriage of (1992) 106 FLR 75; 15 Fam LR 805; (1992) FLC 92-322 …. [s 44.15] — (1992) 15 Fam LR 805; FLC 92-322 …. [s 94AA.5] Thomas v Thomas [1969] ALR 782 …. [s 4.505.17] Thomas & Hogan [2013] FCCA 1108 …. [23,458.10] Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 …. [23,098.20], [r 5.12.3] Thomas and Wood, In the Marriage of (1982) 8 Fam LR 381 …. [s 83.3], [s 86.4], [s 86.6] Thomas, In the Marriage of (1981) 6 Fam LN N20; FLC 91-018 …. [s 80.4] Thompson v Berg (2014) 285 FLR 44 …. [23,008.10], [Sch 1 rules.1], [r 1.08.1] — v Stimpson [1961] 1 QB 195 …. [r 1.21.5] — v Thompson (1980) 29 ALR 634; 5 Fam LR 737; FLC 90-815 …. [s 8.4], [s 60CC.97]

Thompson, In the Marriage of (1976) 2 Fam LR 11,442; FLC 90206 …. [s 114.40] — (1977) 2 Fam LR 11,649; FLC 90-88 …. [s 48.22], [s 50.5] Thornton v WorkCover Corp of South Australia [2009] FamCA 449; BC200950836 …. [23,040.10], [r 24.13.2] Thorsby, In the Marriage of (1997) 22 Fam LR 785 …. [s 60CC.210] Thrift, In the Marriage of (1975) 1 Fam LR 11,367; (1976) FLC 90-103 …. [s 75.35] Thurn, In the Marriage of (1977) 3 Fam LN 36 …. [s 75.40] Thynne v Thynne [1955] P 272 …. [r 17.02.5] Tiegs v Barton [2012] FMCAfam 14; BC201200337 …. [23,122.5] Tiley, In the Marriage of (1980) 6 Fam LR 528; FLC 90-898 …. [s 75.16], [s 75.39], [s 75.40], [s 79.299], [s 79.301], [s 114.25], [s 114.34], [s 114.37], [s 114.38] Tilmouth, In the Marriage of (1977) 3 Fam LN 63 …. [s 60CC.45] Tingle v Tingle (1947) 65 WN (NSW) 43 …. [s 83.22] Tingley, In the Marriage of (1984) 10 Fam LR 707; FLC 91-588 …. [s 121.3], [s 66J.19], [s 66J.21], [s 75.36], [s 79.385] Tinker v Tinker [1970] 2 WLR 331 …. [s 79.178] Tobin, In the Marriage of (1977) 3 Fam LR 11,298 …. [s 9.13] — (1999) 150 FLR 185; 24 Fam LR 635; FLC 92-848 …. [s 60H.7] Todd, In the Marriage of (No 1) (1976) 8 ALR 602; 1 Fam LR 11,109; FLC 90-001 …. [r 8.02.3] Todd, In the Marriage of (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90-008 …. [s 48.12], [s 48.13], [s 48.15], [s 48.16],

[s 48.20], [s 48.28], [s 50.2], [s 55.4], [s 75.36], [s 75.47], [s 75.5] Todorovic v Waller (1981) 37 ALR 481 …. [s 80.5] Toft, In the Marriage of (1980) FLC 90-860 …. [s 48.11], [s 48.33], [s 50.5] Tomasetti, In the Marriage of (2000) 26 Fam LR 114; FLC 93-023 …. [s 79.237] Tomkins v Tomkins [1948] P 170 …. [s 85A.4] Toohey (Aboriginal Land Commissioner), Re; Ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59 …. [s 79.69] Toohey, In the Marriage of (1991) 14 Fam LR 843; FLC 92-244 …. [s 85A.9], [s 106B.75] Toric, In the Marriage of (1981) 7 Fam LR 370; (1981) FLC 91046 …. [s 121.3] Tormsen v Tormsen (1993) 113 FLR 268; 18 Fam LR 232; (1993) FLC 92-392 …. [cl 6.22.3], [r 19.21.3], [r 22.03.10] Torrens v Fleming (1980) FLC 90-840 …. [s 60CC.65] Townsend, In the Marriage of (1994) 18 Fam LR 505; (1995) FLC 92-569 …. [s 79.237] Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90 …. [23,424.30], [r 15.31.5], [r 26B.25.25] — v Port Adelaide Wool Company Pty Ltd & Sinclair (1995) 60 FCR 366; 132 ALR 645 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Trapp v Vonne (2009) 41 Fam LR 471; [2009] FMCAfam 497 …. [s 10E.1], [s 10J.1], [s 10J.2] Trenerry v Trenerry (1970) 16 FLR 406 …. [s 75.13] Trnka, In the Marriage of (1984) 10 Fam LR 213; FLC 91-535 ….

[s 70J.1] Truman & Truman [2008] FamCAFC 4; (2008) FLC 93-360 …. [Div12A.1] Tryon v Clutterbuck (2007) 211 FLR 1; (2007) FLC 93-332 …. [s 64B.85], [s 69W.2] — v Clutterbuck (No 2) (2009) 42 Fam LR 118; (2009) FLC 93412 …. [s 69Y.3], [s 69Y.5] Tuck, In the Marriage of (1979) 7 Fam LR 492; (1981) FLC 91021 …. [s 66L.9], [s 66L.17], [s 72.11], [s 75.51], [s 79.159], [s 79.235], [s 79.309], [s 117.14] Tudor, In the Marriage of (1991) 15 Fam LR 165; (1992) FLC 92273 …. [s 94AA.5], [s 94AA.10] Tull v McGuire (1981) 7 Fam LR 326; FLC 91-098 …. [s 60CC.25], [s 60CC.95] Turnbull, In the Marriage of (1990) 15 Fam LR 81; (1991) FLC 92-258 …. [s 79.115], [s 79.121], [s 79.123], [s 85A.4], [s 106B.50] Turner, In the Marriage of (1984) 9 Fam LR 559; FLC 91-528 …. [s 79.377] Twigg v McIlraith (1988) 12 Fam LR 170; (1988) FLC 91-924 …. [cl 6.18.1] Twigg & Co v Rutherford (1996) 20 Fam LR 862; (1996) FLC 92691 …. [cl 6.15.3] Twigg and Keady, Re (1996) 21 Fam LR 82; FLC 92-712 …. [s 106B.1] Tye, In the Marriage of (1976) 1 Fam LR 11,235; FLC 90-028 …. [s 48.18], [s 49.2] Tye, In the Marriage of (No 2) (1976) 2 Fam LR 11,205; FLC 90-

048 …. [s 75.21], [s 75.28], [s 75.41], [s 75.5], [s 80.4] Tyler v Sullivan [2014] FamCA 178 …. [23,376.15], [r 15.45.2], [r 15.52.1] Tynan, In the Marriage of (1992) 16 Fam LR 621; (1993) FLC 92385 …. [s 66L.5] U v U (2002) 29 Fam LR 74; FLC 93-112 …. [S 60CC.140], [s 60CC.210] Ulrick v Ulrick (1976) 2 Fam LR 11,286; (1977) FLC 90-242 …. [s 4.505.34], [s 39.12], [s 40.5], [s 105.3], [s 105.8] Underwood, In the Marriage of (1981) 6 Fam LR 921; FLC 91-020 …. [s 79.205] Ungar v Ungar (No 2) (1968) 11 FLR 301 …. [Pt VIII.7], [s 71.3] United Dominions Corp v Brian Pty Ltd (1985) 157 CLR 1; 60 ALR 741 …. [cl 6.18.1] UnitingCare — Unifam Counselling and Mediation v Harkiss (2011) 252 FLR 309; 46 Fam LR 12 …. [23,424.30], [23,424.40], [r 15.31.5], [r 15.31.6], [r 26B.25.25], [r 26B.25.30], [s 10D.4] Urquhart, In the Marriage of (1981) 8 Fam LR 152; FLC 91-206 …. [s 68L.64] Urquhart, Re; Ex parte Urquhart (1890) 24 QBD 723 …. [23,138.20], [r 7.18.7], [r 7.18.11] Utting, In the Marriage of (1976) 2 Fam LR 11,193; FLC 90-137 …. [s 9.13] V v V (1985) 10 Fam LR 151; FLC 91-616 …. [s 60F.9] V and G, In the Marriage of (1982) 8 Fam LR 193; FLC 91-207 …. [s 79.173], [s 79.237], [s 79.313], [s 80.4], [ss 86-87.0.15] Vadisanis v Vadisanis [2014] FamCAFC 97; BC201451091 ….

[23,158.20], [r 11.10.8] Vakil, In the Marriage of (1997) 21 Fam LR 508; FLC 92-743 …. [s 83.12], [s 83.5] Vakros v Letsos (2012) 260 FLR 66; 47 Fam LR 172 …. [s 69Q.1], [s 69Y.3], [s 69Y.5] Valceski v Valceski (2007) 36 Fam LR 620 …. [s 31.10] Vallance v Vallance (1907) 77 LJ (P) 33 …. [s 85A.3], [s 85A.8], [s 85A.10] Van Ballekom v Kelly (2005) 34 Fam LR 1; FLC 93-233; [2005] FamCA 853 …. [s 75.4] Van der Kreek, In the Marriage of (1977) 3 Fam LN 51 …. [s 80.2] Van der Veer, In the Marriage of (1981) 7 Fam LR 141; FLC 91043 …. [s 87.37], [s 96.4] Van Dijk, In the Marriage of (1977) 3 Fam LR 11,406 …. [s 60CC.97] Van Dongen v Van Dongen (1976) FLC 90-084 …. [s 75.6] Van Dongen, In the Marriage of (1976) 1 Fam LR 11,290; FLC 90-071 …. [s 66C.5], [s 66J.29], [s 72.14], [s 75.33], [s 83.12] Van Rassel v Kroon (1953) 87 CLR 298 …. [s 79.204] Vance, In the Marriage of (1978) 4 Fam LR 579; FLC 90-522 …. [s 78.10], [s 78.2], [s 78.8], [s 78.9] Vandyke v Vandyke (1976) 12 ALR 621; 2 Fam LR 11,469; FLC 90-139 …. [s 86.2], [s 87.110], [s 87.14], [ss 86-87.0.2] Vartikian, In the Marriage of (1983) 9 Fam LR 151 …. [s 87.45] — (1984) 10 Fam LR 165; FLC 91-334 …. [s 66K.11], [s 72.17], [s 72.18], [s 75.8], [s 75.9], [s 80.4], [s 80.5], [s 87.95] Vass v Vass (2015) 53 Fam LR 373 …. [s 79.255]

Vaughan v Vaughan [1973] 3 All ER 449 …. [s 114.11] Vaughan, In the Marriage of (1981) 7 Fam LR 379; FLC 91-066 …. [s 72.18], [s 80.4] — (1990) 13 Fam LR 842; FLC 92-135 …. [s 117.18] Vautin, In the Marriage of (1998) 23 Fam LR 627; FLC 92-827 …. [s 72.18], [s 72.20] Velterop v Velterop (1977) 3 Fam LN 3 …. [s 79.295] Veney, In the Marriage of (No 2) (1984) 9 Fam LR 649; FLC 91522 …. [s 87.23], [s 87.25], [s 87.27] Vergis, In the Marriage of (1977) 3 Fam LR 11,398; (1977) FLC 90-275 …. [s 21.3], [s 21.8], [s 112AP.5] VG & M [2005] FamCA 1015 …. [S 60CC.140] Victorian Stevedoring General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 …. [s 93A.4] Vilenius v Heinegar (1962) 36 ALJR 200 …. [r 1.14.10] Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 6 Fam LR 609; FLC 91-012 …. [s 92.8] VJ and CJ, In the Marriage of (1997) 22 Fam LR 166; FLC 92-772 …. [s 69ZV.1], [s 79.161] Vlug and Poulos, In the Marriage of (1997) 22 Fam LR 324; (1997) FLC 92-778 …. [r 27.01.3], [s 61C.6], [s 65DAC.1], [s 65P.5], [s 70NAC.5], [s 118.3], [s 118.5] Vodeniciotis, In the Marriage of (1978) 4 Fam LR 743; (1979) FLC 90-617 …. [s 114.11], [s 114.34] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124; 65 ALJR 83 …. [23,640.25], [s 39.1A], [s 60CA.25], [s 79.4] Voulis v Kozary (1975) 180 CLR 177; 7 ALR 126 …. [s 79.204]

VP v VP (1978) 1 Fam LR (Eng Series) 336 …. [s 55A.5] — v — (1980) 10 Fam Law R 20 …. [s 55A.5] Vrebetic, In the Marriage of (1987) FLC 91-832 …. [s 79.209] W v G (No 1) (2004) 35 Fam LR 417; (2005) FLC 93-247 …. [s 60CC.135], [s 69W.10] — v R (2006) 35 Fam LR 608 …. [S 60CC.140] — v W (1997) 21 Fam LR 343; FLC 92-723 …. [s 79.197] — v — [1926] P 111 …. [s 55A.12], [s 60CC.25] — v W (No 3) [1962] P 124 …. [s 75.21] W & W (1990) FLC 90-872 …. [s 72.12] W (Sex Abuse: Standard of Proof), Re (2004) 32 Fam LR 249; FLC 93-192 …. [23,376.15], [r 15.45.2], [r 15.52.1], [s 60CC.40] W, In the Marriage of (1980) 6 Fam LR 538; FLC 90-872 …. [s 66J.15], [s 66J.29], [s 66J.31], [s 72.12], [s 72.17], [s 75.35], [s 75.39], [s 75.8], [s 79.129], [s 79.157], [s 79.205], [s 79.239], [s 79.271], [s 79.309], [s 79.311] — (1982) 8 Fam LR 323; FLC 91-238 …. [s 114.38] W: Re Adoption (1998) 23 Fam LR 538 …. [s 60G.5] Wacando v Commonwealth (1981) 148 CLR 1; 37 ALR 317; 56 ALJR 16 …. [s 60B.10] Wachtel v Wachtel [1973] 1 All ER 829 …. [s 75.50] Wachtel & Sabens [2011] FMCAfam 438 …. [23,328.10] Wade-Ferrell, In the Marriage of (2001) 27 Fam LR 484; FLC 93069 …. [s 31.8] Wagner, In the Marriage of (1984) 9 Fam LR 589; FLC 91-518 …. [s 114.34], [s 114.35]

Wagstaff, In the Marriage of (1990) 14 Fam LR 78; FLC 90-142 …. [s 78.14], [s 79.62] Wakim, Re; Ex parte McNally (1999) 163 ALR 270; 24 Fam LR 669 …. [r 4.06.1], [s 31.4], [s 39.1] Wala v Wala [1966] NZLR 254 …. [s 102.4] Walker v Poole (1882) 21 Ch D 835 …. [r 15.13.1] — v Walker (1966) 9 FLR 59 …. [s 106B.15] — v — (1969) 13 FLR 490 …. [s 102.2] Wallace v Stelzer (2013) 283 FLR 126; 51 Fam LR 115; [2013] FamCAFC 199 …. [s 90G.1] Wallace, In the Marriage of (1984) 9 Fam LR 960; FLC 91-553 …. [s 31.10], [s 33.4], [s 79.31], [s 92.7] Wallmann, In the Marriage of (1981) 7 Fam LR 945; (1982) FLC 91-204 …. [s 79.353], [s 106B.110] Walt Disney Productions v H John Edwards Publishing Co Ltd (1952) 69 WN (NSW) 281 …. [r 15.72.1] Walters, In the Marriage of (1986) 10 Fam LR 1006; FLC 91-733 …. [s 79.69] Walton, In the Marriage of (1981) FLC 91-006 …. [s 114.33] Wandin Springs v Wagner [1991] 2 VR 496 …. [23,452.5] Warby, In the Marriage of (2001) 28 Fam LR 443; (2002) FLC 93091 …. [s 31.3], [s 31.8] Ward v Laverty [1925] AC 101 …. [s 60CC.5] Wardale, In the Marriage of (1990) 14 Fam LR 195; FLC 92-151 …. [s 55A.1], [s 113.3] Wardman and Hudson, In the Marriage of (1978) 5 Fam LR 889; (1978) 4 Fam LN 44; FLC 90-466 …. [s 79.113], [s 79.204], [s 79.213]

Warne, In the Marriage of (1976) 1 Fam LR 11,602; 26 FLR 118; (1977) FLC 90-241 …. [s 43.11], [s 55A.5], [s 55A.10] — (1982) 8 Fam LR 388; FLC 91-247 …. [s 75.40], [s 79.113], [s 79.204] Warnick J in Childers v Leslie (2008) Fam LR 379 …. [s 70NAE.25] Warnock, In the Marriage of (1979) 5 Fam LR 668; FLC 90-726 …. [s 83.11], [s 83.12], [s 83.3] Warren v Coombes (1979) 142 CLR 531; 23 ALR 405; 53 ALJR 293 …. [s 93A.6] Warren, In the Marriage of (1987) 12 Fam LR 245 …. [s 55.4] Warwick, In the Marriage of (1983) 9 Fam LR 112; FLC 91-342 …. [s 79.307] Water Board v Moustakis (1988) 77 ALR 193 …. [s 93A.20] Waters v Durrant (2015) 301 FLR 218; [2015] FCCA 2419 …. [s 31.8] Waters and Jurek, In the Marriage of (1995) 20 Fam LR 190; FLC 92-635 …. [s 79.153], [s 79.193], [s 79.195], [s 79.235] Waters, In the Marriage of (1978) 4 Fam LN 14; FLC 90-428 …. [s 92.8] — (1981) 6 Fam LR 871; (1981) FLC 91-019 …. [23,578.25], [s 75.16], [s 79.113], [s 79.153], [s 79.299], [s 92.9] Watson v Watson [2006] FMCAfam 203; BC200604450 …. [23,702H.15], [r 20.07.3] Watson, In the Marriage of (2001) 28 Fam LR 481 …. [r 6.08.3], [r 6.09.1] Watton v Smart [2014] FCCA 2826; BC201411429 …. [23,008.10]

Watts, In the Marriage of (1976) 9 ALR 428; 1 Fam LR 11,266; 26 FLR 136; FLC 90-046 …. [s 43.3], [s 60CC.25], [s 60CC.27], [s 93A.5] Waugh v Harper [1937] St R Qd 327 …. [23,062.15], [r 1.21.5] Waugh, In the Marriage of (1999) 27 Fam LR 63; (2000) FLC 93052; [2000] FamCA 1183 …. [s 68B.9], [s 114.24] Way, In the Marriage of (1996) FLC 92-702 …. [s 79.199], [s 79.271] Wayne v Dillon (2008) 40 Fam LR 543; [2008] FamCAFC 204 …. [23,226.5], [r 6.02.1] Wearne v Wearne (No 3) [1964] ALR 207 …. [s 75.43] Webb v Page (1843) 1 Car & Kir 23 …. [r 26B.18.15] — v — (1843) 174 ER 695 …. [23,420.10], [r 15.23.1] Webster, In the Marriage of (1998) 24 Fam LR 198; FLC 92-832 …. [s 79.75] Weir, In the Marriage of (1993) FLC 92-338 …. [23,608.10], [s 79.67] Weiss v Barker Gosling (1993) 16 Fam LR 728; (1993) FLC 92399 …. [cl 6.15.3], [cl 6.18.3] — v Barker Gosling (No 2) (1993) 17 Fam LR 626; (1994) FLC 92-474 …. [cl 6.15.3], [cl 6.18.1] — v Weiss (1971 unreported) …. [s 72.3], [s 79.233] Weissensteiner v R (1993) 178 CLR 217; 117 ALR 545 …. [s 112AP.30] Wellington, In the Marriage of (1976) 14 SASR 321; 1 Fam LN N30; 30 FLR 516b; (1977) FLC 90-277 …. [s 60CC.130] Wells, In the Marriage of (1977) 4 Fam LR 57; FLC 90-285 …. [s 79.204]

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 …. [23,458.10] West v Conway (1923) 23 SR (NSW) 334 …. [Pt 13.3.15] — v White [2009] FamCAFC 218 …. [r 1.12.5], [r 1.14.15], [r 19.21.5] — v — [2015] FamCA 1088; BC201551190 …. [r 15.65.3] West and Green, In the Marriage of (1991) 16 Fam LR 811; (1993) FLC 92-395 …. [s 79.155] West and West (1997) 22 Fam LR 411; FLC 92-779 …. [s 93A.14] Weston v Laurent [2013] FamCAFC 34; BC201350065 …. [23,588.30], [r 15.04.15] — v Weston [1964] ALR 713 …. [s 80.18] Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083; FLC 91-753 …. [s 106B.55], [s 106B.90], [s 106B.95], [s 118.3], [s 118.4], [s 118.5] Wheatley v Wheatley [1950] 1 KB 39 …. [s 75.46] Whitaker, In the Marriage of (1980) 5 Fam LR 769; FLC 90-813 …. [s 106B.1], [s 106B.10], [s 106B.40], [s 106B.45], [s 106B.60], [s 106B.65], [s 106B.70], [s 106B.80] Whitbread v Whitbread (1967) 10 FLR 120 …. [s 4.505.36] White v Green (No 2) (2009) 41 Fam LR 185 …. [s 68B.5], [s 68B.6], [s 68L.5], [s 114.27] White and Tulloch v White (1995) 127 FLR 105; 19 Fam LR 696; (1995) FLC 92-640 …. [23,424.30], [r 15.31.5], [r 26B.25.25] White, In the Marriage of (1979) FLC 90-682 …. [s 4.750.4], [s 79.71] — (1982) 8 Fam LR 512; FLC 91-246 …. [s 79.199], [s 79.205], [s 117.9]

Whitehead, In the Marriage of (1979) 5 Fam LR 308; FLC 90-673 …. [s 75.11], [s 75.19], [s 75.38], [s 75.9], [s 79.253], [s 79.75] Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 …. [s 93A.6], [s 94.10] Whiteley, In the Marriage of (1992) FLC 92-304 …. [s 79.193] Whiteoaks, In the Marriage of (1980) FLC 90-837 …. [s 48.14] Whitford, In the Marriage of (1979) 24 ALR 424; (1978) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612 …. [s 44.17], [s 44.18], [s 44.19], [s 44.20], [s 72.15], [s 72.17], [s 75.40], [s 75.6] Whittall, Re [1973] 1 WLR 1027 …. [r 6.13.1] Whitton v Whitton [1901] P 348 …. [s 85A.12] Wicks v Bennett (1921) 30 CLR 80 …. [s 87.56] Wiggins, In the Marriage of (1976) 1 Fam LR 11,101; FLC 90-004 …. [s 48.32] Wilder v Child Support Registrar [2009] FamCAFC 175; BC200950820 …. [r 3.05.10], [r 3.05.20] — v Child Support Registrar (No 3) [2009] FamCAFC 169 …. [r 1.14.1], [r 1.14.5] Wilkes, In the Marriage of (1981) 7 Fam LR 58; FLC 91-060 …. [s 38.10], [s 79A.17] Wilkinson v Wilkinson (2005) 33 Fam LR 373; FLC 93-222 …. [s 79.169] Willett v Willett (1976) 1 Fam LR 11,242; FLC 90-022 …. [s 75.1], [s 75.48], [s 75.50], [s 81.4] Williams v Lloyd, Re; Ex parte Games v (1864) 3 H 7 …. [s 117.37] — v Spautz (1992) 174 CLR 509; 107 ALR 635; 66 ALJR 585 ….

[23,544.15], [r 19.10.5] — v Williams (1979) 5 Fam LR 137; FLC 90-640 …. [Pt VIII.3] — v — (1985) 10 Fam LR 355 …. [s 79.79] Williams, In the Marriage of (1977) 3 Fam LN 24; FLC 90-248 …. [s 87.22], [s 87.24], [s 87.36], [s 87.86], [s 87.9], [s 88.2], [ss 86-87.0.2] — (1984) 9 Fam LR 789; FLC 91-541 …. [s 4.750.4], [s 79.201], [s 79.213], [s 79.233], [s 79.89] — (1992) 16 Fam LR 217; (1993) FLC 92-339 …. [s 112AE.2] Williamson v Williamson (1974) 24 FLR 226 …. [s 79A.10], [s 79A.17] Williamson, In the Marriage of (1978) 4 Fam LR 355; FLC 90-505 …. [s 74.2], [s 77.3], [s 80.14] Willis v Trequair (1906) 3 CLR 912 …. [r 15.73.1] Willmore, In the Marriage of (1988) 12 Fam LR 692; FLC 91-975 …. [s 79.195], [s 79.209] Wilmoth, In the Marriage of (1981) 6 Fam LR 807; FLC 91-030 …. [s 21.4], [s 114.11], [s 118.5] Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (Hindmarsh Island Bridge case) (1996) 189 CLR 1; 138 ALR 220 …. [s 65DAA.10], [s 93A.1] — v Wilson (1848) 1 HL Cas 538 …. [ss 86-87.0.1] — v — (1967) 10 FLR 203 …. [s 58.5], [s 79A.10], [s 79A.11], [s 79A.13], [s 79A.15] Wilson, In the Marriage of (1980) 6 Fam LR 566; FLC 90-880 …. [s 80.4] — (1989) 13 Fam LR 205; FLC 92-033 …. [s 74.10], [s 74.2], [s 75.39], [s 117.4]

Wingate and Towns, In the Marriage of (1979) FLC 90-624 …. [s 4.505.15], [s 39.12] Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140; BC201201243 …. [23,294.10] Wirth v Wirth (1956) 98 CLR 228 …. [s 78.3], [s 78.4] Witham v Holloway (1995) 183 CLR 525; 131 ALR 401; 69 ALJR 847 …. [s 112AP.12], [s 112AP.30] WK v SR (1997) 22 Fam LR 592; FLC 92-787 …. [s 60CC.270] Wolifson, In the Marriage of (1977) 3 Fam LR 11,627 …. [s 75.21], [s 75.35], [s 75.40], [s 114.16], [s 114.9] Wolter v Wolter [2014] FamCA 307 …. [23,458.10], [r 17.02.2], [r 17.02.3] Wong v Wong (1976) 2 Fam LR 11,159; 30 FLR 418 …. [s 72.12], [s 75.12], [s 75.21], [s 75.36], [s 75.6] Woo, In the Marriage of (1976) 2 Fam LN 9; FLC 90-107 …. [Pt VIII.11], [s 31.14] Woodcock, In the Marriage of (1997) 21 Fam LR 393; FLC 92739 …. [s 79.177] Woodham, In the Marriage of (1984) FLC 91-547 …. [s 4.750.4], [s 79.69] Woodhead, In the Marriage of (1997) 23 Fam LR 559; (1998) FLC 92-813 …. [s 39.8] Woodland v Todd (2005) 33 Fam LR 177; FLC 93-217 …. [s 79.177] Woodward v Woodward [2015] NSWSC 99; BC201501571 …. [23,544.20], [r 1.08.5], [r 19.10.8] Woolley v Woolley (1961) 2 FLR 114 …. [s 55A.3] Woolley, In the Marriage of (1981) 48 FLR 328; 6 Fam LR 577;

(1981) FLC 91-011 …. [s 44.13A], [s 72.15], [s 72.7], [s 75.39], [s 75.45], [s 75.46], [s 75.52], [s 79.271], [s 79.311], [s 82.7] Worsley v Worsley (1869) LR 1 P & D 648 …. [s 85A.4] Wotherspoon and Cooper, In the Marriage of (1981) 7 Fam LR 71; FLC 91-029 …. [s 60CC.45] Wray, In the Marriage of (1981) FLC 91-059 …. [s 114.24] — (1990) 14 Fam LR 324 …. [s 87.46] Wright, In the Marriage of (1976) 2 Fam LN N27; FLC 90-114 …. [s 60CC.97] — (1977) 3 Fam LR 11,150; FLC 90-221 …. [s 87.15], [s 87.21], [s 87.22], [s 87.24], [s 87.25], [s 87.26], [s 87.27], [s 87.30], [s 87.35], [s 87.59], [ss 86-87.0.1] Wunderlich, In the Marriage of (1982) 8 Fam LR 225; (1982) FLC 91-236 …. [23,424.30], [r 15.31.5], [r 26B.25.25] Wynne v Wynne (1898) 78 LT 796 …. [s 85A.11] WZAOA v Minister for Immigration and Citizenship [2010] FMCA 619; BC201005994 …. [23,268.5] Xuarez v Vitela [2012] FamCA 574; BC201250472 …. [s 121.3], [s 121.8] Xuereb, In the Marriage of (1976) 1 Fam LN 9; FLC 90-029 …. [s 48.18], [s 49.2] Yates, In the Marriage of (1982) 8 Fam LR 273; FLC 91-227 …. [s 75.19], [s 79.63], [s 114.37], [s 114.9] Yates, In the Marriage of (No 2) (1982) 7 Fam LN 20; FLC 91-228 …. [s 75.19], [s 79.69], [s 95.4] Yerkey v Jones (1939) 63 CLR 649 …. [s 87.55], [s 87.58], [s 87.75]

Yilmaz v Yilmaz [2014] FamCA 663; BC201451881 …. [23,702H.10], [23,702H.15], [r 20.07.2], [r 20.07.3] Yorston v Yorston [2013] FamCAFC 49; BC201350267 …. [23,098.10] Young v Thomas [1892] 2 Ch 134 …. [s 93A.6] — v Young [1962] P 27 …. [s 85A.3], [s 85A.4] Yule v Junek (1978) 139 CLR 1; 3 Fam LR 11,640; FLC 90-439 …. [s 4.505.3], [s 4.505.28], [s 87.35], [s 94.2], [s 120.1] Yule, In the Marriage of (1976) 1 Fam LR 11,502; FLC 90-081 …. [s 120.1] Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC 92-836 …. [s 4.505.1], [s 80.1], [s 80.20A] Z v Z (FLC) (2005) 34 Fam LR 296; FLC 93-241; [2005] FamCA 996 …. [s 79.169] Z, Re (1996) 134 FLR 40; 20 Fam LR 651; (1996) FLC 92-694 …. [23,408.5], [r 15.16.1], [r 26B.12.05], [s 60CA.65] Z, Re (No 2) (1996) 20 Fam LR 793; FLC 92-708 …. [s 95.3] Zabaneh, In the Marriage of (1986) 11 Fam LR 167; FLC 91-766 …. [s 60CC.220], [s 118.2], [s 118.3], [s 118.6] Zafiropoulos v Zafiropoulos [1972] 2 NSWLR 606 …. [s 80.18] Zanda v Zanda (2014) 293 FLR 1; 51 Fam LR 502 …. [s 60CA.22] — v — [2014] FCCA 1326 …. [23,392.10], [r 15.09.1] Zappacosta, In the Marriage of (1976) 2 Fam LR 11,214; FLC 90089 …. [s 79.113], [s 79.204], [s 79.211], [s 79.295] Zawada v Welchman-Rubie [2012] FamCA 1059; BC201251222 …. [23,424.30], [23,424.40], [r 15.31.5], [r 15.31.6], [r 26B.25.25], [r 26B.25.30]

Zdravkovic, In the Marriage of (1982) 8 Fam LR 97; FLC 91-220 …. [s 79.193], [s 79.237], [s 79.313], [s 79.97], [s 80.4] Zegna v Zegna [2015] FamCA 340; BC201550364 …. [s 111CD.1] Zola v Lodge [2012] FMCAfam 1360; BC201209786 …. [23,240.5] Zorbas, In the Marriage of (1990) 14 Fam LR 226; FLC 92-160 …. [s 4.750.4], [s 79.69], [s 79.89] ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600; (1994) FLC 92-480 …. [s 60CA.15], [s 60CA.20], [s 60CA.22], [s 60CA.25], [s 60CA.30] Zyk, In the Marriage of (1995) 19 Fam LR 797; FLC 92-644 …. [s 79.204]

Table of Statutes COMMONWEALTH Acts Interpretation Act 1901 s 7 …. [s 3.1] s 8(B) …. [s 39.7] s 8(C) …. [s 3.5] s 15AA …. [s 75.42] s 15AB …. [r 1.17.1] s 17 …. [r 1.21.5] s 26(D) …. [s 39.3] s 36(1) …. [23,062.10] Australian Citizenship Act 1948 …. [s 39.6] s 10(1) …. [s 39.6] s 11 …. [s 39.6] s 12 …. [s 39.6] s 15 …. [s 39.6] s 17 …. [s 39.6] s 18 …. [s 39.6] s 19 …. [s 39.6] s 21 …. [s 39.6] s 23 …. [s 39.6] s 25(1) …. [s 39.6] s 46A …. [s 39.6]

Australian Passports Act 2005 s 11(1)(b) …. [23,703V.10] s 11(4) …. [23,703V.10] Bankruptcy Act 1966 …. [s 33.4], [s 79.353], [s 79.355], [s 79.357], [s 106B.100], [s 106B.105], [s 106B.110] Pt 6 Div 4B …. [23,703D.20] Pt 7 …. [r 1.05.3] Pt 10 …. [s 106B.50], [s 106B.105] s 5 …. [s 86.14], [s 87.112] s 30(1) …. [s 86.14] s 35 …. [r 1.05.1] s 35B …. [r 1.05.1] s 58 …. [s 78.6], [s 79.355] s 58(3)(6) …. [s 79A.38] s 60 …. [s 79.357] s 60I(5) …. [r 1.05.3] s 60I(7) …. [r 1.05.3] s 60I(9) …. [r 1.05.3] s 115 …. [s 79.355] s 120 …. [s 79.355], [s 86.14] s 120(1)(a) …. [s 86.14] s 121 …. [s 79.355], [s 86.14] s 121(1) …. [s 86.14] s 123 …. [s 79.355]

s 123(6) …. [s 79.355], [s 86.14], [s 87.112] s 123(B) …. [ss 86-87.0.17] s 148 …. [s 79.353] s 239 …. [s 86.14] Bankruptcy Amendment Act 1987 …. [ss 86-87.0.17] s 45 …. [s 86.14] Child Support (Assessment) Act 1989 …. [s 66E.1], [s 67Z.3], [s 79.320], [s 86.15], [s 87.4A], [s 105.1] Pt 7 …. [s 67Z.3] s 3(2)(a) …. [s 75.34] s 33 …. [23,680.5] s 34 …. [23,680.5] s 95 …. [r 23.01.1] s 106A(2) …. [23,674.5], [r 3.05.20] s 107(1) …. [23,674.5] s 117(2)(a) …. [s 75.27] s 145 …. [23,226.10], [23,230.5], [r 6.02.3], [r 6.06.1] Child Support Assessment Act 1989 s 118 …. [r 10.17.3] s 126 …. [r 10.17.3] Commonwealth of the Australia Constitution Act …. [s 33.1], [s 37A.1A], [s 79.325] Ch 3 …. [s 37A.1A] s 51 “xxi” …. [s 4.505.5], [s 4.505.6], [s 4.505.8], [s 33.2] s 51 “xxii” …. [s 4.505.4], [s 4.505.8], [s 4.505.10], [s

4.505.18], [s 33.2] s 51 “xxxi” …. [s 1.0.60] s 51 “xxxix” …. [s 33.2] s 51(11) …. [s 78.2] s 51(12) …. [s 78.2] s 51(21) …. [s 60F.5], [s 60H.1], [s 79.325], [s 90.1], [s 106B.25], [s 114.29], [ss 86-87.0.3] s 51(22) …. [Pt VIII.1], [ss 86-87.0.3] s 51(27) …. [s 60H.1] s 51(31) …. [Pt VIII.1], [s 79.69], [s 106B.25] s 51(32) …. [s 106B.25] s 51(37) …. [s 60H.1] s 51(39) …. [s 106B.25] s 52(21) …. [s 114.29] s 72 …. [s 22.2], [s 37A.1A] s 72(ii) …. [s 22.2] s 75 …. [s 31.4], [s 33.2], [s 33.3] s 75(v) …. [s 21.2] s 75(5) …. [s 95.7] s 76(ii) …. [s 31.4], [s 33.2] s 77 …. [s 31.4], [s 33.2] s 77(i) …. [s 31.4], [s 33.3] s 109 …. [s 3.1], [s 67ZA.3], [s 69B.1] s 122 …. [s 31.11] “i” …. [s 31.4]

“xxi” …. [s 55A.2] “xxii” …. [s 55A.2] Consumer and Competition Act 2010 …. [s 31.4], [s 33.4] s 86 …. [s 31.4] Copyright Act 1912 …. [s 33.4] Corporations Act 2001 …. [r 4.05.1] s 109X …. [23,126.5], [Pt 7.2.1], [r 7.01.1], [r 7.11.1] Crimes Act 1914 s 4AA …. [23,702O.10], [r 1.19.1] s 4AA(1A) …. [23,702O.10] Domicile (Consequential Amendments) Act 1982 …. [s 39.7] Domicile Act 1982 …. [s 39.7] s 6 …. [s 39.7] s 7 …. [s 39.7] s 8 …. [s 39.7] s 9 …. [s 39.7] s 9(2) …. [s 39.7] s 10 …. [s 39.7] Evidence Act 1905 …. [s 38.9], [s 62G.8] s 8 …. [s 62G.8] Evidence Act 1995 …. [23,358.5], [r 15.31.5], [r 15.55.1], [r 26B.25.25] Ch 2 …. [23,358.5] Pt 3.2 …. [23,392.20], [r 15.09.1]

Pt 3.3 …. [23,392.20], [r 15.09.1] Pt 3.4 …. [r 15.09.1] s 4(1) …. [s 112AD.25] s 4(5) …. [s 112AD.25] s 8 …. [r 15.05.1] s 9 …. [r 15.05.1] s 11 …. [23,358.5], [23,400.10], [r 15.05.1] s 48 …. [r 15.76.1] s 51 …. [23,440.5], [r 15.76.1] s 75 …. [23,400.10] s 119 …. [s 79A.14] s 126B …. [s 69ZX.10], [s 100C] s 126E …. [s 100C] s 128 …. [s 79.389] s 131 …. [r 10.02.3] s 131(1) …. [23,214.25], [r 12.07.5] s 131(2) …. [23,214.25], [23,214.30], [r 12.07.5] s 131(2)(h) …. [s 117.21] s 138 …. [s 69ZT.5] s 140 …. [s 112AD.20] s 140(2) …. [s 112AD.20] s 141 …. [s 69ZT.5] Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 …. [s 37A.1], [s 37A.4] Family Law (Family Dispute Resolution Practitioners) Regulations

2008 …. [s 10D.8], [s 10K.1] Family Law Act 1975 …. [Pt VIII.1], [Pt VIII.2], [Pt VIII.3], [Pt VIII.4], [Pt VIII.6], [s 1.0.0], [s 1.0.25], [s 1.0.60], [s 3.2], [s 3.5], [s 3.6], [s 3.8], [s 4.505.15], [s 4.505.21], [s 4.505.22], [s 4.505.27], [s 9.12], [s 31.10], [s 33.1], [s 33.4], [s 38.1], [s 39.1A], [s 39.3], [s 39.7], [s 39.18], [s 39.21], [s 40.3], [s 40.8], [s 41.1], [s 41.2], [s 42.4], [s 43.1], [s 43.11], [s 45.1], [s 45.8], [s 46.1], [s 48.2], [s 48.4], [s 48.12], [s 48.23], [s 48.24], [s 48.31], [s 51.3], [s 60CC.5], [s 60CC.6], [s 60CC.27], [s 60CC.255], [s 60F.3], [s 60H.1], [s 60H.5], [s 69ZW.1], [s 69ZW.5], [s 75.36], [s 75.38], [s 77.6], [s 79.1], [s 79.4], [s 79.7], [s 79.27], [s 79.31], [s 79.65], [s 79.115], [s 79.193], [s 79.273], [s 79A.1], [s 79A.15], [s 79A.37], [s 79A.38], [s 83.3], [s 83.6], [s 83.19], [s 85A.1], [s 87.2], [s 87.19], [s 87.20], [s 87.32], [s 87.34], [s 87.91], [s 87.93], [s 87.110], [s 87A.11], [s 88.4], [s 88.7], [s 89.7], [s 90A.0], [s 90A.1], [s 90A.2], [s 91B.2], [s 94.1], [s 97.1], [s 97.2], [s 100.2], [s 102.3], [s 103.1], [s 105.1], [s 105.2], [s 105.8], [s 106B.15], [s 106B.25], [s 107.1], [s 112A.1], [s 112AM.10], [s 112AO.1], [s 112AP.1], [s 112AP.10], [s 113.1], [s 114.1], [s 114.9], [s 114.29], [s 114.40], [s 120.1], [ss 86-87.0.3], [ss 86-87.0.14] Pt 2 …. [s 1.0.0], [s 4.75] Pt 3 …. [s 1.0.0] Pt 3A …. [s 1.0.0] Pt 4 …. [s 4.45], [s 4.250], [s 4.425], [s 4.430], [s 20.2] Pt 7 …. [s 1.0.0], [s 1.0.40], [s 4.1.1], [s 4.405], [s 31.1], [s 39.1], [s 39.13], [s 39.18], [s 39.20], [s 39.22], [s 40.9], [s 43.10], [s 43.15], [s 46.1], [s 48.4], [s 55A.2], [s 60B.1], [s 60B.8], [s 60B.55], [s 60CA.12], [s 60CC.4], [s 60CC.5], [s 60CC.27], [s 60CC.65], [s 60I.1], [s 60I.2], [s 60I.10], [s

60I.11], [s 61C.1], [s 65H.1], [s 66C.11], [s 67Z.3], [s 67ZC.10], [s 69B.1], [s 69N.1], [s 69ZE.1], [s 69ZF.1], [s 69ZF.8], [s 69ZF.9], [s 69ZF.15], [s 69ZH.1], [s 69ZH.2], [s 69ZH.3], [s 69ZK.1], [s 69ZM.5], [s 69ZM.8], [s 69ZM.12], [s 69ZM.15], [s 69ZM.20], [s 69ZM.25], [s 69ZV.7], [s 74.1], [s 79.5], [s 82.1], [s 90.2], [s 91.1], [s 94AA.3], [s 112AA.6], [s 112AA.7], [s 114.29] Div 1 Subdiv BA …. [s 60CB.1], [s 60CB.5], [s 60CB.10], [s 60CC.1] Div 2 …. [s 61F.1] Div 6 …. [s 65C.3], [s 69ZH.3] Subdiv E …. [s 60I.1] Div 7 …. [s 1.0.0], [s 64B.65], [s 66B.1], [s 66C.11], [s 66M.1] Div 11 …. [s 4AB.1] Div 12 …. [s 60F.3], [s 69U.1] Div 12A …. [Div 13A.1], [r 15.05.3], [s 60CC.200], [s 60CC.290], [s 60CD.15], [s 69ZBN.1], [s 69ZM.1], [s 69ZM.5], [s 69ZM.8], [s 69ZM.12], [s 69ZM.15], [s 69ZM.20], [s 69ZM.25], [s 69ZV.7] Div 13A …. [Div 13A.1], [s 65AA.1], [s 65D.2], [s 65D.20], [s 65P.1], [s 69Y.3], [s 69ZM.5], [s 69ZM.25], [s 70NAC.1], [s 70NAD.1], [s 112AA.1], [s 112AA.5], [s 112AA.6], [s 112AA.7], [s 112AA.11] Subdiv A …. [Div 13A.1] Subdiv B …. [Div 13A.1] Subdiv C …. [Div 13A.1]

Subdiv D …. [Div 13A.1] Subdiv E …. [Div 13A.1], [s 70NEA.1] Subdiv F …. [Div 13A.1], [s 70NBA.5] Div 31A …. [s 65M.1], [s 65N.1] s 68B …. [s 112AA.7] s 112AA …. [s 112AA.7] s 112AA(A) …. [s 112AA.7] Pt 8 …. [s 4.405], [s 4.505.9], [s 4.505.30], [s 48.4], [s 51.5], [s 69ZM.5], [s 71.1], [s 71A.1], [s 72.20], [s 74.1], [s 74.3], [s 75.52A], [s 79.3], [s 79.175], [s 79.197], [s 79.293], [s 80.1], [s 80.16], [s 80.20A], [s 80.21], [s 81.1], [s 84.2], [s 86.2], [s 87.3], [s 87.4], [s 87.9], [s 87.11], [s 87.14], [s 87.20], [s 87.24], [s 87.31], [s 87.32], [s 87.38], [s 87.42], [s 87.46], [s 87.47], [s 87.63], [s 87.64], [s 87.65], [s 87.69], [s 87.81], [s 87.86], [s 87.99], [s 90.1], [s 90.2], [s 90A.0], [s 90B.1], [s 90C.1], [s 90D.1], [s 106B.10], [s 106B.45], [ss 86-87.0.3], [ss 86-87.0.9], [ss 86-87.0.11], [ss 86-87.0.14], [ss 8687.0.16] Pt 8A …. [s 71A.1], [s 79.5], [s 85A.17], [s 86.1], [s 86A.1], [s 87.1], [s 90A.0], [s 90B.1], [s 90C.1], [s 90D.1] s 90(1)(aa) …. [s 90D.1] Pt 8AA …. [s 78.19], [s 90AA.5], [s 90AE.2], [s 114.34] Pt 8AB …. [s 4AA.1] Pt 8B …. [s 79.69], [s 79.377] Pt 10 …. [s 4.275], [s 93A.9], [s 106B.105] Pt 13 …. [s 4.275], [s 105.1] Pt 13A …. [Div 13A.1], [s 35.1], [s 65DA.2], [s 69F.1], [s 75.52A], [s 107.1], [s 107.5], [s 112AA.15], [s 112AB.5], [s

112AD.10], [s 112AD.12] Div 2 …. [s 112AM.1], [s 112AM.10], [s 112AM.15], [s 112AP.1], [s 112AP.25], [s 112AP.30], [s 112AP.40] Div 3 …. [s 112AM.1], [s 112AM.10], [s 112AM.15], [s 112AP.1] s 112AA …. [s 35.1] Pt 13AA …. [s 117AA.1] Pt 13B …. [r 21.01.1], [s 11G.1] Pt VII …. [23,294.15], [Div12A.1], [r 10.15.10], [s 60CC.220], [s 60CC.250], [s 60CC.251], [s 60CC.255] Div 13A …. [s 39.15] Pt VIII Div 12A …. [Ch 16A.1], [r 16A.04.1] Pt VIIIAB …. [r 10.15.10] Pt XIIIA …. [s 39.15] Div 12A …. [s 100A.1] Subdiv D …. [Div12A.1] Div 13A …. [s 63DA.1], [s 65DA.1] Div 13A …. [Div12A.1] s 3 …. [r 10.15.25] s 1 …. [s 69ZF.1] s 3 …. [s 4.275] s 3(2)(c) …. [s 3.5], [s 4.825], [s 105.2] s 3(2)(c)(i) …. [s 103.1] s 3(2)(c)(ii) …. [s 3.6] s 3(3)(c) …. [s 3.9]

s 4 …. [Pt VIII.1], [r 19.05.9], [s 4.490], [s 4.505.3], [s 4.505.22], [s 4.575], [s 4.750.4], [s 4AB.1], [s 8.2], [s 8.3], [s 10E.1], [s 10J.2], [s 39.1], [s 39.14], [s 46.2], [s 48.4], [s 60CC.30], [s 60CC.35], [s 60F.13], [s 60F.15], [s 60F.17], [s 60G.1], [s 60I.12], [s 61C.10], [s 62G.6], [s 64B.70], [s 64B.75], [s 65DAC.10], [s 65F.1], [s 65H.1], [s 67Z.3], [s 67ZA.3], [s 69W.3], [s 69ZF.5], [s 69ZK.1], [s 69ZV.7], [s 70NCA.1], [s 78.2], [s 78.6], [s 79.5], [s 79.21], [s 79.23], [s 79.29], [s 79.35], [s 79.69], [s 79.171], [s 79.323], [s 79.325], [s 79.333], [s 87A.7], [s 87A.11], [s 92A.1], [s 106B.20], [s 112AA.7], [s 112AD.10], [s 117.2A], [s 117.26A] s 4(1) …. [Pt VIII.1], [Pt VIII.2], [Pt VIII.3], [Pt VIII.8], [s 1.0.0], [s 1.0.35], [s 1.0.40], [s 3.6], [s 4.505.1], [s 4.505.9], [s 4.505.10], [s 4.505.19], [s 4.725.1], [s 4.725.3], [s 4.750.3], [s 4.750.4], [s 8.10], [s 9.6], [s 9.7], [s 20.2], [s 21A.2], [s 31.2], [s 39.1], [s 39.2], [s 39.4], [s 40.6], [s 45.3], [s 45.8], [s 46.6], [s 60B.8], [s 71.1], [s 72.1], [s 85A.2], [s 86.13], [s 87.6], [s 87.34], [s 87.35], [s 87.93], [s 88.7], [s 89.1], [s 89.2], [s 89.8], [s 90AE.2], [s 94.2], [s 103.1], [s 105.1], [s 113.1], [s 113.3], [s 114.3], [s 114.8], [s 114.21], [s 114.24], [s 114.33], [ss 86-87.0.4], [ss 86-87.0.5], [ss 8687.0.6], [ss 86-87.0.8] s 4(1)(a) …. [s 45.8] s 4(1)(ca) …. [s 114.6] s 4(1)(e) …. [s 114.9] s 4(1) “eab” …. [s 4A.1] s 4(1)(eb) …. [s 78.2] s 4(1)(f) …. [s 78.2], [s 114.6] s 4(1) “family and child mediator”(a) …. [s 1.0.0]

s 4(1) “matrimonial cause”(c) …. [s 4.505.6], [s 39.17] s 4(1) “matrimonial cause”(c)(I) …. [s 4.505.9] s 4(1) “matrimonial cause”(c)(II) …. [s 4.505.7], [s 4.505.8] s 4(1) “matrimonial cause”(ca) …. [s 4.505.7], [s 4.505.8], [s 4.505.13], [s 113.6], [s 114.6] s 4(1) “matrimonial cause”(ca)(I) …. [s 4.505.7], [s 4.505.9], [s 4.505.10], [s 46.7], [s 113.6], [s 114.9], [s 114.21] s 4(1) “matrimonial cause”(ca)(II) …. [s 4.505.2], [s 4.505.7], [s 4.505.10], [s 4.505.11], [s 4.505.14], [s 4.505.17], [s 113.6] s 4(1) “matrimonial cause”(ca)(III) …. [s 4.505.7], [s 4.505.18] s 4(1) “matrimonial cause”(d) …. [s 39.17] s 4(1) “matrimonial cause”(a) …. [s 4.505.4], [s 4.505.15], [s 4.505.26], [s 4.735], [s 39.12] s 4(1) “matrimonial cause”(a)(II) …. [s 113.5] s 4(1) “matrimonial cause”(b) …. [s 4.505.5], [s 39.10] s 4(1) “matrimonial cause”(e) …. [s 4.505.9], [s 4.505.21], [s 39.17], [s 114.3] s 4(1) “matrimonial cause”(ea) …. [s 4.505.19] s 4(1) “matrimonial cause”(eb) …. [s 4.505.19], [s 4.505.26], [s 39.12] s 4(1) “matrimonial cause”(f) …. [s 4.505.2], [s 4.505.13], [s 4.505.22], [s 4.505.27], [s 4.505.28], [s 4.505.31], [s 4.505.32], [s 4.505.35], [s 39.10], [s 39.12], [s 39.13], [s 39.17], [s 117.3] s 4(1) “matrimonial cause a” …. [s 48.2] s 4(1.MATRIMONIAL.CAUSE)(c) …. [s 4.505.6] s 4(1.MATRIMONIAL.CAUSE)(c)(i) …. [s 4.505.6]

s 4(1A)(a) …. [s 20.2] s 4(1A)(b) …. [s 20.2] s 4(2) …. [s 4.505.7], [s 39.5], [s 79.325], [s 114.7], [s 119.4] s 4(3) …. [r 1.16.1] s 4 “matrimonial cause” …. [s 67ZC.5] s 4A …. [s 4.505.24], [s 4.505.36] s 4AA …. [s 90RD.1] s 4AA(1) …. [s 4AA.1] s 4AA(2) …. [s 4AA.1], [s 4AA.8] s 4AA(3) …. [s 4AA.1] s 4AA(4) …. [s 4AA.1] s 4AB …. [s 4.15.1], [s 60CC.35], [s 60CC.105], [s 60CG.1] s 4AB(3) …. [s 4.15.1] s 4AB(4) …. [s 4.15.1] s 4AB(4)(c) …. [s 4.15.1] s 4AB(4)(d) …. [s 4.15.1] s 5 …. [s 1.0.0] s 6 …. [Pt VIII.7], [s 6.1] s 6BA …. [Div 2.3.1.1] s 7 …. [s 4.130], [s 103.1] s 8 …. [s 48.2], [s 78.2], [s 79.27] s 8(1) …. [s 79.27] s 8(1)(a) …. [Pt VIII.2], [Pt VIII.3], [s 4.505.1] s 8(3) …. [s 4.825] s 9 …. [s 4.725.1], [s 8.7], [s 9.3], [s 39.21], [s 94.1]

s 9(1) …. [s 3.6], [s 4.825], [s 8.10], [s 9.15], [s 40.8], [s 105.2] s 9(2) …. [s 3.6] s 9(3) …. [s 92.6], [s 113.4] s 9(4) …. [s 43.1] s 9(7A) …. [s 3.6] s 9(9) …. [s 4.40], [s 9.2] s 10(2) …. [s 4.275] s 10B …. [s 10C.1], [s 10D.2], [s 10E.1], [s 65F.1] s 10C …. [s 10B.1], [s 10D.2], [s 10E.1] s 10D …. [r 15.31.6], [r 26B.25.30], [s 10B.1], [s 10C.1], [s 10H.1] s 10D(2) …. [s 10D.3] s 10D(3) …. [s 10D.4], [s 10D.5] s 10D(5) …. [s 10D.6] s 10D(6) …. [s 10D.1] s 10D(7) …. [s 10D.7] s 10E …. [r 15.31.6], [r 26B.25.30], [s 10B.1], [s 10C.1], [s 10D.1], [s 10D.4], [s 10H.1], [s 38BD.1] s 10E(2)(a) …. [s 4.15.1] s 10F …. [s 10G.1], [s 10H.2], [s 10J.1] s 10G …. [s 10F.1], [s 10H.2], [s 10J.1], [s 60I.2], [s 64B.70], [s 64B.75] s 10H …. [r 15.31.6], [r 26B.25.30], [s 10D.1], [s 10F.1], [s 10G.1] s 10H(7) …. [s 10H.1] s 10J …. [r 15.31.6], [r 26B.25.30], [s 10D.1], [s 10D.8], [s

10E.5], [s 10F.1], [s 10G.1], [s 10H.1], [s 38BD.1] s 10J(2) …. [s 10J.1] s 10J(2)(a) …. [s 4.15.1] s 10J(4) …. [s 10J.1] s 10J(6) …. [s 60I.5] s 11 …. [s 1.0.0] s 11A …. [Div12A.1], [s 11C.1], [s 11F.1] s 11A(A) …. [s 11F.1] s 11A(C) …. [s 11F.1] s 11B …. [s 11C.1], [s 38BD.1], [s 62G.6] s 11C(1) …. [s 11C.1] s 11C(2) …. [s 11C.1], [s 11C.2] s 11C(3) …. [s 4.15.1], [s 11C.1], [s 11C.2] s 11E …. [s 1.0.60] s 11E(2) …. [s 11E.1] s 11F …. [s 11F.3], [s 11G.1], [s 13D.1] s 11F(2) …. [s 11F.1] s 11F(3) …. [s 11F.1] s 11G …. [s 11F.1], [s 13D.1] s 12 …. [s 1.0.0] s 13A …. [s 1.0.0] s 13B(2) …. [s 13B.1] s 13C …. [s 13D.1], [s 60I.5] s 13H …. [s 1.0.0] s 13K …. [r 18.02.1], [r 18.05.5]

s 14 …. [s 48.30] s 14(2)(a) …. [s 1.0.0] s 14C …. [s 43.12] s 14C(2)(a) …. [s 1.0.0] s 14F …. [s 43.12] s 15 …. [Pt VIII.1] s 16A …. [s 43.12] s 16B …. [s 43.12], [s 48.34] s 16C …. [s 48.34] s 17A …. [23,296.5] s 18 …. [s 1.0.0] s 18(2) …. [s 100.2] s 19 …. [s 1.0.0] s 19(1) …. [s 31.4] s 19A …. [s 1.0.0] s 19B …. [s 1.0.0] s 19C …. [s 1.0.0] s 19K …. [s 1.0.0] s 20 …. [s 4.250], [s 4.425], [s 20.4] s 21 …. [s 51.3] s 21(2) …. [s 95.7] s 21A …. [s 4.45], [s 4.430] s 21B …. [r 1.18.1], [s 4.425] s 22 …. [s 4.45] s 22(1)(b) …. [s 22.2]

s 22(2AF) …. [s 4.430] s 24 …. [s 20.3] s 26B(1) …. [r 18.02.1], [r 18.05.5] s 27 …. [r 1.18.1] s 28(3) …. [cl 6.05.9], [r 19.05.9], [s 28.5A], [s 117.26A] s 28(4) …. [s 28.8] s 29(1)(b) …. [s 40.3] s 30(B) …. [s 20.1] s 31 …. [s 1.0.0], [s 4.505.1], [s 28.2], [s 31.1], [s 39.1], [s 39.2], [s 79.5], [s 79.31] s 31(1) …. [s 31.1], [s 31.9] s 31(1)(a) …. [s 31.2], [s 31.10], [s 40.3] s 31(1)(b) …. [s 40.3] s 31(1)(c) …. [s 31.11] s 31(1)(d) …. [s 4.505.24], [s 40.3], [s 93A.1] s 31(2) …. [s 31.13] s 32 …. [s 32.1] s 33 …. [s 4.505.1], [s 31.3], [s 33.2], [s 33.3], [s 33.4], [s 45.3] s 33A …. [s 39.15] s 33B …. [s 39.15], [s 45.8] s 33B(6) …. [s 33B.1] s 33C …. [s 39.15] s 34 …. [s 34.1], [s 34.4] s 34(1) …. [s 34.3] s 35 …. [s 35.1], [s 87.106], [s 107.1], [s 112AP.1] s 37(2) …. [s 20.1]

s 37A …. [r 18.10.2], [s 26B.1], [s 26C.1], [s 37A.1], [s 37A.1A], [s 37A.2], [s 37A.11], [s 96.2], [s 96.3] s 37A(1)(f) …. [s 37A.7] s 37A(1)(f)(ii) …. [s 37A.7] s 37A(1)(g) …. [s 37A.1B] s 37A(2) …. [s 37A.4] s 37A(3) …. [s 37A.1], [s 37A.5] s 37A(4) …. [s 37A.1], [s 37A.6] s 37A(5) …. [s 37A.7] s 37A(6) …. [s 37A.8] s 37A(8)(a) …. [s 37A.12] s 37A(8)(b) …. [s 37A.13] s 37A(9) …. [s 37A.9], [s 37A.11] s 37A(10) …. [s 37A.9], [s 37A.10], [s 37A.11] s 37A(11) …. [s 37A.12] s 37A(12) …. [s 37A.13], [s 37A.14] s 37A(13) …. [s 37A.14] s 37A(15) …. [s 37A.1], [s 37A.3] s 37B …. [r 18.05.1], [r 18.05.3], [r 18.06.1], [r 18.06.3] s 37B(2) …. [r 18.04.1] s 38 …. [s 118.4] s 38(1) …. [s 38.1], [s 38.3], [s 38.4], [s 97.1] s 38(2) …. [s 38.4] s 38(3) …. [s 38.2] s 38A …. [r 1.18.1]

s 38BD(3) …. [s 11C.2], [s 38BD.1] s 39 …. [s 4.1.1], [s 31.13], [s 39.1], [s 39.2], [s 39.13], [s 41.2], [s 45.8], [s 46.1], [s 48.2], [s 69E.3], [s 79.5], [s 79.25] s 39(1) …. [s 31.2], [s 79.21] s 39(1A) …. [s 39.14] s 39(3) …. [s 39.4], [s 39.10], [s 39.13] s 39(3)(c) …. [s 4.555] s 39(4)(a) …. [s 39.10], [s 39.13] s 39(4)(b) …. [s 39.13] s 39(5) …. [s 39.14], [s 39.17], [s 40.3] s 39(5)(a) …. [s 40.3] s 39(5)(b) …. [s 9.3], [s 40.3] s 39(5)(c) …. [s 40.3] s 39(5)(d) …. [s 40.3] s 39(5)(e) …. [s 40.3] s 39(6) …. [s 39.3], [s 39.19] s 39(6)(b) …. [s 9.3] s 39(7) …. [s 39.3], [s 39.18], [s 39.19] s 39(8) …. [s 39.20], [s 39.22] s 39B(1) …. [s 45.8] s 40 …. [s 4.1.1], [s 31.11], [s 40.9], [s 79.25] s 40(2) …. [s 40.2] s 40(3) …. [Pt VIII.2], [s 39.16], [s 40.7] s 40(4) …. [s 40.6] s 40(4A) …. [s 39.16] s 40(6) …. [s 4.505.31], [s 39.21], [s 40.8], [s 41.2], [s 45.5]

s 40(8) …. [s 40.9] s 41 …. [s 4.1.1], [s 41.2], [s 48.2], [s 79.25] s 41(2) …. [s 39.17], [s 41.1] s 41(3) …. [s 41.1], [s 41.2] s 41(3A) …. [s 41.2] s 41(4A) …. [s 4.505.31], [s 41.2] s 42(1) …. [s 55.4] s 42(2) …. [s 53.1] s 43 …. [s 43.2], [s 43.10], [s 48.10], [s 48.19], [s 66C.5], [s 75.34], [s 75.50], [s 79.213], [s 83.4], [s 114.43] s 43(a) …. [s 43.9], [s 43.10], [s 114.13] s 43(b) …. [s 43.10], [s 43.12] s 43(c) …. [s 43.11], [s 55A.13], [s 75.22] s 43(ca) …. [s 43.15] s 43(d) …. [s 43.10], [s 43.12], [s 48.30], [s 48.34], [s 114.13] s 43(1)(ca) …. [s 4AB.1] s 43(A) …. [s 6.1] s 44 …. [s 4.725.1], [s 44.15], [s 44.18], [s 44.19], [s 48.7] s 44(1) …. [s 44.16] s 44(1A) …. [s 44.4] s 44(1B) …. [s 44.5], [s 48.6] s 44(1C) …. [s 44.8] s 44(2) …. [s 4.60], [s 4.275], [s 4.505.31] s 44(3) …. [r 1.21.3], [r 10.15.25], [s 4.505.9], [s 4.505.18], [s 44.9], [s 44.11], [s 44.12], [s 44.13], [s 44.15], [s 44.16], [s 44.19], [s 72.5], [s 78.7], [s 78.14], [s 78.17], [s 79.311], [s

79.323], [s 79.371], [s 80.21], [s 83.2], [s 83.7], [s 87.86], [s 94AA.5], [ss 86-87.0.8] s 44(3A) …. [r 10.15.25], [s 44.9], [s 44.15], [s 87.7], [s 87.46], [s 87.87], [s 87.88] s 44(3B) …. [r 10.15.25], [s 44.9] s 44(4) …. [s 44.15], [s 44.18], [s 87.88] s 44(5) …. [r 1.21.3], [r 10.15.25], [s 44.15] s 44(5)(b) …. [s 90SL.3] s 44(6) …. [s 44.15], [s 44.18] s 44A …. [s 39.3], [s 39.18] s 45 …. [s 4.725.1], [s 45.8], [s 46.1] s 45(1) …. [s 45.5], [s 45.7] s 45(2) …. [Pt VIII.9], [s 39.15], [s 39.21], [s 41.2], [s 45.8], [s 45.9], [s 46.5] s 45A …. [s 39.15], [s 39.22] s 46 …. [s 4.725.1], [s 39.3], [s 39.18], [s 39.22], [s 46.1], [s 46.3], [s 46.4], [s 46.5], [s 46.6], [s 46.7], [s 46.10], [s 69N.1], [s 79.25] s 46(1) …. [Pt VIII.9], [s 46.5], [s 46.6] s 46(1)(a) …. [s 46.7] s 46(1A) …. [s 46.6] s 46(2) …. [s 46.4], [s 46.5], [s 46.7] s 48 …. [s 4.505.4], [s 9.9], [s 9.10], [s 48.3], [s 48.13], [s 48.14], [s 48.21], [s 48.22], [s 69P.3], [s 69Q.3] s 48(1) …. [s 48.9] s 48(2) …. [s 48.9], [s 48.10], [s 48.11], [s 48.12], [s 49.3], [s 50.5]

s 48(3) …. [s 48.3], [s 48.10], [s 48.22], [s 48.28], [s 48.29], [s 48.30] s 49 …. [s 48.3], [s 48.32], [s 49.1] s 49(1) …. [s 48.18], [s 49.1] s 49(2) …. [s 48.12], [s 48.13], [s 48.23], [s 49.1], [s 49.3] s 50 …. [s 48.3], [s 48.11], [s 48.22], [s 50.3], [s 50.5], [s 69Q.3] s 50(2) …. [s 50.4] s 51 …. [s 4.505.4], [s 43.9], [s 51.1], [s 51.3], [s 51.10], [s 60E.1], [s 67U.2], [s 69ZH.2], [s 113.5] s 53 …. [s 42.4], [s 53.1] s 54 …. [s 48.7] s 55 …. [s 57.3] s 55(2)(a) …. [s 55.2] s 55(3) …. [s 57.2], [s 93.1] s 55(5) …. [s 4.40], [s 57.2], [s 57.3] s 55A …. [s 9.15], [s 48.6], [s 55.1], [s 55.2], [s 55A.1], [s 55A.2], [s 55A.5], [s 55A.7], [s 55A.13], [s 55A.14], [s 55A.16], [s 55A.17], [s 59.3] s 55A(1)(b)(ii) …. [s 55A.15] s 55A(3) …. [s 55A.2], [s 98A.4] s 55A(4) …. [s 55A.2], [s 98A.3] s 56 …. [s 56.1] s 57 …. [r 3.12.1], [r 3.13.1], [s 55.2], [s 57.3] s 58 …. [r 3.12.1], [s 55.2], [s 59.1], [s 91.4] s 60(6)(g) …. [s 60CC.65]

s 60B …. [s 4.15.1], [s 60B.1], [s 60B.5], [s 60B.8], [s 60B.10], [s 60B.15], [s 60B.28], [s 60B.35], [s 60B.40], [s 60B.45], [s 60B.55], [s 60CC.4], [s 60CC.30], [s 60CC.135], [s 60CC.226], [s 61C.5], [s 65DAA.1], [s 69W.10] s 60B(1) …. [s 60B.8] s 60B(1)(a) …. [s 60B.8] s 60B(1)(b) …. [s 4AB.1], [s 60B.8] s 60B(1)(c) …. [s 60B.8], [s 60B.30] s 60B(1)(d) …. [s 60B.28] s 60B(2) …. [s 60B.5], [s 60B.8], [s 60B.55], [s 60CC.8] s 60B(2)(b) …. [s 60B.8] s 60B(2)(c) …. [s 60B.8], [s 60B.45], [s 61B.1] s 60B(2)(e) …. [s 60B.55], [s 61F.1] s 60B(3) …. [s 60B.5], [s 60B.55] s 60C(2) …. [s 60CD.5] s 60CA …. [s 60CA.5], [s 60CA.8], [s 60CA.10], [s 60CA.12], [s 60CA.15], [s 60CA.62], [s 60CA.65], [s 60CB.5], [s 60CC.2], [s 60CC.5], [s 60CC.8], [s 60G.5], [s 61DB.5], [s 65D.1], [s 65DAA.1], [s 68B.9], [s 68L.25], [s 69F.3], [s 69W.2], [s 69W.10], [s 70NBA.1], [s 70NBA.5], [s 70NDB.5] s 60CA.8 …. [s 60CA.60] s 60CA.12 …. [s 60CA.1], [s 60CA.62] s 60CB …. [s 60CC.1], [s 60CD.6] s 60CB(1) …. [s 60CB.1], [s 60CB.5] s 60CB(2) …. [s 60CB.1], [s 60CB.10] s 60CC …. [r 23.03.7], [s 1.0.40], [s 4.15.1], [s 60B.5], [s

60B.8], [s 60B.10], [s 60B.20], [s 60B.25], [s 60B.30], [s 60CA.5], [s 60CA.8], [s 60CC.1], [s 60CC.2], [s 60CC.3], [s 60CC.10], [s 60CC.31], [s 60CC.70], [s 60CC.120], [s 60CC.135], [s 60CC.226], [s 60CD.3], [s 61D.5], [s 63E.7], [s 64B.6], [s 65D.1], [s 65DAA.1], [s 65DAA.30], [s 67ZC.1], [s 68L.42], [s 68L.64], [s 69W.2], [s 69W.10] s 60CC(2) …. [s 60CC.1], [s 60CC.2], [s 60CC.31] s 60CC(2)(a) …. [s 60B.20], [s 60CC.30], [s 60CC.70] s 60CC(2)(b) …. [s 4.15.4], [s 4AB.1], [s 60B.25], [s 60CC.35], [s 60CC.105] s 60CC(2)(c) …. [s 60CC.70] s 60CC(2)(d) …. [s 60CC.93] s 60CC(2)(f) …. [s 60CC.70] s 60CC(2)(g) …. [s 60CC.70] s 60CC(2)(i) …. [s 60CC.70] s 60CC(2)(j) …. [s 60CC.105] s 60CC(2A) …. [s 4AB.1], [s 60CC.35] s 60CC(3) …. [s 4.15.4], [s 60CC.1], [s 60CC.2], [s 60CC.30], [s 60CC.31], [s 60CC.35], [s 60CC.87] s 60CC(3)(a) …. [s 60CC.30], [s 60CC.45] s 60CC(3)(b) …. [s 60CC.35] s 60CC(3)(c) …. [s 60CC.85] s 60CC(3)(d) …. [s 60CC.226] s 60CC(3)(f) …. [s 60CC.80] s 60CC(3)(h) …. [s 61F.1] s 60CC(3)(j) …. [s 4AB.1] s 60CC(3)(k) …. [s 60CC.107], [s 60CF.1]

s 60CC(3)(l) …. [s 60CC.110], [s 60CC.120] s 60CC(3)(m) …. [s 60CC.226] s 60CC(4) …. [s 60CC.30], [s 60CC.70], [s 60CC.226] s 60CC(4A) …. [s 60CC.70], [s 60CC.226] s 60CC(5) …. [s 60CC.1] s 60CC(6) …. [s 61F.1] s 60CC “s60cc”(3)(k) …. [r 2.05.1] s 60CCA …. [s 60CC.1] s 60CD(1) …. [s 60CD.5], [s 60CD.6] s 60CD(2) …. [s 60CD.6] s 60CE …. [s 68L.40], [s 68LA.2], [s 68LA.25] s 60CF …. [s 60CF.1], [s 60CG.1] s 60CF(1) …. [s 60CF.1] s 60CF(3) …. [s 60CF.1] s 60CG …. [s 4AB.1] s 60CG(1)(a) …. [s 60CG.1] s 60CG(1)(b) …. [s 60CG.1] s 60CI …. [s 4.15.1] s 60D …. [s 4.15.1], [s 4AB.1], [s 60CA.12], [s 60CC.5], [s 60H.3], [s 66C.9], [s 66L.17], [s 89.3], [s 92A.1], [s 102A.5] s 60D(1) …. [s 66E.2] s 60E …. [s 51.5] s 60F …. [s 4.190], [s 60G.3], [s 69P.3], [s 75.22], [s 79A.29] s 60F(1)(a) …. [s 60F.17] s 60F(1)(c) …. [s 60H.1] s 60F(2) …. [s 4.190]

s 60G …. [s 39.22], [s 60F.17], [s 60G.1], [s 60G.5], [s 61E.3], [s 65J.1] s 60G(2) …. [s 60CB.10], [s 60CC.1], [s 60CC.8], [s 60G.5] s 60H …. [s 4AA.1], [s 60H.1], [s 65C.5], [s 69P.3], [s 69ZH.3] s 60H(1) …. [s 60H.3] s 60H(1)(a) …. [s 60H.3] s 60H(2) …. [s 60H.5] s 60H(5) …. [s 60H.3] s 60HA …. [s 90RB.1], [s 90SF.2] s 60I …. [s 10H.7], [s 10J.1], [s 10J.3], [s 60I.1], [s 60I.11] s 60I(1) …. [s 60I.1] s 60I(2) …. [s 60I.1] s 60I(6) …. [s 60I.1] s 60I(7) …. [s 60I.1], [s 60I.2], [s 60I.10] s 60I(8) …. [s 60I.1], [s 60I.2], [s 60I.3], [s 60I.5] s 60I(9) …. [s 4AB.1], [s 60I.1], [s 60I.2], [s 60I.10] s 60I(9)(b) …. [s 4.15.1] s 60I(11) …. [s 60I.2] s 60J …. [s 4.15.1], [s 4AB.1], [s 60I.1], [s 60I.12] s 60J(1) …. [s 60J.1] s 60J(2) …. [s 60J.1] s 60J(3) …. [s 60J.1] s 60K …. [s 60CC.35] s 60ZH …. [s 69ZH.3] s 61B …. [s 61B.1], [s 61F.5]

s 61C …. [s 1.0.0], [s 60B.45], [s 60F.3], [s 60G.3], [s 61B.1], [s 61C.1], [s 61C.5], [s 61C.6], [s 61C.10], [s 61C.15], [s 61DA.10], [s 61F.1], [s 61F.5], [s 64B.45], [s 65DAC.5], [s 65K.1] s 61C(1) …. [s 1.0.0] s 61D …. [r 10.15.20], [s 61D.1], [s 61D.5] s 61D(1) …. [r 10.15.20] s 61D(2) …. [s 61B.1] s 61DA …. [r 10.15.20], [s 4.15.1], [s 60CC.226], [s 61DA.1], [s 61DA.10], [s 61DB.5], [s 65D.1], [s 65DAA.1] s 61DA(2) …. [s 4AB.1] s 61DA(3) …. [s 61DA.1], [s 61DA.10], [s 61DA.20] s 61DA(4) …. [s 61DA.10] s 61DAB …. [r 10.15.20] s 61DB …. [s 61DB.5], [s 64B.30] s 61E …. [s 60G.3] s 61E.3 …. [s 61E.1] s 61F …. [s 60CC.65], [s 61F.1] s 62A …. [s 46.9], [s 55A.17] s 62F …. [s 67ZA.3] s 62F(1) …. [s 69N.1] s 62F(2) …. [s 69N.1] s 62G …. [23,378.10], [23,588.25], [r 15.04.05], [r 15.04.10], [r 15.48.2], [s 60CC.95], [s 60CD.10], [s 62G.1], [s 62G.8] s 62G(1) …. [s 62G.5] s 62G(2) …. [s 1.0.40], [s 60CD.1], [s 60CD.3]

s 63 …. [s 40.5] s 63B(b) …. [s 63E.5] s 63C …. [s 63E.1], [s 69ZF.5] s 63C(4) …. [s 63F.3], [s 64B.65] s 63D …. [s 1.0.0] s 63E …. [s 61B.1] s 63E(3) …. [r 23.03.7], [s 60CC.8] s 63F …. [s 61C.1] s 63F(2) …. [s 60CB.10], [s 60CC.8], [s 63F.3] s 63F(3) …. [s 63F.1] s 63F(4) …. [s 63F.1] s 63F(5) …. [s 63F.1] s 63F(6) …. [s 60CB.10], [s 60CC.8], [s 63F.3] s 63H(1)(c) …. [s 63H.7] s 63H(2) …. [s 60CC.8], [s 63H.7] s 63H(3) …. [s 63H.9] s 64 …. [s 46.7], [s 60CC.45], [s 67ZC.3] s 64(ba) …. [s 65C.8] s 64(1) …. [s 60CC.27] s 64(1)(a) …. [s 60CA.12], [s 60CC.5], [s 60CC.27] s 64(1)(b) …. [s 60CC.45] s 64(1)(ba) …. [s 60CC.6] s 64(1)(bb) …. [s 60CC.6], [s 117.7] s 64(9) …. [s 1.0.0] s 64(10) …. [s 1.0.0]

s 64A …. [s 1.0.0] s 64A(1) …. [s 1.0.0] s 64A(4) …. [s 1.0.0] s 64B …. [r 10.15.20], [r 21.01.1], [s 60CA.1], [s 60CA.12], [s 60CB.5], [s 64B.5], [s 64B.15], [s 64B.65], [s 64B.85], [s 64B.100], [s 65C.3], [s 65D.3], [s 65M.10], [s 66E.2], [s 69W.10], [s 92A.1], [s 112AA.6] s 64B(1)(a) …. [s 70NBA.1], [s 70NBA.5] s 64B(1)(b) …. [s 64B.6] s 64B(2) …. [s 64B.5], [s 64B.20], [s 64B.65] s 64B(2)(b) …. [s 64B.35] s 64B(2)(c) …. [s 64B.80] s 64B(2)(e) …. [s 64B.35] s 64B(2)(f) …. [s 60CA.12], [s 64B.65] s 64B(2)(g) …. [s 64B.70], [s 64B.75] s 64B(2)(h) …. [s 64B.70], [s 64B.75] s 64B(2)(i) …. [s 69W.2] s 64B(3) …. [s 64B.40] s 64B(4) …. [s 64B.60] s 64B(4A) …. [s 64B.70], [s 64B.75] s 64B(5) …. [s 64B.65] s 64C …. [s 65C.3], [s 65C.8] s 64D …. [s 4.15.1], [s 70NBB.1] s 65 …. [s 68L.1] s 65(C) …. [s 65C.7] s 65 “c 7” …. [s 65C.7]

s 65A …. [s 64B.65] s 65AA …. [s 67ZC.1] s 65B …. [s 60CA.12], [s 64B.65] s 65C …. [r 10.15.20], [s 60B.40], [s 65C.1], [s 65C.5], [s 65C.6], [s 65C.8], [s 65K.1] s 65D …. [r 10.15.20], [s 60CC.275], [s 64B.5] s 65D(1) …. [s 67ZC.30], [s 68B.5] s 65DA …. [s 64B.45], [s 64B.50], [s 65DA.2] s 65DA(2) …. [s 65DA.2], [s 65DA.5] s 65DA(3) …. [s 65DA.5] s 65DA(4) …. [s 65DA.2], [s 65DA.5] s 65DA(5) …. [s 65DA.2] s 65DA(5)(b) …. [s 65DA.5] s 65DA(6) …. [s 65DA.5] s 65DA(7) …. [s 65DA.2] s 65DA(8) …. [s 65DA.2], [s 65DA.5] s 65DAA …. [s 1.0.40], [s 60CC.226], [s 61DA.10], [s 64B.50], [s 65DAA.1], [s 65DAA.5], [s 65DAA.10], [s 65DAA.30] s 65DAA(1) …. [s 65DAA.1] s 65DAA(1)(a) …. [s 65DAA.1] s 65DAA(1)(b) …. [s 65DAA.1], [s 65DAA.5] s 65DAA(1)(c) …. [s 65DAA.1] s 65DAA(2) …. [s 65DAA.1], [s 65DAA.10] s 65DAA(2)(b) …. [s 65DAA.5] s 65DAA(2)(c) …. [s 65DAA.1] s 65DAA(3) …. [s 60CC.226], [s 65DAA.1]

s 65DAA(4) …. [s 65DAA.1] s 65DAA(5) …. [s 60CC.30], [s 65DAA.1] s 65DAB …. [s 1.0.40], [s 65D.1] s 65DAC …. [s 1.0.40], [s 60B.45], [s 61C.6], [s 61C.10], [s 61DA.10], [s 64B.55], [s 65DAC.1], [s 65DAC.5], [s 65DAC.10], [s 65DAC.25] s 65DAC(2) …. [s 65DAC.15] s 65DAC(3) …. [s 65DAC.20] s 65DAC(4) …. [s 65DAC.25] s 65DAE …. [s 1.0.40], [s 64B.55], [s 65DAC.10] s 65E …. [s 60CA.15], [s 60CC.5], [s 60CC.226], [s 65K.1] s 65F …. [s 4AB.1] s 65F(1) …. [s 65F.1] s 65F(2) …. [s 65F.1] s 65F(2)(a) …. [s 60CC.45] s 65F(3) …. [s 65F.1] s 65F(4) …. [s 65F.1] s 65G …. [r 10.15.30], [r 10.17.3], [s 65G.1] s 65G(1) …. [s 1.0.40] s 65G(2) …. [s 65G.5] s 65H(4) …. [s 65H.1] s 65J …. [s 60G.3] s 65L(2) …. [s 60CC.8] s 65M …. [s 65D.20], [s 65M.1], [s 65M.5], [s 70NAD.1] s 65M(2)(c) …. [s 65M.10] s 65N …. [s 65D.20], [s 65M.1], [s 65N.1], [s 65P.5], [s

70NAD.1] s 65NA …. [s 70NAD.1] s 65P …. [s 65D.20], [s 65M.1], [s 65M.10], [s 65P.1], [s 65P.5], [s 65P.7], [s 70NAD.1], [s 70NAE.15] s 66A …. [s 66S.11] s 66B …. [s 66J.5], [s 66J.7], [s 66J.9], [s 66K.5], [s 66S.11], [s 66S.115] s 66C …. [s 66C.1], [s 66C.5], [s 66K.5] s 66C(1) …. [s 66C.3] s 66C(2)(a) …. [s 66C.5], [s 75.34] s 66C(2)(b) …. [s 66C.1], [s 75.27] s 66C(2)(b)(i) …. [s 66C.1] s 66C(2)(c)(i) …. [s 66C.1], [s 66J.33] s 66C(2)(c)(ii) …. [s 66C.1], [s 66J.33] s 66D …. [s 66C.9], [s 66K.17], [s 66K.29] s 66D(1) …. [s 66C.1], [s 66C.5] s 66D(2) …. [s 66C.1], [s 66C.5] s 66E …. [s 66E.2], [s 66S.11] s 66F …. [s 77A.7] s 66F(2) …. [s 69ZF.15] s 66G …. [s 66E.2], [s 66S.11], [s 87A.11] s 66H.3 …. [s 66K.3] s 66J …. [s 66H.7] s 66J(1)(b) …. [s 66J.5] s 66J(1)(c) …. [s 66J.5] s 66J(2)(a)(i) …. [s 66J.13]

s 66J(2)(a)(ii) …. [s 66J.13] s 66J(3) …. [s 66J.35] s 66J(3)(a) …. [s 66J.31] s 66J(3)(b) …. [s 66C.1], [s 66L.5] s 66J(3)(b)(i) …. [s 66J.33] s 66J(3)(b)(ii) …. [s 66C.11], [s 66J.33] s 66J(4) …. [s 66J.27], [s 66J.35] s 66K …. [s 66C.7], [s 66H.9], [s 66S.11], [s 66S.115], [s 77.2] s 66K(1)(b) …. [s 66K.5], [s 66K.7], [s 66K.13] s 66K(1)(c) …. [s 66K.5] s 66K(1)(c)(i) …. [s 66C.7] s 66K(1)(d) …. [s 66K.5], [s 66K.19] s 66K(1)(e) …. [s 66K.5], [s 66K.23] s 66K(2) …. [s 66K.9], [s 66K.11] s 66K(3) …. [s 66K.21] s 66K(4) …. [s 66C.1], [s 66C.11], [s 66K.25] s 66K(4)(a) …. [s 66K.27] s 66K(4)(b) …. [s 66K.29] s 66K(5) …. [s 66K.31], [s 66K.33] s 66L …. [s 66L.1], [s 66L.5], [s 66L.17], [s 66R.7], [s 77A.7] s 66L(1) …. [s 66L.1], [s 66L.9] s 66L(2) …. [s 66L.1], [s 66L.9] s 66L(3) …. [s 66L.1] s 66M …. [r 10.15.30], [s 66C.1], [s 66C.5], [s 66C.9], [s 66K.17], [s 66L.6], [s 66S.11], [s 66S.115] s 66N …. [s 66C.1], [s 66C.5], [s 66K.17], [s 66S.11], [s

66S.115] s 66P(1)(c) …. [s 66P.2] s 66P(2) …. [s 66P.2] s 66P(3) …. [s 66P.3] s 66Q …. [s 37A.7] s 66R …. [s 66R.7], [s 87A.1], [s 87A.11], [s 87A.34] s 66R(1) …. [s 66R.20] s 66R(2) …. [s 66R.20] s 66S …. [s 86.4], [s 87.41] s 66S(2)(a) …. [s 66S.1] s 66S(2)(d) …. [s 66S.11] s 66S(3) …. [s 66S.11] s 66S(3)(a) …. [s 66S.11] s 66S(3)(a)(i) …. [s 66S.11] s 66S(3)(a)(ii) …. [s 66S.11] s 66S(3)(a)(iii) …. [s 66S.11] s 66S(3)(a)(iv) …. [s 66S.11] s 66S(3)(b) …. [s 66S.11] s 66S(3)(c) …. [s 66S.1], [s 66S.11] s 66S(3)(d) …. [s 66S.11] s 66S(4) …. [s 66S.11] s 66S(5) …. [s 66S.11] s 66S(6) …. [s 66S.37] s 66S(10) …. [s 66S.115] s 66U(1) …. [s 66U.1]

s 66U(2) …. [s 66U.1] s 66U(3) …. [s 66U.1] s 66V(2) …. [s 66V.1] s 66ZC …. [s 1.0.0] s 67D …. [s 66P.1] s 67D(2) …. [s 66P.2] s 67D(3) …. [s 66P.3] s 67E …. [s 37A.7] s 67L …. [s 60CC.8] s 67M …. [s 67ZC.10] s 67N …. [s 67ZC.10] s 67P …. [s 67ZC.10] s 67Q …. [s 67U.1] s 67R …. [s 67U.1] s 67S …. [s 67U.1] s 67T …. [s 67U.1] s 67U …. [s 67U.2], [s 112AA.7] s 67V …. [s 60CC.8], [s 67U.1] s 67W(1) …. [Pt 21.3.1] s 67Z …. [Div 2.3.1.1], [s 4.15.1], [s 60CC.35], [s 67Z.1], [s 67Z.3], [s 67ZBA.1], [s 67ZBA.5] s 67Z(3) …. [s 67ZBA.5] s 67ZA …. [s 4.15.1], [s 67Z.3], [s 67ZA.1] s 67ZA(2) …. [s 67ZA.1], [s 67ZA.3] s 67ZA(3) …. [s 67ZA.1] s 67ZA(4) …. [s 67ZA.3]

s 67ZA(5) …. [s 67ZA.3] s 67ZA(6) …. [s 67ZA.3] s 67ZB …. [s 4.15.1], [s 67ZA.3] s 67ZB(4) …. [s 67ZB.10] s 67ZBA …. [s 4.15.1], [s 4AB.1], [s 67ZBA.1], [s 67ZBA.5] s 67ZBA(3) …. [s 67ZBA.5] s 67ZBB …. [s 4.15.1], [s 4AB.1] s 67ZC …. [s 64B.10], [s 64B.80], [s 67Z.3], [s 67ZC.1], [s 67ZC.3], [s 67ZC.10], [s 67ZC.20], [s 67ZC.30], [s 67ZC.35], [s 68B.5], [s 68B.6], [s 69ZH.3], [s 91.1] s 67ZC(2) …. [s 60CC.8], [s 67ZC.1] s 67ZD …. [r 4.30.1] s 67ZH …. [s 67U.2], [s 67ZC.10] s 67ZU …. [s 11C.2] s 68B …. [r 4.30.1], [r 18.05.5], [s 60CA.65], [s 60CC.135], [s 60K.6], [s 64B.10], [s 67Z.3], [s 67ZC.30], [s 68B.1], [s 68B.3], [s 68B.5], [s 68B.6], [s 68B.7], [s 68B.9], [s 68L.75], [s 69N.1], [s 69ZH.1], [s 112AA.6], [s 114AB.1], [s 114AB.3] s 68B(1) …. [s 60CC.8], [s 68B.1], [s 68B.5], [s 68B.7], [s 68B.9] s 68B(1)(a) …. [s 68B.1], [s 68B.5] s 68B(2) …. [s 68B.5], [s 68B.7], [s 68B.9] s 68B(3) …. [s 68B.1] s 68C …. [s 114AB.1], [s 114AB.3] s 68CC(3)(g) …. [s 60CC.55] s 68CC(3)(h) …. [s 60CC.55]

s 68F …. [s 60CC.3], [s 60CC.6], [s 60CC.16], [s 60CC.75] s 68F(h) …. [s 60CC.75] s 68F(2) …. [s 60CC.226] s 68F(2)(b) …. [s 60CC.70] s 68F(2)(f) …. [s 60CC.55], [s 60CC.60] s 68G …. [s 62G.1] s 68L …. [r 8.02.3], [s 1.0.40], [s 43.11], [s 60CD.12], [s 68L.1], [s 68L.28], [s 68L.40], [s 68L.55], [s 68L.60], [s 68L.70], [s 68LA.1], [s 92.9] s 68L(2) …. [s 68L.1], [s 68L.70] s 68L(2)(b) …. [s 68L.40] s 68L(5) …. [s 68L.1], [s 68L.40] s 68L(6) …. [s 68L.40] s 68L.42 …. [s 68L.33] s 68LA …. [s 60CD.12], [s 68L.1], [s 68L.60], [s 68LA.23] s 68LA(2) …. [s 68LA.10] s 68LA(2)(a) …. [s 68LA.25] s 68LA(3) …. [s 68LA.10] s 68LA(4) …. [s 68LA.10] s 68LA(5) …. [s 68LA.20] s 68LA(5)(b) …. [s 68L.40] s 68LA(6) …. [s 68LA.50], [s 68LA.55] s 68LA(7) …. [s 68LA.58] s 68LA(8) …. [s 68LA.58] s 68M …. [s 68L.1], [s 68L.64] s 68N …. [s 4AB.1]

s 68R …. [s 60CB.10] s 68R(5) …. [s 60CC.8] s 68R(6) …. [s 1.0.40] s 68S(1)(f) …. [s 1.0.40] s 68S(2)(b) …. [s 1.0.40] s 69A …. [s 31.1] s 69B …. [s 66E.2] s 69C(2)(b) …. [s 68L.5] s 69E …. [s 69E.1] s 69E(1) …. [s 60CA.20] s 69E(1)(e) …. [s 69E.3] s 69E(2) …. [s 69E.1] s 69H …. [s 66E.2] s 69J …. [s 66E.2] s 69K …. [s 39.20], [s 39.22] s 69N …. [s 39.22] s 69N(1)(b) …. [s 69N.1] s 69N(2) …. [s 69N.1] s 69N(3) …. [s 69N.1] s 69N(5)(a) …. [s 69N.1] s 69N(5)(b) …. [s 69N.1] s 69N(6) …. [s 69N.1] s 69N(7) …. [s 69N.1] s 69N(8) …. [s 69N.1] s 69N(9) …. [s 69N.1]

s 69P …. [s 51.5] s 69P(1) …. [s 69P.1] s 69P(2) …. [s 69P.1] s 69P(3) …. [s 69P.3] s 69Q …. [s 69Q.1] s 69S …. [s 69S.1] s 69U …. [s 60H.1], [s 69U.1] s 69U(1) …. [s 69U.1] s 69V …. [s 69V.1], [s 69V.2] s 69VA …. [s 64B.90] s 69W …. [s 64B.85], [s 69V.1], [s 69V.2], [s 69W.1], [s 69W.2], [s 69W.10] s 69X …. [s 69W.1] s 69Y …. [s 69W.11] s 69Y(2) …. [s 69W.12] s 69Z …. [s 69W.11] s 69Z(3) …. [s 69W.12] s 69ZC …. [s 69W.1], [s 69ZH.1] s 69ZD …. [s 69V.1] s 69ZE …. [s 51.5], [s 69ZF.15], [s 69ZH.2] s 69ZF …. [s 69ZE.5], [s 69ZF.15] s 69ZF(1) …. [s 69ZF.9] s 69ZF(3) …. [s 69ZF.9] s 69ZG …. [s 69ZF.1] s 69ZH …. [s 67ZC.10], [s 69ZH.1], [s 69ZH.2], [s 69ZH.3] s 69ZH(1) …. [s 69ZH.1], [s 69ZH.3]

s 69ZH(2) …. [s 67ZC.10], [s 69ZH.1], [s 69ZH.3] s 69ZH(3) …. [s 69ZH.1], [s 69ZH.2], [s 69ZH.3] s 69ZH(4) …. [s 69ZH.3] s 69ZK …. [s 60CH.1], [s 68L.50], [s 69ZE.5], [s 69ZF.15], [s 69ZW.1] s 69ZK(1)(b) …. [s 69ZF.15] s 69ZK(2) …. [s 69ZF.15] s 69ZM …. [s 69ZM.1], [s 69ZM.25], [s 69ZV.7] s 69ZM(1) …. [s 69ZM.5] s 69ZM(2) …. [s 69ZM.5] s 69ZM(2)(a) …. [s 69ZM.8] s 69ZM(2)(b) …. [s 69ZM.12] s 69ZM(3) …. [s 69ZM.15], [s 69ZM.20] s 69ZM(4) …. [s 69ZM.1], [s 69ZM.15] s 69ZM(5) …. [s 69ZM.12], [s 69ZM.15], [s 69ZM.20] s 69ZM(6) …. [s 69ZM.12], [s 69ZM.15], [s 69ZM.20] s 69ZN …. [Div12A.1], [s 4.15.1] s 69ZN(5) …. [s 4AB.1] s 69ZQ …. [Div12A.1], [s 4.15.1] s 69ZQ(1)(aa) …. [s 4AB.1] s 69ZR …. [Div12A.1] s 69ZS …. [Div12A.1] s 69ZT …. [s 11C.1], [s 11C.4], [s 69ZT.5] s 69ZT(2) …. [Div12A.1], [s 69ZV.1], [s 69ZV.5], [s 69ZV.7] s 69ZT(3) …. [s 69ZV.5], [s 69ZV.7]

s 69ZT(4) …. [s 69ZV.1] s 69ZU …. [s 11C.1] s 69ZV …. [Div12A.1], [s 69ZV.5], [s 69ZV.7], [s 100A.1] s 69ZV(1) …. [s 69ZV.5], [s 69ZV.7] s 69ZV(2) …. [s 69ZV.1], [s 69ZV.7] s 69ZV(3) …. [s 69ZV.1] s 69ZV(4) …. [s 69ZV.1] s 69ZV(5) …. [s 69ZV.1] s 69ZW …. [Div12A.1], [r 10.15.20], [s 4.15.1], [s 4AB.1], [s 60K.6], [s 69ZW.1], [s 69ZW.5] s 69ZW(1) …. [s 69ZW.5] s 69ZW(2) …. [s 69ZW.1] s 69ZW(3) …. [s 69ZW.1], [s 69ZW.5] s 69ZW(3)(b) …. [s 69ZW.5] s 69ZW(4) …. [s 69ZW.1] s 69ZW(5) …. [s 69ZW.1] s 69ZW(6) …. [s 69ZW.1], [s 69ZW.5] s 69ZW(7) …. [s 69ZW.1], [s 69ZW.5] s 69ZX …. [Div12A.1], [s 10D.4] s 69ZX(1) …. [s 69ZX.1], [s 69ZX.2] s 69ZX(2) …. [s 69ZX.1], [s 69ZX.2] s 69ZX(3) …. [s 69ZX.1] s 69ZX(3)(a) …. [s 69ZX.5] s 69ZX(3)(a)(i) …. [s 69ZX.5] s 69ZX(3)(b) …. [s 69ZX.5] s 69ZX(4) …. [s 69ZX.1]

s 70 …. [s 107.1] s 70(1) …. [s 65P.5] s 70(6) …. [s 107.1] s 70AA(2) …. [s 70NBA.1] s 70C …. [r 23.01A.1], [s 114.29] s 70CB …. [s 70NCA.1] s 70D …. [r 23.01A.1] s 70G …. [s 70J.5] s 70J …. [s 70J.5] s 70M …. [s 89.3] s 70N …. [s 89.3] s 70NAA …. [Div 13A.1], [r 21.01.1], [s 70NFB.10] s 70NAA(1) …. [s 112AA.7] s 70NAC …. [s 69Y.3] s 70NAC(a) …. [s 70NAC.1] s 70NAC(b) …. [s 70NAC.1] s 70NAC(A)(ii) …. [s 70NAC.1] s 70NAD …. [s 70NAD.1] s 70NAE …. [s 70NAE.1], [s 70NAE.25] s 70NAE(1) …. [s 70NAE.1], [s 70NAE.25] s 70NAE(1A) …. [s 70NAE.10] s 70NAE(3) …. [s 70NAE.25] s 70NAE(4) …. [s 70NAE.15], [s 70NAE.25] s 70NAE(5) …. [s 70NAE.15] s 70NAE(6) …. [s 70NAE.15]

s 70NAE(7) …. [s 70NAE.15] s 70NAF …. [Div 13A.1] s 70NAF(2) …. [s 70NAF.3] s 70NAF(2)(a) …. [s 70NBA.5] s 70NAF(2)(b) …. [s 70NBA.5] s 70NAF(2)(c) …. [s 70NBA.5] s 70NAF(3) …. [s 70NAF.1] s 70NB …. [s 63DA.1] s 70NB(c) …. [r 13.01.1], [r 13.15.1] s 70NBA …. [s 70NBB.1], [s 70NCA.1], [s 70NEB.15] s 70NBA(1) …. [s 70NBA.1] s 70NBA(2) …. [s 70NBA.1], [s 70NBA.5] s 70NCB …. [s 70NDC.1], [s 70NEB.30], [s 70NEB.35] s 70NCB(1) …. [s 70NCB.1] s 70NDA …. [s 70NAF.3] s 70NDB …. [s 70NEB.10] s 70NDB(2) …. [s 70NDB.5] s 70NDC(1) …. [s 70NDC.1] s 70NDC(2) …. [s 70NDC.1] s 70NE …. [s 70NAE.1] s 70NEA …. [s 112AA.7] s 70NEA(2)(a) …. [s 70NEA.1] s 70NEA(3) …. [s 70NEA.1] s 70NEB …. [s 70NEA.1] s 70NEB(1)(a) …. [s 70NEG.1]

s 70NEB(1)(c) …. [s 65D.2] s 70NEB(1)(d) …. [s 70NEB.20] s 70NEB(2) …. [s 70NEB.5] s 70NEB(3) …. [s 70NEB.5] s 70NEB(5) …. [s 70NEB.10] s 70NEB(7) …. [s 70NEB.35] s 70NEC …. [s 70NEB.20] s 70NEC(4) …. [s 70NEC.1] s 70NEF …. [s 4.15.1] s 70NEG …. [s 70NEB.5] s 70NFB …. [s 70NFB.10] s 70NFB(2) …. [s 70NFB.10] s 70NFB(2)(a) …. [s 70NAF.5] s 70NFB(2)(d) …. [s 70NAF.5] s 70NFB(2)(e) …. [s 70NFB.10] s 70NFC(3)(c) …. [s 1.0.40] s 70NFC(4) …. [s 1.0.40] s 70NFC(6) …. [s 1.0.40] s 70NFG …. [s 70NFB.10] s 70NFG(3) …. [s 70NFB.10] s 70NFG(5) …. [s 70NFB.10] s 70NIA …. [Pt 21.2.1] s 70NJ(1)(ba) …. [s 70NAE.25] s 70Q(1) …. [s 90.3] s 71 …. [s 72.1], [s 72.5]

s 71A …. [s 75.52A], [s 90A.0], [s 90B.1], [s 90C.1], [s 90G.1] s 72 …. [r 10.15.25], [s 66S.115], [s 72.1], [s 72.2], [s 72.4], [s 72.7], [s 72.9], [s 72.13], [s 72.16], [s 72.17], [s 72.19], [s 74.1], [s 74.3], [s 74.6], [s 75.1], [s 75.21], [s 75.28], [s 75.36], [s 75.41], [s 75.50], [s 79.165], [s 79.233], [s 79.301], [s 79.311], [s 80.2], [s 81.1], [s 83.5], [s 83.6], [s 83.7], [s 83.8], [s 83.11], [s 83.12], [s 83.25], [s 87.7], [s 87.13] s 72(a) …. [s 75.22] s 72(c) …. [s 72.16] s 72(1) …. [r 10.15.25] s 72(2) …. [s 72.21] s 72(2)(ha) …. [s 72.21] s 73 …. [s 80.2], [s 81.1], [s 83.11] s 74 …. [s 4.750.4], [s 44.10], [s 72.1], [s 72.19], [s 74.1], [s 74.2], [s 74.3], [s 75.1], [s 75.2], [s 75.36], [s 77.6], [s 77A.7], [s 78.13], [s 79.165], [s 79.177], [s 79.293], [s 79.297], [s 79.301], [s 79.311], [s 79.377], [s 80.2], [s 80.3], [s 80.9], [s 81.1], [s 81.2], [s 81.4], [s 87.3], [s 87.87], [s 87.88], [s 87A.11], [s 88.5], [s 89.7], [s 106B.75], [ss 8687.0.15] s 74(1) …. [r 10.15.25] s 74(2) …. [s 1.0.35] s 74(8) …. [s 1.0.35] s 75 …. [s 66S.115], [s 72.1], [s 72.13], [s 74.2], [s 75.1], [s 75.50], [s 78.14], [s 79.75], [s 79.157], [s 79.199], [s 79.311], [s 83.11], [s 83.12], [s 83.14], [s 83.25], [s 87.20] s 75(1) …. [s 75.1]

s 75(2) …. [r 10.15.25], [s 4.750.4], [s 66K.27], [s 72.4], [s 72.12], [s 72.16], [s 72.20], [s 74.1], [s 74.3], [s 75.1], [s 75.2], [s 75.3], [s 75.21], [s 75.36], [s 75.38], [s 75.47], [s 75.48], [s 75.49], [s 75.54], [s 77.6], [s 77A.7], [s 79.3], [s 79.65], [s 79.69], [s 79.113], [s 79.132], [s 79.133], [s 79.151], [s 79.153], [s 79.155], [s 79.159], [s 79.161], [s 79.163], [s 79.165], [s 79.193], [s 79.199], [s 79.205], [s 79.207], [s 79.231], [s 79.233], [s 79.235], [s 79.239], [s 79.240], [s 79.257], [s 79.271], [s 79.311], [s 79.325], [s 79.331], [s 79A.4], [s 83.13], [s 87.13], [s 90A.3], [s 90AD.5], [s 90AE.50], [s 90K.1], [s 90SF.2], [s 93A.1], [s 93A.17] s 75(2)(a) …. [s 66J.17], [s 72.12] s 75(2)(b) …. [s 66J.29], [s 66K.7], [s 72.12], [s 72.17], [s 75.10], [s 75.21], [s 79.239], [s 79.377] s 75(2)(c) …. [s 43.11], [s 75.22] s 75(2)(d) …. [s 66K.13], [s 75.22], [s 75.28] s 75(2)(e) …. [s 66C.9], [s 75.22], [s 75.32], [s 75.33] s 75(2)(f) …. [s 75.38] s 75(2)(g) …. [s 72.12], [s 75.39] s 75(2)(ha) …. [s 75.40A], [s 75.54] s 75(2)(j) …. [s 72.12], [s 79.153] s 75(2)(k) …. [s 72.12], [s 75.43] s 75(2)(m) …. [s 75.33], [s 82.6] s 75(2)(n) …. [s 72.12], [s 74.1], [s 79.1], [s 79.311] s 75(2)(o) …. [s 43.6], [s 66K.23], [s 72.17], [s 75.10], [s 75.21], [s 75.44], [s 75.48], [s 75.49], [s 75.50], [s 75.52], [s 79.3], [s 79.63], [s 79.157], [s 79.173], [s 79.177], [s

79.195], [s 79.205], [s 79.211], [s 79.213], [s 79.257], [s 79.273], [s 83.14], [s 87.13], [s 90SF.10], [ss 86-87.0.15] s 75(2)(p) …. [s 71A.1] s 75(3) …. [s 66K.27], [s 75.36], [s 75.37], [s 117.29A] s 75(4) …. [s 75.54] s 75.21 …. [s 90SF.2] s 76 …. [s 83.11], [s 87.20] s 77 …. [s 37A.7], [s 66Q.1], [s 72.1], [s 74.2], [s 75.28], [s 77.3], [s 77.4], [s 80.14] s 77A …. [s 66R.1], [s 72.1], [s 72.4], [s 77A.6], [s 77A.7], [s 77A.8], [s 77A.20], [s 77A.22], [s 79.167], [s 80.8], [s 87A.1], [s 87A.11], [s 87A.34] s 77A(1) …. [s 77A.20] s 77A(2) …. [s 77A.22] s 78 …. [Pt VIII.1], [Pt VIII.2], [Pt VIII.8], [s 4.505.7], [s 4.750.1], [s 44.10], [s 44.13A], [s 44.19], [s 46.7], [s 78.2], [s 78.3], [s 78.4], [s 78.6], [s 78.7], [s 78.8], [s 78.9], [s 78.10], [s 78.13], [s 78.14], [s 78.15], [s 78.16], [s 78.17], [s 78.18], [s 78.19], [s 79.1], [s 79.3], [s 79.5], [s 79.31], [s 80.9], [s 87.3], [s 87.38], [s 87.52], [s 90SL.1] s 78(1) …. [Pt VIII.8], [s 78.12] s 78(2) …. [s 78.12], [s 78.13] s 78(3) …. [s 78.18], [s 79.31] s 79 …. [Pt VIII.1], [r 6.02.3], [r 6.06.1], [s 1.0.20], [s 1.0.25], [s 4.505.7], [s 4.505.9], [s 4.505.13], [s 4.505.17], [s 4.505.18], [s 4.505.35], [s 4.750.1], [s 4.750.3], [s 4.750.4], [s 31.10], [s 44.10], [s 44.13], [s 44.13A], [s 44.16], [s 44.19], [s 46.2], [s 46.7], [s 66R.6], [s 66R.7], [s 68L.25], [s

72.4], [s 72.20], [s 74.3], [s 74.4], [s 74.11], [s 75.2], [s 75.8], [s 75.9], [s 75.22], [s 75.38], [s 75.40], [s 75.41], [s 75.44], [s 75.47], [s 75.49], [s 77A.6], [s 77A.7], [s 78.1], [s 78.2], [s 78.4], [s 78.6], [s 78.7], [s 78.8], [s 78.13], [s 78.14], [s 78.15], [s 78.16], [s 78.17], [s 79.1], [s 79.3], [s 79.4A], [s 79.5], [s 79.21], [s 79.25], [s 79.27], [s 79.29], [s 79.31], [s 79.33], [s 79.35], [s 79.37], [s 79.43], [s 79.61], [s 79.63], [s 79.65], [s 79.69], [s 79.75], [s 79.79], [s 79.81], [s 79.95], [s 79.97], [s 79.113], [s 79.115], [s 79.151], [s 79.153], [s 79.155], [s 79.157], [s 79.159], [s 79.161], [s 79.163], [s 79.165], [s 79.169], [s 79.171], [s 79.173], [s 79.175], [s 79.177], [s 79.178], [s 79.191], [s 79.193], [s 79.203], [s 79.205], [s 79.207], [s 79.231], [s 79.233], [s 79.235], [s 79.237], [s 79.239], [s 79.257], [s 79.271], [s 79.291], [s 79.293], [s 79.295], [s 79.297], [s 79.301], [s 79.303], [s 79.305], [s 79.307], [s 79.311], [s 79.313], [s 79.320], [s 79.321], [s 79.322], [s 79.323], [s 79.325], [s 79.327], [s 79.329], [s 79.331], [s 79.333], [s 79.335], [s 79.351], [s 79.353], [s 79.355], [s 79.357], [s 79.371], [s 79.377], [s 79.379], [s 79.385], [s 79A.0], [s 79A.1], [s 79A.3], [s 79A.4], [s 79A.5], [s 79A.8], [s 79A.9], [s 79A.10], [s 79A.25], [s 79A.26], [s 79A.29], [s 79A.31], [s 79A.35], [s 79A.37], [s 80.2], [s 80.6], [s 80.9], [s 80.11], [s 80.18], [s 80.19], [s 81.1], [s 81.3], [s 81.4], [s 83.3], [s 85A.1], [s 85A.2], [s 85A.13], [s 85A.15], [s 86.4], [s 86.5], [s 87.3], [s 87.7], [s 87.13], [s 87.20], [s 87.38], [s 87.52], [s 87.87], [s 87.88], [s 87A.9], [s 87A.11], [s 88.5], [s 89.7], [s 90A.1], [s 90AA.5], [s 90AE.2], [s 90AE.25], [s 90G.1], [s 90K.1], [s 90SM.1], [s 93A.9], [s 93A.17], [s 93A.19], [s 106B.1], [s 106B.50], [s 106B.70], [s 106B.75], [s 106B.81], [s 106B.100], [s 106B.105], [s 106B.110], [s 106B.155], [s 114.22], [s 114.24], [s 114.32], [ss 86-87.0.13], [ss 86-

87.0.15] s 79(1) …. [r 10.15.25], [s 75.40A], [s 79.1], [s 79.63], [s 79.81], [s 79.177], [s 79.291], [s 79.301], [s 79.303], [s 79.321], [s 79.325], [s 79.357], [s 79A.5] s 79(1A) …. [r 6.15.1], [s 74.3], [s 79.321], [s 79.335], [s 79A.5] s 79(1B) …. [s 74.3], [s 79.375] s 79(1C) …. [s 79.375] s 79(2) …. [s 74.3], [s 75.50], [s 79.1], [s 79.157], [s 79.173], [s 79.177], [s 79.195], [s 79.271], [s 79.325], [s 79.329], [s 79A.27], [s 90AE.45] s 79(3) …. [Pt VIII.1] s 79(4) …. [r 10.15.25], [s 74.3], [s 79.1], [s 79.3], [s 79.63], [s 79.69], [s 79.155], [s 79.157], [s 79.161], [s 79.173], [s 79.191], [s 79.193], [s 79.195], [s 79.231], [s 79.257], [s 79.329], [s 79.331], [s 79A.4], [s 85A.1], [s 85A.13], [s 86.5], [s 90A.3], [ss 86-87.0.13] s 79(4)(a) …. [s 79.1], [s 79.153], [s 79.155], [s 79.161], [s 79.197], [s 79.205], [s 79.213], [s 79.240A], [s 79.257] s 79(4)(b) …. [s 79.159], [s 79.161], [s 79.203], [s 79.211], [s 79.213] s 79(4)(c) …. [s 79.155], [s 79.161], [s 79.197], [s 79.205], [s 79.213], [s 79.240A], [s 79.257] s 79(4)(d) …. [s 79.271] s 79(4)(e) …. [s 75.2], [s 79.1], [s 79.161], [s 79.193], [s 79.211], [s 79.231], [s 79.235], [s 79.240A], [s 79.311] s 79(4)(f) …. [s 79.311] s 79(5) …. [r 10.15.25], [s 79.377], [s 79.381]

s 79(6) …. [s 79.379], [s 80.13] s 79(7) …. [s 79.381] s 79(7)(a) …. [s 79.381] s 79(7)(b) …. [s 79.381] s 79(8) …. [r 6.15.1], [s 74.3], [s 79.321], [s 79.322], [s 79.325], [s 79.329], [s 79.331], [s 79.335], [s 79A.5], [s 85A.14], [s 94.6] s 79(8)(b)(i) …. [s 79.327] s 79(8)(c) …. [s 79.321], [s 79.335] s 79(10) …. [r 6.02.3] s 79(10A) …. [s 90AE.10] s 79(11) …. [s 1.0.35] s 79(17) …. [s 1.0.35] s 79A …. [23,412.10], [Ch 26.1], [r 10.13.1], [r 15.34.2], [r 17.02.7], [s 4.505.7], [s 4.505.35], [s 44.10], [s 58.6], [s 58.7], [s 63H.3], [s 74.3], [s 74.5], [s 79.21], [s 79.293], [s 79.301], [s 79.307], [s 79.325], [s 79.333], [s 79A.0], [s 79A.1], [s 79A.2], [s 79A.3], [s 79A.5], [s 79A.6], [s 79A.8], [s 79A.10], [s 79A.11], [s 79A.13], [s 79A.31], [s 79A.32], [s 79A.35], [s 79A.37], [s 79A.38], [s 79A.39], [s 81.1], [s 81.4], [s 83.3], [s 86.4], [s 86.5], [s 90K.1], [s 90SN.1], [s 90SN.12], [s 93A.9], [s 93A.15] s 79A(1) …. [s 79A.5], [s 79A.6], [s 79A.25], [s 79A.31], [s 79A.32], [s 79A.34] s 79A(1)(a) …. [s 1.0.20], [s 1.0.25], [s 79A.8], [s 79A.10], [s 79A.15] s 79A(1)(b) …. [s 1.0.25], [s 87.82] s 79A(1)(c) …. [s 1.0.25], [s 79A.26], [s 79A.27]

s 79A(1)(d) …. [s 1.0.25], [s 90K.1] s 79A(1A) …. [s 79A.34] s 79A(1AA) …. [s 79A.28] s 79A(1B) …. [s 79A.35] s 79A(1C) …. [r 6.15.1], [s 79A.35] s 79A(3) …. [s 4.505.35], [s 74.11], [s 79A.37] s 79A(4) …. [s 79A.0] s 79A(5) …. [s 79A.0] s 79B …. [r 2.06.1] s 79C …. [r 2.06.1] s 79G …. [s 90SR.1] s 79H …. [s 90SR.1] s 80 …. [s 4.505.7], [s 66P.1], [s 66R.6], [s 72.1], [s 72.18], [s 74.5], [s 75.2], [s 77A.6], [s 79.291], [s 79.293], [s 79.311], [s 80.1], [s 80.20A], [s 83.12], [s 87A.9], [s 88.3], [s 90AA.5], [s 114.34] s 80(1) …. [s 80.1], [s 106B.40] s 80(1)(a) …. [s 79.301], [s 80.2] s 80(1)(ba) …. [s 66P.2] s 80(1)(c) …. [s 80.9] s 80(1)(d) …. [s 84.2], [s 84.3] s 80(1)(e) …. [s 80.11] s 80(1)(h) …. [s 74.2], [s 77.6], [s 79.379], [s 80.13], [s 80.15], [s 117.4] s 80(1)(j) …. [s 79A.31], [s 80.17] s 80(1)(k) …. [s 79.63], [s 79.177], [s 79.379], [s 80.20A], [s

106B.50] s 80(2) …. [s 80.8] s 80(3) …. [s 66P.3] s 81 …. [s 4.400], [s 4.505.7], [s 79.1], [s 79.155], [s 79.231], [s 79.293], [s 79.311], [s 80.3], [s 81.1], [s 81.2], [s 81.3], [s 81.4], [s 83.3], [s 83.12], [s 90AE.15], [s 90ST.1] s 82 …. [s 77A.8], [s 82.1], [s 82.10], [s 82.11], [s 105.7] s 82(2) …. [s 82.3], [s 82.4], [s 83.3] s 82(3) …. [s 82.3], [s 82.4], [s 105.7] s 82(4) …. [s 71.4], [s 82.6], [s 82.7], [s 86.4] s 82(8) …. [s 82.2], [s 82.4], [s 82.5] s 83 …. [s 66S.1], [s 66S.115], [s 74.3], [s 74.5], [s 77A.8], [s 79.293], [s 79.301], [s 80.4], [s 80.9], [s 81.1], [s 82.8], [s 82.11], [s 83.1], [s 83.2], [s 83.3], [s 83.4], [s 83.4A], [s 86.4], [s 86.5], [s 87.40], [s 90G.1] s 83(1)(c) …. [s 66S.5] s 83(1)(d) …. [s 66S.7] s 83(1)(e) …. [s 66S.9] s 83(1)(f) …. [s 83.9], [s 83.12] s 83(2) …. [s 66S.11], [s 83.10], [s 83.11], [s 83.12], [s 83.19] s 83(2)(a) …. [s 83.13A] s 83(2)(a)(i) …. [s 66S.15] s 83(2)(a)(ii) …. [s 66S.17] s 83(2)(a)(iii) …. [s 66S.19], [s 82.4] s 83(2)(b) …. [s 66S.25], [s 83.20] s 83(2)(ba) …. [s 66S.35]

s 83(2)(c) …. [s 66S.45], [s 83.5] s 83(4) …. [s 66S.55] s 83(5) …. [s 66S.60], [s 83.15] s 83(5A) …. [s 66S.37], [s 83.17] s 83(6) …. [s 66S.75], [s 83.22] s 83(6A) …. [s 66S.80] s 83(6B) …. [s 66S.85] s 83(7) …. [s 66S.115], [s 83.4] s 83(8) …. [s 66S.90] s 83.4 …. [s 66S.3] s 83.5 …. [s 66S.5] s 83.8 …. [s 66S.7] s 83.9 …. [s 66S.9] s 83.10 …. [s 66S.11] s 83.16 …. [s 66S.35] s 83.25 …. [s 66S.115] s 84 …. [s 4.505.7], [s 84.3], [s 84.5], [s 84.8], [s 88.3], [s 88.6], [ss 86-87.0.2] s 84(1) …. [s 80.10] s 84(1)(a) …. [s 84.2] s 84(1A) …. [s 84.6], [s 86.14], [s 87.101], [s 87.106] s 85 …. [s 4.505.7], [s 46.7], [s 72.1], [s 90AK.5], [s 114.36], [ss 86-87.0.2] s 85(1) …. [s 85A.2] s 85A …. [s 4.505.7], [s 46.7], [s 79.177], [s 85A.1], [s 85A.2], [s 85A.7], [s 85A.13], [s 85A.14], [s 85A.15], [s 85A.16], [s

85A.17] s 85A(1) …. [s 85A.13] s 85A(2) …. [s 85A.13] s 86 …. [r 23.01.1], [s 4.400], [s 4.490], [s 4.505.19], [s 4.505.22], [s 74.3], [s 79.171], [s 79.173], [s 79.177], [s 79.351], [s 79.355], [s 83.3], [s 84.5], [s 86.1], [s 86.2], [s 86.5], [s 86.6], [s 86.7], [s 86.8], [s 86.10], [s 86.12], [s 86.13], [s 86.14], [s 86.15], [s 86A.1], [s 87.10], [s 87.31], [s 87.93], [s 87.101], [s 87.105], [s 87A.7], [s 88.1], [s 88.4], [s 88.5], [s 88.6], [s 88.7], [s 89.7], [s 89.9], [s 90.2], [s 90A.0], [ss 86-87.0.2], [ss 86-87.0.3], [ss 86-87.0.10] s 86(1) …. [s 86.4], [s 86.11], [s 87.31] s 86(1A) …. [s 86.1] s 86(2) …. [s 74.3], [s 86.4] s 86(3) …. [s 86.5], [s 86.8], [s 86.9], [s 86.10], [s 87.58] s 86(3A)(b) …. [ss 86-87.0.7] s 86(3B) …. [s 86.15] s 86(4) …. [s 86.13] s 87 …. [s 1.0.20], [s 1.0.25], [s 4.400], [s 4.490], [s 4.505.19], [s 4.505.22], [s 37A.4], [s 44.11], [s 44.15], [s 46.7], [s 78.7], [s 79.157], [s 79.171], [s 79.173], [s 79.175], [s 79.177], [s 79.351], [s 79.355], [s 81.1], [s 84.5], [s 86.1], [s 86.2], [s 86.5], [s 86.8], [s 86.10], [s 86.12], [s 87.1], [s 87.2], [s 87.4], [s 87.4A], [s 87.5], [s 87.6], [s 87.9], [s 87.10], [s 87.14], [s 87.15], [s 87.17], [s 87.22], [s 87.25], [s 87.27], [s 87.29], [s 87.30], [s 87.31], [s 87.32], [s 87.34], [s 87.36], [s 87.37], [s 87.38], [s 87.59], [s 87.65], [s 87.77], [s 87.81], [s 87.89], [s 87.93], [s 87.101], [s 87.102], [s 87.107], [s 87.108], [s 87.111], [s 87A.7], [s 87A.32], [s

87A.34], [s 88.1], [s 88.7], [s 90.2], [s 90A.0], [s 90AA.5], [s 90J.1], [s 96.4], [ss 86-87.0.3], [ss 86-87.0.7], [ss 86-87.0.8], [ss 86-87.0.10], [ss 86-87.0.11], [ss 86-87.0.16] s 87(1) …. [s 87.3], [s 87.5], [s 87.6] s 87(1A) …. [s 87.1] s 87(2) …. [s 87.1], [s 87.13], [s 87.31], [s 87.85], [ss 8687.0.16] s 87(3) …. [s 87.19], [s 87.32], [s 87.99] s 87(4) …. [s 79.175], [s 87.9], [s 87.14], [s 87.19], [s 87.20], [s 87.22], [s 87.35] s 87(4A) …. [s 87.40] s 87(4B) …. [s 87.39] s 87(4D) …. [s 87.4A] s 87(6) …. [s 86.8], [s 87.14], [s 87.45], [s 87.47], [s 87.53], [s 87.66], [s 87.75], [s 87.80] s 87(8) …. [s 87.39], [s 87.43], [s 87.44], [s 87.45], [s 87.46], [s 87.47], [s 87.86], [s 87.99], [s 90K.1] s 87(8)(a) …. [s 1.0.20], [s 1.0.25], [s 87.27], [s 87.53] s 87(8)(b) …. [s 87.61], [s 87.62], [s 87.63] s 87(8)(c) …. [s 1.0.25], [s 87.14], [s 87.38], [s 87.42], [s 87.51], [s 87.53], [s 87.54], [s 87.64], [s 87.68], [s 87.70], [s 87.71], [s 87.76], [s 87.77], [s 87.78], [s 87.101] s 87(8)(d) …. [s 1.0.25], [s 87.14], [s 87.80], [s 87.81] s 87(9) …. [s 90J.1] s 87(9)(b) …. [s 87.87] s 87(9)(d) …. [s 90K.1] s 87(10) …. [s 86.12], [s 87.89]

s 87(11) …. [s 87.14], [s 87.27], [s 87.46], [s 87.63], [s 87.64], [s 87.65], [s 87.66], [s 87.68], [s 87.78], [s 87.96], [s 87.97], [s 87.99], [s 87.101], [s 90KA.1] s 87(11)(a) …. [s 87.94], [s 87.95], [s 87.101] s 87(11)(b) …. [r 17.03.10] s 87(11)(c) …. [s 87.68], [s 87.101] s 87(12) …. [s 87.87] s 87(12)(a) …. [s 87.77] s 87(13) …. [s 87.41] s 87(14) …. [s 87.41] s 87(16) …. [s 87.110], [s 88.4] s 87.77 …. [s 87.76] s 87A …. [s 66R.1], [s 77A.7], [s 87.40], [s 87A.11], [s 87A.32], [s 87A.34] s 87A(1) …. [s 87A.20], [s 87A.30] s 87A(2) …. [s 87A.34] s 88 …. [s 86.5], [s 86.6], [s 87.93], [s 87.105], [s 88.1], [s 88.2], [s 88.3], [s 88.5], [s 88.6], [ss 86-87.0.10] s 88(1) …. [s 87.101] s 88(2) …. [s 88.1] s 89 …. [s 4.505.22], [s 4.575], [s 86.13], [s 87.101], [s 87.111], [s 89.3], [s 89.8], [s 89.9] s 90 …. [s 4.505.7], [s 90.1], [s 90.2] s 90AA …. [s 114.27] s 90AC …. [s 90AE.50] s 90AE …. [r 10.16A.1], [s 90AE.2], [s 90AF.2]

s 90AE(2) …. [s 90AE.2], [s 90AE.25], [s 90AF.2] s 90AE(2)(b) …. [s 90AE.30], [s 90AE.35] s 90AE(3) …. [s 90AE.2], [s 90AE.5], [s 90AE.25], [s 90AE.30], [s 90AE.50], [s 90AF.15] s 90AE(3)(a) …. [s 90AE.35] s 90AE(3)(d) …. [s 90AE.50] s 90AE(4) …. [s 90AE.5], [s 90AE.25], [s 90AE.30], [s 90AE.50], [s 90AF.15] s 90AE(4)(a) …. [s 90AE.50] s 90AE(4)(b) …. [s 90AE.50] s 90AE(4)(c) …. [s 90AE.50] s 90AE(4)(f) …. [s 90AC.5] s 90AE(4)(g) …. [s 90AE.50] s 90AF …. [r 10.16A.1], [s 90AE.2], [s 90AF.20] s 90AF(1) …. [s 90AF.20] s 90AF(1)(a) …. [s 90AF.5] s 90AF(2) …. [s 90AE.2], [s 90AF.2], [s 90AF.15], [s 90AF.20] s 90AF(3) …. [s 90AF.15] s 90AF(3)(c) …. [s 90AF.20] s 90AF(4) …. [s 90AF.15] s 90AH …. [s 90AH.5] s 90AJ …. [s 90AE.50] s 90AK …. [s 90AK.5] s 90B …. [s 90A.1], [s 90A.2], [s 90D.1] s 90B(1)(aa) …. [s 90B.1] s 90B(1)(b) …. [s 85A.17]

s 90B(4) …. [s 90B.1] s 90C …. [s 90A.1], [s 90A.2], [s 90D.1] s 90C(1)(aa) …. [s 90C.1] s 90C(4) …. [s 90C.1] s 90D …. [s 90A.1], [s 90A.2] s 90D(4) …. [s 90D.1] s 90DB …. [s 90UG.1] s 90E …. [s 90UH.1] s 90F(1A) …. [s 90A.1] s 90G(1) …. [s 90G.1] s 90G(1A) …. [s 90G.1] s 90G(1B) …. [s 90G.1] s 90H …. [s 90UK.1] s 90J(2) …. [s 90J.1] s 90J(2A) …. [s 90J.1] s 90J(2B) …. [s 90J.1] s 90K(1)(aa) …. [s 4A.1] s 90K(1A) …. [s 90K.1] s 90K(3) …. [s 90K.1] s 90K.1 …. [s 90UM.1] s 90KA …. [s 90J.1] s 90KA(b) …. [r 17.03.10] s 90L …. [s 90WA.1] s 90M …. [r 2.06.1], [s 90VA.1] s 90MZD …. [r 10.16.1], [r 14.06.1]

s 90N …. [s 90VB.1] s 90P …. [s 90VC.1] s 90Q …. [s 90VD.1] s 90RB …. [s 4AA.9], [s 90RB.1], [s 90SF.2] s 90RC …. [s 90RC.1] s 90RH(3) …. [s 90RH.1] s 90SA …. [s 90SA.1] s 90SB …. [s 90RC.1], [s 90RD.2], [s 90SB.5] s 90SB(A) …. [s 90SB.1] s 90SD …. [s 90RC.1], [s 90RD.2] s 90SE(1) …. [r 10.15.25] s 90SF(1) …. [r 10.15.25] s 90SF(3) …. [r 10.15.25], [s 90SM.7] s 90SF(O) …. [s 90SF.5] s 90SFP …. [s 90SF.5] s 90SI(3)(i) …. [s 90SI.5] s 90SK …. [s 90RC.1], [s 90RD.2] s 90SM …. [s 114.22], [s 114.24] s 90SM(4) …. [r 10.15.25] s 90SM(5) …. [r 10.15.25], [s 90SM.13] s 90SM(D) …. [s 90SM.8] s 90SM(F) …. [s 90SM.8] s 90SS …. [s 112AA.6] s 90SS(1)(j) …. [r 10.15.25] s 90UE …. [s 90UE.1]

s 90UM …. [s 90UE.2] s 90VA …. [r 2.06.1] s 90VB …. [r 2.06.1] s 90WA(3) …. [s 90WA.1] s 91 …. [r 6.02.3], [r 6.06.1] s 91(1A) …. [s 58.3] s 91A …. [s 58.3] s 91B(2) …. [s 91B.2] s 92 …. [s 4.505.31], [s 9.14], [s 60CC.255], [s 78.19], [s 79.31], [s 79.33], [s 85A.2], [s 91B.1], [s 92.3], [s 92.4], [s 92.10], [s 92A.1], [s 106B.95] s 92(1) …. [r 18.02.1] s 92(3) …. [s 92A.1] s 92A …. [r 6.02.3], [s 4.15.1] s 92A(2) …. [r 6.06.1], [s 92A.1] s 93 …. [r 3.12.1], [s 4.40], [s 48.7], [s 55.4], [s 113.2] s 93A …. [s 60CA.40], [s 60CA.42], [s 60CA.45], [s 60CC.250], [s 94.11] s 93A(1) …. [s 40.3] s 93A(2) …. [r 22.39.3], [s 93A.8], [s 93A.9], [s 94AAA.1] s 94 …. [s 4.425], [s 34.2], [s 38.7], [s 79A.8], [s 87.35], [s 87.36], [s 94.4], [s 94AAA.1] s 94(1) …. [s 40.3], [s 94A.3], [s 94AA.2] s 94(1AA) …. [s 93A.14] s 94(2) …. [s 94AAA.1] s 94A …. [s 28.6], [s 40.3]

s 94A(1) …. [s 40.3] s 94AA …. [s 64B.6], [s 94AAA.1] s 94AAA …. [s 94AAA.1] s 94AB …. [1.0.130] s 95(b) …. [s 95.3], [s 95.4] s 96 …. [s 4.425], [s 37A.11], [s 87.35], [s 87.36], [s 87.37], [s 93A.8], [s 94.1], [s 96.2], [s 96.3], [s 96.4] s 96(1) …. [s 40.3] s 96(4) …. [s 96.2] s 96(4)(a) …. [s 37A.11] s 97 …. [s 4.725.1], [s 38.3], [s 97.1] s 97(1) …. [s 97.2] s 97(1A) …. [s 97.2] s 97(2) …. [s 97.2] s 97(3) …. [s 97.4] s 98 …. [r 15.05.1] s 98A(1) …. [s 98A.2], [s 98A.3] s 98A(2) …. [s 98A.2], [s 98A.3] s 98A(3) …. [s 98A.3], [s 98A.4] s 98AA …. [23,392.30], [r 15.09.2] s 98AB …. [23,392.30], [r 15.09.2] s 98AB(2) …. [23,392.30], [r 15.09.2] s 98AB(3) …. [23,392.30], [r 15.09.2] s 99A …. [s 92.11] s 100 …. [s 100.2] s 100A …. [23,392.20], [r 15.09.1], [s 69ZV.1], [s 69ZV.7], [s

69ZV.9] s 100B …. [r 15.02.1] s 102 …. [s 39.6], [s 102.3], [s 102.5] s 102A …. [s 4.15.1] s 102A(1) …. [s 102A.9] s 102A(2) …. [s 102A.1], [s 102A.5], [s 102A.11] s 102A(3) …. [s 102A.7] s 102A(4) …. [s 102A.1], [s 102A.5], [s 102A.9] s 102A(5) …. [s 102A.3] s 102B …. [r 15.38.1] s 102PF(1) …. [r 5.19.1] s 102QB …. [r 10.12.2] s 102QB(2) …. [r 11.05.1] s 103 …. [s 3.5], [s 103.1] s 104 …. [Pt VIII.1], [Pt VIII.7], [s 3.6], [s 4.275], [s 4.505.18], [s 4.555], [s 79.21] s 104(1) …. [s 4.60] s 104(7) …. [s 104.9] s 105 …. [s 3.7], [s 93A.15], [s 105.1], [s 112AO.1] s 105(2) …. [s 105.3] s 105(2A) …. [s 90A.0] s 105(3) …. [r 6.15.1], [s 82.2], [s 82.4], [s 87.89], [s 105.5], [s 105.6], [s 105.7] s 106 …. [s 88.3] s 106A …. [Pt VIII.11], [r 20.53.3] s 106B …. [s 90AK.5], [s 92.10], [s 106B.1], [s 106B.5], [s

106B.15], [s 106B.20], [s 106B.25], [s 106B.30], [s 106B.40], [s 106B.45], [s 106B.50], [s 106B.55], [s 106B.60], [s 106B.65], [s 106B.70], [s 106B.80], [s 106B.90], [s 106B.95], [s 106B.100], [s 106B.105], [s 106B.110], [s 106B.115], [s 106B.155] s 106B(1) …. [s 106B.81], [s 106B.95], [s 106B.120] s 106B(2) …. [s 106B.115], [s 106B.120] s 106B(3) …. [s 106B.5], [s 106B.60], [s 106B.81], [s 106B.85], [s 106B.90] s 106B(5) …. [s 106B.50] s 107 …. [s 107.1], [s 107.10], [s 112AD.30] s 107(1) …. [s 107.5], [s 107.10] s 107(2) …. [s 107.1] s 107(3) …. [s 107.1] s 108 …. [s 84.3], [s 87.106], [s 107.1] s 109 …. [Pt VIII.2], [s 3.6], [s 39.14], [s 39.18], [s 60CC.255], [s 91B.2], [s 110.3], [s 110.4], [s 114AB.1] s 110 …. [s 39.14], [s 39.18], [s 110.1], [s 110.6] s 110(1) …. [s 110.6] s 110(2) …. [s 110.7] s 110(3) …. [s 110.8] s 111 …. [s 39.14], [s 39.18] s 111A …. [s 39.14], [s 39.18] s 111B …. [s 39.14], [s 39.18], [s 111B.4] s 111C(1) …. [s 111C.1] s 111C(3) …. [s 111C.20] s 111CA …. [s 111CD.1]

s 111CD …. [s 111CD.1] s 111CD(1)(a) …. [s 111CD.1] s 111CD(1)(b) …. [s 111CD.1] s 111CD(1)(b)(vi) …. [s 111CD.1] s 111CD(1)(c)(v) …. [s 111CD.1] s 111CD(3) …. [s 111CD.1] s 111CD(3)(c) …. [s 111CD.1] s 111CZ …. ERROR s 112(1)(a)(ii) …. [s 112AB.15] s 112AA …. [r 21.01.1], [s 112AA.1], [s 112AB.2], [s 112AC.3], [s 112AD.1], [s 112AD.3], [s 112AD.5], [s 112AD.30], [s 112AP.30] s 112AA(c) …. [r 13.01.1], [r 13.15.1] s 112AB …. [s 112AB.2], [s 112AB.5], [s 112AD.4], [s 112AD.5] s 112AB(1) …. [s 112AB.1] s 112AB(1)(a) …. [s 112AB.8] s 112AB(1)(a)(i) …. [s 112AB.15] s 112AB(1)(a)(ii) …. [s 112AD.30], [s 112AP.30] s 112AB(1)(b) …. [s 112AB.20] s 112AB(2) …. [s 65P.5] s 112AB(2)(c) …. [s 65P.5] s 112AC …. [s 70NAE.1], [s 70NAE.25], [s 112AB.5], [s 112AC.1], [s 112AC.2], [s 112AC.3], [s 112AD.4], [s 112AD.5] s 112AC(1) …. [s 70NAE.1], [s 70NAE.25], [s 112AC.2]

s 112AC(2) …. [s 112AC.10] s 112AC(2)(b) …. [s 112AC.10] s 112AC(3) …. [s 70NAE.25] s 112AD …. [s 48.10], [s 69W.11], [s 70NEB.20], [s 112AB.1], [s 112AC.1], [s 112AD.1], [s 112AD.3], [s 112AD.4], [s 112AD.5], [s 112AD.18], [s 112AD.20], [s 112AD.25], [s 112AD.28], [s 112AE.1], [s 112AG.1], [s 112AK.1], [s 112AP.12] s 112AD(1) …. [s 112AB.5], [s 112AD.37] s 112AD(1A) …. [s 112AD.1] s 112AD(2) …. [s 112AD.28], [s 112AE.2] s 112AD(2)(a) …. [s 112AE.1] s 112AD(2A) …. [s 112AD.28], [s 112AD.30] s 112AE …. [s 112AD.4], [s 112AD.28], [s 112AD.30], [s 112AE.1] s 112AE(1) …. [s 112AE.1] s 112AE(3) …. [s 112AE.2] s 112AE(4) …. [s 112AE.2] s 112AE(5) …. [s 112AA.11], [s 112AE.1], [s 112AP.30] s 112AE(6) …. [s 112AE.1] s 112AE(7) …. [s 112AE.1] s 112AF …. [s 112AD.28] s 112AF(2) …. [s 112AF.1] s 112AF(3) …. [s 112AF.1] s 112AF(4) …. [s 112AF.1] s 112AF(5) …. [s 112AF.1]

s 112AG …. [s 112AD.4], [s 112AD.28], [s 112AG.1], [s 112AN.1] s 112AG(1)(b) …. [s 112AG.1] s 112AG(3) …. [s 112AN.1] s 112AK …. [s 112AK.1] s 112AM …. [s 112AD.4], [s 112AM.15], [s 112AP.40] s 112AM(4) …. [s 112AM.10], [s 112AM.15], [s 112AP.40] s 112AN …. [s 112AG.1], [s 112AN.1] s 112AN(1) …. [s 112AN.1] s 112AO …. [s 112AD.4] s 112AP …. [r 13.01.1], [r 20.41.1], [s 112AD.20], [s 112AM.10], [s 112AM.15], [s 112AP.1], [s 112AP.5], [s 112AP.10], [s 112AP.12], [s 112AP.30], [s 112AP.40] s 112AP(1)(b) …. [s 112AP.1], [s 112AP.15], [s 112AP.30] s 112AP(2) …. [s 35.1], [s 112AP.5], [s 112AP.15], [s 112AP.25] s 112AP(4) …. [s 112AP.45] s 112AP(5) …. [s 112AP.50] s 112AP(6) …. [s 112AP.55] s 112AP(7) …. [s 112AP.60] s 112CA(1) …. [s 70NAE.25] s 113 …. [Pt VIII.1], [r 3.12.1], [s 4.505.5], [s 59.2], [s 93.2], [s 113.1], [s 113.2], [s 113.3], [s 113.4], [s 113.5], [s 113.6] s 114 …. [S 60CC.140], [r 4.30.1], [r 14.05.3], [r 18.05.5], [s 4.405], [s 4.505.7], [s 4.505.20], [s 21.10], [s 39.22], [s 43.7], [s 46.7], [s 67ZC.30], [s 68B.3], [s 68B.5], [s 68B.7], [s 69ZV.7], [s 79.31], [s 79.293], [s 79.297], [s 87.38], [s

90AA.5], [s 90AE.2], [s 90SS.14], [s 106B.30], [s 107.1], [s 112AA.6], [s 112AA.7], [s 114.2], [s 114.29], [s 114.34], [s 114.40], [s 114.41], [s 114.42], [s 114AB.1], [s 114AB.3] s 114(1) …. [Pt VIII.1], [s 4.505.21], [s 46.7], [s 68B.7], [s 114.1], [s 114.3], [s 114.4], [s 114.6], [s 114.7], [s 114.9], [s 114.11], [s 114.13], [s 114.18], [s 114.21], [s 114.22], [s 114.23], [s 114.24], [s 114.25], [s 114.26], [s 114.27], [s 114.28], [s 114.30], [s 114.32], [s 114.33], [s 114.34], [s 114.43] s 114(1)(a) …. [s 114.11] s 114(1)(b) …. [s 114.12] s 114(1)(c) …. [s 114.12] s 114(2) …. [s 114.4], [s 114.30] s 114(2A) …. [s 114.1], [s 114.22], [s 114.26], [s 114.27], [s 114.28] s 114(2A)(b) …. [s 114.12] s 114(2A)(c) …. [s 114.23] s 114(2A)(e) …. [s 114.21] s 114(3) …. [s 4.505.31], [s 59.4], [s 68B.5], [s 68B.9], [s 84.8], [s 106B.30], [s 114.1], [s 114.2], [s 114.21], [s 114.34], [s 114.41] s 114(4) …. [s 107.1] s 114(6) …. [s 112AM.10] s 114AA …. [s 4.505.20], [s 114AB.1], [s 114AB.3] s 114AB(1) …. [s 114AB.1] s 114C(4) …. [s 1.0.60] s 114LD(1) …. [s 1.0.60]

s 117 …. [r 19.05.5], [s 9.13], [s 37A.8], [s 60I.5], [s 68L.70], [s 68L.80], [s 70NCB.1], [s 70NDC.1], [s 70NEB.30], [s 70NEB.35], [s 74.10], [s 79.80], [s 90AJ.5], [s 117.0], [s 117.6], [s 117.10], [s 117.25], [s 117.28], [s 117AA.1], [s 117C.1] s 117(1) …. [s 117.0], [s 117.2B], [s 117.5], [s 117.22], [s 117.29] s 117(2) …. [cl 6.05.3], [cl 6.05.9], [r 19.05.3], [r 19.05.9], [s 80.15], [s 117.0], [s 117.1], [s 117.2B], [s 117.4], [s 117.5], [s 117.6], [s 117.7], [s 117.24], [s 117.26A], [s 117.29] s 117(2A) …. [cl 6.05.3], [r 19.05.3], [s 92.5], [s 117.1], [s 117.2B], [s 117.5], [s 117.6], [s 117.7], [s 117.21], [s 117.24], [s 117.29A] s 117(2A)(a) …. [s 117.9] s 117(2A)(b) …. [s 117.10] s 117(2A)(c) …. [s 117.13], [s 117.20] s 117(2A)(d) …. [s 117.20] s 117(2A)(e) …. [s 117.22] s 117(2A)(f) …. [s 117.2], [s 117.21] s 117(2A)(g) …. [s 117.13], [s 117.20], [s 117.23] s 117(3) …. [s 117.10], [s 117.29A] s 117(4) …. [s 117.29A] s 117(5) …. [s 117.29A] s 117A …. [s 39.14], [s 39.18] s 117AA …. [s 117.2B], [s 117AA.1] s 117AA(1) …. [s 117.2B], [s 117AA.1] s 117AA(2) …. [s 117.2B], [s 117AA.1]

s 117AA(3) …. [s 117AA.1] s 117B …. [r 17.03.10] s 117C …. [s 117.21] s 117C(1) …. [s 117.21] s 118 …. [r 8.01.5], [r 10.12.2], [r 11.05.1], [r 15.13.1], [r 18.02.1], [r 18.05.5], [r 27.01.3], [r 27.01.4], [s 21.4], [s 68.4], [s 117.1], [s 118.3], [s 118.5] s 118(1)(b) …. [s 118.7] s 118(1)(c) …. [r 11.05.1], [s 118.3] s 118(2) …. [r 11.05.1], [s 117.1] s 119 …. [s 119.1], [s 119.2] s 120 …. [s 120.1] s 121 …. [r 1.20.1], [s 4.250], [s 121.6], [s 121.7], [s 121.8] s 121(1) …. [s 121.2], [s 121.6] s 121(3) …. [s 121.4] s 121(4) …. [s 121.5] s 121(9) …. [r 24.13.4], [s 121.6] s 121(9)(aa) …. [1.0.130], [s 121.6] s 121(9)(d) …. [s 121.6] s 121(11) …. [s 121.6] s 122 …. [r 8.01.3] s 123 …. [s 38.1], [s 38.2], [s 97.1], [s 123.1] s 123(1)(r) …. [s 39.18] s 125 …. [s 38.1], [s 38.2] s 125(1)(f) …. [s 39.14], [s 39.18] s 125(1)(g) …. [s 39.14], [s 39.18]

s 128 …. [r 24.13.4] Sch 1 …. ERROR Form AMILY.AND.CHILD.MEDIATOR “a” …. [s 1.0.0] s NFB “e” …. [s 70NAF.5] Family Law Amendment Act 1976 …. [s 89A.1] Family Law Amendment Act 1979 …. [s 79A.15], [s 87.35] Family Law Amendment Act 1983 …. [Pt VIII.1], [Pt VIII.4], [s 4.425], [s 4.505.6], [s 4.505.7], [s 4.505.8], [s 4.505.18], [s 4.505.22], [s 4.505.25], [s 4.690], [s 20.4], [s 21A.1], [s 21B.1], [s 31.1], [s 31.9], [s 37A.1], [s 39.16], [s 40.7], [s 75.36], [s 75.45], [s 75.46], [s 79.211], [s 79.213], [s 79.325], [s 79.375], [s 79.377], [s 79.381], [s 79A.3], [s 79A.25], [s 79A.28], [s 79A.31], [s 79A.34], [s 79A.35], [s 79A.36], [s 79A.37], [s 82.4], [s 83.14], [s 83.23], [s 83.24], [s 84.2], [s 84.5], [s 84.6], [s 86.12], [s 87.13], [s 87.19], [s 87.32], [s 87.42], [s 87.43], [s 87.44], [s 87.45], [s 87.80], [s 87.85], [s 87.89], [s 87.92], [s 87.93], [s 87.105], [s 87.108], [s 87.109], [s 87.110], [s 88.1], [s 90.1], [s 91B.1], [s 92.11], [s 94.1], [s 97.2], [s 104.9], [s 105.5], [s 110.3], [s 111.2], [s 111A.1], [s 112A.1], [s 113.6], [s 114.21], [s 114.24], [s 121.2] s 4(1) …. [s 20.4] s 88 …. [s 87.93] s 104(1) …. [s 4.690] Family Law Amendment Act 1987 …. [s 37A.1], [s 60H.1], [s 61B.3], [s 66B.1], [s 66C.1], [s 66G.1], [s 66H.1], [s 66H.3], [s 66J.1], [s 66J.33], [s 66K.1], [s 66K.11], [s 66R.1], [s 66S.1],

[s 68B.3] Family Law Amendment Act 1989 …. [s 35.1] Family Law Amendment Act 1991 …. [s 92A.1] s 15 …. [s 69ZV.1] Family Law Amendment Act 1995 …. [s 61B.1] Family Law Reform Act 1995 …. [s 1.0.0], [s 37A.1], [s 43.15], [s 60CC.6], [s 60CC.25], [s 60CC.37], [s 60CC.45], [s 60CC.55], [s 60CC.100], [s 60F.1], [s 61C.1], [s 63A.1], [s 64B.15], [s 66K.7], [s 68L.1] s 59 …. [s 1.0.0] s 59(1) …. [s 1.0.0] s 59(2) …. [s 1.0.0] Sch 1 …. [s 1.0.0] Sch 2 …. [s 1.0.0] Family Law Regulations 1975 reg 14 …. [s 89.3] Family Law Regulations 1984 …. [s 4.505.29], [s 10D.2], [s 12B.1], [s 110.6] Pt 4 …. [s 111.1] reg 7 …. [r 15.41.5] reg 8A …. [s 12C.1] reg 8B …. [s 12D.1] reg 10A …. [s 39.18], [s 39.22], [s 44A.2] reg 12 …. [23,138.35], [r 7.19.3] reg 12A …. [s 4.445]

reg 15A …. [s 94AA.1], [s 94AA.2] reg 15A(2) …. [s 94AA.3] reg 15A(3) …. [s 94AA.3] reg 17 …. [Ch 23.3], [s 83.3], [s 105.3], [s 105.4] reg 18 …. [s 109.2] reg 19 …. [s 114AB.2] reg 22 …. [s 110.2], [s 110.4] reg 25 …. [s 110.2], [s 110.6], [s 110.7] reg 26 …. [s 110.2] reg 27 …. [s 110.2] reg 28A …. [s 110.2], [s 110.7] reg 29 …. [s 110.2] reg 30 …. [s 110.2] reg 31 …. [s 110.2] reg 32 …. [s 110.2], [s 110.7] reg 33 …. [s 86.13], [s 87.111], [s 89.4], [s 89.7] reg 33(4) …. [s 89.7] reg 35 …. [s 89.6] reg 36 …. [s 110.2], [s 110.7] reg 37 …. [s 110.2] reg 38 …. [s 110.2] reg 39 …. [s 110.2], [s 110.7] reg 40 …. [s 111.3] reg 44 …. [s 89.5] reg 56 …. [s 111.3]

O4 r 3 …. [r 27.01.3] r 6 …. [r 27.01.3] O 63 r 1 …. [r 27.01.3] r 2 …. [r 27.01.3] Sch 2 …. [s 110.5], [s 110.6] Sch 3 …. [s 111.3] Sch 4 …. [s 111.3] Sch 5 …. [s 69ZK.1] Family Law Rules 1984 O 30 r 3 …. [s 97.4] O 32 r 2 …. [s 96.6] r 3 …. [s 94A.4] O 36 r 26(1) …. [s 38.10] O 40 r 1 …. [r 17.03.15] Sch 2 …. [s 117.4] O 40 r 1 …. [23,546.25], [23,578.20] Family Law Rules 2004 …. [s 4.60], [s 38.9], [s 55.3], [s 60I.1], [s 69ZM.20], [s 79.3], [s 97.6], [s 105.1], [s 117.4], [s 123.1]

Ch 1 …. [Ch 3.1], [Ch 4.1], [Ch 13.1] Pt 1.2 …. [r 1.04.1] Ch 2 …. [Ch 3.1], [Ch 4.1] Ch 3 …. [Ch 4.1] Pt 3.4 …. [r 3.08.1] Ch 4 …. [r 12.01.1] Pt 4.1 …. [r 4.14.1], [r 4.25.1] Pt 4.2 …. [r 4.03.1], [r 12.01.1] Div 4.2.3 …. [r 18.02.1], [r 18.05.5] Ch 5 …. [Ch 4.1] Ch 6 “p6 3” …. [s 68L.5] Ch 7 …. [Ch 3.1], [Ch 4.1] Ch 8 …. [Ch 3.1], [Ch 4.1] Ch 11 …. [r 10.12.1] Ch 12 …. [s 79.373] Ch 13 …. [s 79A.14] Pt 13.1 …. [s 75.7], [s 79.66] Pt 13.2 Div 13.2.2 …. [r 13.13.1], [r 13.14.1] Div 13.2.3 …. [r 13.13.1], [r 13.14.1] Ch 15 …. [s 98.1] Pt 15.1 …. [s 60CD.15] Pt 15.5 Div 15.5.3 …. [s 79.115]

Div 15.5.4 …. [r 15.54.1] Div 15.5.5 …. [r 15.54.1] Div 15.5.6 …. [r 15.54.1] Ch 16 …. [r 12.01.1] Ch 18 …. [Ch 4.1], [s 26B.1], [s 37A.1], [s 37A.1A], [s 37A.2], [s 37A.3], [s 37A.7] Pt 18.2 …. [s 26C.1] Ch 18.2 …. [s 37A.9] Ch 19 …. [r 19.01.1], [s 117.4] Ch 20 …. [Ch 4.1], [r 18.05.3], [r 18.06.1], [r 20.01.1], [r 23.02.1], [s 66P.3] Pt 20.1 …. [Pt 20.5.1] Pt 20.2 Div 20.2.2 …. [r 20.11.3] Ch 21 …. [Ch 4.1], [s 66P.3] Pt 21.1 …. [s 35.10] Ch 22 …. [Ch 4.1], [r 22.45.1], [s 94.9], [s 96.5] Pt 22.3 …. [r 22.14.1] Pt 22.7 Div 22.7.1 …. [r 22.04.3] Ch 23 …. [Ch 4.1] Ch 24 …. [Ch 3.1], [Ch 4.1] Ch C19.32 …. [r 19.55.1] Pt 10.4 …. [Pt 5.4.1] Pt 19.6 …. [r 19.38.1] Div 15.5.6 …. [23,372.15]

r 1.04 …. [r 5.03.1], [r 22.44.1] r 1.05(1) …. [r 1.05.1] r 1.07(E) …. [r 11.10.3] r 1.09 …. [s 38.6] r 1.10 …. [Div 11.3.2.1], [r 4.07.1] r 1.10(2) …. [r 1.10.1] r 1.10(2)(d) …. [r 1.05.1] r 1.12 …. [r 6.02.1], [r 22.19.1] r 1.13 …. [r 17.02.7], [r 22.11.3] r 1.14 …. [cl 6.08.9], [r 4.22.1], [r 22.05.1], [r 22.08.1], [r 22.53.3] r 1.21 …. [r 1.21.1] r 1.21(4) …. [r 1.21.1] r 2.01 …. [r 2.01.1] r 2.04 …. [s 60CC.35], [s 60K.9] r 2.08 …. [r 24.13.1] r 3.05(2) …. [r 3.05.1] r 3.07 …. [r 3.04.1] r 4.07 …. [r 18.02.1], [r 18.05.5] r 4.15 …. [Div 13.2.2.1] r 4.26 …. [Div 13.2.2.1] r 5.01(d) …. [r 23.03.5] r 5.05 …. [r 5.15.1] r 5.06 …. [r 12.12.1] r 5.07 …. [r 12.12.1] r 5.09 …. [r 5.02.3]

r 5.10 …. [r 5.09.1] r 5.12 …. [r 5.02.3], [s 60CC.215] r 5.17 …. [r 5.16.1] r 6.01 …. [r 4.05.1], [r 8.02.3] r 6.02 …. [r 12.04.1] r 6.03 …. [r 6.04.3] r 6.06 …. [r 6.05.1] r 6.08 …. [r 22.04.1] r 6.15 …. [r 6.15.3] r 6.18 …. [r 15.24.05] r 7.03(12) …. [r 22.05.1] r 7.04(1) …. [r 15.22.2] r 7.05 …. [r 6.08.7], [r 7.01.1], [r 7.05.1] r 7.06 …. [Pt 7.2.1], [r 7.01.1], [r 7.05.1], [r 15.22.1] r 7.06(3) …. [r 17.04.1] r 7.07 …. [Pt 7.2.1], [r 7.01.1] r 7.08 …. [Pt 7.2.1], [r 7.01.1] r 7.09 …. [Pt 7.2.1], [r 6.08.7], [r 7.01.1] r 7.10 …. [Pt 7.2.1], [r 7.01.1] r 7.12 …. [r 22.05.1] r 7.16 …. [Pt 7.2.1], [r 7.01.1] r 7.16(2) …. [r 7.16.1] r 7.16(2)(a) …. [r 7.16.1] r 7.18(2)(a) …. [r 7.18.5], [r 7.18.9] r 7.18(2)(b) …. [r 7.18.5]

r 7.18(2)(c) …. [r 7.18.5] r 7.18(2)(d) …. [r 7.18.5] r 7.18(2)(e) …. [r 7.18.5] r 7.19 …. [r 7.19.3] r 8.02 …. [s 68L.68] r 8.02(4) …. [r 8.02.3] r 8.05 …. [r 7.19.3], [r 8.01.1], [r 22.04.1] r 8.05(5) …. [r 8.05.1] r 8.05.5 …. [r 7.16.1] r 10.02 …. [23,296.5], [r 10.02.5] r 10.03 …. [r 10.01.3] r 10.11(3) …. [r 10.11.1] r 10.11(5) …. [r 10.11.1] r 10.12 …. [r 18.02.1], [r 18.05.5] r 10.13 …. [r 18.02.1], [r 18.05.5] r 10.14 …. [r 10.12.1], [r 10.12.5], [r 10.14.2] r 10.15(1) …. [r 10.15.5] r 10.15(4) …. [r 10.15.30] r 10.15A …. [r 10.15.20] r 10.17 …. [s 79.325] r 11.01 …. [r 12.04.1] r 11.02 …. [23,296.15] r 11.03 …. [23,296.15], [r 11.02.5], [r 11.02.10] r 11.03(2)(b) …. [r 1.05.1] r 11.04 …. [r 18.02.1], [r 18.05.5], [s 118.4]

r 11.04(1)(b) …. [r 11.05.1] r 11.05 …. [r 18.02.1], [r 18.05.5] r 11.08 …. [r 11.07.1] r 11.10 …. [r 6.03.1] r 11.10(1)(a) …. [r 11.10.1] r 11.12(3) …. [r 1.12.3] r 11.18 …. [Div 11.3.2.1] r 12.03(2) …. [r 12.03.1] r 12.05 …. [r 12.04.1] r 12.10A(4)(a) …. [r 12.10A.1] r 13.01 …. [Div 13.2.2.1], [r 13.07.1], [r 26B.01.05] r 13.02(1) …. [r 13.02.1], [r 13.02.3] r 13.02(2) …. [r 13.02.3] r 13.03 …. [r 13.02.1] r 13.04 …. [r 26B.01.05] r 13.05 …. [r 13.05.2] r 13.07 …. [Ch 13.1], [r 10.12.1], [r 13.07.2], [r 26B.02.05] r 13.08 …. [r 13.10.1] r 13.09 …. [r 13.10.1] r 13.10 …. [r 10.12.1], [r 13.08.1], [r 13.09.1] r 13.11 …. [r 13.10.1] r 13.12 …. [r 13.10.1] r 13.13 …. [r 13.12.1], [r 26B.06.05] r 13.14 …. [r 13.01.1] r 13.16 …. [r 13.15.1]

r 13.17 …. [Div 13.2.2.1] r 13.18 …. [Div 13.2.2.1] r 13.19 …. [Pt 13.3.1] r 13.19(1) …. [Div 13.2.3.1] r 13.20 …. [r 26B.07.05] r 13.20(1) …. [Div 13.2.3.1] r 13.20(2) …. [Div 13.2.3.1] r 13.20(3) …. [Div 13.2.3.1] r 13.20(4) …. [Div 13.2.3.1] r 13.20(5) …. [Div 13.2.3.1] r 13.21 …. [Div 13.2.3.1], [r 26B.08.05] r 13.22 …. [Div 13.2.3.1], [r 26B.09.10] r 13.22(2) …. [r 13.22.3] r 13.22(3) …. [r 13.22.3] r 13.22(4) …. [Ch 13.1], [Div 13.2.3.1], [r 12.04.1], [r 12.05.1] r 13.23 …. [r 26B.10.05] r 13.26 …. [Pt 13.3.20] r 13.28 …. [Pt 13.3.1], [Pt 13.3.20] r 14.06 …. [r 13.22.1] r 14.07 …. [r 10.15.10] r 15(25) …. [r 15.08.1] r 15.04 …. [r 15.48.2] r 15.04(a) …. [r 15.04.10] r 15.04(d) …. [r 15.04.10] r 15.5 …. [r 15.41.3], [r 15.41.5]

r 15.05(2) …. [r 15.05.1] r 15.07(2)(b)(ii) …. [r 15.05.1] r 15.08 …. [23,392.5] r 15.09 …. [r 15.09.1] r 15.10 …. [r 15.09.1] r 15.10(2) …. [r 10.15.30] r 15.12 …. [r 15.09.1] r 15.17(4) …. [r 7.11.1] r 15.18 …. [r 15.17.1] r 15.21 …. [r 15.17.1] r 15.23 …. [r 15.15.1], [r 15.23.2] r 15.24 …. [r 15.22.2] r 15.26 …. [r 15.26.3] r 15.27 …. [r 24.13.5] r 15.30 …. [r 15.31.3], [r 26B.25.15] r 15.31 …. [r 15.31.3], [r 26B.25.15] r 15.31(2) …. [r 15.31.2] r 15.31(4)(b) …. [r 15.31.2] r 15.34 …. [r 15.18.1] r 15.42 …. [r 15-64.1] r 15.44 …. [r 15-64.1] r 15.45 …. [r 15-64.1] r 15.48 …. [r 15.48.2] r 15.48(2) …. [r 15.48.2] r 15.48(3) …. [r 15.48.2]

r 15.50 …. [r 15-64.1], [r 15-64.5] r 15.52(2) …. [r 15.52.1] r 15.52(3) …. [r 15.52.1] r 15.54 …. [r 15.59.1] r 15.59(5) …. [r 15.61.1] r 15.60 …. [r 15.48.2], [r 15.57.1] r 15.62 …. [r 15-64.1], [r 15-64.5] r 15.62(2) …. [r 15.66.1] r 15.63 …. [r 15-64.1] r 15.63(C) …. [r 15-64.5] r 15.64 …. [r 15-64.1] r 15.64B …. [r 15.65.1] r 15.65 …. [r 15.61.1], [r 15.66.1] r 15.67(3) …. [r 15.66.1] r 15.76 …. [r 15.31.5], [r 26B.25.25] r 15A.04(3) …. [r 15.22.1] r 15A.06 …. [r 15.22.1], [r 15.24.05] r 15A.07 …. [r 15.24.05] r 15A.14 …. [r 15.31.1] r 15A.15 …. [r 15.29.1] r 15AA …. [s 90AJ.5] r 17.01 …. [r 22.03.1] r 17.01A …. [r 17.01B.1] r 17.01A(2) …. [r 17.01A.1] r 17.01B …. [r 17.01A.1]

r 17.01B(3) …. [r 17.01B.1] r 17.02 …. [r 17.02A.1] r 17.02(1)(e) …. [r 17.02A.1] r 17.02(1)(g) …. [r 17.02A.1] r 17.02(1)(h) …. [r 17.02A.1] r 18.02 …. [cl 6.17.1] r 18.03 …. [r 18.02.1] r 18.06 …. [cl 6.39.1], [r 12.04.1], [r 19.38.1] r 19.04.1 …. [r 19.04.1], [r 19.04.3] r 19.05(2) …. [r 19.05.11] r 19.08 …. [r 1.05.1] r 19.08(2) …. [s 117.34] r 19.10 …. [r 1.05.1] r 19.11 …. [r 19.08.1], [r 22.53.1] r 19.14 …. [Pt 19.6.1] r 19.20 …. [Pt 19.6.1] r 19.21 …. [Pt 19.6.1] r 19.22 …. [Pt 19.6.1] r 19.23 …. [Pt 19.6.1], [r 19.24.3] r 19.24(2) …. [Pt 19.6.1] r 19.24(3) …. [Pt 19.6.1] r 19.25 …. [Pt 19.6.1] r 19.26 …. [Pt 19.6.1] r 19.28 …. [Pt 19.6.1] r 19.29 …. [Pt 19.6.1]

r 19.30 …. [Pt 19.6.1] r 19.31 …. [Pt 19.6.1], [r 19.38.1] r 19.32 …. [Pt 19.6.1], [r 19.30.1] r 19.37 …. [r 19.38.1] r 19.47 …. [r 15.15.1] r 20.02 …. [r 20.11.3] r 20.03 …. [r 20.01.1], [r 20.11.3] r 20.05 …. [r 20.11.3] r 20.06 …. [r 20.01.2] r 20.06(c)(x) …. [r 20.06.2] r 20.07 …. [r 20.11.1] r 20.08(1) …. [r 20.55.3], [r 20.56.10] r 20.10 …. [r 20.14.1] r 20.10(1)(a) …. [r 20.10.2] r 20.10(1)(b) …. [r 20.10.3] r 20.10(1)(b)(ii) …. [r 20.10.4] r 20.11 …. [r 20.14.1] r 20.11(1) …. [r 20.11.1] r 20.11(2) …. [r 20.11.1] r 20.11(3) …. [r 20.11.1], [r 20.11.2] r 20.12 …. [r 20.14.1] r 20.14 …. [r 20.12.2] r 20.16 …. [r 20.11.3], [r 20.17.1] r 20.16(2) …. [r 20.16.2] r 20.19 …. [r 20.17.2]

r 20.20(1) …. [r 20.06.2] r 20.20(3) …. [r 20.06.2] r 20.21(1) …. [r 20.21.1] r 20.21(2) …. [r 20.21.1] r 20.21(3) …. [r 20.21.1] r 20.21A …. [r 20.21.1] r 20.21B …. [r 20.21.1] r 20.23(1)(b)(vi) …. [r 20.21A.1] r 20.30 …. [r 20.31.1] r 20.32 …. [r 20.11.3] r 20.34(2) …. [r 20.34.1] r 20.37 …. [r 20.34.1] r 20.42 …. [r 20.11.3] r 20.46 …. [r 20.11.3] r 20.53 …. [r 20.01.2], [r 20.53.3] r 20.54 …. [r 20.01.2], [r 20.11.3] r 20.54(1) …. [r 20.53.5], [r 20.54.3] r 20.54(2) …. [r 20.54.5] r 20.54(3) …. [r 20.53.5] r 20.55 …. [r 20.11.3], [r 20.53.10], [r 20.55.3] r 20.55(2) …. [r 20.55.3] r 20.56 …. [r 20.11.3], [r 20.53.10], [r 20.54.1] r 20.56(1) …. [r 20.56.10] r 20.57 …. [Pt 20.8.1] r 20.58 …. [Pt 20.8.1]

r 20.59 …. [Pt 20.8.1] r 20.60 …. [Pt 20.8.1], [r 20.54.3], [r 20.55.3], [r 20.55.3], [r 20.56.5], [r 20.56.10] r 21.02 …. [r 21.04.1] r 21.19 …. [Pt 21.4.1] r 22.02(2) …. [r 22.35.1] r 22.11 …. [r 18.09.1] r 22.18 …. [r 22.18.3], [r 22.19.3], [r 22.20.3], [r 22.26.1] r 22.19 …. [r 22.18.3], [r 22.19.3], [r 22.20.3], [r 22.26.1] r 22.20 …. [r 22.13.1], [r 22.18.3], [r 22.19.3], [r 22.20.3], [r 22.26.1] r 22.22 …. [r 22.22.3] r 22.22(1) …. [r 22.22.3] r 22.22(2) …. [r 22.26.1] r 22.27 …. [r 22.26.1] r 22.39 …. [r 22.39.5] r 22.43 …. [r 22.13.3], [r 22.21.1] r 22.44 …. [r 22.13.3], [r 22.21.1] r 22.45 …. [Pt 5.4.1] r 22.45(2) …. [r 22.45.3] r 22.53 …. [r 22.43.1] r 23.03(3) …. [r 23.03.7] r 24.01 …. [r 19.41.1], [r 23.03.3] r 24.01(4) …. [r 10.15.5] r 24.03 …. [r 13.01.1] r 24.04 …. [r 2.01.1], [r 13.07.1]

r 24.08 …. [r 22.02.3] r 24.10 …. [r 15.18.2] r 24.13 …. [r 15.04.10], [r 24.13.5] r 26B.01 …. [r 26B.02.05] r 26B.04 …. [r 26B.05.10] r 26B.05 …. [r 26B.04.05] r 26B.06 …. [r 26B.04.05], [r 26B.05.10] r 26B.07 …. [r 26B.05.10] r 26B.08 …. [r 26B.04.05], [r 26B.05.10] r 26B.09 …. [r 26B.10.05] r 103 …. [23,296.5] Sch 1 …. [r 1.05.1] Sch 2 …. [r 23.03.3] Sch 3 …. [r 19.19.1], [r 19.34.3], [r 19.35.1] Sch 3R …. [cl 6.19.1] Sch 4 …. [r 15.15.1], [r 15.23.3], [r 19.19.1] Sch 4R …. [cl 6.19.1] Sch 5 …. [r 15.69.1] Sch 6R Pt 10.4 …. [cl 6.24.1] cl 6(11) …. [cl 6.08.1] cl 6.04(1) …. [cl 6.04.1], [cl 6.04.3] cl 6.05(2) …. [cl 6.05.11] cl 6.20 …. [cl 6.19.1] cl 6.21 …. [cl 6.14.1]

cl 6.24 …. [cl 6.14.1], [cl 6.25.3], [cl 6.38.1] cl 6.32 …. [cl 6.39.1] cl 6.38 …. [cl 6.24.1], [cl 6.39.1] Sch 7 …. [r 27.01.1] cl 11.04 …. [r 27.01.1], [r 27.01.2] cl 11.05 …. [r 27.01.1], [r 27.01.2] Dictionary …. [r 12.02.1], [r 13.02.1], [r 20.35.10], [r 20.37.1] Div IC …. [Pt 7.2.1], [r 1.16.1], [r 6.08.1], [r 7.01.1] Federal Court of Australia Act 1976 s 19 …. [s 31.4] s 19(1) …. [s 31.4] s 22 …. [s 31.4] s 32 …. [s 31.4], [s 33.3], [s 33.4] s 32(1) …. [s 33.3] s 86 …. [s 31.4] Federal Magistrates Act 1999 Pt V …. [s 39.15] s 39 …. [s 39.15] s 39(4) …. [s 39.15] s 41 …. [s 39.15] s 103(2) …. [s 94AAA.10] Federal Magistrates Court Rules 2001 …. [23,492.5], [23,548.5], [Ch 3.1] Ch 2 Pt 25A …. [23,670.10]

r 1.05 …. [23,312.10] r 1.06 …. [23,112.30] r 2.04 …. [r 24.04.1] r 2.08 …. [23,378.10], [23,588.25] r 6.06 …. [23,132.5] r 6.07 …. [23,122.5], [23,628.10] r 6.12(A) …. [23,628.15] r 6.12(B) …. [23,628.15] r 6.14 …. [23,628.20] r 6.15 …. [23,138.15], [23,628.20] r 6.19 …. [23,116.10] r 10.01 …. [23,004.5] r 10.05(2) …. [23,214.20] r 10.05(3) …. [23,214.15] r 10.05(4) …. [23,214.10] r 11.08 …. [23,242.1], [23,246.7], [23,246.25] r 11.09 …. [23,242.1], [23,246.25] r 11.10 …. [23,246.7] r 11.11 …. [23,246.7], [23,246.25] r 11.11(1) …. [23,246.7] r 11.12 …. [23,246.7] r 11.12(2) …. [23,246.7] r 11.12(4) …. [23,246.7] r 13.03B(6) …. [23,296.15] r 15.10 …. [23,378.10]

r 15.10(2) …. [23,378.10] r 15.29 …. [23,400.30] r 16.04 …. [23,456.5] r 16.05 …. [23,462.5] r 17.01 …. [23,476.5] r 17.01(3) …. [23,464.5] r 17.03 …. [23,578.5] r 17.05 …. [23,456.5] r 20.00A …. [23,626.30] r 21.02(2)(c) …. [23,548.5] r 21.02(3) …. [23,536.10] r 21.04 …. [23,502.5] r 21.11(2)(a) …. [23,548.5] r 23.01A(2) …. [23,588.15] r 23.01A(3) …. [23,588.10] r 23.01A(5)(a) …. [23,378.10], [23,588.25] r 24.03 …. [23,214.10] r 24.04 …. [23,214.10] r 24.04(1) …. [23,610.5] r 25.09B …. [23,702Q.5] r 25B.12 …. [23,702K.20] r 25B.13 …. [23,702L.5] r 25B.14(1) …. [23,703W.15], [23,703X.15], [23,703Y.20] r 25B.16 …. [23,702O.5] r 25B.16(1)(a) …. [23,702K.10]

r 25B.16(1)(b) …. [23,702K.15] r 25B.16(1)(b)(ii) …. [23,702K.20] r 25B.17(1) …. [23,702L.5] r 25B.17(3) …. [23,702L.5], [23,702L.10] r 25B.18 …. [23,702O.5] r 25B.18(1)(b) …. [23,702O.5] r 25B.27(1) …. [23,702V.5] r 25B.62 …. [23,703V.15] r 25B.62(1) …. [23,703V.15] r 25B.62(2) …. [23,703W.15] r 25B.62(3) …. [23,703V.15] r 25B.63 …. [23,703X.15] r 25B.63(2) …. [23,703X.15] r 25B.64 …. [23,703V.20] r 25B.64(1) …. [23,703Y.20] r 25B.66 …. [23,703YA] r 25B.67 …. [23,703YA] r 25B.68 …. [23,703W.5], [23,703W.10], [23,703W.15], [23,703X.15], [23,703Y.20] Federal Proceedings (Costs) Act 1981 …. [s 94.12], [s 117.28] High Court Rules 1952 …. [s 38.9] Pt 11 …. [s 38.8] O 70 …. [s 38.7] Judiciary Act 1903 …. [s 38.9], [s 87.95] Pt 8A …. [r 8.01.3]

s 23(1) …. [s 30.1] s 24 …. [s 35.5] s 32 …. [s 87.95] s 38A …. [s 95.6] s 40A …. [s 95.6] s 55A …. [s 122.1] s 55B …. [s 122.1] s 78A …. [23,226.10], [r 6.06.1] s 78B …. [r 6.07.1] s 79 …. [s 38.9] s 80 …. [s 38.9] Jurisdiction of Courts (Cross-vesting) Act 1987 …. [s 41.3] Marriage Act 1961 …. [r 18.02.1], [r 18.05.5], [s 6.3], [s 32.1], [s 39.7], [s 40.3], [s 42.3], [s 43.9] Pt 7 …. [s 40.3] s 10E(2) …. [s 10E.1] s 16(2A) …. [s 10D.7] s 16(2A)(a) …. [s 10E.1] s 22 …. [s 53.1] s 23 …. [s 51.10] s 23B …. [s 51.1], [s 51.10], [s 51.15] s 47 …. [s 59.4] s 88G …. [s 102.5] s 88G(3) …. [s 102.5] s 91 …. [s 51.5]

s 113 …. [s 51.15] s 113(4A) …. [s 51.15] Marriage Amendment Act 1976 …. [s 32.1] Matrimonial Causes Act 1959 …. [s 48.4], [s 48.13], [s 60CC.5], [s 79.291], [s 79A.13], [s 82.5], [s 114.34] s 41A …. [s 50.1] s 96 …. [s 48.31] Matrimonial Causes Act 1971 …. [s 3.9] Migration Act 1958 …. [s 67ZC.10] Norfolk Island Act 1957 s 14(1) …. [s 7.1] Passports Act 1938 s 7A …. [r 4.30.1] Remuneration Tribunal Act 1973 …. [s 25.1] Remuneration and Allowances Act 1973 Sch 3 …. [s 25.1] Remuneration and Allowances Amendment Act 1976 …. [s 25.1] Social Security Act 1947 …. [s 75.36] s 18 …. [s 75.36] s 62(3) …. [s 75.36] s 83AAD …. [s 75.36] s 83AAE(2) …. [s 75.36] Statute Law (Miscellaneous Provisions) Act (No 2) 1983 Sch 1 …. [s 31.4]

Statute Law (Miscellaneous Provisions) Act (No 2) 1985 …. [s 37A.1] Statutory Instruments (Tabling and Disallowance) Legislation Amendment Act 1988 …. [s 37A.1] AUSTRALIAN CAPITAL TERRITORY Court Procedures Rules 2006 r 21 …. [r 11.10.3] r 502 …. [r 11.10.3] Registration of Births and Deaths and Marriages Act 1963 …. [s 69R.3] NEW SOUTH WALES Births, Deaths and Marriages Registration Act 1995 …. [s 69R.3] Children (Equality of Status) Act 1976 s 11 …. [s 69T.3] Children and Young Persons (Care and Protection) Act 1998 s 29 …. [s 69ZW.5] s 29(1A) …. [s 69ZW.5] Evidence Act 1995 s 48 …. [s 90J.1] Family Provision Act 1982 …. [s 31.8] Jurisdiction of Courts (Foreign Land) Act 1989 …. [s 79.41] Married Persons (Property and Torts) Act 1901 …. [Pt VIII.2], [s 119.1]

Matrimonial Causes Act 1899 …. [s 106B.15] s 56 …. [s 85A.1] Property (Relationships) Act 1984 …. [s 66C.5], [s 79.195] s 20 …. [s 79.3] s 27 …. [s 75.33] Real Property Act 1900 …. [s 86.14] s 41 …. [s 86.14] NORTHERN TERRITORY Guardianship of Infants Act 1972 …. [s 41.2] Registration of Births, Deaths and Marriages Act 1963 …. [s 69R.3] Status of Children Act 1979 s 9 …. [s 69T.3] QUEENSLAND Guardianship and Administration Act 2000 …. [23,246.25] Registration of Births, Deaths and Marriages Act 1962 …. [s 69R.3] Status of Children Act 1978 s 8 …. [s 69T.3] Uniform Civil Procedure Rules 1999 …. [r 15.43.1] SOUTH AUSTRALIA Births, Deaths and Marriages Registration Act 1966 …. [s 69R.3]

Family Relationships Act 1975 s 7 …. [s 69T.3] TASMANIA Registration of Births and Deaths Act 1895 …. [s 69R.3] Status of Children Act 1974 s 8 …. [s 69T.3] VICTORIA Registration of Births, Deaths and Marriages Act 1959 …. [s 69R.3] Status of Children Act 1974 s 8 …. [s 69T.3] WESTERN AUSTRALIA Child Welfare Act 1947 …. [s 41.2] Family Court of Western Australia Act 1975 …. [s 41.2] s 26 …. [s 41.2] s 29(1) …. [Pt VIII.10] s 30(1) …. [Pt VIII.10] Family Law Amendment Act 1978 …. [Pt VIII.10] Guardianship of Children Act 1972 …. [s 41.2] Married Persons and Children (Summary Relief) Act 1965 …. [s 41.2] Registration of Births, Deaths and Marriages Act 1961 …. [s

69R.3] UNITED KINGDOM Matrimonial Causes Act 1973 s 24(1)(c) …. [s 85A.1]

Table of Contents Publisher’s Note Publisher’s Note Table of Cases Table of Cases Table of Statutes Table of Statutes Family Law Act 1975 Table of Provisions Table of Amendments Transitional Information Family Law Act 1975 Family Law Rules 2004 Table of Provisions Table of Amendments Transitional Provisions Family Law Rules 2004 Federal Circuit Court Rules 2001 Table of Provisions Table of Amendments

Transitional Provisions Federal Circuit Court Rules 2001 Comparative Table of Rules Comparative Table of Rules Index Index

[page 1]

Family Law Act 1975 TABLE OF PROVISIONS Section

1 2 3 4 4AA 4AB 4A 4B 4C 5 5A 6 7 7A 8 9

Title

PART I — PRELIMINARY Short title …. Commencement …. Repeal and saving …. Interpretation …. De facto relationships …. Definition of family violence etc …. Third party proceedings to set aside financial agreement …. Third party proceedings to set aside Part VIIIAB financial agreement …. Meaning of proceeds of crime authority …. Debtor subject to a personal insolvency agreement …. Certain children deemed to be children of mother’s husband [Repealed] …. Polygamous marriages …. Extension of Act to certain Territories …. Application of the Criminal Code …. Supersession of existing laws …. Transitional ….

Paragraph

[s 1] [s 2] [s 3] [s 4] [s 4AA] [s 4AB] [s 4A] [s 4B] [s 4C] [s 5] [s 5A] [s 6] [s 7] [s 7A] [s 8] [s 9]

9A

PART IA — PROTECTION OF NAMES Use of protected names and symbols ….

[s 9A]

PART II — NON-COURT BASED FAMILY SERVICES DIVISION 1 — ACCREDITATION OF FAMILY COUNSELLORS, FAMILY DISPUTE RESOLUTION PRACTITIONERS AND OTHER FAMILY SERVICE PROVIDERS 10A Accreditation Rules …. [s 10A]

10B 10C 10D 10E

DIVISION 2 — FAMILY COUNSELLING Definition of family counselling …. Definition of family counsellor …. Confidentiality of communications in family counselling …. Admissibility of communications in family counselling and in referrals from family counselling ….

[s 10B] [s 10C] [s 10D]

[s 10E]

[page 2] Section

10F 10G 10H 10J

10K

Title

DIVISION 3 — FAMILY DISPUTE RESOLUTION Definition of family dispute resolution …. Definition of family dispute resolution practitioner …. Confidentiality of communications in family dispute resolution …. Admissibility of communications in family dispute resolution and in referrals from family dispute resolution …. Family dispute resolution practitioners must comply with regulations ….

Paragraph

[s 10F] [s 10G] [s 10H]

[s 10J] [s 10K]

10L 10M 10N 10P

DIVISION 4 — ARBITRATION Definition of arbitration …. Definition of arbitrator …. Arbitrators may charge fees for their services …. Immunity of arbitrators ….

[s 10L] [s 10M] [s 10N] [s 10P]

PART III — FAMILY CONSULTANTS

11A 11B 11C

11D

DIVISION 1 — ABOUT FAMILY CONSULTANTS Functions of family consultants …. Definition of family consultant …. Admissibility of communications with family consultants and referrals from family consultants …. Immunity of family consultants ….

[s 11A] [s 11B]

[s 11C] [s 11D]

DIVISION 2 — COURTS’ USE OF FAMILY CONSULTANTS 11E Courts to consider seeking advice from family consultants …. [s 11E] 11F Court may order parties to attend, or arrange for child to attend, appointments with a family consultant …. [s 11F] 11G Consequences of failure to comply with order under section 11F …. [s 11G] PART IIIA — OBLIGATIONS TO INFORM PEOPLE ABOUT NONCOURT BASED FAMILY SERVICES AND ABOUT COURT’S PROCESSES AND SERVICES

12A

DIVISION 1 — INTRODUCTION Objects of this Part ….

[s 12A]

DIVISION 2 — KIND OF INFORMATION TO BE PROVIDED 12B Prescribed information about non-court based family services and court’s

12C

processes and services …. Prescribed information about reconciliation ….

[s 12B] [s 12C]

[page 3] Section

12D

Title

Prescribed information about Part VII proceedings ….

Paragraph

[s 12D]

DIVISION 3 — WHO MUST PROVIDE INFORMATION, AND WHEN 12E Obligations on legal practitioners …. [s 12E] 12F Obligations on principal executive officers of courts …. [s 12F] 12G Obligations on family counsellors, family dispute resolution practitioners and arbitrators …. [s 12G] PART IIIB — COURT’S POWERS IN RELATION TO COURT AND NON-COURT BASED FAMILY SERVICES

13A

13B

DIVISION 1 — INTRODUCTION Objects of this Part ….

[s 13A]

DIVISION 2 — HELP WITH RECONCILIATION Court to accommodate possible reconciliations ….

[s 13B]

DIVISION 3 — REFERRALS TO FAMILY COUNSELLING, FAMILY DISPUTE RESOLUTION AND OTHER FAMILY SERVICES 13C Court may refer parties to family counselling, family dispute resolution and other family services …. [s 13C] 13D Consequences of failure to comply with order under section 13C …. [s 13D]

DIVISION 4 — COURT’S ROLE IN RELATION TO ARBITRATION OF DISPUTES 13E Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration …. [s 13E] 13F Court may make orders to facilitate arbitration of certain disputes …. [s 13F] 13G Family Court and Federal Circuit Court may determine questions of law referred by arbitrator …. [s 13G] 13H Awards made in arbitration may be registered in court …. [s 13H] 13J Family Court or Federal Circuit Court can review registered awards …. [s 13J] 13K Family Court and Federal Circuit Court may set aside registered awards …. [s 13K] PART IV — THE FAMILY COURT OF AUSTRALIA

20

21 21A 21B

DIVISION 1 — INTERPRETATION Interpretation ….

[s 20]

DIVISION 2 — THE FAMILY COURT OF AUSTRALIA Creation of Court …. [s 21] Divisions of Court …. [s 21A] Arrangement of business of Court …. [s 21B]

[page 4] Section

22 23

Title

DIVISION 3 — JUDGES Appointment, removal and resignation of Judges …. Seniority ….

Paragraph

[s 22] [s 23]

23A 24 25 26

26A 26B 26C 26D 26E 26F 26G 26H 26I 26J 26JA 26K 26L 26M 26N

Maximum age for Judges [Repealed] …. Absence or illness of Chief Judge …. Salary and allowances …. Oath or affirmation of allegiance and office …. DIVISION 4 — JUDICIAL REGISTRARS Judicial Registrars …. Powers of Judicial Registrars …. Review of decisions of Judicial Registrars …. Exercise of delegated powers by Court …. Application of the Legislation Act 2003 to rules of court …. Independence of Judicial Registrars …. Judicial Registrars hold office on full time or part time basis …. Qualifications for appointment etc …. Term of office …. Remuneration and allowances …. Leave of absence …. Resignation …. Termination of appointment …. Oath or affirmation of office …. Terms and conditions of appointment not provided for by Act ….

[s 23A] [s 24] [s 25] [s 26]

[s 26A] [s 26B] [s 26C] [s 26D] [s 26E] [s 26F] [s 26G] [s 26H] [s 26I] [s 26J] [s 26JA] [s 26K] [s 26L] [s 26M] [s 26N]

DIVISION 5 — JURISDICTION AND EXERCISE OF JURISDICTION 27 Place of sitting …. [s 27] 27A Change of venue …. [s 27A] 28 Exercise of jurisdiction …. [s 28] 29 Appellate jurisdiction [Repealed] …. [s 29] 30 Court divided in opinion …. [s 30] 31 Original jurisdiction of Family Court …. [s 31] 32 Certain powers under Marriage Act

[Repealed] …. 33 33A

33B 33C 34 35

[s 32]

Jurisdiction in associated matters …. Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Circuit Court …. Discretionary transfer of proceedings to the Federal Circuit Court …. Mandatory transfer of proceedings to the Federal Circuit Court …. Issue of certain writs etc …. Contempt of court ….

[s 33]

[s 33A] [s 33B] [s 33C] [s 34] [s 35]

[page 5] Section

Title

Paragraph

37B 37C

DIVISION 6 — REGISTRIES AND OFFICERS Registries …. Officers of Court …. Delegation of powers to Registrars …. Delegation to Registrars of powers exercisable by court as constituted in a particular way …. Independence of Registrars …. Oath or affirmation of office ….

[s 37AA] [s 37B] [s 37C]

38

DIVISION 7 — PRACTICE AND PROCEDURE Practice and procedure ….

[s 38]

36 37 37A 37AA

[s 36] [s 37] [s 37A]

PART IVA — MANAGEMENT OF THE COURT DIVISION 1 — MANAGEMENT RESPONSIBILITIES OF THE CHIEF JUDGE AND THE CHIEF EXECUTIVE OFFICER 38A Management of administrative affairs of

38B

Court …. Chief Executive Officer ….

[s 38A] [s 38B]

DIVISION 1AA — APPLICATION OF THE FINANCE LAW 38BAA Application of the finance law …. [s 38BAA] DIVISION 1A — ADMINISTRATION OF COURT’S FAMILY SERVICES 38BA Chief Executive Officer has functions of family consultants …. [s 38BA] 38BB Chief Executive Officer may delegate powers and functions that relate to family consultants …. [s 38BB] 38BC Chief Executive Officer may give directions that relate to family services functions …. [s 38BC] 38BD Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner …. [s 38BD]

38C 38D 38E 38F 38G 38H 38J 38K 38L

DIVISION 2 — CHIEF EXECUTIVE OFFICER Establishment and appointment of Chief Executive Officer …. Powers of Chief Executive Officer …. Remuneration of Chief Executive Officer …. Terms and conditions of appointment of Chief Executive Officer …. Leave of absence …. Resignation …. Outside employment of Chief Executive Officer …. Termination of appointment …. Disclosure of interests by Chief Executive Officer ….

[s 38C] [s 38D] [s 38E] [s 38F] [s 38G] [s 38H] [s 38J] [s 38K] [s 38L]

[page 6] Section

38M

Title

Acting Chief Executive Officer ….

Paragraph

[s 38M]

DIVISION 3 — OTHER OFFICERS AND STAFF OF REGISTRIES 38N Personnel other than Chief Executive Officer …. [s 38N] 38P Marshal …. [s 38P] 38Q Statutory Agency etc for purposes of Public Service Act …. [s 38Q] 38R Engagement of consultants etc …. [s 38R] DIVISION 4 — MISCELLANEOUS ADMINISTRATIVE MATTERS 38S Annual report …. [s 38S] 38T Proper accounts to be kept [Repealed] …. [s 38T] 38U Audit [Repealed] …. [s 38U] 38V Estimates [Repealed] …. [s 38V] 38W Delegation of administrative powers of Chief Judge …. [s 38W] 38X Proceedings arising out of administration of Court …. [s 38X] 38Y Protection of persons involved in handling etc complaints …. [s 38Y] PART V — JURISDICTION OF COURTS

39

DIVISION 1 — JURISDICTION IN MATRIMONIAL CAUSES Jurisdiction in matrimonial causes …. [s 39]

DIVISION 2 — JURISDICTION IN DE FACTO FINANCIAL CAUSES 39A Instituting proceedings …. [s 39A] 39B Jurisdiction in de facto financial causes …. [s 39B] 39C Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia …. [s 39C]

39D 39E 39F

39G

40

40A 41 42 43

Ceasing jurisdiction of State or Territory courts of summary jurisdiction …. Revoking Proclamations ceasing jurisdiction of State or Territory courts …. Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory …. Jurisdiction in relation to transferred matters under other Commonwealth laws ….

[s 39D] [s 39E]

[s 39F] [s 39G]

DIVISION 3 — OTHER PROVISIONS Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts …. Exercise of jurisdiction of Federal Circuit Court in certain States and Territories …. Establishment of State Family Courts …. Law to be applied …. Principles to be applied by courts ….

[s 40] [s 40A] [s 41] [s 42] [s 43]

[page 7] Section

44 44A 45 45A

46 47

Title

Institution of proceedings …. Proceedings for divorce order …. Stay and transfer of proceedings …. Transfer of property proceedings from the Federal Magistrates Court — value exceeds $300,000 [Repealed] …. Transfer of proceedings from court of summary jurisdiction in certain cases …. Courts to act in aid of each other …. PART VI — DIVORCE AND NULLITY OF MARRIAGE

Paragraph

[s 44] [s 44A] [s 45]

[s 45A] [s 46] [s 47]

48 49 50 51 52

53

54 55 55A 56 57 58 59

Divorce …. Meaning of separation …. Effect of resumption of cohabitation …. Nullity of marriage …. Court not to make divorce order where application for decree of nullity before it …. Circumstances occurring before commencement of Act or outside Australia …. Decree nisi in first instance [Repealed] …. When divorce order takes effect …. Divorce order where children …. Certificate as to divorce order …. Rescission of divorce order where parties reconciled …. Rescission of divorce order on ground of miscarriage of justice …. Re-marriage ….

[s 48] [s 49] [s 50] [s 51]

[s 52]

[s 53] [s 54] [s 55] [s 55A] [s 56] [s 57] [s 58] [s 59]

PART VII — CHILDREN DIVISION 1 — INTRODUCTORY Subdivision A — What this Division does 60A What this Division does …. [s 60A] Subdivision B — Object, principles and outline 60B Objects of Part and principles underlying it …. [s 60B] 60C Outline of Part …. [s 60C] Subdivision BA — Best interests of the child: court proceedings 60CA Child’s best interests paramount consideration in making a parenting order …. [s 60CA] 60CB Proceedings to which Subdivision applies …. [s 60CB]

60CC

How a court determines what is in a child’s best interests ….

[s 60CC]

60CD

How the views of a child are expressed ….

[s 60CD]

[page 8] Section

60CE 60CF

Title

Paragraph

Children not required to express views …. [s 60CE] Informing court of relevant family violence orders …. [s 60CF] 60CG Court to consider risk of family violence …. [s 60CG] 60CH Informing court of care arrangements under child welfare laws …. [s 60CH] 60CI Informing court of notifications to, and investigations by, prescribed State or Territory agencies …. [s 60CI] Subdivision BB — Best interests of the child: adviser’s obligations 60D Adviser’s obligations in relation to best interests of the child …. [s 60D] Subdivision C — Interpretation and application of Part 60E Application of Part to void marriages …. [s 60E] Subdivision D — Interpretation — how this Act applies to certain children 60EA Definition of de facto partner …. [s 60EA] 60F Certain children are children of marriage etc …. [s 60F] 60G Family Court may grant leave for adoption proceedings by prescribed adopting parent …. [s 60G] 60H Children born as a result of artificial conception procedures …. [s 60H] 60HA Children of de facto partners …. [s 60HA] 60HB Children born under surrogacy arrangements …. [s 60HB]

60I 60J

60K

61A 61B 61C 61D 61DA

61DB

61E 61F

Subdivision E — Family dispute resolution Attending family dispute resolution before applying for Part VII order …. Family dispute resolution not attended because of child abuse or family violence …. Court to take prompt action in relation to allegations of child abuse or family violence [Repealed] …. DIVISION 2 — PARENTAL RESPONSIBILITY What this Division does …. Meaning of parental responsibility …. Each parent has parental responsibility (subject to court orders) …. Parenting orders and parental responsibility …. Presumption of equal shared parental responsibility when making parenting orders …. Application of presumption of equal shared parental responsibility after interim parenting order made …. Effect of adoption on parental responsibility …. Application to Aboriginal or Torres Strait Islander children ….

[s 60I]

[s 60J]

[s 60K]

[s 61A] [s 61B] [s 61C] [s 61D]

[s 61DA]

[s 61DB] [s 61E] [s 61F]

[page 9] Section

Title

Paragraph

DIVISION 3 — REPORTS RELATING TO CHILDREN UNDER 18 62A What this Division does …. [s 62A]

62B

62C 62CA

62D

62E 62F

62G 62H

63A 63B 63C 63CAA 63D 63DA 63DB 63E 63F

Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services …. Request for counselling — request made through a Family Court [Repealed] …. Request for counselling — request made through Federal Magistrates Court [Repealed] …. Request for counselling — where made direct to a family and child counsellor [Repealed] …. Court counselling facilities to be made available [Repealed] …. Conferences with family and child counsellors or welfare officers [Repealed] …. Reports by family consultants …. Provision of certain documents [Repealed] …. DIVISION 4 — PARENTING PLANS What this Division does …. Parents encouraged to reach agreement …. Meaning of parenting plan and related terms …. Parenting plans may include child support provisions …. Parenting plan may be varied or revoked by further written agreement …. Obligations of advisers …. Registered parenting plans …. Registration of a revocation of a registered parenting plan …. Child welfare provisions of registered parenting plans ….

[s 62B] [s 62C]

[s 62CA]

[s 62D] [s 62E]

[s 62F] [s 62G] [s 62H]

[s 63A] [s 63B] [s 63C] [s 63CAA] [s 63D] [s 63DA] [s 63DB] [s 63E] [s 63F]

63G

63H

64A 64B 64C 64D

Child maintenance provisions of registered parenting plans — where not enforceable as maintenance agreements …. Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans ….

[s 63G]

[s 63H]

DIVISION 5 — PARENTING ORDERS — WHAT THEY ARE What this Division does …. [s 64A] Meaning of parenting order and related terms …. [s 64B] Parenting orders may be made in favour of parents or other persons …. [s 64C] Parenting orders subject to later parenting plans …. [s 64D]

[page 10] Section

Title

Paragraph

DIVISION 6 — PARENTING ORDERS OTHER THAN CHILD MAINTENANCE ORDERS Subdivision A — Introductory 65A What this Division does …. [s 65A] 65AA Child’s best interests paramount consideration in making a parenting order …. [s 65AA] 65B Division does not apply to child maintenance orders …. [s 65B] Subdivision B — Applying for and making parenting orders 65C Who may apply for a parenting order …. [s 65C] 65D Court’s power to make parenting order …. [s 65D] 65DAA Court to consider child spending equal time or substantial and significant time with

each parent in certain circumstances …. [s 65DAA] 65DAB Court to have regard to parenting plans …. [s 65DAB] 65DAC Effect of parenting order that provides for shared parental responsibility …. [s 65DAC] 65DAE No need to consult on issues that are not major long-term issues …. [s 65DAE] 65DA Parenting orders …. [s 65DA] 65E Child’s best interests paramount consideration in making a parenting order [Repealed] …. [s 65E] 65F General requirements for counselling before parenting order made …. [s 65F] 65G Special conditions for making parenting order about whom a child lives with or the allocation of parental responsibility by consent in favour of non-parent …. [s 65G] 65H Children who are 18 or over or who have married or entered de facto relationships …. [s 65H] 65J Effect of adoption on parenting order …. [s 65J] 65K What happens when parenting order that deals with whom a child lives with does not make provision in relation to death of parent with whom child lives …. [s 65K] 65L Family consultants may be required to supervise or assist compliance with parenting orders …. [s 65L] 65LA Court may order attendance at a postseparation parenting program …. [s 65LA] 65LB Conditions for providers of post-separation parenting programs …. [s 65LB] Subdivision C — General obligations created by certain parenting orders 65M General obligations created by parenting order that deals with whom a child lives with …. [s 65M] 65N General obligations created by parenting

order that deals with whom a child spends time with ….

[s 65N]

[page 11] Section

65NA

Title

Paragraph

General obligations created by parenting order that deals with whom a child communicates with …. [s 65NA] 65P General obligations created by parenting order that allocates parental responsibility …. [s 65P] 65Q Court may issue warrant for arrest of alleged offender …. [s 65Q] Subdivision D — Dealing with people who have been arrested 65R Situation to which Subdivision applies …. [s 65R] 65S Arrested person to be brought before a court …. [s 65S] 65T Obligation of court — where application before it to deal with contravention …. [s 65T] 65U Obligation of court — where no application before it, but application before another court, to deal with contravention …. [s 65U] 65V Obligation of court — where no application before any court to deal with contravention …. [s 65V] 65W Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b) …. [s 65W] Subdivision E — Obligations under parenting orders relating to taking or sending children from Australia 65X Interpretation …. [s 65X] 65Y Obligations if certain parenting orders have been made …. [s 65Y] 65Z Obligations if proceedings for the making of

65ZA

65ZB

65ZC 65ZD

66A 66B 66C 66D

certain parenting orders are pending …. Obligations of owners etc of aircraft and vessels if certain parenting orders made …. Obligations of owners etc of aircraft and vessels if proceedings for the making of certain parenting orders are pending …. General provisions applicable to sections 65ZA and 65ZB …. State or Territory laws stopping children leaving Australia not affected …. DIVISION 7 — CHILD MAINTENANCE ORDERS Subdivision A — What this Division does What this Division does …. Subdivision B — Objects and principles Objects …. Principles — parents have primary duty to maintain …. Principles — when step-parents have a duty to maintain ….

[s 65Z]

[s 65ZA]

[s 65ZB] [s 65ZC] [s 65ZD]

[s 66A] [s 66B] [s 66C] [s 66D]

[page 12] Section

Title

Paragraph

Subdivision C — Relationship with Child Support (Assessment) Act 66E Child maintenance order not to be made etc if application for administrative assessment of child support could be made …. [s 66E] Subdivision D — Applying for and making child maintenance orders 66F Who may apply for a child maintenance order …. [s 66F] 66G Court’s power to make child maintenance

order …. [s 66G] 66H Approach to be taken in proceedings for child maintenance order …. [s 66H] 66J Matters to be taken into account in considering financial support necessary for maintenance of child …. [s 66J] 66K Matters to be taken into account in determining contribution that should be made by party etc …. [s 66K] 66L Children who are 18 or over …. [s 66L] 66M When step-parents have a duty to maintain …. [s 66M] 66N Determining financial contribution of stepparent …. [s 66N] Subdivision E — Other aspects of courts’ powers 66P General powers of court …. [s 66P] 66Q Urgent child maintenance orders …. [s 66Q] 66R Specification in orders of payments etc for child maintenance purposes …. [s 66R] 66S Modification of child maintenance orders …. [s 66S] Subdivision EA — Varying the maintenance of certain children 66SA Varying the maintenance of certain children …. [s 66SA] Subdivision F — When child maintenance orders stop being in force 66T Effect of child turning 18 …. [s 66T] 66U Effect of death of child, person liable to pay or person entitled to receive …. [s 66U] 66V Effect of adoption, marriage or entering into a de facto relationship …. [s 66V] 66VA Children who are 18 or over: change of circumstances …. [s 66VA] 66W Recovery of arrears …. [s 66W] Subdivision G — Recovery of amounts paid under maintenance orders 66X Recovery of amounts paid, and property transferred or settled, under maintenance

orders ….

[s 66X]

DIVISION 8 — OTHER MATTERS RELATING TO CHILDREN Subdivision A — What this Division does 67A What this Division does …. [s 67A]

[page 13] Section

Title

Paragraph

Subdivision B — Father’s liability to contribute towards child bearing expenses if not married to mother 67B Father liable to contribute towards maintenance and expenses of mother …. [s 67B] 67C Matters to be taken into account in proceedings under Subdivision …. [s 67C] 67D Powers of court in proceedings under Subdivision …. [s 67D] 67E Urgent orders …. [s 67E] 67F Who may institute proceedings …. [s 67F] 67G Time limit for institution of proceedings …. [s 67G] Subdivision C — Location and recovery of children 67H Interpretation [Repealed] …. [s 67H] 67J Meaning of location order and Commonwealth information order …. [s 67J] 67K Who may apply for a location order …. [s 67K] 67L Child’s best interests paramount consideration in making a location order …. [s 67L] 67M Provisions about location orders, other than Commonwealth information orders …. [s 67M] 67N Provisions about Commonwealth information orders …. [s 67N] 67P Information provided under location order not to be disclosed except to limited

persons …. [s 67P] 67Q Meaning of recovery order …. [s 67Q] 67R How recovery orders authorise or direct people …. [s 67R] 67S How recovery orders to stop and search etc name or describe vehicles, places etc …. [s 67S] 67T Who may apply for a recovery order …. [s 67T] 67U Court’s power to make recovery order …. [s 67U] 67V Child’s best interests paramount consideration in making a recovery order …. [s 67V] 67W How long recovery order remains in force …. [s 67W] 67X Persons not to prevent or hinder taking of action under recovery order …. [s 67X] 67Y Obligation to notify persons of child’s return …. [s 67Y] Subdivision D — Allegations of child abuse and family violence 67Z Where interested person makes allegation of child abuse …. [s 67Z] 67ZA Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc …. [s 67ZA] 67ZB No liability for notification under section 67Z or 67ZA …. [s 67ZB] 67ZBA Where interested person makes allegation of family violence …. [s 67ZBA]

[page 14] Section

67ZBB

Title

Court to take prompt action in relation to allegations of child abuse or family

Paragraph

67ZC 67ZD

violence …. Subdivision E — Other orders about children Orders relating to welfare of children …. Orders for delivery of travel documents ….

68A 68B 68C

DIVISION 9 — INJUNCTIONS What this Division does …. Injunctions …. Powers of arrest ….

[s 67ZBB] [s 67ZC] [s 67ZD]

[s 68A] [s 68B] [s 68C]

DIVISION 10 — INDEPENDENT REPRESENTATION OF CHILD’S INTERESTS 68L Court order for independent representation of child’s interests …. [s 68L] 68LA Role of independent children’s lawyer …. [s 68LA] 68M Order that child be made available for examination …. [s 68M]

68N 68P

68Q

68R

68S 68T

DIVISION 11 — FAMILY VIOLENCE Purposes of this Division …. Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order …. Relationship of order or injunction made under this Act with existing inconsistent family violence order …. Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act …. Application of Act and Rules when exercising section 68R power …. Special provisions relating to proceedings to make an interim (or interim variation of) family violence order ….

[s 68N]

[s 68P]

[s 68Q]

[s 68R] [s 68S]

[s 68T]

69A 69B 69C 69D 69E 69F

DIVISION 12 — PROCEEDINGS AND JURISDICTION Subdivision A — What this Division does What this Division does …. Subdivision B — Institution of proceedings and procedure Certain proceedings to be instituted only under this Part …. Who may institute proceedings …. Institution of maintenance proceedings by authorised authority or person …. Child or parent to be present in Australia etc …. Applicant may be in contempt ….

[s 69A]

[s 69B] [s 69C] [s 69D] [s 69E] [s 69F]

[page 15] Section

69G 69H

69J 69K

69L 69M 69MA

Title

Subdivision C — Jurisdiction of courts Interpretation …. Jurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Circuit Court …. Jurisdiction of courts of summary jurisdiction …. Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory …. Jurisdiction in relation to transferred matters under other Commonwealth laws …. Jurisdiction is additional to other jurisdiction …. Transfer of proceedings from the Federal Magistrates Court — residence orders [Repealed] ….

Paragraph

[s 69G]

[s 69H] [s 69J]

[s 69K] [s 69L] [s 69M]

[s 69MA]

69N

Transfer of proceedings from courts of summary jurisdiction in certain cases …. [s 69N] Subdivision D — Presumptions of parentage 69P Presumptions of parentage arising from marriage …. [s 69P] 69Q Presumption of paternity arising from cohabitation …. [s 69Q] 69R Presumption of parentage arising from registration of birth …. [s 69R] 69S Presumptions of parentage arising from findings of courts …. [s 69S] 69T Presumption of paternity arising from acknowledgments …. [s 69T] 69U Rebuttal of presumptions etc …. [s 69U] Subdivision E — Parentage evidence 69V Evidence of parentage …. [s 69V] 69VA Declarations of parentage …. [s 69VA] 69W Orders for carrying out of parentage testing procedures …. [s 69W] 69X Orders associated with parentage testing orders …. [s 69X] 69XA Matters related particularly to parentage testing for purposes of an international agreement or arrangement …. [s 69XA] 69Y Orders directed to persons 18 or over …. [s 69Y] 69Z Orders directed to children under 18 …. [s 69Z] 69ZA No liability if parent etc consents …. [s 69ZA] 69ZB Regulations about carrying out, and reporting on, parentage testing procedures …. [s 69ZB] 69ZC Reports of information obtained may be received in evidence …. [s 69ZC] 69ZD Parentage testing for purposes of international maintenance agreements …. [s 69ZD] Subdivision F — Extension, application and additional operation of Part

69ZE

Extension of Part to the States ….

[s 69ZE]

[page 16] Section

69ZF

69ZG 69ZH 69ZJ 69ZK

Title

Unless declaration in force, Part’s extension to a State has effect subject to modifications …. Application of Part in, and in relation to, Territories …. Additional application of Part …. Additional jurisdiction of courts …. Child welfare laws not affected ….

Paragraph

[s 69ZF] [s 69ZG] [s 69ZH] [s 69ZJ] [s 69ZK]

DIVISION 12A — PRINCIPLES FOR CONDUCTING CHILDRELATED PROCEEDINGS Subdivision A — Proceedings to which this Division applies 69ZM Proceedings to which this Division applies …. [s 69ZM] Subdivision B — Principles for conducting child-related proceedings 69ZN Principles for conducting child-related proceedings …. [s 69ZN] 69ZO This Division also applies to proceedings in Chambers …. [s 69ZO] 69ZP Powers under this Division may be exercised on court’s own initiative …. [s 69ZP] Subdivision C — Duties and powers related to giving effect to the principles 69ZQ General duties …. [s 69ZQ] 69ZR Power to make determinations, findings and orders at any stage of proceedings …. [s 69ZR] 69ZS Use of family consultants …. [s 69ZS] Subdivision D — Matters relating to evidence 69ZT Rules of evidence not to apply unless court decides …. [s 69ZT]

69ZU 69ZV 69ZW 69ZX

Evidence of family consultants [Repealed] …. Evidence of children …. Evidence relating to child abuse or family violence …. Court’s general duties and powers relating to evidence ….

[s 69ZU] [s 69ZV] [s 69ZW] [s 69ZX]

DIVISION 13 — STATE, TERRITORY AND OVERSEAS ORDERS Subdivision A — What this Division does 70A What this Division does …. [s 70A] Subdivision B — Registration of State and Territory orders 70B Interpretation [Repealed] …. [s 70B] 70C General registration of orders made under law of prescribed State …. [s 70C] 70D Registration of orders in a particular State …. [s 70D] 70E Effect of registration …. [s 70E] Subdivision C — Registration of overseas orders 70F Interpretation [Repealed] …. [s 70F] 70G Registration of orders …. [s 70G] 70H Effect of registration — general …. [s 70H]

[page 17] Section

70J

Title

Paragraph

Effect of registration on exercise of jurisdiction …. [s 70J] 70K Cancellation of registration if Subdivision C parenting order made …. [s 70K] 70L Relationship between Australian orders and registered overseas child orders …. [s 70L] Subdivision D — Transmission of Australian orders to overseas jurisdictions

70M 70N

Registrar to send documents etc to overseas jurisdiction …. Regulations may deal with sending Australian orders etc to overseas jurisdiction ….

[s 70M]

[s 70N]

DIVISION 13A — CONSEQUENCES OF FAILURE TO COMPLY WITH ORDERS, AND OTHER OBLIGATIONS, THAT AFFECT CHILDREN Subdivision A — Preliminary 70NAA Simplified outline of Division …. [s 70NAA] 70NAB Application of Division …. [s 70NAB] 70NAC Meaning of contravened an order …. [s 70NAC] 70NAD Requirements taken to be included in certain orders …. [s 70NAD] 70NAE Meaning of reasonable excuse for contravening an order …. [s 70NAE] 70NAF Standard of proof …. [s 70NAF] Subdivision B — Court’s power to vary parenting order 70NBA Variation of parenting order …. [s 70NBA] 70NBB Effect of parenting plan …. [s 70NBB] Subdivision C — Contravention alleged but not established 70NCA Application of Subdivision …. [s 70NCA] 70NCB Costs …. [s 70NCB] Subdivision D — Contravention established but reasonable excuse for contravention 70NDA Application of Subdivision …. [s 70NDA] 70NDB Order compensating person for time lost …. [s 70NDB] 70NDC Costs …. [s 70NDC] Subdivision E — Contravention without reasonable excuse (less serious contravention) 70NEA Application of Subdivision …. [s 70NEA] 70NEB Powers of court …. [s 70NEB] 70NEC Bonds …. [s 70NEC] 70NECA Procedure for enforcing bonds …. [s 70NECA] 70NED Duties of provider of post-separation

70NEF 70NEG

parenting program …. Evidence …. Court may make further orders in relation to attendance at program ….

[s 70NED] [s 70NEF] [s 70NEG]

[page 18] Section

Title

Paragraph

Subdivision F — Contravention without reasonable excuse (more serious contravention) 70NFA Application of Subdivision …. [s 70NFA] 70NFB Powers of court …. [s 70NFB] 70NFC When court is empowered to make a community service order …. [s 70NFC] 70NFD Variation and discharge of community service orders …. [s 70NFD] 70NFE Bonds …. [s 70NFE] 70NFF Procedure for enforcing community service orders or bonds …. [s 70NFF] 70NFG Sentences of imprisonment …. [s 70NFG] 70NFH Relationship between Subdivision and other laws …. [s 70NFH] 70NFI Arrangements with States and Territories for carrying out of sentences and orders …. [s 70NFI] 70NFJ Subdivision does not limit operation of section 105 …. [s 70NFJ]

70P 70Q

71

DIVISION 14 — MISCELLANEOUS What this Division does …. Certain instruments not liable to duty ….

[s 70P] [s 70Q]

PART VIII — PROPERTY, SPOUSAL MAINTENANCE AND MAINTENANCE AGREEMENTS* Interpretation …. [s 71]

71A

72 73 74 75 76 77 77A 78 79 79A 79B 79C

79D 79E 79F

This Part does not apply to certain matters covered by binding financial agreements …. Right of spouse to maintenance …. Maintenance of children [Repealed] …. Power of court in spousal maintenance proceedings …. Matters to be taken into consideration in relation to spousal maintenance …. Maintenance of children [Repealed] …. Urgent spousal maintenance cases …. Specification in orders of payments etc for spouse maintenance purposes …. Declaration of interests in property …. Alteration of property interests …. Setting aside of orders altering property interests …. Notification of proceeds of crime orders etc …. Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc …. Lifting a stay …. Intervention by proceeds of crime authority …. Notifying third parties about application ….

[s 71A] [s 72] [s 73] [s 74] [s 75] [s 76] [s 77] [s 77A] [s 78] [s 79] [s 79A] [s 79B]

[s 79C] [s 79D] [s 79E] [s 79F]

[page 19] Section

79G

79H

Title

Notifying bankruptcy trustee etc about application under section 74, 78, 79 or 79A …. Notifying court about bankruptcy etc ….

Paragraph

[s 79G] [s 79H]

79J

80 81 82 83 84 85 85A 86A 86 87

87A

88 89 89A 90

Notifying non-bankrupt spouse about application under section 139A of the Bankruptcy Act 1966 …. General powers of court …. Duty of court to end financial relations …. Cessation of spousal maintenance orders …. Modification of spousal maintenance orders ….

[s 79J] [s 80] [s 81] [s 82] [s 83] [s 84]

Transactions to defeat claims [Repealed] …. Ante-nuptial and post-nuptial settlements …. Certain maintenance agreements ineffective …. Registered maintenance agreements …. Operation of maintenance agreements entered into in substitution for rights under Act …. Specification in maintenance agreements of payments etc for maintenance purposes …. Enforcement of maintenance agreements …. Overseas maintenance agreements …. Institution of spousal maintenance proceedings by authority or person …. Certain instruments not liable to duty ….

[s 85] [s 85A] [s 86A] [s 86]

[s 87]

[s 87A] [s 88] [s 89] [s 89A] [s 90]

PART VIIIAA — ORDERS AND INJUNCTIONS BINDING THIRD PARTIES

90AA 90AB 90AC

DIVISION 1 — PRELIMINARY Subdivision A — Scope of this Part Object of this Part …. Definitions …. This Part overrides other laws, trust deeds etc ….

[s 90AA] [s 90AB] [s 90AC]

90ACA 90AD 90ADA

90AE

This Part not to apply to certain annuities …. Extended meaning of matrimonial cause and property …. Other provisions of this Act not affected by this Part …. DIVISION 2 — ORDERS UNDER SECTION 79 Court may make an order under section 79 binding a third party ….

[s 90ACA] [s 90AD] [s 90ADA]

[s 90AE]

DIVISION 3 — ORDERS OR INJUNCTIONS UNDER SECTION 114 90AF Court may make an order or injunction under section 114 binding a third party …. [s 90AF]

[page 20] Section

90AG 90AH 90AI 90AJ 90AK

90A 90B 90C 90D 90DA

Title

DIVISION 4 — OTHER MATTERS Orders and injunctions binding on trustees …. Protection for a third party …. Service of documents on a third party …. Expenses of third party …. Acquisition of property …. PART VIIIA — FINANCIAL AGREEMENTS Definitions …. Financial agreements before marriage …. Financial agreements during marriage …. Financial agreements after divorce order is made …. Need for separation declaration for certain provisions of financial agreement to take

Paragraph

[s 90AG] [s 90AH] [s 90AI] [s 90AJ] [s 90AK]

[s 90A] [s 90B] [s 90C] [s 90D]

90DB 90E

90F 90G 90H 90J 90K

90KA

90L 90M 90N

90P 90Q

effect …. Whether or when certain other provisions of financial agreements take effect …. Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children …. Certain provisions in agreements …. When financial agreements are binding …. Effect of death of party to financial agreement …. Termination of financial agreement …. Circumstances in which court may set aside a financial agreement or termination agreement …. Validity, enforceability and effect of financial agreements and termination agreements …. Financial and other agreements etc not liable to duty …. Notification of proceeds of crime orders etc …. Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc …. Lifting a stay …. Intervention by proceeds of crime authority ….

[s 90DA] [s 90DB]

[s 90E] [s 90F] [s 90G] [s 90H] [s 90J]

[s 90K]

[s 90KA] [s 90L] [s 90M]

[s 90N] [s 90P] [s 90Q]

PART VIIIAB — FINANCIAL MATTERS RELATING TO DE FACTO RELATIONSHIPS

90RA 90RB

DIVISION 1 — PRELIMINARY Subdivision A — Meaning of key terms Participating jurisdictions …. Meaning of child of a de facto relationship

[s 90RA]

90RC

…. [s 90RB] Subdivision B — Relationship with State and Territory laws Relationship with State and Territory laws …. [s 90RC]

[page 21] Section

Title

Paragraph

Subdivision C — Declarations about existence of de facto relationships 90RD Declarations about existence of de facto relationships …. [s 90RD] 90RE Effect of declarations …. [s 90RE] 90RF Applying for declarations …. [s 90RF] 90RG Geographical requirement …. [s 90RG] 90RH Setting aside declarations …. [s 90RH] DIVISION 2 — MAINTENANCE, DECLARATIONS OF PROPERTY INTERESTS AND ALTERATIONS OF PROPERTY INTERESTS Subdivision A — Application of Division 90SA This Division does not apply to certain matters covered by binding financial agreements …. [s 90SA] 90SB When this Division applies — length of relationship etc …. [s 90SB] 90SC This Division ceases to apply in relation to a de facto relationship if the parties marry each other …. [s 90SC] Subdivision B — Maintenance 90SD Geographical requirement …. [s 90SD] 90SE Power of court in maintenance proceedings …. [s 90SE] 90SF Matters to be taken into consideration in relation to maintenance …. [s 90SF] 90SG Urgent maintenance cases …. [s 90SG]

90SH

Specification in orders of payments etc. for maintenance purposes …. [s 90SH] 90SI Modification of maintenance orders …. [s 90SI] 90SJ Cessation of maintenance orders …. [s 90SJ] Subdivision C — Declarations and alterations of property interests 90SK Geographical requirement …. [s 90SK] 90SL Declaration of interests in property …. [s 90SL] 90SM Alteration of property interests …. [s 90SM] 90SN Varying and setting aside orders altering property interests …. [s 90SN] Subdivision D — Notification of application 90SO Notifying third parties about application …. [s 90SO] 90SP Notifying bankruptcy trustee etc. about application under section 90SE, 90SL, 90SM or 90SN …. [s 90SP] 90SQ Notifying court about bankruptcy etc …. [s 90SQ] 90SR Notifying non-bankrupt de facto party about application under section 139A of the Bankruptcy Act 1966 …. [s 90SR] Subdivision E — Court powers 90SS General powers of court …. [s 90SS] 90ST Duty of court to end financial relations …. [s 90ST]

[page 22] Section

Title

Paragraph

DIVISION 3 — ORDERS AND INJUNCTIONS BINDING THIRD PARTIES 90TA Orders and injunctions binding third parties …. [s 90TA]

90UA

DIVISION 4 — FINANCIAL AGREEMENTS Geographical requirement for agreements

90UB 90UC 90UD 90UE

90UF

90UG 90UH

90UI 90UJ 90UK 90UL 90UM

90UN

made in participating jurisdictions …. Financial agreements before de facto relationship …. Financial agreements during de facto relationship …. Financial agreements after breakdown of a de facto relationship …. Agreements made in non-referring States that become Part VIIIAB financial agreements …. Need for separation declaration for certain provisions of financial agreement to take effect …. Whether or when certain other provisions of financial agreements take effect …. Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children …. Certain provisions in financial agreements …. When financial agreements are binding …. Effect of death of party to financial agreement …. Termination of financial agreement …. Circumstances in which court may set aside a financial agreement or termination agreement …. Validity, enforceability and effect of financial agreements and termination agreements ….

[s 90UA] [s 90UB] [s 90UC] [s 90UD]

[s 90UE]

[s 90UF] [s 90UG]

[s 90UH] [s 90UI] [s 90UJ] [s 90UK] [s 90UL]

[s 90UM]

[s 90UN]

DIVISION 5 — PROCEEDS OF CRIME AND FORFEITURE 90VA Notification of proceeds of crime orders etc …. [s 90VA] 90VB Court to stay property or maintenance

proceedings affected by proceeds of crime orders etc …. 90VC 90VD

Lifting a stay …. Intervention by proceeds of crime authority ….

[s 90VB] [s 90VC] [s 90VD]

DIVISION 6 — INSTRUMENTS NOT LIABLE TO DUTY 90WA Certain instruments not liable to duty …. [s 90WA] PART VIIIB — SUPERANNUATION INTERESTS

90MA 90MB

DIVISION 1 — PRELIMINARY Subdivision A — Scope of this Part Object of this Part …. This Part overrides other laws, trust deeds etc ….

[s 90MA] [s 90MB]

[page 23] Section

90MC

90MD 90MDA 90ME 90MF 90MG

Title

Extended meanings of matrimonial cause and de facto financial cause …. Subdivision B — Interpretation Definitions …. Extended meaning of trustee …. Splittable payments …. Reversionary interests …. Meaning of in force ….

Paragraph

[s 90MC] [s 90MD] [s 90MDA] [s 90ME] [s 90MF] [s 90MG]

DIVISION 2 — PAYMENT SPLITTING OR FLAGGING BY AGREEMENT Subdivision A — Superannuation agreements 90MH Superannuation agreement to be included in financial agreement if about a marriage

90MHA

90MI 90MJ

90MK 90ML 90MLA 90MM 90MN 90MO 90MP 90MQ 90MR

…. Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship …. Subdivision B — Payment splitting Operative time for payment split …. Payment split under superannuation agreement or flag lifting agreement …. Subdivision C — Payment flagging Operative time for payment flag …. Payment flag …. Some splittable payments payable if payment flag operating …. Payment flag may be terminated by court …. Flag lifting agreement etc …. Subdivision D — Miscellaneous Limitation on section 79 or 90SM order …. Separation declaration …. Superannuation interests in excess of low rate cap amount …. Enforcement by court order ….

[s 90MH]

[s 90MHA] [s 90MI] [s 90MJ] [s 90MK] [s 90ML] [s 90MLA] [s 90MM] [s 90MN] [s 90MO] [s 90MP] [s 90MQ] [s 90MR]

DIVISION 3 — PAYMENT SPLITTING OR FLAGGING BY COURT ORDER 90MS Order under section 79 or 90SM may include orders in relation to superannuation interests …. [s 90MS] 90MT Splitting order …. [s 90MT] 90MU Flagging order …. [s 90MU] 90MUA Some splittable payments may be made without leave of court …. [s 90MUA]

[page 24] Section

Title

Paragraph

DIVISION 4 — GENERAL PROVISIONS ABOUT PAYMENT SPLITTING 90MV Court may cancel payment split …. [s 90MV] 90MW Deductions from splittable payment before calculating payment split …. [s 90MW] 90MX Multiple payment splits applying to the same splittable payment …. [s 90MX] 90MY Fees payable to trustee …. [s 90MY] 90MZ Superannuation preservation requirements …. [s 90MZ] 90MZA Waiver of rights under payment split …. [s 90MZA] 90MZB Trustee to provide information …. [s 90MZB] 90MZC Death of non-member spouse …. [s 90MZC]

90MZD 90MZE 90MZF 90MZG 90MZH

91 91A 91B 92 92A

DIVISION 5 — MISCELLANEOUS Orders binding on trustee …. Protection for trustee …. Service of documents on trustee …. False declarations …. Terminating employment because of payment flag etc …. PART IX — INTERVENTION Intervention by Attorney-General …. Delegation by Attorney-General …. Intervention by child welfare officer …. Intervention by other persons …. Intervention in child abuse cases ….

[s 90MZD] [s 90MZE] [s 90MZF] [s 90MZG] [s 90MZH]

[s 91] [s 91A] [s 91B] [s 92] [s 92A]

93 93A 94

94AAA

94AAB 94AA 94AB 94A 95 96 96AA 96A

PART X — APPEALS No appeal after divorce order takes effect …. Appellate jurisdiction of Family Court …. Appeals to Family Court from courts other than Federal Circuit Court and Magistrates Court of Western Australia …. Appeals to Family Court from Federal Circuit Court and Magistrates Court of Western Australia …. Appeals, and applications for leave, without oral hearing …. Leave to appeal needed in some cases …. Appeals relating to court security orders …. Case stated …. Appeals to High Court …. Appeals from courts of summary jurisdiction …. Appeal may be dismissed if no reasonable prospect of success …. Part does not apply to section 111C jurisdiction ….

[s 93] [s 93A]

[s 94]

[s 94AAA] [s 94AAB] [s 94AA] [s 94AB] [s 94A] [s 95] [s 96] [s 96AA] [s 96A]

[page 25] Section

Title

Paragraph

PART XI — PROCEDURE AND EVIDENCE DIVISION 1 — GENERAL MATTERS CONCERNING PROCEDURE AND EVIDENCE 97 Procedure …. [s 97] 98 Evidence by affidavit …. [s 98] 98AA Oaths and affirmations …. [s 98AA] 98AB Swearing of affidavits etc …. [s 98AB]

98A 99 99A 100 100A 100B 100C 101 102 102A 102B

Proceedings in absence of parties …. Evidence as to paternity [Repealed] …. Paternity tests [Repealed] …. Evidence of husbands and wives …. Evidence of children [Repealed] …. Children swearing affidavits, being called as witnesses or being present in court …. Evidence in respect of which a child is a protected confider [Repealed] …. Protection of witnesses …. Proof of birth, parentage, death or marriage …. Restrictions on examination of children …. Assessors ….

[s 98A] [s 99] [s 99A] [s 100] [s 100A] [s 100B] [s 100C] [s 101] [s 102] [s 102A] [s 102B]

DIVISION 2 — USE OF VIDEO LINK, AUDIO LINK OR OTHER APPROPRIATE MEANS TO GIVE TESTIMONY, MAKE APPEARANCES AND GIVE SUBMISSIONS ETC 102C Testimony …. [s 102C] 102D Appearance of persons …. [s 102D] 102E Making of submissions …. [s 102E] 102F Conditions for use of links …. [s 102F] 102G Putting documents to a person …. [s 102G] 102H Putting documents to a split court …. [s 102H] 102J Administration of oaths and affirmations …. [s 102J] 102K Expenses …. [s 102K] 102L New Zealand proceedings …. [s 102L]

102M 102N

DIVISION 3 — SPLIT COURT Determination that there is to be a split court …. Conditions for split court ….

[s 102M] [s 102N]

PART XIA — SUPPRESSION AND NON-PUBLICATION ORDERS DIVISION 1 — PRELIMINARY

102P 102PA 102PB 102PC

Definitions …. Powers of a court not affected …. Other laws not affected …. Relationship with section 121 ….

[s 102P] [s 102PA] [s 102PB] [s 102PC]

[page 26] Section

Title

Paragraph

DIVISION 2 — SUPPRESSION AND NON-PUBLICATION ORDERS 102PD Safeguarding public interest in open justice …. [s 102PD] 102PE Power to make orders …. [s 102PE] 102PF Grounds for making an order …. [s 102PF] 102PG Procedure for making an order …. [s 102PG] 102PH Interim orders …. [s 102PH] 102PI Duration of orders …. [s 102PI] 102PJ Exception for court officials …. [s 102PJ] 102PK Contravention of order …. [s 102PK] PART XIB — VEXATIOUS PROCEEDINGS

102Q 102QA

DIVISION 1 — PRELIMINARY Definitions …. Powers of a court not affected ….

[s 102Q] [s 102QA]

DIVISION 2 — VEXATIOUS PROCEEDINGS ORDERS 102QB Making vexatious proceedings orders …. [s 102QB] 102QC Notification of vexatious proceedings orders …. [s 102QC] DIVISION 3 — PARTICULAR CONSEQUENCES OF VEXATIOUS PROCEEDINGS ORDERS 102QD Proceedings in contravention of vexatious

102QF 102QG

proceedings order …. Application for leave to institute proceedings …. Dismissing application for leave …. Granting application for leave ….

103 104 104A

PART XII — RECOGNITION OF DECREES Decrees under this Act …. Overseas decrees …. Recognition in external Territories ….

102QE

105 106 106A 106B 107 108 109 109A

PART XIII — ENFORCEMENT OF DECREES Enforcement generally …. Maintenance orders — more than 12 months in arrears …. Execution of instruments by order of court …. Transactions to defeat claims …. People not to be imprisoned for failure to comply with certain orders …. Contempt [Repealed] …. Inter-state enforcement of child bearing expenses order …. Rules of Court relating to enforcement ….

[s 102QD] [s 102QE] [s 102QF] [s 102QG]

[s 103] [s 104] [s 104A]

[s 105] [s 106] [s 106A] [s 106B] [s 107] [s 108] [s 109] [s 109A]

[page 27] Section

109B

Title

Rules of Court relating to enforcement — Federal Circuit Court ….

Paragraph

[s 109B]

PART XIIIAA — INTERNATIONAL CONVENTIONS, INTERNATIONAL AGREEMENTS AND INTERNATIONAL ENFORCEMENT

DIVISION 1 — INTERNATIONAL MAINTENANCE ORDERS AND AGREEMENTS ETC 110 Overseas enforcement of maintenance orders etc …. [s 110] 110A Registration and enforcement in Australia of overseas maintenance agreements etc …. [s 110A] 110B Transmission of agreements etc to overseas jurisdictions …. [s 110B] 111 Convention on Recovery Abroad of Maintenance …. [s 111] 111A Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations …. [s 111A] 111AA Maintenance obligations with New Zealand …. [s S111AA] 111AB Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations …. [s 111AB]

111B

DIVISION 2 — INTERNATIONAL CHILD ABDUCTION Convention on the Civil Aspects of International Child Abduction …. [s 111B]

DIVISION 3 — INTERNATIONAL AGREEMENTS ABOUT ADOPTION ETC 111C International agreements about adoption etc …. [s 111C] DIVISION 4 — INTERNATIONAL PROTECTION OF CHILDREN Subdivision A — Preliminary 111CA Definitions …. [s 111CA] 111CB Relationship between this Division and other provisions …. [s 111CB] Subdivision B — Jurisdiction for the person of a child

111CC 111CD

Application of this Subdivision …. [s 111CC] Jurisdiction relating to the person of a child …. [s 111CD] 111CE Limitation when a child is wrongfully removed from or retained outside a Convention country …. [s 111CE] 111CF Limitations when prior proceedings pending in a Convention country …. [s 111CF] 111CG If a court is asked to assume jurisdiction …. [s 111CG] 111CH Limitation if a competent authority of a Convention country is asked to assume jurisdiction …. [s 111CH] 111CI When a certain Commonwealth personal protection measure lapses …. [s 111CI] Subdivision C — Jurisdiction for decisions about a guardian of a child’s property 111CJ Application of this Subdivision …. [s 111CJ]

[page 28] Section

111CK

111CL

111CM 111CN 111CO

111CP

Title

Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property …. Limitation when a child is wrongfully removed from or retained outside a Convention country …. Limitations when prior proceedings pending in a Convention country …. If a court is asked to assume jurisdiction …. Limitation if a competent authority of a Convention country is asked to assume jurisdiction …. When a certain Commonwealth property

Paragraph

[s 111CK]

[s 111CL] [s 111CM] [s 111CN]

[s 111CO]

111CQ 111CR 111CS

111CT 111CU 111CV 111CW 111CX 111CY

111CZ

111D 112

protection measure lapses …. [s 111CP] Subdivision D — Applicable law Meaning of law …. [s 111CQ] Applicable law generally …. [s 111CR] Applicable law concerning parental responsibility …. [s 111CS] Subdivision E — Recognition of foreign measures Effect of registered foreign measures …. [s 111CT] Subdivision F — Co-operation Obligation to obtain consent to place child …. [s 111CU] Obligation to inform competent authority about serious danger to a child …. [s 111CV] Court proceedings dealing with whom a child spends time with …. [s 111CW] Jurisdiction for a location order or a Commonwealth information order …. [s 111CX] Giving information to central authorities and competent authorities in Convention countries …. [s 111CY] Subdivision G — Regulations Regulations to implement the Convention …. [s 111CZ] DIVISION 5 — OTHER MATTERS Regulations may provide for rules of evidence …. Arrangements with States and Northern Territory [Repealed] ….

[s 111D] [s 112]

PART XIIIA — SANCTIONS FOR FAILURE TO COMPLY WITH ORDERS, AND OTHER OBLIGATIONS, THAT DO NOT AFFECT CHILDREN

112AA

DIVISION 1 — INTERPRETATION Interpretation ….

[s 112AA]

112AB

Meaning of contravene an order ….

[s 112AB]

112AC

Meaning of reasonable excuse for contravening an order ….

[s 112AC]

[page 29] Section

Title

Paragraph

DIVISION 2 — SANCTIONS FOR FAILURE TO COMPLY WITH ORDERS 112AD Sanctions for failure to comply with orders …. [s 112AD] 112AE Sentences of imprisonment …. [s 112AE] 112AF Bonds …. [s 112AF] 112AG Additional sentencing alternatives …. [s 112AG] 112AH Failure to comply with sentence passed, or order made, pursuant to paragraph 112AD(2)(b) …. [s 112AH] 112AJ Compensatory access orders [Repealed] …. [s 112AJ] 112AK Variation and discharge of orders …. [s 112AK] 112AL Welfare of child the paramount consideration [Repealed] …. [s 112AL] 112AM Relationship between Division and other laws …. [s 112AM] 112AN Arrangements with States and Territories for carrying out of sentences and orders …. [s 112AN] 112AO Division does not limit operation of section 105 …. [s 112AO]

112AP

112A

PART XIIIB — CONTEMPT OF COURT Contempt ….

[s 112AP]

PART XIV — DECLARATIONS AND INJUNCTIONS Interpretation …. [s 112A]

113 114 114AA 114AB

Proceedings for declarations …. Injunctions …. Powers of arrest …. Operation of State and Territory laws ….

[s 113] [s 114] [s 114AA] [s 114AB]

PART XIVA — THE AUSTRALIAN INSTITUTE OF FAMILY STUDIES 114A Interpretation …. [s 114A] 114B Establishment of Institute …. [s 114B] 114BA Institute to be a body corporate [Repealed] …. [s 114BA] 114BB Powers of Institute [Repealed] …. [s 114BB] 114C Minister may give directions to Director …. [s 114C] 114D Appointment of Director …. [s 114D] 114E Term of appointment …. [s 114E] 114F Acting appointments …. [s 114F] 114G Director’s remuneration …. [s 114G] 114H Outside employment …. [s 114H] 114J Leave of absence …. [s 114J] 114K Disclosure of interests [Repealed] …. [s 114K] 114L Other terms and conditions …. [s 114L] 114LA Resignation …. [s 114LA] 114LB Termination of appointment …. [s 114LB] 114LC Annual reports [Repealed] …. [s 114LC] 114LD Delegation …. [s 114LD]

[page 30] Section

114M 114MA 114MB 114MC

Title

Staff …. Money payable to Institute [Repealed] …. Estimates [Repealed] …. Contracts [Repealed] ….

Paragraph

[s 114M] [s 114MA] [s 114MB] [s 114MC]

114MD 114ME 114MF

Application of money [Repealed] …. Investment of money [Repealed] …. Exemption from taxation [Repealed] ….

[s 114MD] [s 114ME] [s 114MF]

PART XIVB — ORDERS OF NON-JUDICIAL OFFICERS OF STATE COURTS OF SUMMARY JURISDICTION [Repealed]

115 116 116A 116B 116C 117 117AA

117AB 117AC 117A 117B 117C 118 119 120 121 122 122AA

PART XV — MISCELLANEOUS Family Law Council …. Institute of Family Studies [Repealed] …. Financial assistance subject to conditions [Repealed] …. Payments subject to conditions [Repealed] …. Payments to legal practitioners by legal aid bodies …. Costs …. Costs in proceedings relating to overseas enforcement and international Conventions …. Costs where false allegation or statement made [Repealed] …. Security for costs …. Reparation for certain losses and expenses relating to children …. Interest on moneys ordered to be paid …. Offers of settlement …. Frivolous or vexatious proceedings …. Married persons may sue each other …. Criminal conversation, adultery and enticement …. Restriction on publication of court proceedings …. Rights of legal practitioners …. Use of reasonable force in arresting persons ….

[s 115] [s 116] [s 116A] [s 116B] [s 116C] [s 117]

[s 117AA] [s 117AB] [s 117AC] [s 117A] [s 117B] [s 117C] [s 118] [s 119] [s 120] [s 121] [s 122] [s 122AA]

122A 122B 123 124 124A 125

Powers of entry and search for purposes of arresting persons ….

[s 122A] [s 122B] [s 123] [s 124]

Arrangements with States and Territories …. Rules of Court …. Rules Advisory Committee …. Regulations in relation to overseas-related maintenance obligations etc …. Regulations ….

[s 124A] [s 125]

[page 31] Title

SCHEDULE 1 — CHILD PROTECTION CONVENTION ….

Paragraph

[Sch 1]

[page 33]

Family Law Act 1975 TABLE OF AMENDMENTS The Family Law Act No 53 of 1975 was assented to on 12 June 1975 and commenced on 5 January 1976 (Gaz G35, p 27). Since that date the Act has been amended by: Amending Legislation Family Law Act 1976 No 63

Date of Assent 8 June 1976

Family Law Amendment Act (No 2) 1976 No 95 Marriage Amendment Act 1976 No 209

28 September 1976

Family Law Amendment Act 1977 No 102 Family Law Amendment Act 1979 No 23

11 October 1977

20 December 1976

5 April 1979

Domicile (Consequential Amendments) 4 March 1982 Act 1982 No 2 Family Law Amendment (Legal Aid 20 October 1983 Costs) Act 1983 No 67 Family Law Amendment Act 1983 No 28 October 1983 72

Public Service Reform Act 1984 No 63 25 June 1984 Statute Law (Miscellaneous Provisions) 25 June 1984 Act (No 1) 1984 No 72

Date of Commencement ss 1, 2, 17, 18, 39: on assent; ss 29, 30: 5 January 1976; remainder: 1 July 1976 28 September 1976 ss 1, 2, 30: on assent; ss 14, 31: 1 July 1976; remainder: 20 June 1977 (Gaz S93 of 1977, p 1) 11 October 1977 ss 4, 10, 11, 12(a), 17, 23: 1 August 1979 (Gaz S 154 of 1979, p 1); remainder: on assent 1 July 1982 (Gaz G26 of 1982, p 2) 20 October 1983 ss 1, 2: on assent; ss 3–72: 25 November 1983; ss 73– 76: 2 January 1985 (Gaz S532 of 1984, p 1) s 152(1): 20 July 1984 (Gaz S276 of 1984, p 1) Amendments to: (i) s 4(1), 37A(1)(n), 44(1B), 60,

64(9), (10), 69(1), (2), 87(10), 89, 104(2), (3), (6), (7), (8), (9), 110(1), (2), (3), 114(6): 2 January 1985 (Gaz S532 of 1984, p 1); (ii) ss 44, 87: 25 November 1983

[page 34] Amending Legislation Statute Law (Miscellaneous Provisions) Act (No 2) 1984 No 165 Statute Law (Miscellaneous Provisions) Act (No 1) 1985 No 65 Public Service and Statutory Authorities Amendment Act 1985 No 166 Statute Law (Miscellaneous Provisions) Act (No 2) 1985 No 193 Statute Law (Miscellaneous Provisions) Act (No 1) 1986 No 76 Statute Law (Miscellaneous Provisions) Act (No 2) 1986 No 168 Statute Law (Miscellaneous Provisions) Act 1987 No 141 Family Law Amendment Act 1987 No 181 Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 No 8 Statutory Instruments (Tabling and Disallowance) Legislation Amendment Act 1988 No 99 Law and Justice Legislation Amendment Act 1988 No 120 Child Support (Assessment) Act 1989 No 124 Courts and Tribunals Administration Amendment Act 1989 No 157 Family Law Amendment Act 1989 No 182 Law and Justice Legislation Amendment Act 1990 No 115

Date of Assent 25 October 1984 5 June 1985

Date of Commencement 2 January 1985 (Gaz S532 of 1984, p 1) 3 July 1985 (s 3)

11 December 1985

s 45 and Sch: 8 January 1986 (s 2(7))

16 December 1985 24 June 1986

ss 3, 10(1)-(4) and Sch 1: on assent (s 2(1)) 24 June 1986

18 December 1986

18 December 1986

18 December 1987

18 December 1987

26 December 1987

1 April 1988

5 April 1988

2 December 1988

ss 1–21, 27, 29, 30: on assent; remainder: 1 July 1988 (Gaz S191 of 1988) 2 December 1988

14 December 1988

14 December 1988

21 September 1989

1 October 1989

5 December 1989

1 January 1990

28 December 1989

25 January 1990

21 December 1990

21 December 1990

Child Support Legislation Amendment Act 1990 No 138 Family Law Amendment Act 1991 No 37 Law and Justice Legislation Amendment Act 1991 No 136 Family Law Amendment Act (No 2) 1991 No 159 Courts (Mediation and Arbitration) Act 1991 No 113 Industrial Relations Legislation Amendment Act 1991 No 122

28 December 1990

28 December 1990

27 March 1991

24 April 1991

12 September 1991

10 October 1991

25 October 1991

25 October 1991

27 June 1991

28 December 1991

27 June 1991

10 December 1991

[page 35] Amending Legislation Prime Minister and Cabinet Legislation Amendment Act 1991 No 199 Law and Justice Legislation Amendment Act 1992 No 22 Law and Justice Legislation Amendment Act (No 2) 1992 No 23 Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 1992 No 94 Territories Law Reform Act 1992 No 104 Law and Justice Legislation Amendment Act (No 4) 1992 No 143

Date of Assent 18 December 1991

Date of Commencement 18 December 1991

13 April 1992

13 April 1992

6 May 1992

6 May 1992

30 June 1992

1 July 1992

30 June 1992

1 July 1992

7 December 1992

Insertion of s 37C: 7 December 1992; remainder: 1 November 1991 24 December 1992

Social Security Legislation 24 December 1992 Amendment Act (No 2) 1992 No 229 Law and Justice Legislation 23 June 1994 Amendment Act 1994 No 84 Family Law Reform Act 1995 No 167* 16 December 1995

Statute Law Revision Act 1996 No 43

25 October 1996

Family Law Amendment Act 1997 No 25

10 April 1997

Amendment of s 22: 1 November 1991 ss 1, 2, 54: on assent; s 52: 25 January 1996; remainder: 11 June 1996 ss 1, 2, 3 and Sch 4: on assent 10 April 1997

Law and Justice Legislation Amendment Act 1997 No 34 Child Support Legislation Amendment Act (No 1) 1997 No 84 Audit (Transitional and Miscellaneous) Amendment Act 1997 No 152 Family Law Amendment Act (No 1) 1998 No 89 Statute Stocktake Act 1999 No 118 Public Employment (Consequential and Transitional) Amendment Act 1999 No 146 Corporate Law Economic Reform Program Act 1999 No 156 Federal Magistrates (Consequential Amendments) Act 1999 No 194 Child Support Legislation Amendment Act 2000 No 49

17 April 1997

ss 1–3 and Sch 7: on assent

23 June 1997

22 July 1997

24 October 1997

1 January 1998

14 July 1998

14 July 1998

22 September 1999 11 November 1999

22 September 1999 5 December 1999

24 November 1999 23 December 1999

13 March 2000 (Gaz S114 of 10 March 2000) 23 December 1999

3 May 2000

On assent

[page 36] Amending Legislation Family Law Amendment Act 2000 No 143

Date of Assent 29 November 2000

Jurisdiction of Courts (Miscellaneous Amendments) Act No 161 Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 No 24 Family Law Legislation Amendment (Superannuation) Act 2001 No 61 Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2001 No 114

21 December 2000

Date of Commencement Schedule 3 items 31A and 117: on assent; Sch 3 item 41: 1 July 1988 (immediately after commencement of s 26 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988; remainder: 27 December 2000. (For saving and transitional provisions see [s 1.0.5] ff). On assent

6 April 2001

ss 1–4 and Sch 27: 24 May 2001

28 June 2001

28 December 2002 (s 2(2))

18 September 2001

28 December 2002

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 No 159 Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 No 86 Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2002 No 121 Family Law Amendment (Child Protection Convention) Act 2002 No 69 Family Law Amendment Act 2003 No 138

1 October 2001

29 October 2001

11 October 2002

s 3 and Sch 5: 1 January 2003 (Gaz GN44 of 6 November 2002, p 2948) 28 December 2002

2 December 2002

3 September 2002

ss 1–3: 3 September 2002; remainder: 1 August 2003

17 December 2003

ss 1–3, Sch 4A: on assent; Schs 1, 2, 3, Sch 4 items 1, 3, 6–8, 14–19, 23, 24, Sch 5 items 2, 3, Sch 7 items 1–19, 21–24, 27–29A, 32– 35: 14 January 2004; Sch 4 items 2, 4, 5, 9–13, 20– 22, 25–27, Sch 5 items 1A, 1, 4, Sch 7 items 20, 25, 26, 30, 31: 27 December 2000; Sch 6: 17 December 2004. (For saving and transitional provisions see [s 1.0.20]).

[page 37] Amending Legislation Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 No 140 Family Law Amendment (Annuities) Act 2004 No 153

Date of Assent 17 December 2003

Date of Commencement Sch 1[19]–[22]: 1 January 2005

15 December 2004

Bankruptcy and Family Law Legislation Amendment Act 2005 No 20

18 March 2005

ss 1–4: on assent; Sch 1: 17 December 2004; Sch 2: 15 June 2005 (Gaz GN51 of of 22 December 2004, p 4334). (For saving and transitional provisions see [s 1.0.25]). ss 1–3: on assent; Sch 5: 15 April 2005; Sch 1: 18 September 2005 (s 2(1)). (For saving and transitional provisions see

Family Law Amendment Act 2005 No 98

6 July 2005

Jurisdiction of Courts (Family Law) Act 2006 No 22

6 April 2006

Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 No 23 Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46

6 April 2006

Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and Other Measures) Act 2006 No 82 Child Support Legislation Amendment (Reform of the Child Support Scheme — New Formula and Other Measures) Act 2006 No 146

30 June 2006

Judiciary Legislation Amendment Act 2006 No 151

7 December 2006

22 May 2006

6 December 2006

[s 1.0.35]). ss 1–3: on assent; Sch 1, Pts 1–15: 3 August 2005; Sch 1, Pt 17: 18 September 2005 (s 2(1)). (For saving and transitional provisions see [s 1.0.30]). ss 1–3: on assent; Sch 1 items 1–27: 1 July 2006; Sch 1 items 28–30: 3 August 2006 (For application and transitional provisions see [s 1.0.50]). ss 1–3: on assent; Schs 1–4: 4 May 2006 ss 1–3, Sch 4 (items 1–8), Sch 10: on assent; Sch 8(1)–(2): NYP; rem: 1 July 2006. (For saving and transitional provisions see [s 1.0.40]). 1 July 2006

ss 1–6, Sch 2 item 118, Sch 5 Pt 2, Sch 8 items 6, 14, 20: on assent; Sch 3, Sch 4: 1 January 2007; remainder: 1 July 2008 7 December 2006

[page 38] Amending Legislation Statute Law Revision Act 2007 No 8

Date of Assent 15 March 2007

Superannuation Legislation Amendment (Simplification) Act 2007 No 15 Families, Community Services and

15 March 2007

21 June 2007

Date of Commencement Sch 1[11]-[12]: 1 July 2006; Sch 1[9]-[10] and Sch 3[5]: 15 March 2007 Sch 1 and Sch 3 items 4–51: 15 March 2007 Sch 2[101]-[113]: 19 July

Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 No 82 Evidence Amendment (Journalists’ Privilege) Act 2007 No 116 Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Act 2008 No. 26, 2008 Statute Law Revision Act 2008 No. 73, 2008 Same-Sex Relationships (Equal Treatment in Commonwealth Laws —General Law Reform) Act 2008 No. 144 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 No 115 Access to Justice (Civil Litigation Reforms) Amendment Act 2009 No 117 Federal Justice System Amendment (Efficiency Measures) Act 2009 No 122 Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 No 3 Statute Law Revision Act 2010 No 8 Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010 No 36 Family Law Amendment (Validation of Certain Parenting Orders and Other Measures) Act 2010 No 147 Statute Law Revision Act 2011 No 5 Evidence Amendment (Journalists’ Privilege) Act 2011 No 21 Acts Interpretation Amendment Act 2011 No 46

2007

28 June 2007 23 June 2008

ss 1–3: 28 June 2007; Sch 1: 26 July 2007 S. 3 and Sch. 1(32) to (140): 23 June 2008

3 July 2008

s 3 and Sch. 4: 4 July 08

9 December 2008

10 December 2008

21 November 2008

4 December 2009

21 November 2008; s 3 and Sch 1 items 1–4, 6–20 and 22–84A: 1 March 2009 1 January 2010

7 December 2009

4 January 2010

24 February 2010

20 February 2010

1 March 2010 13 April 2010

1 March 2010 11 October 2013

16 December 2010

17 December 2010

22 March 2011 12 April 2011

Sch 7[58]: 19 April 2011 Sch 1[4]–[5]: 13 April 2011

27 June 2011

27 December 2011

[page 39] Amending Legislation

Date of Assent

Date of Commencement

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 No 58 Crimes Legislation Amendment Act (No 2) 2011 No 174 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 No 189

28 June 2011

1 July 2011

5 December 2011

6 June 2012; s 2(1)

7 December 2011

Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 No 32 Parliamentary Counsel and Other Legislation Amendment Act 2012 No 107 Statute Law Revision Act 2012 No 136 Access to Justice (Federal Jurisdiction) Amendment Act 2012 No 186

10 April 2012

s 3 and Sch 2 items 3–29: 7 December 2011, Sch 2 item 30: 4 January 2012; Sch 1, 7 June 2012; s 2(1) Sch 2: 21 April 2012 (see F2012L00894)

Courts Legislation Amendment (Judicial Complaints) Act 2012 No 187 Public Service Amendment Act 2013 No 2 Courts and Tribunals Legislation Amendment (Administration) Act 2013 No 7 Federal Circuit Court of Australia (Consequential Amendments) Act 2013 No 13 Public Governance, Performance and Accountability (Consequential and Transitional Provisions) Act 2014 No 62 Acts and Instruments (Framework Reform) Act 2015 No 10 Norfolk Island Legislation Amendment Act 2015 No 59 Civil Law and Justice Legislation Amendment Act 2015 No 113 Passports Legislation Amendment (Integrity) Act 2015 No 122 Civil Law and Justice (Omnibus Amendments) Act 2015 No 132

11 December 2012

22 July 2012

1 October 2012

22 September 2012 11 December 2012

22 September 2012 s 3 and Sch 2 item 1; Sch 4: 12 December 2012; Sch 3 items 1–4: 11 June 2013 Sch 1 items 1–12: 12 April 2013

14 February 2013 12 March 2013

Sch 3: 1 July 2013 (see F2013L00484) Sch 2: 1 July 2013

14 March 2013

Sch 1 items 264–307; Sch 2 item 2: 12 April 2013

30 June 2014

Sch 6 items 41–42; Sch 9 items 12–20: 1 July 2014

5 March 2015

Sch 1 items 128–135: 5 March 2016 Sch 2 items 152–155: 1 July 2016 Sch 3 items 1–6; Sch 4 items 12–15: 18 August 2015 Sch 1 item 100: 8 October 2015 Sch 1 item 34: 14 October 2015

26 May 2015 17 August 2015 10 September 2015 13 October 2015

[page 40] Amending Legislation Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 No 126 Statute Law Revision Act (No 1) 2016 No 4 Trade Legislation Amendment Act (No 1) 2016 No 31 Statute Update Act 2016 No 61

Date of Assent 10 September 2015

Date of Commencement Sch 1 item 224: 5 March 2016

11 February 2016

Sch 4 items 1, 166: 10 March 2016 Sch 2: 1 May 2016

Statute Law Revision (Spring 2016) Act 2016 No 67

20 October 2016

23 March 2016 23 September 2016

Sch 3 item 20: 21 October 2016 Sch 1 item 28: 17 November 2016

*Transitional information: Schedules 1 and 2 to the Family Law Reform Act 1995 No 167 are reproduced at [s 1.0.0] immediately following this table.

[page 41]

TRANSITIONAL INFORMATION [s 1.0.0] Family Law Reform Act 1995 — Transitional provisions Section 59 and Schs 1 and 2 of the Family Law Reform Act 1995 give effect to transitional provisions as follows: Schedule 1 — Transitional Provisions Relating to the Repeal and Re-making of Part II of the Family Law Act 1975 and to the Amendments of Parts III and IIIA of that Act. Schedule 2 — Transitional Provisions Relating to the Repeal and Re-making of Part VII of the Family Law Act 1975. Schedules 1 and 2 — are reproduced below. SCHEDULE 1 TRANSITIONAL PROVISIONS RELATING TO THE REPEAL AND RE-MAKING OF PART II OF THE FAMILY LAW ACT 1975 AND TO THE AMENDMENTS OF PARTS III AND IIIA OF THAT ACT Subsection 59(1) Interpretation 1 In this Schedule: amended Act means the Family Law Act 1975 as in force after the Part II commencement; old Act means the Family Law Act 1975 as in force immediately

before the Part II commencement; Part II commencement means the commencement of section 5 of this Act. Treatment of approved marriage counselling organisation and approved mediators 2 (1) An approval given, or deemed to have been given, under section 12 of the old Act that was in force immediately before the Part II commencement has effect after that commencement as if: (a) it were an approval of the organisation concerned as a counselling organisation under section 13A of the amended Act; and (b) any conditions to which the approval was subject immediately before the Part II commencement were specified in an instrument of approval in relation to the organisation under section 13A of the amended Act. (2) An approval given under regulations made for the purposes of the definition of “approved mediator” in subsection 4(1) of the old Act that was in force immediately before the Part II commencement has effect after that commencement as if it were an approval under regulations made for the purposes of paragraph (a) of the definition of “family and child mediator” in subsection 4(1) of the amended Act. Treatment of applications for approval as marriage counselling organisation or approved mediator 3 (1) An application for approval under section 12 of the old Act that has not been decided by the Part II commencement has effect after that commencement as if it were an application for approval of the organisation concerned as a counselling organisation under section 13A of the amended Act. (2) An application for approval under regulations made for the purposes of the definition of “approved mediator” in subsection 4(1) of the old Act that has not been decided by the Part II commencement has effect after that commencement as if it were an application for

[page 42] approval under regulations made for the purposes of paragraph (a) of the definition of “family and child mediator” in subsection 4(1) of the amended Act. Treatment of appropriations and grants 4 (1) An appropriation of money for the purposes of Part II of the old Act has effect, after the Part II commencement, as if it were for the purposes of Part II of the amended Act. (2) A grant under section 11 of the old Act has effect, after the Part II commencement, as if it were a grant under section 13H of the amended Act. Other matters 5 (1) An adjournment of proceedings under paragraph 14(2)(a) of the old Act that has not ended by the Part II commencement continues after that commencement as if it were an adjournment under paragraph 14C(2)(a) of the amended Act. (2) Sections 18 and 19C of the old Act continue to apply, despite their repeal, to things said and admissions made before the Part II commencement. (3) An oath or affirmation made, or deemed to have been made, under section 19 or 19K of the old Act has effect after the Part II commencement as if it were made under that section of the amended Act. (4) An obligation under section 19A or 19B of the old Act to arrange for an approved mediator to mediate a dispute has effect after the Part II commencement as if it were an obligation under that section of the amended Act to arrange for a court mediator to mediate the dispute.

SCHEDULE 2 TRANSITIONAL PROVISIONS RELATING TO THE REPEAL AND RE-MAKING OF PART VII OF THE FAMILY LAW ACT 1975

Subsection 59(2) Interpretation 1 In this Schedule: amended Act means the Family Law Act 1975 as in force after the Part VII commencement; old Act means the Family Law Act 1975 as in force immediately before the Part VII commencement; Part VII commencement means the commencement of section 31 of this Act.

COMMENTARY ON CLAUSE 1 [cl 1.1] Commencement Section 31 (which substitutes a new Pt VII of the Act) came into force on 11 June 1996. Treatment of custody, access, maintenance and guardianship orders 2 (1) An order for the custody of a child in force under the old Act immediately before the Part VII commencement has effect, after that commencement as if: (a) so far as it deals (expressly or impliedly) with the question of the person or persons with whom the child is to live — it were a residence order made under Part VII of the amended Act; and (b) so far as it deals, expressly or impliedly, with other aspects of parental responsibility for the child — it were a specific issues order made under Part VII of the amended Act. (2) An order for access to a child in force under the old Act immediately before the Part VII commencement has effect, after that commencement, as if it were a contact order made under Part VII of the amended Act.

[page 43]

(3) An order for the maintenance of a child in force immediately before the Part VII commencement has effect, after that commencement, as if it were a child maintenance order made under Part VII of the amended Act. (4) An order for the guardianship of a child in force under the old Act immediately before the Part VII commencement has effect, after that commencement as if: (a) so far as it deals (expressly or impliedly) with the question of the person or persons with whom the child is to live — it were a residence order made under Part VII of the amended Act; and (b) so far as it deals (expressly or impliedly) with other aspects of parental responsibility for the child — it were a specific issues order made under Part VII of the amended Act. (5) In this clause, a reference to a particular kind of order in force under the old Act includes a reference to: (a) an agreement that has effect as that kind of order under the old Act; and (b) an order that is taken to be, or that has effect, as if it were an order of that kind.

COMMENTARY ON CLAUSE 2 [cl 2.1] Effect of old orders for custody etc — introduction This important clause deals with the effect after 11 June 1996 of orders made under the old law dealing with guardianship, custody and access. In summary: Old custody orders — cl 2(1) An old custody order has effect as if it were a residence order (so far as it deals with the question with whom the child is to live) and a specific issues order (so far as it deals with other aspects of parental responsibility). Under the old law, an order that X have sole custody of the child had the effect of giving X “the right to have the daily care and control of the child” and “the right and responsibility to make

decisions concerning the daily care and control of the child”: old s 63E(2). It presumably also provided impliedly that the child should live with X. It would therefore appear that an old sole custody order would normally have effect as if it were, under the amended Act, the following orders: That the child live with X; and That X have sole responsibility for the child’s day to day care welfare and development. Old guardianship orders — cl 2(4) An old order that X be the sole guardian of the child has effect as if it were a residence order (so far as it deals expressly or impliedly with the question of the person with whom the child is to live) and a specific purpose order (so far as it deals with other aspects of parental responsibility). The old Act provided that a guardian had “responsibility for the long term welfare of the child” and the powers rights and duties that were, apart from the Act, vested by law or custom in the guardian of the child” (other than rights relating to the daily care of the child): old s 63E(1). It would seem to follow that an old order for sole guardianship would normally have effect as if it were a specific issues order in the following terms: That X have sole responsibility for the long term care welfare and development of the child. If in all the circumstances the old guardianship order dealt impliedly with the question with whom the child was to live, it would have effect as if it were a residence order as well as a specific issues order in the above terms. It might have this effect, perhaps, if no other person was entitled to custody (eg where both parents died and an order for sole guardianship was made in favour of a grandparent). [page 44]

Old access orders — cl 2(2) An old order that the child have access to X every alternate weekend has effect as if it were an order that the child have contact with X every alternate weekend. Other old orders — cl 2(4) Old orders dealing with such matters as the child’s name, schooling and other matters have effect as if they were specific issues orders in the same terms. Old child maintenance orders Of course, these take effect as if they were child maintenance orders under the amended Act: there are no significant differences in the substantial provisions dealing with child maintenance. The previous discussion deals with the basic orders considered separately. The following discussion deals with some issues that arise when orders are made in combination (as they usually are) and with some other more complex issues. [cl 2.3] Old orders for custody and access What is the effect of old orders that X have sole custody of the child, and that Y have access every alternate weekend? It would appear to be as follows: (1) that the child live with X; and (2) that X have sole responsibility for the child’s day to day care welfare and development; and (3) that the child have contact with Y every alternate weekend. This leads to a question, however. It would seem that X has sole responsibility for the child’s day to day care etc, even on the alternate weekends while the child is with Y. If this is correct, on those weekends Y would have no more responsibility for the child’s care etc than a stranger who was looking after the child.

This appears to involve a change from the position under the old law. Under the old law, it may have been the case that custody/access orders would produce the result that Y would have responsibility for the day to day care etc of the child when the child was with Y. This seems to have been the traditional position, although it might be that the effect of old s 63E(2), defining custody, was to give the custodial parent day to day responsibilities even during access periods: the point does not seem to have been resolved. It might be argued that the implied result of custody/access orders in normal circumstances would be that each party would have day to day responsibility for the child while the child was with them, and if so, this should be the effect of the old orders after 11 June 1996. This argument does not seem sustainable, however, because the subclause relating to access simply provides that old access orders take effect as if they were contact orders; there is no provision corresponding to the provisions about custody and guardianship orders giving effect to what they might impliedly do. Thus it seems that even if an old access order did impliedly give the Y day to day responsibility for the child when on access, this result does not continue to apply after 11 June 1996. The conclusion seems to be that whatever the position might have been prior to 11 June 1996, after that date an old access order has effect as if it provided only for contact: it does not give Y any day to day responsibility for the child even during the periods the child is having contact with Y. [cl 2.5] Old joint custody orders Orders for joint custody to X and Y would have effect as if they were orders that X and Y had joint responsibility for the child’s day to day care, welfare and development, and, to the extent that they specified with whom the child was to live at particular times, residence orders in similar

terms. [page 45] Note that since the residence orders do not affect parental responsibility, it may be that each parent would have joint responsibility for day to day care etc all the time. If it could be shown that the orders implied that each parent would have sole responsibility for the child’s day to day care etc while the child was with that parent, however, the orders would have that effect. [cl 2.7] Old joint guardianship orders Orders for joint guardianship to X and Y would have effect as if they were orders that X and Y had joint responsibility for the child’s long term care welfare and development, and, to the extent that they specified with whom the child was to live at particular times, residence orders in similar terms. Consistently with this, it has been held that an old order for joint guardianship confers on both parents jointly the long-term responsibility for the child’s care, welfare and development: In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324 at 338; FLC 92–778 (FC). Note that since the residence orders do not affect parental responsibility, it may be that each parent would have joint responsibility for long term care etc all the time. If it could be shown that the orders implied that each parent would have sole responsibility for the child’s long term care etc while the child was with that parent, however, the orders would have that effect. Note also that joint responsibility for a child’s long term care, or long term care, changes the position under the Act; s 61C(1) provides that each parent has parental responsibility, not that they have it jointly. It would seem that under s 61C each parent can in law

exercise parental responsibilities separately; whereas if an order is made that they have joint responsibility, this would seem to require that they must each join in each decision. Unless this is intended, therefore, it seems unwise to change the position under s 61C into joint responsibility. See also commentary to s 61C. [cl 2.9] Old unusual orders Orders have sometimes been made in terms other than those discussed, above, such as orders for “continuous access”. It would seem that cl 2 applies only if such orders can be characterised as “an order for the custody of a child”, or “an order for access to a child”, or “an order for the guardianship of a child”. There does not seem to be a transitional clause that applies easily to old orders on such matters as the child’s name, schooling, etc. Nor does there seem to be a transitional provision dealing with old “welfare” orders. It seems clear that this is merely the result of poor drafting, and it would seem obvious that such orders are intended to continue to have effect as if they were specific issues orders in the same terms. There is much to commend the view that the court should take a generous approach and hold that all such orders fall within “custody orders”, on the basis that the legislature would probably not have intended them to cease to have effect, as appears to be the result if the provisions are read literally. [cl 2.11] Orders for custody etc, made on or after June 1996 It seems clear that if orders are made on or after 11 June 1996 in terms of custody, access or guardianship, such orders have no effect. This is because they are not authorised by the legislation nor are they saved by cl 2, the opening words of which refer to an order in force immediately before the commencement of Pt VII ie 11 June 1996. Treatment of applications for custody, access, maintenance and guardianship orders

3 (1) This clause applies if, immediately before the Part VII commencement, an application for an order under Part VII of the old Act of any of the following kinds was still awaiting determination: (a) an order for the custody of a child; (b) an order for access to a child;

[page 46] (c) an order for the maintenance of a child; (d) an order for the guardianship of a child. (2) The application must be determined as if it were an application for the corresponding order or orders under Part VII of the amended Act (determined having regard to the effect of clause 2).

COMMENTARY ON CLAUSE 3 [cl 3.1] Applications for custody etc The effect of cl 3 is that applications for orders phrased in terms of custody, guardianship and access will be treated as if they were applications for orders corresponding to those terms as set out in cl 2. In practice, to avoid possible confusion it may be sensible to seek leave to amend the relevant documents so that they seek orders in accordance with the amended Act. Treatment of child agreements 4 (1) A child agreement made under the old Act immediately before the Part VII commencement has effect after that commencement as if it were a parenting plan made under Part VII of the amended Act. (2) If, immediately before the Part VII commencement, the registration of the child agreement under section 66ZC of the old Act was in force, the registration continues to have effect after that commencement as if it were a registration of the agreement under section 63D of the amended Act.

COMMENTARY ON CLAUSE 4 [cl 4.1] Child agreements Child agreements made under the old Act have effect as if they were parenting plans made under the amended Act. If they were registered and in force on 11 June 1996, they continue in force as if they were parenting plans. Treatment of warrants under subsections 64(9) and (10) 5 (1) If a warrant under subsection 64(9) or (10) of the old Act was in force immediately before the Part VII commencement, the old Act continues to have effect after that commencement in relation to the warrant as if the amendments of the old Act made by this Act had not been made. (2) If an application for a warrant under subsection 64(9) or (10) has not been decided by the Part VII commencement, the old Act continues to have effect after that commencement in relation to the application, and any warrant issued pursuant to it, as if the amendments of the old Act made by this Act had not been made.

COMMENTARY ON CLAUSE 5 [cl 5.1] Warrants cl 5 Warrants in force immediately before 11 June 1996 remain in force under the amended Act. Applications for warrants pending on 11 June 1996 are dealt with under the old Act. Treatment of orders under section 64A 6 (1) If an order under subsection 64A(1) or (4) of the old Act was in force immediately before the Part VII commencement, the old Act continues to have effect after that commencement in relation to the order as if the amendments of the old Act made by this Act had not been made. (2) If an application for an order under subsection 64A(1) or (4) of the old Act has not been decided by the Part VII commencement, the old Act continues to have effect after that commencement in relation to the application, and any order made pursuant to it, as if the amendments of the old Act made by this Act had not been made.

[page 47] COMMENTARY ON CLAUSE 6 [cl 6.1] Orders under s 64A — cl 6 Orders made under s 64A remain in force and have effect as if the amending Act has not been made. Applications pending at 11 June 1996 are to be dealt with under the old Act. Continued application of Division 7 of Part VII 7 Division 7 of Part VII of the old Act continues to have effect in relation to proceedings that were begun before the Part VII commencement as if the amendments of the old Act made by this Act had not been made.

COMMENTARY ON CLAUSE 7 [cl 7.1] Pending proceedings under Div 7 — cl 7 These proceedings are to be dealt with as if the amending Act had not been made. Other things done under old Act have effect for purposes of corresponding provisions of amended Act 8 (1) Subject to clauses 2 to 7, a thing done for the purposes of a provision (the “old provision”) of Part VII of the old Act has effect, after that commencement, as if it were an equivalent thing done under the provision of Part VII of the amended Act that corresponds to the old provision (see the Table at the end of this Schedule). (2) In this clause, a reference to a thing done includes, for example: (a) the making of a Proclamation, Regulation or Rule of Court; or (b) the making of an application to, or filing of a notice or other document in, a court; or (c) the making of an order or other decree by a court; or (d) the preparation of a report or other document.

Provision of old Act Section 60 Section 60A Section 60AA Section 60B Section 60C Subsections 60E(1) and (2) Subsection 60E(3) Subsection 60E(4) Subsection 60E(5) Subsection 60E(6) and (7) Section 60E Section 69E Section 60G Section 60H Section 61 Section 61A Section 61B Section 61C

Corresponding Provision of amended Act Section 60D Section 60E Section 60G Section 60H Section 60E Subsections 69ZE(1) and (2) Section 69ZG Subsection 69ZE(3) Subsection 69ZE(4) Section 69ZE Section 69ZH Section 69ZH Section 69ZJ Section 69ZK Section 62C Section 62E Section 62B Section 62H

[page 48] Provision of old Act Section 62 Section 62A Subsection 63(1) Subsections 63(2) to (6) Subsection 63(7) Subsection 63(8) Subsection 63(9)

Corresponding Provision of amended Act Section 62F Section 62G Section 69H Section 69J Section 69K Section 69L Section 69M

Section 63A Section 63B Section 63C Section 63D Section 63E Section 63F Subsections 64(1) and (2) Subsection 64(5) Subsection 64(6) Subsections 64(9) to (11A) Subsections 64(12) and (13) Section 64A Section 65 Section 65A Section 66 Section 66A Section 66B Section 66BA Section 66C Section 66D Section 66E Section 66F Section 66FA Subsection 66G(1) Subsection 66G(2) Subsection 66G(3) Subsection 66G(4) Section 66H

Section 69B Section 69E Section 69C Section 69N No direct equivalent (dealt with in clauses 2 and 3) No direct equivalent (dealt with in clauses 2 and 3) No direct equivalent (dealt with in clauses 2 and 3) Section 65L Section 67ZD No direct equivalent (dealt with in clause 5) Subsections 67R(3) and (4) No direct equivalent (dealt with in clause 6) Section 68L Section 68M Section 69F Section 66B Section 66C Section 66E Section 66H Section 66J Section 66K Section 66G Subsection 66F(2) Subsection 66D(1) Section 66M Subsection 66D(2) Section 66N Section 66L

[page 49] Provision of old Act Section 66J Section 66K Section 66L Section 66M Section 66N Section 66P to 66U Section 66V Subsections 66W(1) to (3) Subsection 66W(4) Subsection 66W(5) Subsection 66W(6) Subsections 66W(7) and (8) Subsection 66W(9) Subsections 66W(10) and (11) Section 66X Section 66Y Section 66Z Section 66ZA Section 66ZB Sections 66ZC to 66ZE Subsection 67(1) Subsection 67(lA) Subsection 67(2) Subsection 67(3) Subsection 68(1) Subsection 68(2) Subsection 68(3)

Corresponding Provision of amended Act Section 66P Section 66Q Section 66R Section 66U Section 69S (dealt with in clause 7) Section 69V Section 69W Section 69X Section 69Y Section 69Z Section 69ZA Section 69ZB Section 69ZC Section 67B Section 67C Section 67D Section 67E Section 67G No direct equivalent (dealt with in clause 4) Section 70B Section 70C Section 70D Section 70E Section 70G Section 70H Subsection 70J(1)

Subsection 68(4) Subsection 68(5) Subsections 68(6) and (7) Subsection 69(1) Subsection 69(2) Subsections 70(1), (2) and (3) Subsections 70AA(1), (2) and (10) Subsections 70AA(3) and (11) Subsection 70AA(4) Subsections 70AA(5) and (7) Subsection 70AA(6)

Subsection 70J(2) Section 70K Sections 70F and 70L Section 70M Section 70N Sections 65M, 65N and 65P Section 650 Section 65S Section 65T Section 65U Section 65V

[page 50] Provision of old Act Subsections 70AA(8) and (9) Subsection 70A(1) Subsection 70A(2) Subsection 70A(7) Subsections 70A(8) and (9) Subsections 70B(1) and (3) Subsections 70B(2) and (4) Subsections 70B(5), (6) and (7) Subsection 70B(8) Subsections 70B(9) and (10) Section 70BA Section 70BB Section 70BC Section 70C Section 70D

Corresponding Provision of amended Act Section 65W Section 65Y Section 65Z Section 65ZD Section 65X Section 65ZA Section 65ZB Section 65ZC Section 65ZD Section 65X Section 67Z Section 67ZA Section 67ZB Section 68H Section 68C

Section 70E Section 70F

Section 69D Section 70Q

[s 1.0.5] Family Law Amendment Act 2000 No 143 — Saving provision The Family Law Amendment Act 2000 No 143 of 2000 provides in Sch 1 item 31 as follows: “31 Saving The amendments made by the previous items in this Schedule do not affect any act or thing done by a court under Division 2 of Part XIIIA of the Family Law Act 1975 before the commencement of this Schedule, and any such act or thing continues to have effect according to its terms after that commencement as if those amendments had not been made.”

[s 1.0.10] Family Law Amendment Act 2000 No 143 — Note The Family Law Amendment Act 2000 No 143 of 2000 Sch 3 item 74 repeals ss 84 and 85 of the Family Law Act 1975 and contains the following note: “Note: Those sections are effectively being moved to Part XIII (Enforcement of Decrees): see also item 77.”

Item 75 of Sch 3 to Act 143 of 2000 provides as follows: “75 Transitional After the commencement of this item: (a) anything done before that commencement under section 84 or 85 of the Family Law Act 1975 is taken to have been done under section 106A or 106B respectively of that Act; and (b) a reference in an order made under that Act to section 84 or 85 of that Act is taken to be a reference to section 106A or 106B respectively of that Act.”

[page 51]

[s 1.0.15] Family Law Amendment Act 2000 No 143 — Saving provision The Family Law Amendment Act 2000 No 143 of 2000 provides in Sch 3 item 83 as follows: “83 Saving Any regulations made for the purposes of paragraph 89(b) of the Family Law Act 1975 and in force immediately before the commencement of item 82 have effect as if they were made for the purposes of section 110B inserted in that Act by that item.”

[s 1.0.20] Family Law Amendment Act 2003 No 138 — Application of amendments Section 3 and Sch 2 to the Family Law Amendment Act 2003 No 138 give effect to amendments relating to the use of audio links and video links. Part 2 of Sch 2 provides as follows: “PART 2 — APPLICATION OF AMENDMENTS Application of amendments 9 (1) The amendments made by Part 1 of this Schedule, other than the split court amendments, apply in relation to proceedings instituted in the court before, on or after the commencement of this item. (2) The split court amendments made by Part 1 of this Schedule apply in relation to proceedings instituted in the Family Court after the commencement of this item. (3) In this item: electronic communication means: (a) video link; or (b) audio link; or

(c) other appropriate means of communication. split court amendments means the amendments that relate to the use of electronic communication to facilitate: (a) proceedings being heard by a split court; and (b) a split court: (i) hearing testimony; or (ii) taking submissions; or (iii) have persons appear before it; or (iv) having a submission put to a person or to the court.”

Section 3 and Sch 4A of the Family Law Amendment Act 2003 No 138 give effect to amendments relating to setting aside financial agreements. Part 2 of Sch 4A provides as follows: “PART 2 — APPLICATION OF AMENDMENTS Application of amendments 6 The amendments made by this Schedule apply to financial agreements made at any time, whether before or after the commencement of this Schedule. However, the amendments do not apply to proceedings that were instituted before the commencement of this Schedule.”

[page 52] Section 3 and Sch 7 to the Family Law Amendment Act 2003 No 138 give effect to miscellaneous amendments to the Family Law Act 1975. Part 2 of Sch 7 provides as follows: “PART 2 — APPLICATION OF AMENDMENTS Application of amendments 35 (1) The amendments made by items 7, 13 and 19 of Part 1 of this Schedule apply to admissions or disclosures made after the

commencement of this item. (2) Items 29 and 29A apply to proceedings instituted in the court after the commencement of this item.”

Section 3 and Sch 6 of the Family Law Amendment Act 2003 No 138 amends the Family Law Act 1975 to give the court power to bind third parties in order to give effect to property settlement. Part 2 of Sch 6 provides as follows: “PART 2 — APPLICATION OF AMENDMENTS Application of amendments 2 (1) Subject to this item, the amendments made by Part 1 of this Schedule apply to all marriages, including those that were dissolved before the commencement time. (2) Subject to subitems (3) and (4), the amendments made by this Schedule do not apply to a marriage if a section 79 order, or a section 87 agreement, is in force in relation to the marriage at the commencement time. (3) If a section 79 order that is in force at the commencement time is later set aside under paragraph 79A(1)(a), (b), (c) or (d) of the Family Law Act, then the amendments made by this Schedule apply to the marriage from the time the order is set aside. (4) If an approval of a section 87 agreement that is in force at the commencement time is later revoked on a ground specified in paragraph 87(8)(a), (c) or (d) of the Family Law Act, then the amendments made by this Schedule apply to the marriage from the time the approval is revoked. (5) In this item, unless the contrary intention appears: commencement time means the time when this Schedule commences. Family Law Act means the Family Law Act 1975. marriage includes a void marriage. section 79 order means an order (other than an interim order or a partial order) made under section 79 of the Family Law Act.

section 87 agreement means an agreement approved under section 87 of the Family Law Act.”

[s 1.0.25] Family Law Amendment (Annuities) Act 2004 No 153 — Application of annuity amendments Section 3 and Sch 1 to the Family Law Amendment (Annuities) Act 2004 No 153 amends the Family Law Act 1975. Section 4 provides as follows: “Application of annuity amendments 2 (1) Subject to this section, the annuity amendments apply to all marriages, including those that were dissolved before the startup time.

[page 53] (2) Subject to subsections (3) and (4), the annuity amendments do not apply to a marriage if a section 79 order, or a section 87 agreement, is in force in relation to the marriage at the startup time. (3) If a section 79 order that is in force at the startup time is later set aside under paragraph 79A(1)(a), (b), (c) or (d) of the Family Law Act, then the annuity amendments apply to the marriage from the time the order is set aside. (4) If an approval of a section 87 agreement that is in force at the startup time is later revoked on a ground specified in paragraph 87(8)(a), (c) or (d) of the Family Law Act, then the annuity amendments apply to the marriage from the time the approval is revoked. (5) The annuity amendments do not apply in relation to a financial agreement that was made before the startup time. (6) In this section, unless the contrary intention appears: annuity amendments means the amendments made by Schedule 2.

Family Law Act means the Family Law Act 1975. marriage includes a void marriage. section 79 order means an order (other than an interim order) made under section 79 of the Family Law Act. section 87 agreement means an agreement approved under section 87 of the Family Law Act. startup time means the time when Schedule 2 commences.”

[s 1.0.30] Family Law Amendment Act 2005 No 98 — Application provisions* Schedule 1, Pt 1 of Act 98 of 2005 provides as follows: “Application: 4 The amendments made by this Part apply to: (a) contraventions, and alleged contraventions, of parenting orders (whether occurring before, at or after the commencement of this Part); and (b) proceedings in which it is alleged that a person committed a contravention of a parenting order (whether those proceedings are commenced before, at or after the commencement of this Part).”

Schedule 1, Pt 2 of Act 98 of 2005 provides as follows: “Application 7 The amendments made by this Part apply to offers to settle proceedings that are made on or after the commencement of this Part.”

Schedule 1, Pt 4 of Act 98 of 2005 provides as follows: “Application 14 The amendments made by this Part apply to failures to comply with orders, bonds or sentences that occur on or after the commencement of this Part.”

*Editor’s Note: Schedule 1, Pts 1–15 commenced on 3 August 2005; Sch 1, Pt 17 commenced 18 September 2005.

[page 54] Schedule 1, Pt 7 of Act 98 of 2005 provides as follows: “Application 22 The amendments made by this Part apply to dispositions that occur on or after the commencement of this Part.”

Schedule 1, Pt 9 of Act 98 of 2005 provides as follows: “Application 35 The amendments made by this Part apply to proceedings initiated before or after the commencement of this Part.”

Schedule 1, Pt 10 of Act 98 of 2005 provides as follows: “Transitional arrangements in relation to decrees nisi made before the commencement of this Part 129 (1) A decree nisi of the dissolution of a marriage under this Act that: (a) was made before the commencement of this Part; and (b) had become final before the commencement of this Part; has effect on and after the commencement of this Part as if it were a divorce order that had taken effect on the day on which the decree nisi became absolute. (2) A decree nisi of the dissolution of a marriage under this Act that: (a) was made before the commencement of this Part; and (b) had not become final before the commencement of this Part; has effect on and after the commencement of this Part as if it were a divorce order that had been made on the day on which the decree nisi was

made.”

Schedule 1, Pt 11 of Act 98 of 2005 provides as follows: “Application 131 The amendment made by this Part applies to applications for leave to appeal made on or after the commencement of this Part.”

Schedule 1, Pt 12 of Act 98 of 2005 provides as follows: “Application 133 The amendment made by this Part applies to appeals that are initiated before or after this Part commences.”

Schedule 1, Pt 13 of Act 98 of 2005 provides as follows: “Application 135 The amendment made by this Part applies to appeals in relation to proceedings whether initiated before or after this Part commences.”

[s 1.0.35] Bankruptcy and Family Law Legislation Amendment Act 2005 No 20 — Application provisions* Section 3 and Sch 1 of the Bankruptcy and Family Law Legislation Amendment Act 2005 No 20 amends the Family Law Act 1975. Schedule 1, Pt 2 of Act 20 of 2005 provides as follows: *Editor’s Note: Schedule 1, Pt 2 commenced on 18 September 2005.

[page 55] “PART 2 — APPLICATION PROVISIONS Application of amendments

60 (1) Subject to subitems (2) and (3), the amendments of the Family Law Act 1975 made by this Schedule, to the extent to which they relate to bankruptcies or personal insolvency agreements, apply in relation to: (a) bankruptcies for which the date of the bankruptcy is after the commencement of this item; and (b) personal insolvency agreements executed before, at or after the commencement of this item. (2) The following provisions: (a) subsections 74(2), (3) and (4) of the Family Law Act 1975 as amended by this Schedule; (b) subsection 74(8) of the Family Law Act 1975 as amended by this Schedule, to the extent to which that subsection relates to subsection 74(2) of the Family Law Act 1975 as amended by this Schedule; (c) the definitions inserted in subsection 4(1) of the Family Law Act 1975 by this Schedule, to the extent to which those definitions relate to subsections 74(2), (3) and (4) of the Family Law Act 1975 as amended by this Schedule; apply to proceedings instituted after the commencement of this item, whether the date of the bankruptcy is before, on or after the date of commencement of this item. (3) The following provisions: (a) subsections 79(11), (12) and (13) of the Family Law Act 1975 as amended by this Schedule; (b) subsection 79(17) of the Family Law Act 1975 as amended by this Schedule, to the extent to which that subsection relates to subsection 79(11) of the Family Law Act 1975 as amended by this Schedule; (c) the definitions inserted in subsection 4(1) of the Family Law Act 1975 by this Schedule, to the extent to which those definitions relate to subsections 79(11), (12) and (13) of the Family Law Act 1975 as amended by this Schedule; apply to proceedings instituted after the commencement of this item,

whether the date of the bankruptcy is before, on or after the date of commencement of this item.”

[s 1.0.40] Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 — Application of amendments* The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 1, Pt 2 of Act 46 of 2006 provides as follows: “PART 2 — APPLICATION OF AMENDMENTS Definitions 42 In this Part: commencement means the commencement of this Schedule. new Act means the Family Law Act 1975 as in force after commencement. old Act means the Family Law Act 1975 as in force immediately before commencement. Application 43 (1) Section 60CC of the new Act applies to orders made on or after commencement. *Editor’s Note: Sections 1–3, Sch 4 (items 1–8), Sch 10: commenced on 22 May 2006. The remainder of the Act commenced on 1 July 2006, except Sch 8(1) and (2) (NYP).

[page 56] (2) The amendments made by items 13, 29 and 30 of this Schedule

apply to parenting orders made on or after commencement. (3) The amendment made by item 14 of this Schedule applies to proceedings under Part VII, whether or not the proceedings were initiated before commencement. (4) The amendment made by item 15 of this Schedule applies to directions given under subsection 62G(2) of the new Act on or after commencement. (5) The amendments made by items 16 and 16A of this Schedule apply to parenting plans made on or after commencement. (6) The amendment made by item 22 of this Schedule applies to parenting orders made on or after commencement. (7) The amendment made by item 25 of this Schedule applies to parenting orders made on or after commencement. This includes, without limitation, a parenting order that varies an earlier parenting order, whether the earlier parenting order was made before or after commencement. (8) Sections 65DAA, 65DAB, 65DAC and 65DAE of the new Act apply to parenting orders made on or after commencement. (9) The amendment made by item 33 of this Schedule applies to a court proposing to make an order mentioned in subsection 65G(1) of the new Act, whether or not the proceedings to which the order relates were initiated before commencement. Grounds for discharging or varying parenting orders 44 The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement. Note: For the need for changed circumstances, see Rice and Asplund (1978) 6 Fam LR 570; FLC 90-725.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 2, Pt 2 of Act 46 of 2006 provides as follows: PART 2 — APPLICATION OF AMENDMENTS AND SAVINGS

Definitions 8 In this Part: commencement means the commencement of this Schedule. new Act means the Family Law Act 1975 as in force after commencement. old Act means the Family Law Act 1975 as in force immediately before commencement. Application 9 The amendments made by this Schedule apply to a contravention or alleged contravention of a parenting order, if the contravention occurs, or the alleged contravention is alleged to occur, on or after commencement. Saving of regulations 10 Despite the repeal of a provision of the old Act specified in the following table, regulations that: (a) were made for the purposes of that provision of the old Act; and (b) were in force immediately before commencement; continue to have effect on and after commencement as if those regulations had been made for the purposes of the corresponding provision of the new Act that is specified in the table in relation to that provision of the old Act:

[page 57] Saving regulations made under provisions of old Act Item Provision of old Act Corresponding provision of new Act 1 paragraph 70NK(2A)(c) paragraph 70NFC(3)(c) 2 subsection 70NK(3) subsection 70NFC(4) 3 definition of maximum definition of maximum period

period in subsection 70NK(5)

in subsection 70NFC(6)

The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 3, Pt 2 of Act 46 of 2006 provides as follows: PART 2 — APPLICATION OF AMENDMENTS Application of amendments 8 The amendments made by Part 1 of this Schedule apply: (a) to proceedings commenced by an application filed on or after 1 July 2006; and (b) to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 5, Pt 2 of Act 46 of 2006 provides as follows: PART 2 — APPLICATION OF AMENDMENTS AND SAVING OF APPOINTMENTS Definitions 14 In this Part: commencement means the commencement of this Schedule. new Act means the Family Law Act 1975 as in force after commencement. old Act means the Family Law Act 1975 as in force immediately before commencement. Application of amendments 15 The amendments made by this Schedule apply to proceedings initiated under Part VII before, on or after the day on which this Schedule

commences. Saving of appointments 16 (1) This item applies if: (a) a court made an order under section 68L of the old Act for separate representation of a child; and (b) immediately before commencement, the proceedings in which the order was made have not been concluded. (2) The person who was appointed as the child’s representative under section 68L of the old Act is taken to be appointed as the independent children’s lawyer under section 68L of the new Act. (3) The order under section 68L of the old Act for separate representation of the child is taken to be an order under section 68L of the new Act for independent representation of the child’s interests.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 6, Pt 2 of Act 46 of 2006 provides as follows: [page 58] PART 2 — APPLICATION OF AMENDMENTS AND SAVINGS Definitions 2 In this Part: commencement means the commencement of this Schedule. new Act means the Family Law Act 1975 as in force after commencement. old Act means the Family Law Act 1975 as in force immediately before commencement. Application of amendments 3 The amendments made by Part 1 of this Schedule apply to orders

made after commencement, whether the application for the order was made before or after that time. Saving of regulations 10 Despite the repeal of a provision of the old Act specified in the following table, regulations that: (a) were made for the purposes of that provision of the old Act; and (b) were in force immediately before commencement; continue to have effect on and after commencement as if those regulations had been made for the purposes of the corresponding provision of the new Act that is specified in the table in relation to that provision of the old Act: Saving regulations made under provisions of old Act Item Provision of old Act Corresponding provision of new Act 1 subparagraph 68T(3)(a)(iii) paragraph 68S(1)(f) 2 subparagraph 68T(3)(b)(ii) paragraph 68S(2)(b) 3 definition of maximum subsection 68R(6) period in subsection 68T(6)

The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 7, Pt 2 of Act 46 of 2006 provides as follows: PART 2 — APPLICATION OF AMENDMENT Application of amendment 2 The amendment made by item 1 of this Schedule applies to proceedings instituted before or after the commencement of that item.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 9, Pt 2 of Act 46 of 2006 provides as follows: PART 2 — SAVINGS

Definitions 65 In this Part: commencement means the commencement of this Schedule. new Act means the Family Law Act 1975 as in force after commencement. old Act means the Family Law Act 1975 as in force immediately before commencement.

[page 59] Saving of regulations 66 Despite the repeal of a provision of the old Act specified in the following table, regulations that: (a) were made for the purposes of that provision of the old Act; and (b) were in force immediately before commencement; continue to have effect on and after commencement as if those regulations had been made for the purposes of the corresponding provision of the new Act that is specified in the table in relation to that provision of the old Act: Saving regulations made under provisions of old Act Item Provision of old Act Corresponding provision of new Act 1 definition of child welfare definition of child welfare law law in subsection 60D(1) in subsection 4(1) 2 definition of child welfare definition of child welfare officer in subsection 60D(1) officer in subsection 4(1) 3 definition of family violence definition of family violence order in subsection 60D(1) order in subsection 4(1) 4 definition of parentage definition of parentage testing testing procedure in procedure in subsection 4(1) subsection 60D(1)

5

6

paragraph (a) or (b) of the definition of prescribed child welfare authority in subsection 60D(1) definition of principal officer in section 67H

paragraph (a) or (b) of the definition of prescribed child welfare authority in subsection 4(1) definition of principal officer in subsection 4(1)

[s 1.0.50] Jurisdiction of Courts (Family Law) Act 2006 No 22 — Application of amendments Jurisdiction of Courts (Family Law) Act 2006 No 22 amends the Family Law Act 1975. Schedule 1, Pt 1 of Act 22 of 2006 provides as follows: PART 1 — AMENDMENTS RELATING TO THE MAGISTRATES COURT OF WESTERN AUSTRALIA Application 27 (1) The amendments made by items 3, 5, 8, 10 to 18 and 25 apply to proceedings instituted before or after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. (2) The amendments made by items 1, 2, 4, 6, 7, 9, 19, 20 to 24 and 26 apply to proceedings instituted after the commencement of this Part in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

[s 1.0.60] Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and Other Measures) Act 2006 No 82 — Application of provisions Families, Community Services and Indigenous Affairs and Other Legislation (2006 Budget and Other Measures) Act 2006 No 82

amends the Family Law Act 1975. Schedule 8 Pt 2 of Act 82 of 2006 provides as follows: [page 60] PART 2 — TRANSITIONAL PROVISIONS DIVISION 1 — PRELIMINARY Definitions 12 (1) In this Part: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. amend includes repeal and remake. asset means: (a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; and (b) any right, power, privilege or immunity, whether actual, contingent or prospective. assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned. Board means the Board of Management of the old Institute. commencement time means the time when this Part commences. instrument: (a) includes: (i) a contract, deed, undertaking or agreement; and (ii) a notice, authority, order or instruction; and

(iii) an instrument made under an Act or regulations; and (iv) regulations; but (b) does not include an Act. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective. land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated. liability means any liability, duty or obligation, whether actual, contingent or prospective. new Institute means the Australian Institute of Family Studies established by the new law. new law means the Family Law Act 1975 as in force immediately after the commencement time. old Institute means the Australian Institute of Family Studies established by the old law. old law means the Family Law Act 1975 as in force immediately before the commencement time. (2) Subject to subitem (1), an expression used in this Part that is also used in the new law has the same meaning in this Part as it has in the new law. DIVISION 2 — ASSETS, LIABILITIES AND LEGAL PROCEEDINGS Vesting of assets of old Institute 13 (1) This item applies to the assets of the old Institute immediately before the commencement time.

[page 61]

(2) At the commencement time, the assets to which this item applies cease to be assets of the old Institute and become assets of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these assets. Vesting of liabilities of old Institute 14 (1) This item applies to the liabilities of the old Institute immediately before the commencement time. (2) At the commencement time, the liabilities to which this item applies cease to be liabilities of the old Institute and become liabilities of the Commonwealth without any conveyance, transfer or assignment. The Commonwealth becomes the successor in law in relation to these liabilities. Certificates relating to vesting of land 15 (1) This item applies if: (a) any land vests in the Commonwealth under this Division; and (b) there is lodged with a land registration official a certificate that: (i) is signed by the Minister; and (ii) identifies the land, whether by reference to a map or otherwise; and (iii) states that the land has become vested in the Commonwealth under this Division. Note: Certificates under paragraph (1)(b) are presumed to be authentic: see item 27. (2) The land registration official may: (a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and (b) deal with, and give effect to, the certificate. Certificates relating to vesting of assets other than land 16 (1) This item applies if: (a) any asset other than land vests in the Commonwealth under this Division; and

(b) there is lodged with an assets official a certificate that: (i) is signed by the Minister; and (ii) identifies the asset; and (iii) states that the asset has become vested in the Commonwealth under this Division. Note: Certificates under paragraph (1)(b) are presumed to be authentic: see item 27. (2) The assets official may: (a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and (b) make such entries in the register as are necessary having regard to the effect of this Part. Substitution of Commonwealth as a party to pending proceedings 17 If any proceedings to which the old Institute was a party were pending in any court or tribunal immediately before the commencement time, the Commonwealth is substituted for the old Institute, from the commencement time, as a party to the proceedings. Transfer of custody of old Institute records 18 (1) This item applies to any records or documents that, immediately before the commencement time, were in the custody of the old Institute. (2) The records and documents are to be transferred into the custody of the Director at or after the commencement time.

[page 62] Access by Board members to records 19 For the purposes of the operation of subsection 27L(4) of the Commonwealth Authorities and Companies Act 1997 in relation to the

books of the old Institute, the reference in that subsection to a Commonwealth authority is to be read, after the commencement time, as a reference to the Director. DIVISION 3 — REFERENCE TO, AND THINGS DONE BY OR IN RELATION TO, OLD INSTITUTE Reference in instruments 20 (1) References to old Institute taken to be references to Director or Commonwealth If: (a) an instrument is in force immediately before the commencement time; and (b) the instrument contains a reference to the old Institute (including a reference to the Board); the instrument has effect from the commencement time as if the reference were a reference to the Director. (2) However, if: (a) an instrument is in force immediately before the commencement time; and (b) the instrument relates to assets or liabilities covered by item 13 or 14; and (c) the instrument refers to the old Institute (including a reference to the Board); the reference is to be read as a reference to the Commonwealth as necessary to give effect to item 13 or 14, as the case requires. (3) References to staff of old Institute taken to be references to staff of new Institute If: (a) an instrument is in force immediately before the commencement time; and (b) the instrument contains a reference to a member of the staff of the old Institute; the instrument has effect from the commencement time as if the reference to the member of the staff of the old Institute were a reference to a

member of the staff of the new Institute. (4) Minister and regulations may provide otherwise The Minister may, by legislative instrument, determine that subitem (1), (2) or (3): (a) does not apply in relation to a specified reference; or (b) applies as if: (i) in the case of subitem (1) — the reference in that subitem to the Director were a reference to the Commonwealth; or (ii) in the case of subitem (2) — the reference in that subitem to the Commonwealth were a reference to the Director; or (iii) in the case of subitem (3) — the reference in that subitem to a member of the staff of the new Institute were a reference to the Director. A determination under this subitem has effect accordingly. (5) The regulations may provide that an instrument containing a reference specified in a determination under paragraph (4)(a) has effect from the commencement time as if: (a) in the case of an instrument covered by subitem (1) or (2) — the reference were a reference to a specified person or body other than the Commonwealth or the Director; or (b) in the case of an instrument covered by subitem (3) — the reference were a reference to a specified person or body other than the Director or a member of the staff of the new Institute. Operation of laws 21 (1) Things done by old Institute taken to be done by Director If, before the commencement time, a thing was done by, or in relation to, the old Institute (including the Board), then, for the purposes of the operation of any law of the Commonwealth after the commencement time, the thing is taken to have been done by, or in relation to, the Director.

[page 63]

(2) For the purposes of subitem (1), a thing done before the commencement time under a provision that is amended by this Schedule has effect from that time as if it were done under that provision as amended. However, this is not taken to change the time at which the thing was actually done. (3) Minister and regulations may provide otherwise The Minister may, by legislative instrument, determine that subitem (1): (a) does not apply in relation to a specified thing done by, or in relation to, the old Institute; or (b) applies as if the reference in that subitem to the Director were a reference to the Commonwealth. A determination under this subitem has effect accordingly. (4) The regulations may provide for a thing specified in a determination under paragraph (3)(a) to be taken to have been done by, or in relation to, a specified person or body other than the Commonwealth or the Director. (5) Meaning of doing To avoid doubt, for the purposes of this item, doing a thing includes making an instrument. Financial statements and other reporting requirements 22 (1) Reporting requirements If: (a) immediately before the commencement time, a law required the old Institute (including the Director) to provide a report (whether financial statements or otherwise) for a period; and (b) the period ends after the commencement time; the Director must provide the report, as required, for so much of the period as occurs before the commencement time. (2) If: (a) under subitem (1), the Director is required to provide a report for a part of a period; and (b) the Director is also required to provide a similar report for the remainder of the period; the Director may meet the requirements in a single report for the period.

(3) Outstanding reporting requirements If: (a) a law required the old Institute (including the Director) to provide a report (whether financial statements or otherwise) for a period that ended before the commencement time; and (b) the report has not been provided by the commencement time; the Director must provide the report as required. Director 23 (1) The person holding office as Director under subsection 114C(4) of the old law immediately before the commencement time continues, on and after that time, by force of this item, to hold office as the Director. (2) The person referred to in subitem (1): (a) is taken to have been duly appointed by the Minister under of the new law for the balance of the term of appointment under section 114E of the old law; and (b) is taken to have been so appointed on the same terms and conditions as applied to the person immediately before the commencement time. DIVISION 4 — MISCELLANEOUS Appropriation of money 24 (1) For the purposes of the operation of an Appropriation Act after the commencement time, references to the old Institute are to be read as references to the new Institute. [page 64] (2) If an amount of money (the original amount) becomes an asset of the Commonwealth under item 13 of this Schedule, an amount equal to the original amount may be paid out of the Consolidated Revenue Fund, which is appropriated accordingly, for the purposes of the new Institute.

(3) In this item: Appropriation Act means an Act appropriating money for expenditure out of the Consolidated Revenue Fund. Exemption from stamp duty and other State or Territory taxes 25 No stamp duty or other tax is payable under a law of a State or Territory in respect of, or in respect of anything connected with: (a) the transfer of an asset or liability under this Part; or (b) the operation of this Part in any other respect. Constitutional safety net — acquisition of property 26 (1) If the operation of this Part would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. Certificates taken to be authentic 27 A document that appears to be a certificate made or issued under a particular provision of this Part: (a) is taken to be such a certificate; and (b) is taken to have been properly given; unless the contrary is established. Delegation by Minister 28 (1) The Minister may delegate all or any of his or her powers and functions under this Part to the Secretary of the Department or to the Director. The delegation must be in writing. (2) In exercising or performing powers or functions under a delegation, the delegate must comply with any directions of the Minister. (3) A power or function delegated to the Director under subitem (1) must not be sub-delegated under subsection 114LD(1) of the new

law. Regulations 29 (1) The Governor-General may make regulations prescribing matters: (a) required or permitted by this Part to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Part. (2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.

[1.0.70] Child Support Legislation Amendment (Reform of the Child Support Scheme — New Formula and Other Measures) Act 2006 No 146 — Application of provisions Child Support Legislation Amendment (Reform of the Child Support Scheme — New Formula and Other Measures) Act 2006 No 146 amends the Family Law Act 1975. Schedule 2 Pt 2 item118 provides as follows: [page 65] PART 2 — APPLICATION AND SAVING PROVISIONS Requirement to publish annualised MTAWE figure 118 (1) Before 1 July 2008, the Registrar must publish in the Gazette the annual rate of child support specified in subsection 65A(2) of the Assessment Act (as inserted by Schedule 1 to this Act) for all child support periods that start in that calendar year or the previous calendar year. (2) Before 1 July 2008, the Secretary must publish in the Gazette for all child support periods that start in that calendar year or the previous calendar year: (a) the annualised MTAWE figure for the relevant September quarter; and (b) the Costs of the Children Table, incorporating: (i) the annualised MTAWE figure for the relevant September quarter; and (ii) any other amounts in items in the table that can be worked out using the annualised MTAWE figure.

(3) The instruments published under subitems (1) and (2) are not legislative instruments.

[1.0.80] Acts Interpretation Amendment Act 2011 No 46 — Application of amendments Acts Interpretation Amendment Act 2011 No 46 amends the Family Law Act 1975. Schedule 3 items 10 and 11 provides as follows: SCHEDULE 3 APPLICATION, SAVING AND TRANSITIONAL PROVISIONS Saving — appointments 10 The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement. Transitional regulations 11 The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.

[1.0.90] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 No 189 — Application of amendments Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 No 189 amends the Family Law Act 1975. Schedule 2 Part 2 items 31–38, 44–48 provides as follows: PART 2 — APPLICATION AND TRANSITIONAL PROVISIONS Application of amendments made by items 1, 2 and 30 31 The amendments made by items 1, 2 and 30 of this Schedule

apply in relation to proceedings transferred to the Family Court whether before, on or after the commencement of those items. Saving of orders and directions under subsections 11F(1) and 62G(5) 32 An order or direction under subsection 11F(1) or 62G(5) of the Family Law Act 1975 as in force immediately before the commencement of items 3 and 15 of this Schedule, or an application for such an order or direction, has effect after that commencement as if it were an order or direction, or an application for an order or direction, under that subsection of that Act as in force after that commencement.

[page 66] Application of amendment made by item 9 33 (1) Subject to subitem (2), the amendment made by item 9 of this Schedule applies in relation to appeals, applications, interventions or reviews referred to in the definition of appeal as substituted by that item, whether instituted before, on or after the commencement of that item. (2) The amendment made by that item does not affect a divorce order that has taken effect before the commencement of that item. Application of amendment made by item 17 34 The amendment made by item 17 of this Schedule applies in relation to declarations or orders under Subdivision E of Division 12 of Part VII of the Family Law Act 1975, whether made before, on or after the commencement of that item. Application of amendment made by item 22 35 The amendment made by item 22 of this Schedule applies in relation to a court, after the commencement of that item, taking an opinion expressed by a family consultant into account, whether that opinion was expressed before, on or after that commencement. Application of amendments made by items 24, 25 and 26

36 (1) The amendment made by item 24 of this Schedule applies in relation to orders requiring persons to enter into bonds, whether made before, on or after the commencement of that item. (2) The amendment made by item 25 of this Schedule applies in relation to bonds entered into whether before, on or after the commencement of that item. (3) The amendment made by item 26 of this Schedule applies in relation to community service orders or orders requiring persons to enter into bonds, whether made before, on or after the commencement of that item. Application of amendment made by item 27 37 (1) Subject to subitem (2), the amendment made by item 27 of this Schedule applies in relation to appeals whether instituted before, on or after the commencement of that item. (2) The amendment made by that item does not affect the dismissal or stay of proceedings on an appeal before the commencement of that item. Application of amendment made by item 29 38 The amendment made by item 29 of this Schedule applies in relation to sentences imposed, or orders made, whether before, on or after the commencement of that item. Definitions 44 In this Part: commencement means the commencement of this Schedule. old Act means the Family Law Act 1975 as in force immediately before commencement. Amendments that apply to proceedings instituted on or after commencement 45 The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after commencement. Section 60K of old Act to continue to apply to certain documents

46 Despite the repeal of section 60K of the old Act by item 23 of this Schedule, that section continues to apply in relation to a document that was, before commencement, filed in a court in accordance with subsection 60K(1) of the old Act. Amendments do not affect existing orders etc. or constitute changed circumstances 47 (1) The amendments made by this Schedule do not affect an order made under the old Act before commencement, or a certificate given under subsection 60I(8) of the old Act before commencement.

[page 67] (2) The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement. Note: For the need for changed circumstances, see Rice and Asplund (1979) FLC 90–725. Transitional, application and savings — regulations 48 (1) The Governor-General may make regulations dealing with matters of a transitional, application or savings nature relating to the amendments made by this Schedule. (2) Regulations made for the purposes of subitem (1) have effect despite anything else in this Part.

[1.0.100] Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 No 32 — Application of amendments Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 No 32 amends the Family Law Act

1975. Schedule 2 item 4 provides as follows: Application of amendments 4 The amendments made by this Schedule apply in relation to the exercise of jurisdiction after the commencement of this Schedule (even if the proceedings in which the jurisdiction is exercised were initiated before that commencement).

[1.0.110] Crimes Legislation Amendment Act (No 2) 2011 No 174 — Application of amendments Crimes Legislation Amendment Act (No 2) 2011 No 174 amends the Family Law Act 1975. Schedule 2 item 194 provides as follows: Application of amendments — the Family Law Act 1975 194 (1) The amendments of the Family Law Act 1975 made by items 155 to 193 of this Schedule apply as set out in this item. (2) The amendments apply in relation to proceeds of crime orders (or applications for forfeiture orders) if the orders (or applications) are made at or after the commencement of those items. (3) The amendments apply under subitem (2) of this item in relation to proceedings under the Family Law Act 1975 regardless of whether: (a) the proceedings started before, at or after the commencement of those items; or (b) the conduct giving rise to the proceeds of crime orders (or applications for forfeiture orders) occurred, or is suspected to have occurred, before, at or after the commencement of those items.

[1.0.120] Access to Justice (Federal Jurisdiction) Amendment Act 2012 No 186 — Application of amendments

Access to Justice (Federal Jurisdiction) Amendment Act 2012 No 186 amends the Family Law Act 1975. Schedule 4 item 12 provides as follows: Application of amendments 12 The amendments made by this Schedule apply in relation to proceedings instituted, or transferred, on or after the commencement of this Schedule.

[page 68]

[1.0.130] Civil Law and Justice Legislation Amendment Act 2015 No 113 — Application of amendments Civil Law and Justice Legislation Amendment Act 2015 No 113 amends the Family Law Act 1975. Schedule 3 item 6 and Schedule 4 item 15 provides as follows: Application of paragraph 121(9)(aa) 6 Paragraph 121(9)(aa) of the Family Law Act 1975 applies to communications made on or after the commencement of that paragraph, whether the communications relate to proceedings occurring before, on or after that commencement. Application of section 94AB of the Family Law Act 1975 15 Section 94AB of the Family Law Act 1975 applies to appeals instituted on or after the commencement of that section from the making, variation and revocation of court security orders before, on or after that commencement.

[page 69] An Act relating to Marriage and to Divorce and Matrimonial Causes and, in relation thereto and otherwise, Parental Responsibility for Children, and to financial matters arising out of the breakdown of de facto relationships and to certain other Matters [Title am Act 181 of 1987 s 4; Act 167 of 1995 s 3; Act 115 of 2008 s 3 and Sch 1[1], opn 1 Mar 2009]

PART I — PRELIMINARY [s 1] 1

[s 2]

Short title This Act may be cited as the Family Law Act 1975.

Commencement

2 This Act shall come into operation on a date to be fixed by Proclamation.*

[s 3]

Repeal and saving

3 (1) The Matrimonial Causes Act 1959, the Matrimonial Causes Act 1965 and the Matrimonial Causes Act 1966 are repealed. (2) Notwithstanding the repeal effected by subsection (1): (a) the validity of a decree made before the commencement of the Matrimonial Causes Act 1959 by virtue of the Imperial Act entitled the Matrimonial Causes (War Marriages) Act, 1944 or Part I of the Matrimonial Causes (War Marriages) Act 1947 of New Zealand and in force

immediately before the commencement of this Act shall continue to be recognized in all courts in Australia; (b) a decree of the Supreme Court of a State or Territory made before the commencement of the Matrimonial Causes Act 1959 in the exercise of jurisdiction invested or conferred by the Matrimonial Causes Act 1945, or that Act as amended by the Matrimonial Causes Act 1955, and in force immediately before the commencement of this Act shall continue to have effect throughout Australia; and (c) a decree of the Supreme Court, or of a court of summary jurisdiction, of a State or Territory: (i) made before the commencement of this Act in the exercise of jurisdiction invested or conferred by the repealed Act, or in a matrimonial cause or proceedings for a separation order instituted under the law of that State or Territory, being a decree that was in force immediately before the commencement of this Act; or (ii) made after the commencement of this Act in proceedings to which subsection 9(1) applied; shall have, or continue to have, effect throughout Australia, and, except in the case of: (iii) a decree of nullity of marriage made on the ground that the marriage was voidable; (iv) a decree of judicial separation; [page 70]

(v) a decree of restitution of conjugal rights; (vi) a decree of jactitation of marriage; or (vii) a separation order; this Act applies to and in relation to the decree as if the decree had been made under this Act. (3) For the purposes of paragraph (2)(c), a purported decree to which section 5 of the Matrimonial Causes Act 1971 applied made in a State shall be deemed to be a decree of the Supreme Court of that State made in the exercise of jurisdiction invested by the repealed Act. [subs (3) am Act 118 of 1999 Sch 2]

* The majority of provisions in this Act commenced on the 1 July 1976. COMMENTARY ON SECTION 3 Introductory comment …. Repeal of Matrimonial Causes Act 1959 …. Matrimonial Causes (War Marriages) Act 1944 (UK) and Matrimonial Causes (War Marriages) Act 1947 (NZ) Part 1 — section 3(2)(a) …. Decrees made under the Matrimonial Causes Act 1945 (Cth) — section 3(2)(b) …. Saving, recognition and enforcement of decrees made prior to the commencement of the Act — section 3(2) (c) …. Decrees, judgments or orders to which section 3(2)(c) applies …. Relevant authorities …. Exceptions …. Recognition and effect of decrees made under the Matrimonial Causes Act 1971 — section 3(3) ….

[s 3.1] [s 3.2]

[s 3.3] [s 3.4]

[s 3.5] [s 3.6] [s 3.7] [s 3.8] [s 3.9]

[s 3.1] Introductory comment From 1 February 1961 until 5

January 1976 the law in relation to principal matrimonial relief and ancillary relief thereto was governed by the Matrimonial Causes Act 1959 as amended by the Matrimonial Causes Act 1965 and the Matrimonial Causes Act 1966. As to the effect of the repeal of these Acts, see Acts Interpretation Act 1901 (Cth) ss 7–10. Prior to 1 February 1961 these matters were governed by the laws and ordinances of the several States and Territories. Proceedings for maintenance, custody and separation orders not ancillary to principal matrimonial relief were governed by the maintenance Acts of the several States and Territories until 5 January 1976. Proceedings for custody and guardianship could until then also be brought under the guardianship legislation of the several States and Territories or in the inherent jurisdiction of State Supreme Courts. By virtue of s 109 of the Constitution, such laws ceased to be operative to the extent that such proceedings could be brought under the Family Law Act 1975. The State and Territorial legislation and the inherent jurisdiction of the various Supreme Courts remain operative as regards proceedings relating to children to which the Family Law Act does not apply. [s 3.2] Repeal of Matrimonial Causes Act 1959 The Matrimonial Causes Act 1959 repealed by the Family Law Act 1975. [s 3.3] Matrimonial Causes (War Marriages) Act 1944 (UK) and Matrimonial Causes (War Marriages) Act 1947 (NZ) Part 1 — section 3(2)(a) The Matrimonial Causes Act 1945 (Cth)

[page 71] provided for recognition in Australia of judgments, decrees and orders made by virtue of the laws of any country proclaimed to be substantially corresponding to the provisions made with respect to Australia. Proclamations were made in respect of the United Kingdom Act and the New Zealand Act. The Matrimonial Causes Act 1945 was repealed by the Matrimonial Causes Act 1951 but the continued recognition of the decrees, above referred to, was preserved by the 1959 Act. The present Act continues the effect of that provision. [s 3.4] Decrees made under the Matrimonial Causes Act 1945 (Cth) — section 3(2)(b) This legislation was repealed by the Matrimonial Causes Act 1959 as from 1 February 1961 but the continued validity of any judgment, decree, order or sentence rendered by a Supreme Court of a State or Territory in the exercise of jurisdiction under the Matrimonial Causes Act 1945 was preserved by the 1959 Act. The present Act continues the effect of that provision. [s 3.5] Saving, recognition and enforcement of decrees made prior to the commencement of the Act — section 3(2)(c) Section 8(c) of the Acts Interpretation Act 1901 (Cth) provides that the repeal of an Act shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under a repealed Act. This by itself would suffice to preserve the continued validity of decrees, judgments and orders made under the Matrimonial Causes Act 1959.

Decrees, judgments and orders made under State law still rest for their validity on State law which is of course not repealed by the Act but merely rendered inoperative as to future exercises of jurisdiction by State courts to the extent of their inconsistency with the Family Law Act. Section 3(2)(c) is not directed at preserving the continued operation throughout Australia (which for the purpose of the Act includes Norfolk Island) of decrees made under previous legislation, but at ensuring their recognition. This recognition does not extend to other external territories, except to the extent that a decree, order or judgment has the status of a “decree under this Act” within the meaning of s 103. Decrees to which s 3(2)(c) applies are entitled to recognition throughout Australia including Norfolk Island. Furthermore, with certain exceptions, the Act applies to such decrees, judgments and orders as if they had been made under the Act. [s 3.6] Decrees, judgments or orders to which section 3(2)(c) applies This section applies to: (a) All decrees, judgments or orders made under the Matrimonial Causes Act 1959, including decrees, etc which can no longer be made under the Family Law Act. (b) All decrees, judgments or orders made by a State or Territorial court in a “matrimonial cause”, as defined in s 4(1) of the Family Law Act or in proceedings for a separate order. With the exception of proceedings for a separate order, the proceedings must be such as could have been instituted under the Family Law Act: section 3(2)(c)(ii). Prior to the commencement of the Act the recognition throughout Australia of decrees of dissolution or nullity of marriage made under State and Territorial

law before 1 February 1961 was ensured by s 95(1) of the Matrimonial Causes Act 1959. The recognition of all other decrees, orders and judgments made under State or Territorial law in another State or Territory depended on the rules of private International law as amended by statutes of the State or Territory in which recognition was sought. The paragraph therefore grants a degree of nationwide recognition to State orders, in particular State maintenance and custody orders, which did not exist earlier. For the recognition and enforcement of affiliation and like orders made under State or Territorial law: see s 109. (c) A decree for dissolution of marriage in proceedings instituted before 5 January 1976 under the Matrimonial Causes Act 1959 and not converted under s 9(2) of the Act, a decree of nullity of marriage in proceedings instituted before 5 January 1976 for [page 72] annulment on one or more grounds of voidability set out in s 21 of the Matrimonial Causes Act 1959, and a separation order in proceedings instituted under State or Territorial law before 5 January 1976. Such decrees or orders are to be made under s 9(1) as if the Act had not been passed (with the exception of the provisions of s 9(7A)) and would not therefore have been entitled to recognition granted by s 104 to decrees made under this

Act. (d) Decrees, orders and judgment Matrimonial Causes Act 1971.

validated

by

the

[s 3.7] Relevant authorities See In the Marriage of Pelbart (1976) 1 Fam LR 11,124; FLC 90-002. See also Stone v Stone and Ralph (1977) 3 Fam LR 11,101; 30 FLR 520; In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90-299 and In the Marriage of Smith (1976) 1 Fam LN 11; FLC 90-020. As to the enforcement of decrees made prior to 5 January 1976 see s 105. [s 3.8] Exceptions The following decrees are not given continued recognition: (a) Decree of annulment on the ground that the marriage is voidable. (b) Decrees for judicial separation. (c) Decrees for restitution of conjugal rights. (d) Decrees of jactitation of marriage and separation orders. Such decrees and orders are only entitled to passive recognition. In so far as they have altered the status and the rights of the parties as against each other or against the world, they must be recognized and given effect. But they cannot be directly enforced, modified or discharged under the provisions of the Family Law Act. The exception does not affect the enforcement under the Family Law Act of any order for maintenance, custody, property rights or costs which may have been made as ancillary to the proceedings leading to one of the decrees or orders listed in the exception. [s 3.9] Recognition and effect of decrees made under the Matrimonial Causes Act 1971 — section 3(3) Any decree or

order validated by the Matrimonial Causes Act 1971 will have the same recognition and effect under para (c) as decrees or orders of that type made validly under the Matrimonial Causes Act 1959 may possess under that paragraph. ____________________

[s 4]

Interpretation

4 (1) [Definitions] In this Act, the standard Rules of Court and the related Federal Circuit Court Rules, unless the contrary intention appears: Aboriginal child means a child who is a descendant of the Aboriginal people of Australia. [def insrt Act 46 of 2006 s 3 and Sch 1 item 1, opn 1 July 2006]

Aboriginal or Torres Strait Islander culture in relation to a child: (a) means the culture of the Aboriginal or Torres Strait Islander community or communities to which the child belongs; and (b) includes Aboriginal or Torres Strait Islander lifestyle and traditions of that community or communities. [def insrt Act 46 of 2006 s 3 and Sch 1 item 2, opn 1 July 2006]

abuse, in relation to a child, means: (a) an assault, including a sexual assault, of the child; or [page 73] (b) a person (the first person) involving the child in a sexual activity with the first person or another person

in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child. [def subst Act 189 of 2011 s 3 and Sch 1 item 1, opn 7 June 2012]

COMMENTARY ON ‘ABUSE’ [s 4.15.1] “abuse” Introduction The definition of “abuse” is relevant to numerous provisions of the Act:ss 10E(2)(a), 10J(2)(a), 11C(3), 60B, 60CC, 60CI, 60D, 60I(9)(b), 60J, 61DA, 64D, 67Z, 67ZA, 67ZB, 67ZBA, 67ZBB, 69ZN, 69ZQ, 69ZW, 70NEF, 92A, 102A. The definition of “family violence” in s 4AB, especially s 4AB(3) and (4) is relevant to the scope of para (c) of “abuse”. Paragraphs (c) and (d) were inserted by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (the 2011 family violence amendments). [s 4.15.2] “An assault, including a sexual assault, of the child”: paragraph (a) Paragraph (a) was amended by the 2011 family violence amendments. Previously (in repealed s 60) it had referred to “an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs” (emphasis added). The Explanatory Memorandum (EM) to the 2011 Act noted (at para 5) that the new definition would: remove the requirement for the assault to be an offence under an enforceable law in a state or territory. This means that those working with the Act, including courts, legal practitioners and family members will not

be required to have regard to the terms of state and territory laws when considering whether abuse has occurred. The new definition will remove uncertainty about knowing the elements of an offence and whether an offence has been committed. It remains to be seen whether “assault” is now used in its everyday sense, or whether the act needs to be an offence under some criminal law. [s 4.15.3] Sexual activity with a child not constituting assault: paragraph (b) Paragraph (b) includes in “abuse” certain sexual activity with a child that need not constitute an assault namely sexual activity “in which the child is used, directly or indirectly, as a sexual object” and there is unequal power in the relationship between the child and the person. [s 4.15.4] Causing serious psychological harm to a child by exposure to family violence: paragraph (c), subsections (3) and (4) The background materials cast little light on the purpose of this paragraph. It does not reflect any recommendation in the various reports said to have influenced the bill. The EM makes no reference to the likely or intended impact of the provision, apart from saying that the bill (as a whole) “sends a clear message that family violence and child abuse are unacceptable” and noting (accurately) that the new definition of “abuse” in para (c) “reflects current social science and approaches to child protection, which indicate that exposure to violence threatens a child’s physical, emotional, psychological, social, education and behavioural wellbeing”. Subsections (3) and (4) spell out what is meant by exposure to family violence. [page 74] “Emotional abuse” not otherwise included in “abuse” It was held before the 2011 family violence amendments that emotional abuse is not included in the definition of “abuse”, and is thus not embraced by s 60CC(2)(b) as a primary consideration in the determination of a child’s best interests, although it may be important as an “additional consideration” under s

60CC(3): Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1; BC201150001 at [35]–[37]. The 2011 family violence amendments do not appear to change the situation, except in situations that fall within para (c). [s 4.15.5] Serious neglect: paragraph (d) The 2011 family violence amendments added paragraph (d). “Serious” is an ordinary term, and there is little that can be said about it. The EM says (at para 8): The meaning of neglect is not defined and therefore takes its ordinary meaning. Neglect encompasses a range of acts of omission including failure to provide adequate food, shelter, clothing, supervision, hygiene or medical attention. This is consistent with judicial authority: it has been held that the term “neglect” bears its ordinary meaning, which is “akin to failing to afford proper care or attention”, and does not encompass alignment or influence of a child by one parent against another: Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1; BC201150001 at [40]. The Full Court there cited the Explanatory Memorandum, para [37]: The term “neglect”, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child. The background materials to the 2011 family violence amendments cast no light on the purpose of adding serious neglect to “abuse”. No such change was recommended in any of the various reports said to have influenced the bill, and the EM makes no reference to the likely or intended impact of the provision.

____________________ Accreditation Rules means regulations made under section 10A. [def insrt Act 46 of 2006 s 3 and Sch 4 item 10, opn 1 July 2006]

adopted, in relation to a child, means adopted under the law

of any place (whether in or out of Australia) relating to the adoption of children. [def insrt Act 46 of 2006 s 3 and Sch 9 item 6, opn 1 July 2006]

alleged contravention, in Subdivision D of Division 6 of Part VII, means the alleged contravention because of which the alleged offender is arrested. [def insrt Act 46 of 2006 s 3 and Sch 9 item 7, opn 1 July 2006]

alleged offender, in Subdivision D of Division 6 of Part VII, means the person who is arrested. [def insrt Act 46 of 2006 s 3 and Sch 9 item 8, opn 1 July 2006]

appeal includes an application for a re-hearing. COMMENTARY ON ‘APPEAL’ [s 4.40] “appeal” See ss 93–96 inclusive: see also s 9(9) where “appeal” is specially defined for the purpose of the transitional provisions and s 55(5) where it is defined for the purpose of that section defining when decrees become absolute. ____________________

[page 75] Appeal Division means the Appeal Division of the Family Court. [def insrt Act 72 of 1983 s 3]

COMMENTARY ON ‘APPEAL DIVISION’ [s 4.45] “Appeal Division” The Family Court is divided into an Appeal Division and a General Division: see s 21A. The “Appeal Division” consists of the Chief Judge together with other judges appointed under s 22.

Judges so appointed are in two groups: (a) those appointed permanently; and (b) those appointed for a term of two years. See also Pt IV.

____________________ applicable Rules of Court: (a) in relation to the Federal Circuit Court of Australia — means the related Federal Circuit Court Rules; and (b) in relation to any other court — means the standard Rules of Court. [def insrt Act 194 of 1999 s 3 and Sch 11[2]; am Act 13 of 2013 s 3 and Sch 1 item 265, Sch 2 item 2, opn 12 Apr 2013]

applicant includes a cross-applicant and, in relation to proceedings for dissolution of marriage instituted before the commencement of this Act, includes a petitioner or crosspetitioner. COMMENTARY ON ‘APPLICANT’ [s 4.60] “applicant” “Applicant” includes a cross-applicant. A respondent may in an answer to an application include an application for any decree, judgment, order or declaration under the Act. “Applicant” is specially defined in s 104(1) for the purposes of that section. See also s 44(2), and the definition of the term for the purpose of the Family Law Rules (in the Dictionary); and see In the Marriage of Ogle (1976) 11 ALR 107; 1 Fam LR 11,413.

____________________ applied provisions, when used in Division 13A of Part VII in relation to a community service order made under

paragraph 70NFB(2)(a), means the provisions of the laws of a State or Territory (as modified by regulations made under subsection 70NFC(4)), that, because of regulations made under that subsection, apply in relation to the order. [def insrt Act 46 of 2006 s 3 and Sch 9 item 9, opn 1 July 2006]

appropriate authority, when used in Part VII in relation to a Commonwealth instrumentality, means a person: (a) who in, or in relation to, the instrumentality: (i) is an SES employee or acting SES employee; or (ii) holds an office or position that is at a level equivalent to that of an SES employee; or (b) who is authorised in writing by the principal officer of the instrumentality to provide information under Commonwealth information orders. [def insrt Act 46 of 2006 s 3 and Sch 9 item 10, opn 1 July 2006]

appropriate officer, when used in Division 5 of Part III in relation to the Family Court, means: (a) the Chief Executive Officer; or [page 76] (b) any other officer of the Family Court specified in writing by the Chief Executive Officer for the purposes of this definition. [def insrt Act 113 of 1991 s 4; am Act 167 of 1995 s 4; Act 7 of 2013 s 3 and Sch 2 item 1, opn 1 July 2013]

approved [def rep Act 167 of 1995 s 4]

approved arbitrator

[def rep Act 143 of 2000 s 3 and Sch 3 item 6 opn 27 Dec 2000]

approved counselling organisation [def rep Act 46 of 2006 s 3 and Sch 4 item 11, opn 1 July 2006]

approved mediation organisation [def rep Act 46 of 2006 s 3 and Sch 4 item 12, opn 1 July 2006]

approved mediator [def rep Act 167 of 1995 s 4]

arbitration has the meaning given by section 10L. [def insrt Act 46 of 2006 s 3 and Sch 4 item 13, opn 1 July 2006]

arbitrator has the meaning given by section 10M. [def subst Act 46 of 2006 s 3 and Sch 4 item 14, opn 1 July 2006]

arresting person means the person who arrests the alleged offender. [def insrt Act 46 of 2006 s 3 and Sch 9 item 11, opn 1 July 2006]

artificial conception procedure includes: (a) artificial insemination; and (b) the implantation of an embryo in the body of a woman. [def insrt Act 46 of 2006 s 3 and Sch 9 item 12, opn 1 July 2006]

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places. [def insrt Act 138 of 2003 s 3 and Sch 2 item 1 opn 14 Jan 2004]

Australia includes Norfolk Island. COMMENTARY ON ‘AUSTRALIA’ [s 4.130] “Australia” The Act extends to Norfolk Island: see s 7. It also extends to the Australian Capital Territory and the Northern Territory, including Ashmore and Cartier Islands. It does not extend to the external territories of Cocos (Keeling) Islands, Christmas Island, Australian Antarctic Territory, McDonald and Heard

Islands and Coral Sea Islands.

____________________ bankruptcy trustee, in relation to a bankrupt, means the trustee of the bankrupt’s estate. [def insrt Act 20 of 2005 s 3 and Sch 1 cl 9, opn 18 Sep 2005]

birth includes stillbirth. [def insrt Act 46 of 2006 s 3 and Sch 9 item 13, opn 1 July 2006]

breakdown: (a) in relation to a marriage, does not include a breakdown of the marriage by reason of death; and [page 77] (b) in relation to a de facto relationship, does not include a breakdown of the relationship by reason of death. [def insrt Act 115 of 2008 s 3 and Sch 1[2], opn 1 Mar 2009]

captain, in relation to an aircraft or vessel, means the person in charge or command of the aircraft or vessel. [def insrt Act 46 of 2006 s 3 and Sch 9 item 14, opn 1 July 2006]

Chief Executive Officer means the Chief Executive Officer of the Family Court and the Federal Circuit Court. Note: The Chief Executive Officer is appointed under section 38C. A person is appointed to act as the Chief Executive Officer under section 38M. [def insrt Act 138 of 2003 s 3 and Sch 3 item 1 opn 14 Jan 2004; am Act 7 of 2013 s 3 and Sch 2 item 2, opn 1 July 2013]

child: (a) in Part VII, includes an adopted child and a stillborn child; and

(b) in Subdivision E of Division 6 of that Part, means a person who is under 18 (including a person who is an adopted child). child: Subdivision D of Division 1 of Part VII affects the situations in which a child is a child of a person or is a child of a marriage or other relationship. Note: In determining if a child is the child of a person within the meaning of this Act, it is to be assumed that Part VII extends to all States and Territories. [def insrt Act 115 of 2008 s 3 and Sch 3A[1], opn 21 Nov 2008]

childbirth maintenance period, in relation to the birth of a child, means the period that begins on the day mentioned in paragraph (a) or (b) and ends 3 months after the child’s birth: (a) if the mother: (i) works in paid employment; and (ii) is advised by a medical practitioner to stop working for medical reasons related to her pregnancy; and (iii) stops working after being so advised and more than 2 months before the child is due to be born; the period begins on the day on which she stops working; or (b) in any other case — the period begins on the day that is 2 months before the child is due to be born. [def insrt Act 46 of 2006 s 3 and Sch 9 item 16, opn 1 July 2006]

child counselling [def rep Act 46 of 2006 s 3 and Sch 4 item 15, opn 1 July 2006]

child maintenance order has the meaning given by subsection 64B(5).

[def insrt Act 167 of 1995 s 4]

child maintenance provisions, in relation to a parenting plan, has the meaning given by subsection 63C(5). [def insrt Act 46 of 2006 s 3 and Sch 9 item 18, opn 1 July 2006]

child of a marriage includes a child who is, under subsection 60F(1) or (2), a child of a marriage, but does not include a child who has, under subsection 60F(3), ceased to be a child of a marriage. [def insrt Act 181 of 1987 s 5; am Act 167 of 1995 s 4]

[page 78] COMMENTARY ON ‘CHILD OF MARRIAGE’ [s 4.190] “child of marriage” This definition was inserted by the 1987 amending Act. See s 60F, which includes (to summarise) children adopted by the parties and children of the parties born before the marriage, but not children of the parties later adopted by others. Note that step-children are not included, but they may remain children of the marriage of their parents, even after that marriage has been ended by divorce, annulment, or death: see s 60F(2).

____________________ child-related proceedings has the meaning given by section 69ZM. [def insrt Act 46 of 2006 s 3 and Sch 3 item 2, opn 1 July 2006]

child representative [def rep Act 46 of 2006 s 3 and Sch 5 item 11, opn 1 July 2006]

child welfare law means a law of a State or Territory prescribed, or included in a class of laws of a State or

Territory prescribed, for the purposes of this definition. [def insrt Act 46 of 2006 s 3 and Sch 9 item 19, opn 1 July 2006]

child welfare officer, in relation to a State or Territory, means: (a) a person who, because he or she holds, or performs the duties of, a prescribed office of the State or Territory, has responsibilities in relation to a child welfare law of the State or Territory; or (b) a person authorised in writing by such a person for the purposes of Part VII. [def insrt Act 46 of 2006 s 3 and Sch 9 item 20, opn 1 July 2006]

child welfare provisions, in relation to a parenting plan, has the meaning given by subsection 63C(4). [def insrt Act 46 of 2006 s 3 and Sch 9 item 21, opn 1 July 2006]

Commonwealth information order has the meaning given by subsection 67J(2). [def insrt Act 46 of 2006 s 3 and Sch 9 item 22, opn 1 July 2006]

Commonwealth instrumentality means a body or authority established for a public purpose by or under a law of the Commonwealth. [def insrt Act 72 of 1983 s 3; am Act 182 of 1989 s 2]

community mediator [def rep Act 46 of 2006 s 3 and Sch 4 item 16, opn 1 July 2006]

community service order has the meaning given by subsection 70NFC(3). [def insrt Act 46 of 2006 s 3 and Sch 9 item 23, opn 1 July 2006]

complaint means a complaint mentioned in paragraph 21B(1A)(c). [def insrt Act 187 of 2012 s 3 and Sch 1 item 1, opn 12 Apr 2013]

complaint handler means:

(a) the Chief Judge; or (b) a person who is authorised by the Chief Judge under subsection 21B(3A); or (c) a person who is a member of a body that is authorised by the Chief Judge under subsection 21B(3A). [def insrt Act 187 of 2012 s 3 and Sch 1 item 2, opn 12 Apr 2013]

contact order [def rep Act 46 of 2006 s 3 and Sch 8 item 40, opn 1 July 2006]

[page 79] contravened an order, in Division 13A of Part VII, has the meaning given by section 70NAC. [def insrt Act 46 of 2006 s 3 and Sch 9 item 24, opn 1 July 2006]

court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act. COMMENTARY ON ‘COURT’ [s 4.250] “court” This provision has the effect of limiting the powers conferred by the Act on courts in relation to proceedings instituted under the Act. “Court” is also specially defined in s 20 for the purposes of Pt IV dealing with the Family Court of Australia. “Court” is also specially defined in s 121 dealing with restrictions on publication of court proceedings.

____________________ court counsellor [def rep Act 46 of 2006 s 3 and Sch 4 item 17, opn 1 July 2006]

court mediator [def rep Act 46 of 2006 s 3 and Sch 4 item 18, opn 1 July 2006]

CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011. [def insrt Act 58 of 2011 s 3 and Sch 1[83], opn 1 July 2011]

debtor subject to a personal insolvency agreement has the meaning given by section 5. [def insrt Act 20 of 2005 s 3 and Sch 1 cl 10, opn 18 Sep 2005]

decree means decree, judgment or order and includes: (a) an order dismissing an application; or (b) a refusal to make a decree or order. [def subst Act 98 of 2005 s 2 and Sch 1, cl 36, opn 3 Aug 2005]

COMMENTARY ON ‘DECREE’ [s 4.275] “decree” See ss 3, 10(2), 44(2) and Pt X dealing with appeals, and s 104 and Pt XIII dealing with enforcement of decrees. Refusal to make an order An appeal lies under Pt X from a refusal to make an order. Failure to disqualify for bias A decision by a judge to continue to sit after he has been challenged for alleged bias is not a “decree”: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297; FLC 90-059.

____________________ de facto financial cause means: (a) proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship;

or (b) proceedings between: (i) a party to a de facto relationship; and [page 80] (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the maintenance of the first-mentioned party after the breakdown of the de facto relationship; or (c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or (d) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or (e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of: (i) the parties to that agreement; and (ii) the legal personal representatives of any of those parties who have died;

(including a combination consisting solely of parties or consisting solely of representatives); or (f) third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or (g) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs. [def insrt Act 115 of 2008 s 3 and Sch 1[3], opn 1 Mar 2009]

de facto property settlement or maintenance proceedings means proceedings with respect to: (a) the distribution of the property of the parties to a de facto relationship or of either of them; or (b) the distribution of the vested bankruptcy property in relation to a bankrupt party to a de facto relationship; or (c) the maintenance of a party to a de facto relationship. [def insrt Act 115 of 2008 s 3 and Sch 1[4], opn 1 Mar 2009]

de facto relationship has the meaning given by section 4AA. [def subst Act 115 of 2008 s 3 and Sch 1[5], opn 21 Nov 2008]

Department, in Subdivision C of Division 8 of Part VII, means a Department of State of the Commonwealth. [def insrt Act 46 of 2006 s 3 and Sch 9 item 26, opn 1 July 2006]

distribute: (a) in relation to: (i) property, and financial resources, of the parties to a de facto relationship or either of them; or (ii) vested bankruptcy property in relation to a

bankrupt party to a de facto relationship; [page 81] includes conferring rights or obligations in relation to the property or financial resources; and (b) in relation to a Part VIIIAB financial agreement, has a meaning affected by subsection 90UI(3). [def insrt Act 115 of 2008 s 3 and Sch 1[6], opn 1 Mar 2009]

divorce means the termination of a marriage otherwise than by the death of a party to the marriage. Note: Annulment does not involve the termination of a marriage but simply a declaration that a purported marriage is in fact void. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 37, opn 3 Aug 2005]

divorce or validity of marriage proceedings means: (a) proceedings between the parties to a marriage, or by the parties to a marriage, for: (i) a divorce order in relation to the marriage; or (ii) a decree of nullity of marriage; or (b) proceedings for a declaration as to the validity of: (i) a marriage; or (ii) a divorce; or (iii) the annulment of a marriage; by decree or otherwise. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 38, opn 3 Aug 2005]

DPP [def rep Act 174 of 2011 s 3 and Sch 2 item 155, opn 6 June 2012]

education includes apprenticeship or vocational training.

[def insrt Act 46 of 2006 s 3 and Sch 9 item 27, opn 1 July 2006]

excluded order means: (a) an interim order; or (b) an order made in favour of a person where: (i) the order was made on the application of the person; and (ii) notice of making the application was not served on any other person; and (iii) no other person appeared at the hearing of the application. [def insrt Act 46 of 2006 s 3 and Sch 9 item 28, opn 1 July 2006]

exposed to family violence, in relation to a child, has the meaning given by subsection 4AB(3). [def insrt Act 189 of 2011 s 3 and Sch 1 item 2, opn 7 June 2012]

family and child counselling [def rep Act 46 of 2006 s 3 and Sch 4 item 19, opn 1 July 2006]

family and child counsellor [def rep Act 46 of 2006 s 3 and Sch 4 item 20, opn 1 July 2006]

family and child mediation [def rep Act 46 of 2006 s 3 and Sch 4 item 21, opn 1 July 2006]

[page 82] family and child mediator [def rep Act 46 of 2006 s 3 and Sch 4 item 22, opn 1 July 2006]

family consultant has the meaning given by section 11B. [def insrt Act 46 of 2006 s 3 and Sch 4 item 23, opn 1 July 2006]

family counselling has the meaning given by section 10B.

[def insrt Act 46 of 2006 s 3 and Sch 4 item 24, opn 1 July 2006]

family counsellor has the meaning given by section 10C. [def insrt Act 46 of 2006 s 3 and Sch 4 item 25, opn 1 July 2006]

family dispute resolution has the meaning given by section 10F. [def insrt Act 46 of 2006 s 3 and Sch 4 item 26, opn 1 July 2006]

family dispute resolution practitioner has the meaning given by section 10G. [def insrt Act 46 of 2006 s 3 and Sch 4 item 27, opn 1 July 2006]

Family Law Magistrate of Western Australia means a person who holds office concurrently: (a) as a magistrate under the Magistrates Court Act 2004 of Western Australia; and (b) as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia. [def insrt Act 22 of 2006 s 3 and Sch 1 item 10, opn 1 July 2006]

family violence has the meaning given by subsection 4AB(1). [def subst Act 189 of 2011 s 3 and Sch 1 item 3, opn 7 June 2012]

family violence order means an order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence. [def insrt Act 46 of 2006 s 3 and Sch 9 item 29, opn 1 July 2006]

Federal Circuit Court means the Federal Circuit Court of Australia. [def insrt Act 7 of 2013 s 3 and Sch 2 item 3, opn 1 July 2013]

financial agreement means an agreement that is a financial agreement under section 90B, 90C or 90D, but does not include an ante-nuptial or post-nuptial settlement to which section 85A applies. [def insrt Act 143 of 2000 s 3 and Sch 2 item 1 opn 27 Dec 2000]

financial matters means: (a) in relation to the parties to a marriage — matters with respect to: (i) the maintenance of one of the parties; or (ii) the property of those parties or of either of them; or (iii) the maintenance of children of the marriage; or (b) in relation to the parties to a de facto relationship — any or all of the following matters: (i) the maintenance of one of the parties; (ii) the distribution of the property of the parties or of either of them; (iii) the distribution of any other financial resources of the parties or of either of them. [def subst Act 115 of 2008 s 3 and Sch 1[7], opn 1 Mar 2009]

[page 83] COMMENTARY ON ‘FINANCIAL MATTERS’ [s 4.400] “financial matters” This definition is relevant to s 86 and s 87. It may also be relevant to the meaning of “financial relationships” in s 81.

____________________ financial or Part VII proceedings means proceedings (being, unless the context otherwise requires, proceedings under this Act) of a kind referred to in any of paragraphs (c) to (eb) of the definition of matrimonial cause in this

subsection or proceedings under Part VII. [def insrt Act 167 of 1995 s 4]

COMMENTARY ON ‘FINANCIAL OR PART VII PROCEEDINGS’ [s 4.405] Financial or Part VII proceedings This definition is relevant to proceedings under Pt VII (children), Pt VIII (spouse maintenance and property), and s 114 (injunctions).

____________________ forfeiture application means an application for a forfeiture order. [def insrt Act 86 of 2002 s 3 and Sch 5 item 2 opn 1 Jan 2003; am Act 174 of 2011 s 3 and Sch 2 item 156, opn 6 June 2012]

forfeiture order means: (a) a forfeiture order under the Proceeds of Crime Act 2002; or (b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a forfeiture order for the purposes of this paragraph. [def subst Act 174 of 2011 s 3 and Sch 2 item 157, opn 6 June 2012]

freezing order means: (a) a freezing order under the Proceeds of Crime Act 2002; or (b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a freezing order for the purposes of this paragraph. [def insrt Act 174 of 2011 s 3 and Sch 2 item 158, opn 6 June 2012]

Full Court means:

(a) 3 or more Judges of the Family Court sitting together, where a majority of those Judges are members of the Appeal Division; or (b) in relation to particular proceedings: (i) 3 or more Judges of the Family Court sitting together, where, at the commencement of the hearing of the proceedings, a majority of those Judges were members of the Appeal Division; or (ii) 2 Judges of the Family Court sitting together, where those Judges are permitted, by subsection 28(4), to complete the hearing and determination, or the determination, of those proceedings. [def insrt Act 72 of 1983 s 3]

COMMENTARY ON ‘FULL COURT’ [s 4.425] “Full Court” The Full Court exercises the appellate jurisdiction of the Family Court subject to s 96 (appeals from courts of summary jurisdiction): see Pt IV and s 94. [page 84] Prior to the Family Law Amendment Act 1983 the definition of “Full Court” was contained in s 20: see s 21B.

____________________ General Division means the General Division of the Family Court. [def insrt Act 72 of 1983 s 3]

COMMENTARY ON ‘GENERAL DIVISION’ [s 4.430] “General Division” Section 21A divides the court for the purpose of the organization and conduct of its business into the Appeal Division and the General Division. A judge (other than the Chief Judge) who is not assigned to the Appeal Division shall be deemed to be assigned to the General Division: see s 22(2AF). The Family Court’s original jurisdiction is exercised by judges of the General Division: see Pt IV. ____________________ guardian, when used in Part VII in relation to a child, includes a person who has been granted (whether alone or jointly with another person or other persons) guardianship of the child under the law of the Commonwealth or of a State or Territory. [def insrt Act 46 of 2006 s 3 and Sch 9 item 30, opn 1 July 2006]

handle a complaint means do one or more of the following acts relating to the complaint: (a) consider the complaint; (b) investigate the complaint; (c) report on an investigation of the complaint; (d) deal with a report of an investigation of the complaint; (e) dispose of the complaint; (f) refer the complaint to a person or body. [def insrt Act 187 of 2012 s 3 and Sch 1 item 3, opn 12 Apr 2013]

has [def rep Act 46 of 2006 s 3 and Sch 8 item 41, opn 1 July 2006]

income tested pension, allowance or benefit means a pension, allowance or benefit prescribed, or included in a class of pensions, allowances or benefits prescribed, for the purposes of this definition. [def insrt Act 181 of 1987 s 5]

COMMENTARY ON ‘INCOME TESTED PENSION, ALLOWANCE OR BENEFIT’ [s 4.445] “income tested pension, allowance or benefit” This definition was added by the 1987 amending Act. Prescribed pensions etc The pensions and benefits prescribed for the purpose of this provision are set out in Family Law Regulations, reg 12A. ____________________ independent children’s lawyer for a child means a lawyer who represents the child’s interests in proceedings under an appointment made under a court order under subsection 68L(2). [def insrt Act 46 of 2006 s 3 and Sch 5 item 2, opn 1 July 2006]

[page 85] information about the child’s location, in the context of a location order made or to be made by a court in relation to a child, means information about: (a) where the child is; or (b) where a person, who the court has reasonable cause to believe has the child, is. [def insrt Act 46 of 2006 s 3 and Sch 9 item 31, opn 1 July 2006]

interests, when used in Part VII in relation to a child, includes matters related to the care, welfare or development of the child. [def insrt Act 46 of 2006 s 3 and Sch 9 item 32, opn 1 July 2006]

lawyer means a person enrolled as a legal practitioner of: (a) a federal court; or (b) the Supreme Court of a State or Territory. [def insrt Act 46 of 2006 s 3 and Sch 5 item 3, opn 1 July 2006]

location order has the meaning given by subsection 67J(1).

[def insrt Act 46 of 2006 s 3 and Sch 9 item 33, opn 1 July 2006]

made, in relation to a decree, being a judgment, means given. COMMENTARY ON ‘MADE’ [s 4.475] “made” A simple matter of grammar arising from the rule that decrees are “made” and judgments are “given”. ____________________ [def am Act 181 of 1987 s 63 and Sch]

made in favour, in relation to a parenting order (other than a child maintenance order), has the meaning given by subsection 64B(6). [def subst Act 46 of 2006 s 3 and Sch 8 item 42, opn 1 July 2006]

maintenance agreement means an agreement in writing made, whether before or after the commencement of this Act and whether within or outside Australia, between the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes provision with respect to other matters, and includes such an agreement that varies an earlier maintenance agreement. COMMENTARY ON ‘MAINTENANCE AGREEMENT’ [s 4.490] “maintenance agreement” This important definition is relevant to ss 86 and 87. All maintenance agreements, wherever and whenever made, fall within the term. An “overseas maintenance agreement” also falls within this definition. See the definition of “financial matters” in s 4. ____________________ [def am Act 72 of 1983 s 3]

major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about: (a) the child’s education (both current and future); and

[page 86] (b) (c) (d) (e)

the child’s religious and cultural upbringing; and the child’s health; and the child’s name; and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [def insrt Act 46 of 2006 s 3 and Sch 1 item 4, opn 1 July 2006]

marriage counselling [def rep Act 46 of 2006 s 3 and Sch 4 item 28, opn 1 July 2006]

marriage counsellor [def rep Act 167 of 1995 s 4]

matrimonial cause means: (a) proceedings between the parties to a marriage, or by the parties to a marriage, for: (i) a divorce order in relation to the marriage; or (ii) a decree of nullity of marriage; or (b) proceedings for a declaration as to the validity of: (i) a marriage; or (ii) a divorce; or (iii) the annulment of a marriage; by decree or otherwise; or (c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or

(caa)proceedings between: (i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to the maintenance of the first-mentioned party; or (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship; (ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or (iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or (cb) proceedings between: (i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; [page 87] with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings: (iii) arising out of the marital relationship; or (iv) in relation to concurrent, pending or completed divorce or

validity of marriage proceedings between the parties to the marriage; or (v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or (d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; or (e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB); or (ea) proceedings between: (i) the parties to a marriage; or (ii) if one of the parties to a marriage has died — the other party to the marriage and the legal personal representative of the deceased party to the marriage; being proceedings: (iii) for the enforcement of, or otherwise in relation to, a maintenance agreement that has been approved under section 87 and the approval of which has not been revoked; (iv) in relation to a maintenance agreement the approval of which under section 87 has been revoked; or (v) with respect to the enforcement under this Act or the applicable Rules of Court of a maintenance agreement that is registered in a court under section 86 or an overseas maintenance agreement that is registered in a

court under regulations made pursuant to section 89; or (eaa) without limiting any of the preceding paragraphs, proceedings with respect to a financial agreement that are between any combination of: (i) the parties to that agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); or (eab) third party proceedings (as defined in section 4A) to set aside a financial agreement; or (eb) proceedings with respect to the enforcement of a decree made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c); or (f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, [page 88] pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act. [def am Act 63 of 1976 s 3; Act 72 of 1983 s 3; Act 72 of 1984 s 3 and Sch; Act 181 of 1987 s 5; Act 194 of 1999 s 3 and Sch 11[3]; Act 143 of 2000 s 3 and Sch 2 item 2 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 4A item 1 opn 17 Dec 2003; Act 98 of 2005 s 2 and Sch 1, cls 40–42, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cls 11–12, opn 18 Sep 2005; Act 115 of 2008 s 3 and Sch 3[42], opn 21 Nov 2008]

____________________ COMMENTARY ON “MATRIMONIAL CAUSE” [s 4.505.1] “matrimonial cause” — introductory comments Proceedings

by way of a matrimonial cause may only be instituted under the Act: see s 8(1)(a). To the extent that proceedings fall within the definition of “matrimonial cause”, State and Territorial laws and jurisdiction have been superseded by the Act. See also the discussion of associated and accrued jurisdiction: ss 31, 33. Jurisdiction to determine whether Family Court has jurisdiction to make orders sought As a court of limited jurisdiction, before making orders the Family Court must be satisfied that it has jurisdiction to make the orders sought. The court always has jurisdiction to entertain proceedings for the purposes of deciding whether it has jurisdiction to make the orders sought. In carrying out that limited exercise of jurisdiction, the court is required to determine any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (“the jurisdictional facts”). That limited initial jurisdiction is itself a “matrimonial cause” within s 4(1): see Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC 92-836. Where a court’s jurisdiction to make an order is challenged by a party, the court must find the existence of jurisdictional facts on the balance of probabilities, or refuse to hear the matter: Yunghanns v Yunghanns, above. [s 4.505.2] Independent relief The definition of “matrimonial cause” is contained in paragraphs (a)–(f), each of which sets out a separate type of matrimonial cause. The Act, with some exceptions, treats all proceedings in a “matrimonial cause” as independent proceedings which can be instituted regardless of whether proceedings for principal relief are concurrent, pending or completed. Two exceptions are para (ca)(ii) and para (f): see Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; FLC 90–039; BC7600041. By contrast, under the repealed Matrimonial Causes Act 1959 all other proceedings had to be ancillary to proceedings for principal relief. [s 4.505.3] Proceedings See also definition of “proceedings” in s 4. Each single application for one of the many forms of relief constitutes a single “matrimonial cause”: see In the Marriage of Kennedy (1976) 1 Fam

LR 11,194; FLC 90-010; see also Yule v Junek (1978) 139 CLR 1; 3 Fam LR 11,640 at 11,653; FLC 90-439. [s 4.505.4] Paragraph (a) — Proceedings between the parties, or by the parties, for a divorce order (s 48) or a decree nullity of marriage (s 51) This paragraph was amended in 2005, essentially to change the terminology from “dissolution of marriage” to “divorce”. Such proceedings must be brought between, or by, parties to an existing marriage. Proceedings for nullity of marriage are brought between, or by, parties to a marriage which is void. The need to refer to proceedings “by” the parties arises because the law provides that parties may make a joint application in these matters. Constitutional validity Paragraph (a) is clearly a valid exercise of the power contained in s 51(xxii) (“matrimonial causes”) of the Constitution. [page 89] [s 4.505.5] Paragraph (b) — Proceedings for a declaration as to the validity of a marriage or a divorce or the annulment of a marriage The power to make laws with respect to marriage (s 51(xxi) of the Constitution), includes laws as to the validity of a purported marriage: see In the Marriage of Miller (1983) 9 Fam LR 10; FLC 91-328. In such a proceeding a party may seek a declaration either that a marriage or dissolution or annulment of a marriage is valid or that it is void. There is no longer a category of “voidable” marriage under Australian law. The proceedings are brought under s113 of the Act and must be brought between parties to an existing marriage, or to a purported marriage which is void, or to a valid or void marriage which has been dissolved or annulled in Australia or elsewhere. An example of an application under s 113 is Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR 158; FLC 93087, granting a declaration of the validity of a marriage between a woman and a post-operational female to male transsexual, who was held to be a man for the purpose of the law of marriage.

Constitutional validity Paragraph (b) has been held to be a valid exercise of the power contained in s 51(xxi) (“marriage”) of the Constitution: see In the Marriage of Miller, above. The requirement of a genuine dispute A declaration of the validity of a marriage should not be made where there is no genuine dispute as to the validity of that marriage or decree as the case may be: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; 31 FLR 87; FLC 90-307; see also In the Marriage of Savage and Hodgson (1982) 46 ALR 198; 8 Fam LR 658; FLC 91-281. What led to these decisions was the use of a declaration as a device to attract property jurisdiction under the Act (notably in In the Marriage of Read (1977) 2 Fam LR 11,596; 27 FLR 392; FLC 90-201), which at that time was more limited than it has since become. A different approach, however, seems to have been taken in cases involving a foreign decree of dissolution or nullity. See In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91-347 in which the Full Court distinguished In the Marriage of Tansell (1977) 3 Fam LR 11,466; 31 FLR 87; FLC 90-307 and refused to follow In the Marriage of Savage and Hodgson (1982) 46 ALR 198; 8 Fam LR 658; FLC 91-281 and applied Casias v Wallace [1971] 1 NSWLR 331; (1971) 17 FLR 490. Genuine dispute A claim for a declaration of a foreign marriage where the validity of that marriage is in dispute will clearly be a matrimonial cause within the meaning of paragraph (b) of the definition: see Lengyel v Rasad (1989) 13 Fam LR 648; (1990) FLC 92-112. [s 4.505.6] Paragraph (c) — Proceedings with respect to maintenance of a party (section 74) This paragraph was amended by the Family Law Amendment Act 1983. Paragraph (c) is the same as the previous paragraph (c)(i). It is the matrimonial cause which relates to spousal maintenance. The proceedings must be brought between parties to a marriage, whether an existing marriage or one which has been dissolved or annulled in Australia or elsewhere. Proceedings under para(c) may also be brought between parties to a purported marriage which is void.

The definition excludes proceedings by or against a person who is not a “party to the marriage” as defined in the Act or concerning a child who is not a “child of a marriage” as defined in the Act. Constitutional validity Paragraph (c) is a valid exercise of the power contained in s 51(xxi) of the Constitution: see Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90-039. [s 4.505.7] Paragraph (ca) — Property proceedings — introductory comment The sections of the Act which specifically concern “property” are ss 78, 79, 79A, 80, 81, 84, 85, 85A, 90 and 114. In the original definition of “matrimonial cause” as inserted in the Act, the relevant paragraph relating to property proceedings reads: “(c)(ii) proceedings with respect to the property of the parties to the marriage or either of them.” [page 90] After the decision of the High Court in Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90-039 the definition was amended to read: “(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties.” The present form of the definition results from a significant amendment made by the Family Law Amendment Act 1983 which inserted paras(ca)(i), (ii) and (iii). Prior to the Family Law Amendment Act 1983 proceedings under either s 78 or s 79 had to be proceedings in relation to concurrent, pending or completed proceedings for principal relief between the parties. This had the effect, that property proceedings could not be commenced prior to the institution of proceedings for principal relief.

The definition expands the exclusive jurisdiction of courts exercising jurisdiction under the Act. It permits property proceedings even before the parties to such proceedings have separated. Section 4(2) provides that a “party to a marriage includes not only a party to an existing marriage, but also a party to a marriage that has been dissolved or annulled in Australia or elsewhere …” [s 4.505.8] Paragraph (ca)(i) — Proceedings with respect to property being proceedings arising out of the marital relationship This paragraph was inserted in the Act by the Family Law Amendment Act 1983. The proceedings may be commenced notwithstanding there are no concurrent, pending or completed proceedings for principal relief. Constitutional validity The phrase “proceedings arising out of the marital relationship” is intended to make clear that para(ca) is no longer exclusively referable to the matrimonial causes power contained in s 51(xxii) of the Constitution, but is also referable to the “marriage” power in s 51(xxi) of the Constitution. This paragraph was treated as valid by the High Court in In the Marriage of Fisher (1986) 57 ALR 513; 11 Fam LR 11; FLC 91-767. Its validity was not challenged in that case, and since the decision upheld the jurisdiction of the Family Court, which was based on this paragraph, the decision may be regarded as holding the provision valid. The provision was also impliedly upheld by the High Court in Dougherty v Dougherty (1987) 11 Fam LR 577; FLC 91-823. The paragraph is consistent with the decision in Russell v Russell, above. In Russell v Russell, above, it was not suggested that a property jurisdiction could never be conferred on the Family Court in the pre-divorce period. All that was decided was that the particular wording of the Act at that time and in particular, para (c)(ii) of the definition of “matrimonial cause” was not such as to express a sufficient connection to the marriage power in s 51(xxi) of the Constitution. This provision overcomes the limitation which previously existed of the property power to property proceedings which were in relation to proceedings for principal relief, which had the consequence that the court had no jurisdiction in property matters from the time the marriage had broken

down until the time of the institution of proceedings for principal relief, normally 12 months after the date of separation. [s 4.505.9] “arising out of the marital relationship” The phrase “arising out of the marital relationship” is very general, and at different times the court has taken rather different approaches to the question what factors will create the necessary relationship between the proceedings and the marital relationship. The question was fully considered by the Full Court in In the Marriage of Kowalski (1992) 16 Fam LR 235; (1993) FLC 92-342 (Nicholson CJ, Nygh and Purdy JJ). In that case the parties were divorced, having cohabited for only six months since their marriage, but some years later resumed cohabitation for twelve years, though they did not re-marry. The wife sought leave under s 44(3) to bring s 79 proceedings in relation to the former matrimonial home, which had also been the parties’ residence for most of their subsequent cohabitation. [page 91] The Full Court held that the proceedings fell within para (c)(i), holding at Fam LR 243 that once a marriage has been celebrated, “the entire relationship between the parties, whether arising out of contributions before, during or after the formal tie of marriage was entered into or dissolved, falls within the ambit of Part VIII of the Family Law Act 1975”. The Full Court overruled several cases in so far as they departed from this principle (although holding that the actual decisions may have been correct for other reasons): In the Marriage of B (1985) 10 Fam LR 8; FLC 91-610; In the Marriage of Leibinger (No 1) (1985) 11 Fam LR 33; (1986) FLC 91-727; In the Marriage of Leibinger (No 2) (1986) FLC 91–775; In the Marriage of Skoflek and Baftirovski (1988) 12 Fam LR 55; FLC 91-906. Whether financial proceedings between parties who were once married can be said to arise out of the marital relationship may depend on the particular facts: see Sewell v Wilson (2010) 242 FLR 402; 44 Fam LR 71; [2010] WASCA 152; BC201005636 and the cases discussed therein (District Court property proceedings struck out; they constituted a matrimonial cause

because they were in substance seeking to recover the benefit arising from the marital relationship). It is submitted that this interpretation has much to commend it, both as a matter of principle and as a contribution to the clarification and simplification of the law. The Full Court was correct in pointing out, at Fam LR 242–3, that the principle it stated is consistent with two other propositions, namely that contributions to the welfare of the family may be made after the end of the marital cohabitation and after the marriage has been dissolved (see [s 79.201]) and that pre-marital contributions can be taken into account (see [s 79.197]). The phrase “arising out of the marital relationship” also occurs in para (e) of the definition of matrimonial cause in s 4(1). The case law based on that paragraph may not however be entirely applicable to para (ca)(i), firstly because of the different nature of the proceedings, and secondly because in para (e) the phrase refers to “circumstances arising out of the marital relationship”, whereas para (ca)(i) refers to “proceedings arising out of the marital relationship”. [s 4.505.10] Paragraph (ca)(ii) — Proceedings with respect to property being proceedings in relation to proceedings for principal relief Unlike proceedings under para (ca)(i), proceedings under para (ca)(ii) can only be brought if they are in relation to proceedings for principal relief. “Proceedings for principal relief” are defined in s 4(1). Constitutional validity Paragraph (ca)(ii) is a valid exercise of s 51(xxii) of the Constitution: see Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90-039. [s 4.505.11] Paragraph (ca)(ii) — General notion of “in relation to” The proceedings under para (ca)(ii) must be “in relation to” proceedings for principal relief. The meaning of the words “in relation to” has been considered in a number of authorities. [s 4.505.12] Paragraph (ca)(ii) — Relationship a question of fact The question of “incidentality” or “relationship” of the property proceedings to

the proceedings for principal relief is primarily a question of fact depending on the circumstances of each case: see In the Marriage of Pearce (1982) 8 Fam LR 723 at 726; FLC 91-276. [s 4.505.13] Paragraph (ca)(ii) — Authorities In Lansell v Lansell (1964) 110 CLR 353 at 367 the High Court said of an identical formula in s 5(c) of the repealed Act, that the proceedings in question must bear an appropriate relationship to the proceedings for principal relief; that is to say the proceedings with respect to property must be such as can fairly be said to be incidental to the relief obtainable or already obtainable in the divorce proceedings. In In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91-347, the Full Court said that the circumstances in which the principal relief is sought or granted must be such as to make it [page 92] appropriate to make orders in relation to property of the parties, and, that so far as divorce and nullity are concerned, it would always be appropriate to make such orders. In R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598 at 602; FLC 90-606, Gibbs J said that “— an application by a divorced wife under s 79 of the Act for a settlement or transfer of property is an application to the court to make such financial readjustments as may be rendered appropriate by the dissolution of the marriage; it is an application for an order consequential on the dissolution of the marriage, and can properly be said to be incidental to the decree of dissolution that has been obtained … the proceedings therefore are a matrimonial cause within para (ca)”. Applying these authorities, Nygh J held in In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715 at 720; FLC 91-087 that an application for relief in respect of property jointly held by the parties to a marriage which is made because the marriage between them is dissolved or is about to be dissolved falls within matrimonial cause: In the Marriage of Pearce (1982) 8

Fam LR 723; FLC 91-276, Murray J thought this was too wide and that it remained a matter of fact and degree in each case. In In the Marriage of Espie, above, Strauss J said that an application for an order altering the interests of the parties in property is the kind of relief which bears an appropriate relationship to the termination of the marriage or the purported marriage and to proceedings in connection with that termination. It would cover any application for relief in respect of property jointly held by the parties to a marriage which is made because the marriage between the parties has been dissolved or is about to be dissolved: see In the Marriage of Rennie and Higgon, above. Paragraph (f) of the definition of matrimonial cause also contains the words “in relation to concurrent, pending or completed proceedings …”. In Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91-555, Gibbs CJ at 79,485 referred to his judgment in Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91-500 where he said at 79,056: “The words ‘in relation to’ import the existence of a connection or association between the two proceedings, or, in other words, that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind …” and further: “An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings (so that, for example, an application by a divorced wife for a settlement and transfer of property is a proceeding in relation to the completed proceedings for the divorce …)” [s 4.505.14] Paragraph (ca)(ii) — Completed proceedings Proceedings are “completed” by an order or by a dismissal, but not by a withdrawal of proceedings, as no determination on the merits is made and it does not preclude a further application for the same relief: see In the Marriage of Peters (1981) 7 Fam LR 722; (1982) FLC 91-202. Dismissal of application A dismissal of an application for principal relief as being frivolous or vexatious may not attract jurisdiction under para (ca)(ii): see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90-307.

[s 4.505.15] Paragraph (ca)(ii) — Relationship to proceedings for divorce or nullity In respect of proceedings for divorce or nullity (para (a)), the property proceedings must be capable of being described as proceedings in relation to those proceedings. It is not enough merely to show that the “proceedings for principal relief” are completed. If the “proceedings for principal relief” are completed and a financial readjustment is rendered appropriate by the completion of the proceedings for principal relief, then a sufficient relationship [page 93] exists: see R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90-606; see also Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91-555. If, however, after the completed proceedings it is clear that a valid marriage continues to bind the parties, then it is difficult to see how subsequent property proceedings can be said to be necessary or appropriate. The parties may have a right at some time in the future to seek a divorce and at that time property proceedings may be instituted as incidental to divorce proceedings: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90-307; see also In the Marriage of Peters (1981) 7 Fam LR 722; (1982) FLC 91-202. Proceedings some years after divorce In respect of property proceedings instituted some years after a divorce, such proceedings may not necessarily be seen as consequential upon the completion of the “proceedings for principal relief”. The substantive proceedings may have lost any matrimonial character and be seen as merely proceedings between strangers: see In the Marriage of Grist and Ford (1979) 5 Fam LR 235; FLC 90-683; see also In the Marriage of Cattarossi (1976) 2 Fam LR 11,436; FLC 90-106 and Goldsworthy v Goldsworthy (1982) 31 SASR 121. See however In the Marriage of Wingate and Towns (1979) FLC 90-624; Tansell v Tansell (1964) 110 CLR 353; In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91-087; In the Marriage of Martino (1981) 7 Fam LR 613;

FLC 91-089; In the Marriage of Pearce (1982) 8 Fam LR 723; FLC 91-276. However, the mere effluxion of time will not cause the loss of relationship, it is the subject matter that counts. If the parties leave their property rights arising out of the marriage unresolved for a number of years that would still be within the relationship, but if fresh issues have arisen between them after divorce that would not be: see In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005; FLC 91-323. In circumstances where parties subsequently enter into a de facto relationship with each other the occurrence of such a relationship does not thereby create or revive, as between the parties, rights and obligations enforceable under the Family Law Act. This event together with a lapse of time following the dissolution may well sever the nexus: see In the Marriage of B (1985) 10 Fam LR 8; FLC 91-610. [s 4.505.16] Paragraph (ca)(ii) — Relationship to proceedings for declaration The necessary relationship between a property application and proceedings for a declaration of validity of marriage may not always exist. If the court declares the marriage valid, the parties have the right in the future to seek dissolution. If, however, the application after a consideration of its merits, was dismissed, then the parties would be, in effect, left without a marriage and in such circumstances a property re-adjustment, under the Family Law Act, would not be appropriate. Where an application for a declaration of validity of marriage is filed, the court ought not make property orders until that issue is determined: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90-307; see also In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91-347. [s 4.505.17] Paragraph (ca)(ii) — Lapse of jurisdiction Jurisdiction under para (ca)(ii) will lapse if “proceedings for principal relief” are discontinued before an order is made under s 79; see Thomas v Thomas [1969] ALR 782. However the validity of the order would not be affected by a discontinuance of proceedings after the order under s 79 was made. In anticipation of proceedings The proceedings cannot be instituted in anticipation of “proceedings for principal relief” but may be instituted simultaneously with or after the institution of such proceedings.

[s 4.505.18] Paragraph (ca)(iii) — Proceedings with respect to property, being proceedings in relation to a foreign decree This paragraph was inserted in the Act by the Family Law Amendment Act 1983. Prior to this amendment, property proceedings could not be instituted in relation to a decree of dissolution of marriage pronounced by a foreign court: see In the Marriage [page 94] of Savage and Hodgson (1982) 8 Fam LR 658; FLC 91-281 (Tonge J); In the Marriage of Cain (1987) 11 Fam LR 540; FLC 91-808 (Barry J). The purpose of the provision is to expressly give power to the court to make a property order when a marriage has been dissolved or annulled in an overseas country and Australian law recognises the decree as valid. Declaration of validity In In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91-347 the Full Court said that a declaration of validity of the foreign decree could be sought and then proceedings commenced under s 79. It did not matter that the purpose of the application for a declaration of validity was to provide jurisdiction to make a property order and there was no real doubt about the validity of the foreign decree. However since the insertion of para (ca)(iii), it is no longer necessary to seek such a declaration to fill the jurisdictional gap: see In the Marriage of Cain, above at 544. Recognition of decree It is necessary to adduce evidence to show that the decree would be recognised under s 104; see In the Marriage of Cain, above. Leave under s 44(3) In In the Marriage of Cain, above, Barry J held that it is not necessary to seek leave under s 44(3) to extend the time for filing an application for property settlement. Constitutional validity The validity of this paragraph has not yet been determined. However, it would appear to be a valid exercise of the “matrimonial cause” power under s 51(xxii) of the Constitution.

[s 4.505.19] Paragraph (d) — Proceedings with respect to maintenance agreements This paragraph provided the “matrimonial cause” in respect of the approval, revocation of approval or registration of “maintenance agreements” under s 87 or under s 86. Such agreements can no longer be registered, but valid agreements are capable of enforcement: see [s 4.25]. Proceedings for approval could be brought between parties to present or past marriage including a marriage that is void even if no “proceedings for principal relief” are pending or have been completed: see In the Marriage of Macsok (1976) 1 Fam LR 11,264; FLC 90-045. Constitutional validity The validity of this paragraph has not yet been tested in the High Court. See however In the Marriage of Macsok, above. Definition “Maintenance agreement” is defined in s 4(1). “Financial matters” is defined in s 4(1). See also paras (ea) and (eb). [s 4.505.20] Paragraph (e) — Proceedings for an injunction — introductory comment This paragraph provides the “matrimonial cause” in respect of proceedings for an injunction. The proceedings may be brought between parties to a present or past marriage including a marriage that is void, even if no proceedings for principal relief are pending or completed: see In the Marriage of Lynch and Slater (1977) 3 Fam LR 11,515; FLC 90-309. See also Lengyel v Rasad (1989) 13 Fam LR 648; (1990) FLC 92-112. The proceedings can be brought in respect of a marriage that has been dissolved or annulled: see Mitchelson v Mitchelson (1977) 17 ALR 633; 3 Fam LR 11,344. The definition preserves the operation of prescribed state and territorial laws that are capable of operating concurrently with ss 114 and 114AA. Constitutional validity The validity of this paragraph was upheld by the High Court in Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90-039. [s 4.505.21] Paragraph (e) — Circumstances arising out of the marital

relationship Section 114(1) only confers jurisdiction to make orders or grant injunctive relief “in circumstances arising out of the marital relationship”. These words imply a limitation, the full [page 95] extent of which is not altogether clear. A number of authorities have dealt with the meaning of the words “circumstances arising out of the marital relationship”. An event does not fall within the marital relationship merely because the circumstances involve a husband, wife and children: see In the Marriage of Mills (1976) 1 Fam LR 11,592; FLC 90-079. The case law suggests that circumstances arise out of the marital relationship where they give rise to rights and obligations created or regulated by the Family Law Act. These include rights of property where these are ancillary to proceedings for principal relief and rights in respect of the use and occupancy of a matrimonial home where these are relevant to matters concerning children: see In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90-062; see also In the Marriage of Mills, above; In the Marriage of McCarney (1977) 2 Fam LR 11,670; FLC 90-200. In In the Marriage of Leibinger (No 2) (1986) FLC 91-775, the Full Court held that the words “in circumstances” did not limit the operation of power under s 114(1) to the period during which the marriage subsists: the words “in circumstances arising out of the marital relationship” mean “where the circumstances on which the proceedings are based” arise out of that relationship. In that case, the Full Court considered that neither the effluxion of time nor the fact that the parties had divorced and lived together for some years in a de facto relationship, took the proceedings outside the scope of para (e): the trial judge was entitled to find jurisdiction, having regard to the fact that the proceedings related to the future occupation of the property which had once been the parties’ matrimonial home. The phrase “circumstances arising out of the marital relationship” is wide

in scope and should not be limited or read down in any particular way. See R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90-616; see also In the Marriage of Mills, above; In the Marriage of Farr (1976) 2 Fam LR 11,300; FLC 90-133 and [s 4.505.27]. It deals with proceedings arising out of the marital relationship and not arising out of the general law of contract, tort or property: see In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90-806; see also In the Marriage of Bak (1979) 6 Fam LR 411; (1980) FLC 90-877. [s 4.505.22] Paragraph (ea) — Enforcement of maintenance agreements This paragraph was inserted in the Act by the Family Law Amendment Act 1983. It provides the “matrimonial cause” for proceedings for the enforcement of “maintenance agreements”. It covers proceedings between parties to a marriage or where one party to a marriage has died, proceedings between the other party to the marriage and the legal personal representative of the deceased party to the marriage, being proceedings for or otherwise in relation to a maintenance agreement approved or an Australian or overseas maintenance agreement registered or deemed to be registered under the Family Law Act. It covers all aspects of enforcement or any proceedings in relation to maintenance agreements under both ss 86 and 87 and overseas maintenance agreements registered pursuant to s 89. It makes it clear that the Family Court has exclusive jurisdiction in regard to the enforcement of maintenance agreements. It overcomes the conflict between the Family Court and decisions by state courts as to the jurisdiction to enforce maintenance agreements: see In the Marriage of Carew (1979) 5 Fam LR 513; FLC 90-698; see also In the Marriage of Perlman (1983) 8 Fam LR 811; FLC 91-308; and on appeal Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91-500; In the Marriage of Ellinas (1979) 5 Fam LR 114; FLC 90-649; In the Marriage of Hutchinson (1979) 5 Fam LR 476; FLC 90-691. Constitutional validity The validity of this provision has not yet been determined. However, such decisions such as Dowal v Murray (1978) 4 Fam

LR 641; FLC 90-516 upholding para (f), suggest that it will be valid, at least, if the maintenance agreement has a close connection with the marital relationship. A difficulty may arise where the subject matter of the maintenance agreement has only a tenuous connection with the marital relationship, this being possible under the wider [page 96] definition of “maintenance agreement” in s 4. It might be held this paragraph is valid only to the extent that it can be read down so as to refer only to maintenance agreements having a close connection with the marriage. [s 4.505.23] Paragraph (eaa) — Financial agreements This paragraph was inserted on 27 December 2000 with the introduction of financial agreements. It deals with all proceedings concerning financial agreements, be they applications for enforcement of agreements made prior to marriage, during marriage or after separation or divorce. [s 4.505.24] Paragraph (eab) This paragraph was inserted on 17 December 2003, following the decision in ASIC and Rich and Rich [2003] FamCA 1114. The Australian Securities and Investments Commission had conceded at trial that there was no matrimonial cause which would allow them to set aside the financial agreement but sought to rely on section 31(1)(d). The trial judge found that no jurisdiction to entertain the application by the third party existed in the absence of legislative reform. The new paragraph defines as a matrimonial cause a proceedings involving a third party who moves the court to set aside a financial agreement entered into between parties to the marriage. The paragraph refers to the extended definition of third party proceedings to set aside a financial agreement in s 4A. Constitutional validity The validity of this paragraph has not yet been tested. It is submitted that any challenge to the constitutional validity of the paragraph will focus on the connection (or lack thereof) between the

proceedings and the marriage. [s 4.505.25] Paragraph (eb) — Enforcement of overseas decree This paragraph was inserted in the Act by the Family Law Amendment Act 1983. It covers proceedings for the enforcement of a decree made under the law of an overseas country in proceedings of various kinds referred to in the definition of “matrimonial cause”. Constitutional validity The validity of this paragraph has not yet been determined. It is submitted, however, (SO’R, RC) that it is valid. Proceedings relating to children The 1987 amending Act amended the paragraph to omit reference to the former paragraphs of “matrimonial cause” dealing with proceedings relating to children. See above, [s 4.1]. [s 4.505.26] Paragraph (f) — Any other proceedings — introductory comment Proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in paras (a) to (eb) are a “matrimonial cause”. Constitutional validity The validity of this paragraph was upheld in Dowal v Murray (1978) 4 Fam LR 641; FLC 90-516. [s 4.505.27] Paragraph (f) — In relation to In A v HM and WM (1979) 4 Fam LR 776 at 782 Waddell J held that if the Family Court does not have jurisdiction to grant the the relief sought in the proceedings, it cannot be said that such proceedings are “in relation to” completed or pending proceedings under the Family Law Act. Type of relationship In Fountain v Alexander (1982) 150 CLR 615; 8 Fam LR 67; FLC 91-218, Mason J said at 74: “Paragraph (f) is not specific in spelling out the relationship which is required to subsist between the proceedings which it includes, viz ‘any other proceedings’, and ‘concurrent, pending or completed proceedings’ of a kind mentioned in the earlier paragraphs. But, ‘in relation to’ being an expression of wide and general import, it should not be read down in the absence of some compelling reason for so doing.”

See also Bate v Priestley (1989) 13 Fam LR 376; (1990) FLC 92-102 (CA). [page 97] In Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91-500, Gibbs CJ said at 416; 79,056: “The words ‘in relation to’ import the existence of a connection or association between the two proceedings, or, in other words, that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind … An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings … It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former…” In Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555, Gibbs CJ said at 895 that the relationship must exist between the proceedings themselves, “It is not enough that what is done in one of the proceedings would indirectly affect the practical outcome of the other proceedings”. See also Miller v Bury (1986) FLC 91-714 (McLelland J); MJH Pty Ltd v Hannes (1990) 14 Fam LR 231. See also Norgard v Norgard (1996) 20 Fam LR 428. [s 4.505.28] Paragraph (f) — Party to the marriage Subject to the provisions of the Act and the Rules and Regulations and the relevance to the main proceedings, the proceedings need not be instituted by or against a party to the marriage in order to be a “matrimonial cause” under paragraph (f): see Yule v Junek (1978) 139 CLR 1; 3 Fam LR 11,640 at 11,647; FLC 90-439; see also In the Marriage of Hogue (1977) 3 Fam LR 11,290; FLC 90-259; Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91-555 (HC). Party to earlier proceedings The applicant or respondent to the proceedings need not necessarily have been a party to the earlier proceedings: see Fountain v Alexander (1982) 150 CLR 615; 8 Fam LR 67; FLC 91-218;

Miller v Bury (1986) FLC 91-714. [s 4.505.29] Paragraph (f) — Procedural application This paragraph includes procedural applications under the Family Law Regulations. [s 4.505.30] Paragraph (f) — Enforcement This paragraph includes proceedings for enforcement under Pt VIII. [s 4.505.31] Paragraph (f) — Other applications This paragraph includes various applications such as applications under ss 40(6), 41(4A), 44(2) and 92 which are ancillary to other matrimonial causes within the definition of “matrimonial cause”. See In the Marriage of Ellinas (1978) 4 Fam LR 65; FLC 90-419. A proceeding under s 114(3) constitutes a matrimonial cause within para (f): see Harris v Harris (1980) FLC 90-842; see also In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958; FLC 91-114; Connolly and Gilbert M Johnstone & Co (1982) 8 Fam LR 248; FLC 91-217. Custody application by third parties after death of parents In Harper v Brymer (1987) FLC 91-804 Fogarty J held that the Family Court lacked jurisdiction to deal with an application for custody brought by third parties after the death of both parents, although the Family Court had previously made an order in favour of one of the parents. His Honour merely remarked that para (f) added nothing to the question and could be disregarded. It is submitted (RC) that this laconic ruling may be correct, in that after the death of both parents further proceedings relating to the children cannot be described as “in relation to” the earlier proceedings. If para (f) is not so limited, it is likely to be held invalid in its application to such cases. [s 4.505.32] Paragraph (f) — Application for costs An application for costs has been held to be a “matrimonial cause” within the meaning of para (f): Barker v Barker (1976) 13 ALR 123; 2 Fam LR 11,453; see also Stone v Stone and Ralph (1977) 3 Fam LR 11,101; 30 FLR 520. [page 98]

[s 4.505.33] Paragraph (f) — Substituted service This paragraph has been held to include an application for substituted service: see In the Marriage of Tallents (1977) 14 ALR 648; 2 Fam LR 11,688. [s 4.505.34] Paragraph (f) — Contempt This paragraph has been held to include an application to punish a party for contempt in respect of an order made under the repealed Matrimonial Causes Act 1959: see Ulrick v Ulrick (1976) 2 Fam LR 11,286; (1977) FLC 90-242; see also Mitchelson v Mitchelson (1977) 17 ALR 633; 3 Fam LR 11,344. [s 4.505.35] Paragraph (f) — Setting aside a property order In Hillman v Hillman (1977) 4 Fam LR 274 at 278; 2 NSWLR 739; FLC 90-316 Helsham CJ held that this paragraph did not include proceedings to set aside a property order allegedly obtained by fraud under the repealed Matrimonial Causes Act 1959. It is submitted (RC) however that since the addition in 1983 of s 79A(3), para (f) and s 79A show an intention to create an exclusive jurisdiction for the setting aside on grounds of fraud, property orders obtained under either the Act (s 79) or the repealed Act (s 86) and that Hillman v Hillman, above, does represent the present law. In Miller v Bury (1986) FLC 91-714, McLelland J said at 75,186 that in his opinion the decision of the High Court in Fountain v Alexander (1982) 150 CLR 615; 8 Fam LR 67; FLC 91-218 is clear authority for the proposition that proceedings in which it is sought to vary, reverse or set aside an order made in earlier proceedings are proceedings “in relation to” those earlier proceedings within the meaning of para (f) and that the decision of Helsham CJ in Hillman’s case cannot stand with the decision of the High Court. [s 4.505.36] Paragraph (f) — Property proceedings Previously, a question as between a party to a marriage and a third party as to who is entitled to certain property is not a “matrimonial cause”: see Whitbread v Whitbread (1967) 10 FLR 120. However, para (eab) and s 4A have changed the position. [s 4.505.37] Paragraph (f) — Orders sought When proceedings are instituted in a “matrimonial cause” which is defined as a proceeding with respect to a particular relief, a party may ask for an order against himself or

herself, such as that he or she should be ordered to pay maintenance to the respondent of the proceedings: see In the Marriage of Peck (1977) 17 FLR 433. ____________________ medical expenses includes medical, surgical, dental, diagnostic, hospital, nursing, pharmaceutical and physiotherapy expenses. [def insrt Act 46 of 2006 s 3 and Sch 9 item 34, opn 1 July 2006]

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners. [def insrt Act 46 of 2006 s 3 and Sch 9 item 35, opn 1 July 2006]

member of the family has the meaning given by subsection (1AB). Note: The definition in subsection (1AB) applies for the purposes of the provisions specified in that subsection. [def subst Act 189 of 2011 s 3 and Sch 1 item 4, opn 7 June 2012]

non-referring State de facto financial law means a law that: (a) is a law of a State that is not a participating jurisdiction; and (b) relates to financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships. [def insrt Act 115 of 2008 s 3 and Sch 1[8], opn 1 July 2006]

[page 99] order under this Act affecting children, in relation to a court, means: (a) a parenting order; or (b) an injunction granted by the court: (i) under section 68B; or (ii) under section 114 in so far as the injunction is for the protection of a child; or

(c) an undertaking given to, and accepted by, the court: (i) that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or (ii) that relates to a bond referred to in paragraph (g); or (d) a subpoena issued under the applicable Rules of Court: (i) that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or (ii) that relates to a bond referred to in paragraph (g); being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or (e) a registered parenting plan within the meaning of subsection 63C(6); or (f) a community service order made under paragraph 70NFB(2)(a); or (g) a bond entered into: (i) under a parenting order; or (ii) under paragraph 70NFB(2)(b); or (iii) for the purposes of subsection 70NFG(6); and includes an order, injunction, plan or bond that: (h) is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and (i) has been registered in the first-mentioned court. [def insrt Act 46 of 2006 s 3 and Sch 9 item 37, opn 1 July 2006]

ordinarily resident includes habitually resident. COMMENTARY ON ‘ORDINARILY RESIDENT’ [s 4.555] “ordinarily resident” The definition is relevant to ss 39(3)(c) and 104 dealing with jurisdiction and recognition respectively. See the commentary to those sections.

____________________ overseas child order means: (a) an order made by a court of a prescribed overseas jurisdiction that: (i) however it is expressed, has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or (ii) however it is expressed, has the effect of providing for a person or persons to spend time with a child who is under 18; or (iii) however it is expressed, has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18; or [page 100] (iv) varies or discharges an order of the kind referred to in subparagraph (i), (ii) or (iii), including an order of that kind made under this Act; or (b) an order made for the purposes of the Convention referred to in section 111B by a judicial or administrative authority of a convention country (within the meaning of the regulations made for the purposes of that section). [def insrt Act 46 of 2006 s 3 and Sch 8 item 43, opn 1 July 2006]

overseas jurisdiction means a country, or part of a country, outside Australia. [def subst Act 72 of 1984 s 3 and Sch]

overseas maintenance agreement means a maintenance agreement that has force and effect in a prescribed overseas jurisdiction by reason of the registration of the agreement, or the taking of any other action in

relation to the agreement, under the law of that jurisdiction and includes an agreement with respect to the maintenance of an exnuptial child that would be covered by the foregoing provisions of this definition if the child were a child of the marriage of the parties to the agreement. [def am Act 72 of 1984 s 3 and Sch]

COMMENTARY ON ‘OVERSEAS MAINTENANCE AGREEMENT’ [s 4.575] “overseas maintenance agreement” See s 89 which deals with “overseas maintenance agreements”. “Overseas maintenance agreement” means a maintenance agreement that has force and effect in a prescribed overseas jurisdiction. “Maintenance agreement” is defined in s 4. The only prescribed “overseas jurisdictions” are New Zealand and Papua New Guinea. ____________________ parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child. [def insrt Act 46 of 2006 s 3 and Sch 9 item 38, opn 1 July 2006]

COMMENTARY ON ‘PARENT’ [s 4.580] “Parent” In the Family Law Act 1975, ‘parent’ means a biological or adoptive parent and does not include a person who merely acts in the role of a parent (‘in loco parentis’), even if that person is treated as a parent by the community with which the person identifies: Donnell v Dovey (2010) 237 FLR 53; 42 Fam LR 559; FLC ¶93–428; [2010] FamCAFC 15; BC201050115. In Donnell v Dovey, above, at paragraph [93], the Full Court left open the possibility that the definition of ‘parent’ might be affected, in relation to Indigenous children, by s 61F. It is submitted, however (RC) that s 61F probably does not widen the definition of ‘parent’. Had the legislature intended to expand the definition of ‘parent’ in relation to Indigenous

children, the obvious way to do it would have been to say so in the s 4 definition. Further, such an expanded definition would seem to have capricious consequences, and appears to be inconsistent with the Family law Council recommendation that led to s 61F: see the commentary to that section. ____________________ parentage testing order has the meaning given by subsection 69W(1). [def insrt Act 46 of 2006 s 3 and Sch 9 item 39, opn 1 July 2006]

[page 101] parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition. [def insrt Act 46 of 2006 s 3 and Sch 9 item 40, opn 1 July 2006]

parental responsibility, in Part VII, has the meaning given by section 61B. [def insrt Act 46 of 2006 s 3 and Sch 9 item 41, opn 1 July 2006]

parenting order has the meaning given by subsection 64B(1). [def insrt Act 167 of 1995 s 4]

parenting plan has the meaning given by subsection 63C(1). [def insrt Act 167 of 1995 s 4] [def insrt Act 113 of 1991 s 4]

participating jurisdiction has the meaning given by subsection 90RA(1). [def insrt Act 115 of 2008 s 3 and Sch 1[9], opn 1 Mar 2009]

Part VIIIA proceedings means proceedings in relation to a

financial agreement. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 15, opn 3 Aug 2005]

Part VIIIAB financial agreement means an agreement: (a) made under section 90UB, 90UC or 90UD; or (b) covered by section 90UE. [def insrt Act 115 of 2008 s 3 and Sch 1[10], opn 1 Mar 2009]

Part VIIIAB proceedings means: (a) proceedings under Part VIIIAB for orders with respect to: (i) the maintenance of a party to a de facto relationship; or (ii) the property of the parties to a de facto relationship or of either of them; or (b) proceedings in relation to a Part VIIIAB financial agreement; but does not include any proceedings specified in the regulations for the purposes of this definition. but does not include any proceedings specified in the regulations for the purposes of this definition. [def insrt Act 115 of 2008 s 3 and Sch 1[11], opn 1 Mar 2009]

Part VIIIAB termination agreement means an agreement made under paragraph 90UL(1)(b). [def insrt Act 115 of 2008 s 3 and Sch 1[12], opn 1 Mar 2009]

Part VIIIB proceedings means: (a) proceedings in relation to a superannuation agreement (within the meaning of Part VIIIB); or (b) proceedings in relation to a payment split or payment flag (within the meaning of that Part); or

(c) any other proceedings under that Part. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 16, opn 3 Aug 2005]

Part VIII proceedings means proceedings under Part VIII for orders with respect to spousal maintenance or the property of parties to a marriage, but does not include any proceedings specified in the regulations for the purposes of this definition; [page 102] party to a de facto relationship means a person who lives or has lived in a de facto relationship. [def insrt Act 115 of 2008 s 3 and Sch 1[13], opn 1 Mar 2009]

pending, in Subdivision E of Division 6 of Part VII, has a meaning affected by section 65X. [def insrt Act 46 of 2006 s 3 and Sch 9 item 43, opn 1 July 2006]

personal insolvency agreement has the same meaning as in the Bankruptcy Act 1966. [def insrt Act 20 of 2005 s 3 and Sch 1 cl 13, opn 18 Sep 2005]

police officer means: (a) a member or special member of the Australian Federal Police; or (b) a member, however described, of the police force of a State or Territory. [def insrt Act 181 of 1987 s 5] COMMENTARY ON ‘POLICE OFFICER’ [s 4.670] “police officer” This definition was inserted by the 1987 amending

Act.

____________________ post-separation parenting program means a program: (a) that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and (b) that consists of lectures, discussions (including group discussions) or other activities; and (c) that is provided by an organisation that meets the conditions in section 65LB. [def insrt Act 46 of 2006 s 3 and Sch 4 item 29, opn 1 July 2006]

prescribed adopting parent, in relation to a child, means: (a) a parent of the child; or (b) the spouse of, or a person in a de facto relationship with, a parent of the child; or (c) a parent of the child and either his or her spouse or a person in a de facto relationship with the parent. [def insrt Act 46 of 2006 s 3 and Sch 9 item 44, opn 1 July 2006]

prescribed child welfare authority, in relation to abuse of a child, means: (a) if the child is the subject of proceedings under Part VII in a State or Territory — an officer of the State or Territory who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person; or

(b) if the child is not the subject of proceedings under Part VII — an officer of the State or Territory in which the child is located or is believed to be located who is responsible for the administration of the child welfare laws of the State or Territory, or some other prescribed person. [def insrt Act 46 of 2006 s 3 and Sch 9 item 45, opn 1 July 2006]

[page 103] prescribed overseas jurisdiction means any country, or part of a country, outside Australia that is declared by the regulations to be a prescribed overseas jurisdiction for the purposes of the provision in which the expression is used. COMMENTARY ON ‘PRESCRIBED OVERSEAS JURISDICTION’ [s 4.690] “prescribed overseas jurisdiction” This definition was inserted in the Act by the Family Law Amendment Act 1983. The definition was previously in s 104(1).

____________________ [def subst Act 72 of 1984 s 3 and Sch; am s 167 of 1995 s 4]

prescribed proceedings means: (a) divorce or validity of marriage proceedings; or (b) proceedings in relation to concurrent, pending or completed divorce or validity of marriage proceedings. [def insrt Act 113 of 1991 s 4; am Act 98 of 2005 s 2 and Sch 1, cl 43, opn 3 Aug 2005]

primary order means an order under this Act affecting children and includes such order as varied. [def insrt Act 46 of 2006 s 3 and Sch 9 item 46, opn 1 July 2006]

principal officer, when used in Subdivision C of Division 8 of Part VII in relation to a Commonwealth instrumentality, means: (a) if the regulations declare an office to be the principal office in respect of the instrumentality — the person holding, or performing the duties of, that office; or (b) the person who constitutes the instrumentality or who is entitled to preside at any meeting of the instrumentality, or of its governing body, at which the person is present. [def insrt Act 46 of 2006 s 3 and Sch 9 item 47, opn 1 July 2006]

private arbitration [def rep Act 46 of 2006 s 3 and Sch 4 item 30, opn 1 July 2006]

private mediator [def rep Act 46 of 2006 s 3 and Sch 4 item 31, opn 1 July 2006]

proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding. COMMENTARY ON ‘PROCEEDINGS’ [s 4.725.1] Proceedings — Introductory comment The definition is relevant throughout the Act, but in particular to the definition of “matrimonial cause” in s 4(1) (see also ss 9, 44, 45, 46 and 97). [s 4.725.2] “proceedings in a court” “Court” is defined as “the court exercising jurisdiction in these proceedings by virtue of this Act”.

The word “proceedings” refers to each single application for one only of the several forms of matrimonial relief available under the Act and instituted in a court having jurisdiction under the Act: see In the Marriage of Kennedy (1976) 1 Fam LR 11,194 at 11,196; FLC 90-010. [page 104] [s 4.725.3] Bankruptcy notice not “proceedings” The issue of a bankruptcy notice is a ministerial act and not a “proceeding” within the meaning of s 4(1): see Re Maddox; Ex parte the Debtor (1979) 4 Fam LR 731; FLC 90630.

____________________ proceedings for principal relief means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of matrimonial cause in this subsection. COMMENTARY ON ‘PROCEEDINGS FOR PRINCIPAL RELIEF’ [s 4.735] “proceedings for principal relief’ Proceedings for principal relief” refer to paras (a) and (b) of “matrimonial cause”, namely (in brief) proceedings between or by the parties to a marriage for a divorce or a nullity decree, or for a declaration as to the validity of a marriage, a divorce, or the annulment of a marriage.

____________________ proceeds of crime authority has the meaning given by section 4C. Note: Section 4C provides for different proceeds of crime authorities in relation to orders under the Proceeds of Crime Act 2002 and State or Territory proceeds of crime laws.

[def insrt Act 174 of 2011 s 3 and Sch 2 item 159, opn 6 June 2012]

proceeds of crime order means: (aa) a freezing order; or (a) a restraining order; or (b) a forfeiture order. [def insrt Act 86 of 2002 s 3 and Sch 5 item 3 opn 1 Jan 2003; am Act 3 of 2010 s 3 and Sch 2[10], opn 20 Feb 2010; Act 174 of 2011 s 3 and Sch 2 item 160, opn 6 June 2012]

professional ethics includes: (a) rules of professional conduct; and (b) rules of professional etiquette; and (c) a code of ethics; and (d) standards of professional conduct. [def insrt Act 46 of 2006 s 3 and Sch 9 item 48, opn 1 July 2006]

property means: (a) in relation to the parties to a marriage or either of them — means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion; or (b) in relation to the parties to a de facto relationship or either of them — means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion. [def subst Act 115 of 2008 s 3 and Sch 1[14], opn 1 Mar 2009] COMMENTARY ON ‘PROPERTY’ [s 4.750.1] “Property” — introductory comment The definition is relevant to determining what rights of property can be the subject of orders under ss

78 and 79 of the Act. [s 4.750.2] Historical meaning of “property” under Matrimonial Causes Act 1959 Section 86(1) of the repealed Matrimonial Causes Act 1959 referred to a settlement of property to which the parties were entitled whether in possession or reversion. [page 105] This referred to property which was capable of settlement, that is, corporeal property to which a party could be entitled to in possession or reversion: see Smee v Smee (1965) 7 FLR 321 at 327; see also Sanders v Sanders (1967) 116 CLR 366 at 380; [1968] ALR 43; Dimov v Dimov (1970) 17 FLR 462 at 466. [s 4.750.3] Family Law Act — “Property” The definition of “property” in s 4(1) originally led to conflict as to what was property. In particular, the problem arose as to whether the phrase “whether in possession or reversion” extended the definition or limited the definition. An early attempt was made to limit the meaning of property to “corporeal” property: see In the Marriage of Komaromi (1977) 2 Fam LR 11,590; (1976) FLC 90-142, per Hogan J, see also In the Marriage of Slattery (1976) 1 Fam LR 11,395. It was held that it did not include a contractual right to purchase a home by instalments; though the court could deal with the leasehold interest which the parties had in the property pending completion of the contract. In In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90-217 the Full Court overruled the decision in In the Marriage of Komaromi, above, and accepted as correct the analysis of property in In the Marriage of Nelson (1977) 2 Fam LR 11,628; FLC 90-204 per Goldstein J. The definition comprehends property both real and personal, corporeal and incorporeal. It is indicative and descriptive of every possible interest which a party can have. The words “whether in possession or reversion” do not limit the definition to property which can either be held in possession or reversion; they make clear that the definition includes property held in reversion: see In

the Marriage of Duff, above; see also In the Marriage of Nelson above (1977) 2 Fam LR 11,628; FLC 90-204. The court has not set out a catalogue of what is property. The section requires a broad interpretation: see In the Marriage of Duff, above. The High Court also supports a wide interpretation of the meaning of the phrase “whether in possession or reversion”: see Sanders v Sanders (1967) 116 CLR 366; [1968] ALR 43. The position, therefore, is that the words “in possession or reversion” are words of extension and not of limitation; in other words they enable the court to include in an order under s 79, property which is not held in possession and the scope of property is not restricted to corporeal property which alone is capable of being held in possession or reversion. See, however, In the Marriage of Bailey (1978) 4 Fam LR 86 at 193; FLC 90-424 in which Simpson J expressed the view, although obiter, that despite what was said in In the Marriage of Duff, above, the words “whether in possession or reversion” were to some extent words of limitation and would have some limiting effect on the scope of relevant property. In Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91-303 the High Court said that an interest in property is a right of a proprietary nature and not a mere personal right. It does not exclude every interest which is not assignable or transferable. [s 4.750.4] Property — examples Right of action in tort “ Property” does not include a right by a wife to sue a husband in tort for damages for assault and for personal injury, as such a right is not assignable in law or in equity and therefore lacks an essential quality of property: see In the Marriage of Barkely (1976) 1 Fam LR 11,554; (1977) FLC 90-216; In the Marriage of Palmer (1985) 10 Fam LR 406; FLC 91-606 (Gee J). A personal right of action of unliquidated damages in tort, such as a right of action for assault is incapable of assignment at law or in equity: see Poulton v Commonwealth (1953) 89 CLR 540 at 602. It lacks an essential quality of other choses in action which would make it amenable to the jurisdiction of the Family Court: see In the Marriage of Saba (1984) 9 Fam

LR 780; FLC 91-579 at 79,672 (Gee J); In the Marriage of Pleym (1986) 11 Fam LR 451; FLC 91-762 (Gee J). It is doubtful if it is a chose in action properly so called at all: see In the Marriage of Saba, above; see also Brown v Teare (1902) 22 NZLR 155 at 157–8; In the Marriage of Carvill (1984) 9 Fam LR 1055; FLC 91-586. [page 106] As to a claim for damages see also In the Marriage of James (1984) FLC 91-537 and In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91-541; In the Marriage of Madjeric (1984) 9 Fam LR 825; FLC 91-552. A debt A debt owed by a party is a liability and not an item of “property”: see In the Marriage of Palsboll (1976) 2 Fam LR 11,171; FLC 90-094. Shares in company Shares in a company are “property”: see In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90-217. Chose in action Choses in action are “property”: see In the Marriage of Nelson (1977) 2 Fam LR 11,628; FLC 90-204; see also In the Marriage of Schreiber and Dixon (1977) 3 Fam LR 11,379; FLC 90–274; Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90-481; In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90–217; In the Marriage of Martin (1985) 10 Fam LR 558. It is not necessary that a party be in a position actually to claim payment before a party can be said to have an existing chose in action: see Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385. Money due under verdict Moneys due under a verdict is “property”: see In the Marriage of Debs (1978) 4 Fam LN 48; 34 FLR 1 at 1. Right of action in contract A right of action in contract may be “property”: see In the Marriage of Schreiber and Dixon (1977) 3 Fam LR 11,379; FLC 90–274.

Interest in partnership The interest of a party in a partnership is “property”: see In the Marriage of Cordell (1977) 3 Fam LR 11,588; FLC 90–322; see also In the Marriage of Miller (1977) 3 Fam LN 80; FLC 90–326; In the Marriage of Hayne (1977) 3 Fam LN 25; FLC 90–265; In the Marriage of Elias (1977) 3 Fam LR 11,496; FLC 90–267. The individual assets of a partnership in which the parties to the marriage are the only partners may be property: see R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90–606. Vested interest in estate A vested interest in an estate, even though postponed during a life estate is “property”: see In the Marriage of White (1979) FLC 90–682. See however In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806. Superannuation In In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90– 615 Fogarty J said at 65 that generally an interest in a superannuation fund is not “property” as defined in s 4, and that it is normally a contingent interest only as the party entitled to the interest has no control over it; is unable to alienate it and in the event of the death of such a person prior to retirement the right does not form part of his or her estate. See also Re Public Trustee (SA) and Keays (1985) 10 Fam LR 610 at 618; FLC 91–651, in which the Full Court held that a payment by the trustees of a pension fund to a trust fund to be administered by a legally appointed administrator was not property. Defence forces retirement benefit In In the Marriage of Martin, above, Buckley J held that the entitlement of a party to benefits under the Defence Force Retirement and Death Benefits Act 1973 (Cth) is a chose in action and is “property” within the meaning of s 4. Liabilities In In the Marriage of Pleym (1986) 11 Fam LR 451 at 454; FLC 91–762, Gee J held that liabilities alone without assets at the back of them, behind them and/or around them, do not create “property”. See also In the Marriage of Zorbas (1990) 14 Fam LR 226; FLC 92–160.

[page 107] Interest under contract In respect of land which has been contracted to be sold, the interest of the vendor is the contractual right to recover the purchase price and not the fee simple: see In the Marriage of Lording (1977) 3 Fam LN 14. As to whether the entitlement of a party in the purchase price received for property is “property”: see Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90–481. A licence A licence to do a certain thing such as a licence to fish for abalone, which is personal to the holder and which cannot be transferred is not “property”, within the meaning of s 4(1): see In the Marriage of Woodham (1984) FLC 91–547. Some interests or expectations not being “property” may, however, be “financial resources” and thus relevant under s 75(2) to orders for maintenance (s 74) and property adjustment (s 79): see for example, Woodham, above (non-transferable licence). [s 4.750.5] Property outside jurisdiction The court cannot, in the absence of express statutory authorization, exercise jurisdiction in respect of the title to or possession of “property” situated abroad: see British South Africa Co v Companhia de Mocambique [1893] AC 602. See also Nygh, P E Conflict of Laws in Australia, 6th ed, Butterworths, Sydney, 1995. The court may, however, make an order directing a party over whom it has personal jurisdiction to deal with property abroad in the matter of a personal obligation: see In the Marriage of Perry (1979) 5 Fam LR 454; FLC 90–701.

____________________ property settlement or spousal maintenance proceedings means proceedings with respect to: (a) the property of the parties to a marriage or either of them; or

(aa) the vested bankruptcy property in relation to a bankrupt party to a marriage; or (b) the maintenance of a party to a marriage. [def insrt Act 86 of 2002 s 3 and Sch 5 item 4 opn 1 Jan 2003; am Act 20 of 2005 s 3 and Sch 1 cl 15, opn 18 Sep 2005]

property settlement proceedings means: (a) in relation to the parties to a marriage—proceedings with respect to: (i) the property of the parties or either of them; or (ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; or (b) in relation to the parties to a de facto relationship — proceedings with respect to: (i) the property of the parties or either of them; or (ii) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship. [def subst Act 115 of 2008 s 3 and Sch 1[15], opn 1 Mar 2009]

reasonable excuse for contravening an order includes the meanings given by section 70NAE. [def insrt Act 46 of 2006 s 3 and Sch 9 item 49, opn 1 July 2006]

recovery order has the meaning given by section 67Q. [def insrt Act 46 of 2006 s 3 and Sch 9 item 50, opn 1 July 2006]

referring State has the meaning given by subsections 90RA(2), (3), (4) and (5). [def insrt Act 115 of 2008 s 3 and Sch 1[16], opn 1 Mar 2009]

[page 108]

Registrar means: (a) in relation to the Family Court — the Principal Registrar, a Registrar, or a Deputy Registrar of the Court; and (b) in relation to a court other than the Family Court — the principal legal officer of the court or any other appropriate officer of the court. [def subst Act 138 of 2003 s 3 and Sch 3 item 3 opn 14 Jan 2004]

Registry Manager: (a) except in Subdivision C of Division 8 of Part VII and sections 67Z and 67ZBA, means: (i) in relation to the Family Court — the Registry Manager of a Registry of the Court; and (ii) in relation to a court other than the Family Court — the principal officer of the court or any other appropriate officer of the court; and (b) in Subdivision C of Division 8 of Part VII, means: (i) in relation to the Family Court — the Registry Manager of the Registry of the Court; and (ii) in relation to the Family Court of Western Australia — the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and (iii) in relation to any other court — the principal officer of the court. [def subst Act 46 of 2006 s 3 and Sch 9 item 51, opn 1 July 2006; am Act 189 of 2011 s 3 and Sch 1 item 5, opn 7 June 2012]

related Federal Circuit Court Rules means the Rules of Court made under the Federal Circuit Court of Australia Act 1999 to the extent to which they relate to this Act.

[def insrt Act 13 of 2013 s 3 and Sch 1 item 266, opn 12 Apr 2013]

related Federal Magistrates Rules [def rep Act 13 of 2013 s 3 and Sch 1 item 267, opn 12 Apr 2013]

relative of a child: (a) in Part VII, means: (i) a step-parent of the child; or (ii) a brother, sister, half-brother, half-sister, stepbrother or step-sister of the child; or (iii) a grandparent of the child; or (iv) an uncle or aunt of the child; or (v) a nephew or niece of the child; or (vi) a cousin of the child; and (b) in subsection (1AB), has the meaning given by subsection (1AC). [def insrt Act 46 of 2006 s 3 and Sch 1 item 5, opn 1 July 2006]

relevant belief: a person has a relevant belief in relation to a complaint about a Judge if: (a) the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated, justify consideration of the removal of the Judge in accordance with paragraph 72(ii) of the Constitution; or (b) the person believes that one or more of the circumstances that gave rise to the complaint may, if substantiated: [page 109]

(i)

adversely affect, or have adversely affected, the performance of judicial or official duties by the Judge; or (ii) have the capacity to adversely affect, or have adversely affected, the reputation of the Court. [def insrt Act 187 of 2012 s 3 and Sch 1 item 4, opn 12 Apr 2013]

relevant property or financial arbitration has the meaning given by subsection 10L(2). [def insrt At 46 of 2006 s 3 and Sch 4 item 32, opn 1 July 2006]

repealed Act means the Matrimonial Causes Act 1959. [def am Act 181 of 1987 s 63 and Sch] COMMENTARY ON ‘REPEALED ACT’ [s 4.71] “repealed Act” It means the Matrimonial Causes Act 1959.

____________________ residence order [def rep Act 46 of 2006 s 3 and Sch 8 item 44, opn 1 July 2006]

restraining order means: (a) a restraining order under the Proceeds of Crime Act 2002; or (b) an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a restraining order for the purposes of this paragraph. [def insrt Act 174 of 2011 s 3 and Sch 2 item 161, opn 6 June 2012]

section 13E arbitration has the meaning given by subsection 10L(2).

[def insrt Act 46 of 2006 s 3 and Sch 4 item 33, opn 1 July 2006]

section 90RD declaration means a declaration under subsection 90RD(1). [def insrt Act 115 of 2008 s 3 and Sch 1[17], opn 1 Mar 2009]

section 106A proceedings means proceedings under section 106A. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 17, opn 3 Aug 2005]

separation order means a decree, not being a decree of dissolution or nullity of marriage or for a judicial separation, having the effect of relieving a party to a marriage from any obligation to cohabit with the other party to the marriage. COMMENTARY ON ‘SEPARATION ORDER’ [s 4.825] “separation order” See ss 3(2)(c), 8(3) and 9(1).

____________________ specific issues order [def rep Act 46 of 2006 s 3 and Sch 8 item 45, opn 1 July 2006]

split court has the meaning given by subsection 27(2). [def insrt Act 138 of 2003 s 3 and Sch 2 item 2 opn 14 Jan 2004]

spouse party means: (a) in relation to a financial agreement — a party to the agreement who is a party to the contemplated marriage, marriage or former marriage to which the agreement relates; or [page 110]

(aa) in relation to a termination agreement referred to in paragraph 90J(1)(b)—a party covered by paragraph (a) of this definition in relation to the financial agreement concerned; or (b) in relation to a Part VIIIAB financial agreement — a party to the agreement who is a party to the contemplated de facto relationship, de facto relationship or former de facto relationship to which the agreement relates; or (c) in relation to a Part VIIIAB termination agreement—a party covered by paragraph (b) of this definition in relation to the Part VIIIAB financial agreement concerned. [def subst Act 115 of 2008 s 3 and Sch 1[18], opn 1 Mar 2009; Act 122 of 2009 s3 and Sch 5[9], opn 4 Jan 2010]

standard Rules of Court means Rules of Court made under this Act. [def insrt Act 194 of 1999 s 3 and Sch 11[5]]

State, in Subdivision B of Division 13 of Part VII, includes a Territory. [def insrt Act 46 of 2006 s 3 and Sch 9 item 52, opn 1 July 2006]

State child order means an order made under the law of a State: (a) that (however it is expressed) has the effect of determining the person or persons with whom a child who is under 18 is to live, or that provides for a person or persons to have custody of a child who is under 18; or (b) that (however it is expressed) has the effect of

providing for a person or persons to spend time with a child who is under 18; or (c) that (however it is expressed) has the effect of providing for contact between a child who is under 18 and another person or persons, or that provides for a person or persons to have access to a child who is under 18. [def insrt Act 46 of 2006 s 3 and Sch 8 item 46, opn 1 July 2006]

State or Territory proceeds of crime law means a law in force in a State or Territory that is declared by the regulations to be a law that corresponds to the Proceeds of Crime Act 2002. [def insrt Act 174 of 2011 s 3 and Sch 2 item 162, opn 6 June 2012]

step-parent, in relation to a child, means a person who: (a) is not a parent of the child; and (b) is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and (c) treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent. [def insrt Act 46 of 2006 s 3 and Sch 9 item 53, opn 1 July 2006;; am Act 144 of 2008 s 3 and Sch 2[52A], opn 10 Dec 2008]

Subdivision C parenting order, when used in Division 13 of Part VII, means a parenting order to the extent to which it deals with: (a) whom a child is to live with; or (b) whom a child is to spend time with; or (c) who is to be responsible for a child’s day-to-day care,

welfare and development. [def insrt Act 46 of 2006 s 3 and Sch 8 item 47, opn 1 July 2006]

[page 111] Territory includes: (a) Norfolk Island; (b) the Territory of Christmas Island; (c) the Territory of Cocos (Keeling) Islands; but does not include any other external Territory. [def subst Act 104 of 1992 Sch 4] COMMENTARY ON ‘TERRITORY’ [s 4.875] Territories The Territories to which the Act extends are the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island and Cocos (Keeling) Islands.

____________________ third party, in relation to a financial agreement or Part VIIIAB financial agreement, means a party to the agreement who is not a spouse party. [def subst Act 115 of 2008 s 3 and Sch 1[19], opn 1 Mar 2009]

this Act includes the regulations. [def insrt Act 181 of 1987 s 5; am Act 194 of 1999 s 3 and Sch 11[6]] COMMENTARY ON ‘THIS ACT’ [s 4.890] “this Act” This definition was inserted by the 1987 amending Act.

A reference to “this Act” now includes a reference to the regulations and rules made under the Act as well as the Act itself.

____________________ Torres Strait Islander child means a child who is a descendant of the Indigenous inhabitants of the Torres Strait Islands. [def insrt Act 46 of 2006 s 3 and Sch 1 item 6, opn 1 July 2006]

trustee, in relation to a personal insolvency agreement, has the same meaning as in the Bankruptcy Act 1966. [def insrt Act 20 of 2005 s 3 and Sch 1 cl 16, opn 18 Sep 2005]

vested bankruptcy property, in relation to a bankrupt, means property of the bankrupt that has vested in the bankruptcy trustee under the Bankruptcy Act 1966. For this purpose, property has the same meaning as in the Bankruptcy Act 1966. [def insrt Act 20 of 2005 s 3 and Sch 1 cl 17, opn 18 Sep 2005]

video link means facilities (for example, closed-circuit television facilities) that enable audio and visual communication between persons in different places. [def insrt Act 138 of 2003 s 3 and Sch 2 item 3 opn 14 Jan 2004]

voluntary organization [def rep Act 46 of 2006 s 3 and Sch 4 item 1, opn 22 May 2006] COMMENTARY ON ‘VOLUNTARY ORGANIZATION’ [s 4.75] “voluntary organization” See Pt II of the Act permitting the recognition of voluntary organizations as approved counselling or mediation organisations.

____________________ [page 112] warrant issued under a provision of this Act includes a warrant issued under the standard Rules of Court or the related Federal Circuit Court Rules. [def insrt Act 194 of 1999 s 3 and Sch 11[7]; am Act 13 of 2013 s 3 and Sch 1 item 268, opn 12 Apr 2013]

welfare officer [def rep Act 46 of 2006 s 3 and Sch 4 item 34, opn 1 July 2006] [subs (1) am Act 194 of 1999 s 3 and Sch 11[1]; Act 13 of 2013 s 3 and Sch 1 item 264, opn 12 Apr 2013]

(1AA) A reference in this Act to a person or people involved in proceedings is a reference to: (a) any of the parties to the proceedings; and (b) any child whose interests are considered in, or affected by, the proceedings; and (c) any person whose conduct is having an effect on the proceedings. [subs (1AA) insrt Act 46 of 2006 s 3 and Sch 4 item 35, opn 1 July 2006]

(1AB) For the purposes of: (a) the definition of step-parent in subsection (1); and (aa) section 4AB; and (b) paragraphs 60CC(3)(j) and (k); and (c) sections 60CF, 60CH and 60CI; a person (the first person) is a member of the family of another

person (the second person) if: (d) the first person is or has been married to, or in a de facto relationship with, the second person; or (e) the first person is or has been a relative of the second person (as defined in subsection (1AC)); or (f) an order under this Act described in subparagraph (i) or (ii) is or was (at any time) in force: (i) a parenting order (other than a child maintenance order) that relates to a child who is either the first person or the second person and that is in favour of the other of those persons; (ii) an order providing for the first person or the second person to have custody or guardianship of, or a right of access to, the other of those persons; or (g) an order under a law of a State or Territory described in subparagraph (i) or (ii) is or was (at any time) in force: (i) an order determining that the first person or the second person is or was to live with the other of those persons, or is or was to have custody or guardianship of the other of those persons; (ii) an order providing for contact between the first person and the second person, or for the first person or the second person to have a right of access to the other of those persons; or (h) the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person; or (i) the first person is or has been a member of the family of a child of the second person.

[subs (1AB) insrt Act 46 of 2006 s 3 and Sch 9 item 54, opn 1 July 2006; am Act 189 of 2011 s 3 and Sch 1 items 6 and 7, opn 7 June 2012]

[page 113] (1AC) For the purposes of subsection (1AB), a relative of a person is: (a) a father, mother, grandfather, grandmother, step-father or step-mother of the person; or (b) a son, daughter, grandson, grand-daughter, step-son or step-daughter of the person; or (c) a brother, sister, half-brother, half-sister, step-brother or step-sister of the person; or (d) an uncle or aunt of the person; or (e) a nephew or niece of the person; or (f) a cousin of the person; or (g) if the person is or was married — in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person’s spouse; or (h) if the person is or was in a de facto relationship with another person — in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other. [subs (1AC) insrt Act 46 of 2006 s 3 and Sch 9 item 54, opn 1 July 2006]

(1A) [Family Court] In this Act, the standard Rules of Court and the related Federal Circuit Court Rules:

(a) a reference to the Family Court is a reference to the Family Court of Australia; and (b) a reference to a Family Court of a State is a reference to a court to which section 41 applies. [subs (1A) insrt Act 63 of 1976 s 3; am Act 194 of 1999 s 3 and Sch 11[8]; Act 13 of 2013 s 3 and Sch 1 item 269, opn 12 Apr 2013] COMMENTARY ON SECTION 4(1A) [s 4.1A.1] Family Court — s 4(1A) The Family Court of Western Australia was created by the Family Court Act 1975-1979 (WA) Act 106 of 1975 as amended by Act 16 of 1976, 111 of 1976, 30 of 1978 and 58 of 1979. The Family Court of Western Australia was invested with jurisdiction under the Act as from 1 June 1976. No other State Court meets the definition of a Family Court of a State. [s 4.1A.2] Reference to a party to a marriage — s 4(2) This important provision in combination with the definition of “matrimonial cause” in s 4, allows proceedings for maintenance, property and injunctions to be brought after the marriage between the parties has been dissolved or annulled, whether under the Act, or under previous legislation and whether in Australia or abroad: see In the Marriage of Lynch and Slater (1977) 3 Fam LR 11,515; FLC 90–309. It overcomes the difficulty encountered by Ormrod J in Torok v Torok [1973] 3 All ER 101. [s 4.1A.3] Section 4(2) — marriage terminated by death The references in the Act to “a party to a marriage” and “a child of a marriage” include a party to a marriage that has been terminated by death.

(2) [Party to a marriage] A reference in this Act, the standard Rules of Court or the related Federal Circuit Court Rules to a party to a marriage includes a reference to a person who was a party to a marriage that has been: (a) terminated by divorce (in Australia or elsewhere); or

[page 114] (b) annulled (in Australia or elsewhere); or (c) terminated by the death of one party to the marriage. [subs (2) subst Act 98 of 2005 s 2 and Sch 1, cl 44, opn 3 Aug 2005; am Act 13 of 2013 s 3 and Sch 1 item 269, opn 12 Apr 2013]

(2A) A reference in this Act, the standard Rules of Court or the related Federal Circuit Court Rules to a party to a de facto relationship includes a reference to a person who was a party to a de facto relationship that has broken down. [subs (2A) insrt Act 115 of 2008 s 3 and Sch 1[20], opn 1 Mar 2009; am Act 13 of 2013 s 3 and Sch 1 item 269, opn 12 Apr 2013]

(3) [Jurisdiction and proceedings] To avoid doubt, for all purposes: (a) jurisdiction under the standard Rules of Court is taken to be jurisdiction under this Act; and (b) jurisdiction under the related Federal Circuit Court Rules is taken to be jurisdiction under this Act; and (c) proceedings under the standard Rules of Court are taken to be proceedings under this Act; and (d) proceedings under the related Federal Circuit Court Rules are taken to be proceedings under this Act; and (e) an order (however described) made by a court under the standard Rules of Court is taken to be an order made by the court under this Act; and (f) an order (however described) made by a court under the related Federal Circuit Court Rules is taken to be an order made by the court under this Act.

[subs (3) insrt Act 194 of 1999 s 3 and Sch 11[10]; am Act 13 of 2013 s 3 and Sch 1 item 270, opn 12 Apr 2013]

(4) A reference in this Act to a person who has parental responsibility for a child is a reference to a person who: (a) has some or all of that responsibility solely; or (b) shares some or all of that responsibility with another person. [subs (4) insrt Act 46 of 2006 s 3 and Sch 1 item 7, opn 1 July 2006]

(5) A reference in this Act to a person who shares parental responsibility for a child with another person is a reference to a person who shares some or all of the parental responsibility for the child with that other person. [subs (5) insrt Act 46 of 2006 s 3 and Sch 1 item 7, opn 1 July 2006] COMMENTARY ON SECTION 4 PRELIMINARY Introductory comments ….

[s 4.1.1]

PRELIMINARY [s 4.1.1] Introductory comments Interpretation section This section is the main definition section of the Act. The definition of “matrimonial cause” is of particular importance, because (except in relation to Pt VII) other provisions vest jurisdiction in the Family Court (and in limited areas to courts of petty sessions and in WA to the Family Court of WA) to deal with “matrimonial causes”: see ss 39, 40, 41. Part VII (Children) Since 1987, provisions relating to children are mainly contained within Pt VII. Its provisions require no reference to “matrimonial cause”. Other definitions See also Pt VII.

____________________ [page 115]

[s 4AA]

De facto relationships

4AA (1) Meaning of de facto relationship A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). (2) Working out if persons have a relationship as a couple Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children; (i) the reputation and public aspects of the relationship. (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. (6) When 2 persons are related by family For the purposes of subsection (1), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect. [s 4AA insrt Act 115 of 2008 s 3 and Sch 1[21], opn 21 Nov 2008]

COMMENTARY ON SECTION 4AA Wide discretion …. Registration …. Care and support of children …. Reputation and public aspects of relationship ….

[s 4AA.1] [s 4AA.8] [s 4AA.9] [s 4AA.10] [page 116]

[s 4AA.1] Wide discretion The section states a general test (the parties ‘have a relationship as a couple living together on a genuine domestic basis’) in subs (1) and then sets out a list of relevant circumstances — subs (2). The words of subs (2) (‘may include any or all of the following’) indicate that it is not intended to exclude other circumstances that might re relevant to whether the test in subs (1) is met. This is made explicit in subs (4). And subs (3) indicates that no particular finding is required in applying the general test. For example, neither the lack of a common residence nor the lack of a sexual relationship is necessarily inconsistent with the existence of a de facto relationship. The definition is particularly relevant to the provisions in Part VIIIAB, and also to s 60H. The interpretation and application of the section is the subject of a detailed and illuminating discussion in Baker v Landon (2010) 238 FLR 210; 43 Fam LR 675; [2010] FMCAfam 280; BC201001961 (Reithmuller FM), especially at [6]–[28]. His Honour pointed out that the term may have a different meaning from its meaning in other legislation, and care must therefore be taken in relying on authorities under other legislation. It is not only to identify particular circumstances, but to ‘step back and consider the matter as a whole’(at [27], [126]). [s 4AA.8] Registration Some states have introduced legislation to recognise de facto relationships by registration. For example Part 2.2 of the Relationships Act 2008 (Vic) introduced a relationships register. Section 4AA(2) does not elevate registration to a conclusive factor in the

determination of whether a de faco relationship existed but it would be likely to be influential in any determination. [s 4AA.9] Care and support of children The section, unlike s 90RB, does not differentiate between children of the relationship and children more generally. [s 4AA.10] Reputation and public aspects of relationship Prior to the referral of powers this issue was often characterised as whether the parties held themselves out as a couple, attended social functions as a couple, celebrated holidays (Christmas etc) as a family.

____________________

[s 4AB]

Definition of family violence etc

4AB (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. (2) Examples of behaviour that may constitute family violence include (but are not limited to): (a) an assault; or (b) a sexual assault or other sexually abusive behaviour; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f) intentionally causing death or injury to an animal; or (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or [page 117] (j)

unlawfully depriving the family member, or any member

of the family member’s family, of his or her liberty. (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child: (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or (d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family. [s 4AB insrt Act 189 of 2011 s 3 and Sch 1 item 8, opn 7 June 2012] COMMENTARY ON SECTION 4AB Introduction …. Subsections (1) and (2) …. Subsection (1): “other behaviour” …. Subsection (1): behaviour “that coerces…” …. Subsection (2): Examples ….

[s 4AB.1] [s 4AB.2] [s 4AB.3] [s 4AB.4] [s 4AB.5]

[s 4AB.1] Introduction Relevance of definition The definition of family violence affects the operation of the following provisions of the Act: s 4, definition of child “abuse”; s 43(1)(ca): the need to ensure protection from family violence; s 60B(1)(b): objects — protection from family violence; s 60CC(2)(b): second “primary consideration”; s 60CC(2A): more weight to second “primary consideration”; s 60CC(3)(j): any family violence involving child or family member; s 60CG: parenting order not to expose a person to unacceptable risk of family violence; s 60D: adviser’s obligations include reference to protection against family violence; s 60I(9): no family dispute resolution requirement if reasonable grounds to believe past, or risk of, family violence: s 60J: where such past family violence, court not to hear application unless family dispute resolution information provided, unless risk of family violence; s 61DA(2): shared parental responsibility presumption inapplicable if reasonable grounds to believe past family violence; s 65F: general requirements for counselling before parenting order made, but not if special circumstance “(such as family violence)”; ss 67ZBA, 67ZBB: court to take prompt action in relation to allegations of family violence; s 68N: purposes of Div 11 include ensuring “that orders … do not expose people to family violence”; s 69ZN(5): third principle for child related proceedings (to safeguard the child concerned from family violence etc); s 69ZQ(1)(aa): court to ask parties if past or risk of family violence; and s 69ZW: court may order child protection agencies to provide documents etc re family violence. [s 4AB.2] Subsections (1) and (2) The definition is contained entirely in subs (1), as Patrick Parkinson has pointed out: “The 2011 Family Violence Amendments: What difference will they make?” (2012) 22(2) Australian Family Lawyer 1–11. Inclusion among the examples in subs (2) is neither necessary nor sufficient for something to be “family violence”. It is not necessary, because there might be circumstances falling within subs (1) that constitute family violence [page 118]

although they do not fall within any of the examples in subs (2). It is not sufficient, because circumstances falling within the examples might not have the necessary qualities to bring them within subs (1) (“violent, threatening or other behaviour … that coerces or controls…”). Perhaps, however, the examples in subs (2) might be relevant to the interpretation of anything ambiguous in subs (1). [s 4AB.3] Subsection (1): “other behaviour” The scope of the definition will be affected by whether the term “other behaviour” is taken to mean any behaviour at all, or is to be read down (of the eiusdem generis approach) to mean behaviour that is similar to violent or threatening behaviour. An example may show the case for reading down the term “other behaviour”. Suppose a parent telephoned the other parent to report, truthfully, that the other parent and the children were in peril from an imminent bushfire. Unless “other behaviour” is read down to mean something similar to violent or threatening behaviour, that phone call, being behaviour that caused the other parent fear, would (absurdly) constitute “family violence”. Arguably, therefore, that “other behaviour” should be read as “other such behaviour”. [s 4AB.4] Subsection (1): behaviour “that coerces…” The behaviour is family violence only if it has certain consequences — it must coerce, or control, or cause fear. If a person engages in threatening behaviour which is ignored, or if two adults participate impulsively in episodic violence, and neither uses it to control or coerce or frighten the other, the behaviour is probably not “family violence”, because the behaviour does not coerce, or control, or cause fear. If, however, the behaviour described caused fear to another person, for example a child, it would clearly be “family violence”. (If the legislature had intended it to qualify only “other behaviour”, the definition would presumably have read: “behaviour that is violent or threatening, or behaviour that coerces or controls…”) [s 4AB.5] Subsection (2): Examples As indicated above, the examples in subs (2) should not taken as standing alone: the definition is contained in subs (1). It is likely that subs (2) was intended to have an educational purpose, and in general it can be seen as reflecting the scientific literature on family violence. For example, if a parent were to kill a family pet in a fit of rage, that

would constitute “family violence” only if it fell within subs (1) — in particular, if in the circumstances the behaviour coerced, or controlled, or caused fear. The main purpose of the examples in subs (2) may be an educational one.

____________________

[s 4A] Third party proceedings to set aside financial agreement 4A (1) For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings means proceedings between: (a) any combination of: (i) the parties to a financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) any of the following: (i) a creditor; (ii) if a creditor is an individual who has died — the legal personal representative of the creditor; (iii) a government body acting in the interests of a creditor; being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1)(aa). [subs (1) am Act 115 of 2008 s 3 and Sch 3[43], opn 21 Nov 2008]

[page 119] (1A) For the purposes of paragraph (eab) of the definition of matrimonial cause in subsection 4(1), third party proceedings also means proceedings between: (a) any combination of: (i) the parties to a financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) either: (i) another person who is a party to a de facto relationship with one of the spouse parties to the financial agreement; or (ii) the legal personal representative of that other person if that person has died; being proceedings for the setting aside of the financial agreement on the ground specified in paragraph 90K(1) (ab). [subs (1A) insrt Act 115 of 2008 s 3 and Sch 1[22], opn 1 Mar 2009]

(2) In this section: creditor means: (a) a creditor of a party to the financial agreement; or (b) a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of a party to the financial agreement.

[def am Act 115 of 2008 s 3 and Sch 3[44], opn 21 Nov 2008]

government body means: (a) the Commonwealth, a State or a Territory; or (b) an official or authority of the Commonwealth, a State or a Territory. [s 4A insrt Act 138 of 2003 s 3 and Sch 4A item 2 opn 17 Dec 2003] COMMENTARY ON SECTION 4A [s 4A.1] The definition of third party proceedings, in s 4(1)(eab), for the setting aside of a financial agreement is given further definition in this section. A creditor includes a person who may forseeably (at the time of commencement of the application) become a creditor of one or both of the parties to the agreement. The scope of the persons who might legitimately commence proceedings is broad, provided they can evoke the provisions of s 90K(1)(aa) and includes government bodies, corporations and private citizens.

____________________

[s 4B] Third party proceedings to set aside Part VIIIAB financial agreement 4B (1) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings means proceedings between: (a) any combination of: (i) the parties to a Part VIIIAB financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and [page 120] (b) any of the following: (i) a creditor; (ii) if a creditor is an individual who has died — the legal personal representative of the creditor; (iii) a government body acting in the interests of a creditor; being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(b). (2) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings

also means proceedings between: (a) any combination of: (i) the parties to a Part VIIIAB financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) either: (i) another person who is a party to a de facto relationship with one of the spouse parties to the Part VIIIAB financial agreement; or (ii) the legal personal representative of that other person if that person has died; being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(c). (3) For the purposes of paragraph (f) of the definition of de facto financial cause in subsection 4(1), third party proceedings also means proceedings between: (a) any combination of: (i) the parties to a Part VIIIAB financial agreement; and (ii) the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); and (b) either:

another person who is a party to a marriage with one of the spouse parties to the Part VIIIAB financial agreement; or (ii) the legal personal representative of that other person if that person has died; being proceedings for the setting aside of the Part VIIIAB financial agreement on the ground specified in paragraph 90UM(1)(d). (4) In this section: creditor means: (a) a creditor of a party to the Part VIIIAB financial agreement; or (b) a person who, at the commencement of the proceedings, could reasonably have been foreseen by the court as being reasonably likely to become a creditor of a party to the Part VIIIAB financial agreement. government body means: (a) the Commonwealth, a State or a Territory; or (b) an official or authority of the Commonwealth, a State or a Territory. (i)

[s 4B insrt Act 115 of 2008 s 3 and Sch 1[23], opn 1 Mar 2009]

[page 121]

[s 4C]

Meaning of proceeds of crime authority

4C

(1) Scope This section sets out the meaning of proceeds

of crime authority in relation to: (a) a restraining order or a forfeiture order, or an application for a forfeiture order, under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application); and (b) a freezing order under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such a freezing order); and (c) a proceeds of crime order, or an application for a forfeiture order, under a State or Territory proceeds of crime law (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application). Note: Freezing orders, restraining orders and forfeiture orders made under the Proceeds of Crime Act 2002 or a State or Territory proceeds of crime law are proceeds of crime orders (see subsection 4(1)).

(2) Commonwealth proceeds of crime authorities For the purposes of paragraph (1)(a), proceeds of crime authority means the responsible authority for the relevant restraining order, forfeiture order or forfeiture application under the Proceeds of Crime Act 2002. Note: Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).

(3) For the purposes of paragraph (1)(b), proceeds of crime authority means:

(a) the Commissioner of the Australian Federal Police; or (b) the Director of Public Prosecutions. (4) State or Territory proceeds of crime authorities For the purposes of paragraph (1)(c), in relation to a provision of this Act, proceeds of crime authority means a person or body prescribed by the regulations to be the proceeds of crime authority for that provision in relation to: (a) a class of proceeds of crime order, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant proceeds of crime order; or (b) a class of forfeiture application, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant forfeiture application. Note: The regulations may prescribe a proceeds of crime authority in relation to a proceeds of crime order under a State or Territory proceeds of crime law by reference to any matter, including (for example) by reference to who applied for the order. [s 4C insrt Act 174 of 2011 s 3 and Sch 2 item 163, opn 6 June 2012]

[s 5] Debtor subject to a personal insolvency agreement 5

For the purposes of this Act, if: (a) a person who is a debtor (within the meaning of Part X of the Bankruptcy Act 1966) executes a personal insolvency agreement; and [page 122]

(b) the agreement has not ended (within the meaning of the Bankruptcy Act 1966); the person is a debtor subject to the personal insolvency agreement. [s 5 insrt Act 20 of 2005 s 3 and Sch 1 cl 18, opn 18 Sep 2005]

[s 5A] Certain children deemed to be children of mother’s husband 5A

[s 6]

[s 5A rep Act 181 of 1987 s 6]

Polygamous marriages

6 For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage. COMMENTARY ON SECTION 6 Polygamous marriages — introductory comment …. Children …. Marriage in Australia …. General principles — section 6 ….

[s 6.1] [s 6.2] [s 6.3] [s 6.4]

[s 6.1] Polygamous marriages — introductory comment Because of the definition of “marriage” in s 43(a) which refers to a “… union … to the exclusion of all others”, a polygamous marriage, including a marriage which is merely potentially polygamous, could not, without a provision such as s 6, be the subject of proceedings under the Act: see Khan v Khan [1963] VR 203. A polygamous marriage or potentially polygamous marriage entered into outside Australia can now be the subject of relief under the Act. [s 6.2] Children Children of such a marriage are regarded as children of marriage within the meaning of the Act.

[s 6.3] Marriage in Australia A marriage ceremony in Australia can only be monogamous. A polygamous marriage celebrated in Australia which does not comply with the Marriage Act 1961 (Cth) is a complete nullity. [s 6.4] General principles — section 6 To come within the section the marriage must have been celebrated: (a) outside Australia; (b) in a country whose law permits polygamy: see Qureshi v Qureshi [1972] Fam 173 at 183; [1971] 1 All ER 325; (c) in a ceremony which according to the law of that country has the effect of creating a polygamous or potentially polygamous union; (d) between parties whose personal law permit each to contract a polygamous union with the other. See generally: Nygh P E, Conflict of Laws in Australia (4th ed) ch 19, “The Meaning of Marriage”.

____________________

[s 7] 7

Extension of Act to certain Territories

This Act extends to the following Territories: (a) Norfolk Island; (b) the Territory of Christmas Island; [page 123] (c) the Territory of Cocos (Keeling) Islands.

[s 7 subst Act 104 of 1992 Sch 4] COMMENTARY ON SECTION 7 Extension of Act to Norfolk Island ….

[s 7.1]

[s 7.1] Extension of Act to Norfolk Island Norfolk Island forms part of the Commonwealth of Australia and the Commonwealth Parliament has legislative power over it: see Berwick Ltd v Deputy Commissioner of Taxation (1976) 8 ALR 580; see also Norfolk Island Act 1957 s 14(1).

____________________

[s 7A]

Application of the Criminal Code

7A Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. [s 7A insrt Act 24 of 2001 s 3 and Sch 27 item 1 opn 24 May 2001]

[s 8] 8 Act:

Supersession of existing laws (1) [Matrimonial cause] After the commencement of this

(a) proceedings by way of a matrimonial cause shall not be instituted except under this Act; and (b) proceedings by way of a matrimonial cause instituted before the commencement of this Act shall not be continued except in accordance with section 9. (2) [Certain proceedings not to be instituted] Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this Act. (3) [Separation order] Proceedings for a separation order shall not be instituted after the commencement of this Act. COMMENTARY ON SECTION 8

Introductory comment …. Matrimonial cause …. Proceedings not a matrimonial cause …. Intention to cover the field …. Spousal maintenance …. Solicitor/client costs …. Pending proceedings …. Decree of restitution of conjugal rights — section 8(2) …. Decree of jactitation of marriage and decree of judicial separation — section 8(2) …. Separation orders — section 8(3) ….

[s 8.1] [s 8.2] [s 8.3] [s 8.4] [s 8.5] [s 8.6] [s 8.7] [s 8.8] [s 8.9] [s 8.10]

[s 8.1] Introductory comment Any proceedings by way of a “matrimonial cause” must be brought under the Family Law Act and in a court having jurisdiction under that Act. Any State or Territorial law or jurisdiction which previously dealt with the same subject matter is superseded. A matrimonial cause may not be instituted in the Supreme Court of the States or of the Australian Capital Territory or Norfolk Island. [s 8.2] Matrimonial cause See s 4: Definition of “matrimonial cause”. [page 124] [s 8.3] Proceedings not a matrimonial cause Not every dispute between husband and wife is a matrimonial cause. As to what is a “matrimonial cause” see s 4. [s 8.4] Intention to cover the field Even if proceedings do not constitute a matrimonial cause the jurisdiction of State courts and State law may still be excluded if the Act betrays an intention “to cover the field”: see In the Marriage of Meyer (1978) 4 Fam LR 233 at 236; FLC 90–465, in which it was held that the Supreme Court of New South Wales had no jurisdiction in wardship in respect to children of a marriage because the Act exhibited an

intention to cover the field of guardianship and custody; see also Thompson v Thompson (1980) 5 Fam LR 737; FLC 90–815. [s 8.5] Spousal maintenance The Family Law Act covers the whole field so far as concerns maintenance between spouses: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124. [s 8.6] Solicitor/client costs The Act and Rules lay down an exclusive code which determines both the nature of the work under the Act for which solicitors may charge and the rate at which they may so charge: see In the Marriage of Butler and Glendowan; Re Bowden’s Bill of Costs (1980) 6 Fam LR 502; FLC 90–855; see also Silver v Consumer Claims Tribunal (1978) 4 Fam LN 55; FLC 90–514. [s 8.7] Pending proceedings Pending proceedings instituted before 5 January 1976 which came within the meaning of matrimonial cause must be continued in accordance with s 9: see s 9. [s 8.8] Decree of restitution of conjugal rights — section 8(2) Such proceedings are not a matrimonial cause and cannot be instituted or continued after 5 January 1976. [s 8.9] Decree of jactitation of marriage and decree of judicial separation — section 8(2) Such proceedings are not a matrimonial cause and cannot be instituted or continued after 5 January 1976. [s 8.10] Separation orders — section 8(3) Such proceedings are not a matrimonial cause and can no longer be instituted after 5 January 1976: however, pending proceedings may be continued under s 9(1). A “separation order” is defined in s 4(1).

____________________

[s 9] 9

Transitional (1) [Pending proceedings for divorce etc] Subject to

subsections (2) and (2A), pending proceedings for a decree of dissolution of marriage or for a decree of nullity of marriage on the ground that the marriage is voidable, and pending proceedings for a separation order, may be continued and shall be dealt with as if this Act had not been passed. [subs (1) am Act 23 of 1979 s 5]

(2) [Section 48 may apply to pending divorce proceedings] Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of commencement of this Act, pending proceedings for a decree of dissolution of marriage shall, if either party so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, subsection 48(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of commencement of this Act. [subs (2) am Act 63 of 1976 s 5]

[page 125] (2A) [Extension of s 9(2)] Where subsection (2) does not apply but the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of making of the request under this subsection, pending proceedings for a decree of dissolution of marriage shall, if either party so requests, be dealt with as if they were proceedings instituted under this Act on the ground referred to in section 48, and, in relation to proceedings in which such a request is made, subsection 48(2) has effect as if the proceedings for dissolution of marriage had been instituted by an application filed on the date of

making of the request. [subs (2A) insrt Act 23 of 1979 s 5]

(3) [Nullity, matrimonial cause] Pending proceedings for a decree of nullity of marriage on the ground that the marriage is void or proceedings of a kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1) may be continued and shall be dealt with as if they were proceedings instituted under this Act. (4) [Matrimonial cause, not being principal relief] Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act. (5) [Non-application of s 117(1)] Subsection 117(1) does not apply to proceedings continued and dealt with under this section. (6) [Continuing appeals] Where, in any proceedings constituting a matrimonial cause, a decree has been made before the commencement of this Act: (a) any appeal in respect of that decree may be continued or instituted; (b) any new trial or re-hearing ordered upon the hearing of such an appeal, or upon an appeal heard before the commencement of this Act, may be had and completed; and (c) any decree may be made upon any such appeal, new trial or re-hearing, and, if a decree so made is a decree nisi, the decree may become absolute; as if this Act had not been passed.

(7) [Date when decree nisi absolute] Where, in any proceedings constituting a matrimonial cause, a decree nisi was made before the commencement of this Act but did not become absolute before that date, the decree becomes absolute upon: (a) the expiration of 1 month from the date of making of the decree; (b) the expiration of 1 month from the date of making of a relevant order under subsection 71(1) of the repealed Act or section 55A of this Act; or (c) the date of commencement of this Act; whichever is the latest. [subs (7) am Act 181 of 1987 s 7]

(7A) [Application of s 63] Where, in any proceedings constituting a matrimonial cause, being proceedings continued and dealt with in accordance with subsection (1), a decree nisi was made on or after 5 January 1976 and before the date of commencement of this subsection, being a decree that did not become absolute before that last-mentioned date, or is made on or after the date of commencement of this subsection, then: (a) except in the case of a decree made before the date of commencement of this subsection in respect of which a relevant order was made under subsection 71(1) of the repealed Act before that date — section 55A of this Act applies in relation to the decree; and [page 126] (b) the decree becomes absolute upon:

(i)

the expiration of one month from: (A) in the case of a decree in respect of which a relevant order was made under subsection 71(1) of the repealed Act before the date of commencement of this subsection — the date of making of that order; or (B) in any other case — the date of making of a relevant order under section 55A of this Act; or (ii) the date of commencement of this subsection; whichever is the later. [subs (7A) insrt Act 63 of 1976 s 5; am Act 181 of 1987 s 7]

(8) [Law and procedure to apply] The law to be applied, and the practice and the procedure to be followed, in and in relation to pending proceedings that are continued as if this Act had not been passed shall be the same as if this Act had not been passed. (9) [Interpretation] In this section: appeal includes: (a) an application for leave or special leave to appeal; (b) an application for a new trial or for a re-hearing; and (c) an intervention. pending proceedings means proceedings that were instituted before the date of commencement of this Act but were not completed before that date. COMMENTARY ON SECTION 9 Section 9 — Transitional provisions — Introductory comment …. Pending proceedings — section 9(9) ….

[s 9.1] [s 9.2]

Courts with jurisdiction to hear pending proceedings …. Pending proceedings for divorce — section 9(1) …. Pending proceedings for nullity of voidable marriage — section 9(1) …. Pending proceedings for nullity of a void marriage — section 9(3) …. Pending proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage — section 9(3) …. Pending proceedings for a separation order — section 9(1) …. Conversion under section 9(2) …. Conversion under section 9(2A) …. Proclamations …. Pending proceedings for ancillary relief — section 9(4) …. Costs — section 9(5) …. Appeals — section 9(6) …. Section 55A declaration — section 9(7A) ….

[s 9.3] [s 9.4] [s 9.5] [s 9.6]

[s 9.7] [s 9.8] [s 9.9] [s 9.10] [s 9.11] [s 9.12] [s 9.13] [s 9.14] [s 9.15]

[s 9.1] Section 9 — Transitional provisions — Introductory comment This provision was inserted in the Act to provide for the determination of proceedings instituted under the repealed Matrimonial Causes Act, but not determined as at 5 January 1976. [s 9.2] Pending proceedings — section 9(9) Pending proceedings are defined in s 9(9). It refers to proceedings instituted before 5 January 1976, and not terminated prior to that date. [s 9.3] Courts with jurisdiction to hear pending proceedings Jurisdiction to hear and determine proceedings continued in accordance with s 9 is conferred upon the Family Court and [page 127]

Supreme Courts of each State and Territory (s 39(5)(b)) and in proceedings other than for principal matrimonial relief, on the courts of summary jurisdiction of the States and Territories (s 39(6)(b)). [s 9.4] Pending proceedings for divorce — section 9(1) Proceedings for dissolution of marriage instituted prior to 5 January 1976 may be continued as if the Act had not been passed, based on one or more of the grounds for relief set out in s 28 of the repealed Matrimonial Causes Act. [s 9.5] Pending proceedings for nullity of voidable marriage — section 9(1) Proceedings for nullity of a voidable marriage instituted prior to 5 January 1976 may be continued as if the Act had not been passed. As to the grounds on which a marriage was voidable, see repealed Matrimonial Causes Act s 21. Such proceedings are no longer a matrimonial cause. [s 9.6] Pending proceedings for nullity of a void marriage — section 9(3) Such proceedings continue to constitute a matrimonial cause under s 4(1). Proceedings for such relief pending as at 5 January 1976 may be continued and dealt with as if they were proceedings instituted under the Act. [s 9.7] Pending proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage — section 9(3) Such proceedings continue to constitute a matrimonial cause under s 4(1). Proceedings for such relief pending as at 5 January 1976 may be continued and dealt with as if they were proceedings instituted under the Act. [s 9.8] Pending proceedings for a separation order — section 9(1) Such proceedings are not a matrimonial cause. They may no longer be instituted after 5 January 1976. However, pending proceedings for such relief may be continued and dealt with as if the Act had not been passed. [s 9.9] Conversion under section 9(2) Where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of commencement of the Act, then either party may request that the proceedings be dealt with as if they were proceedings instituted under the Act on the ground of irretrievable breakdown referred to in s 48 of the Act.

[s 9.10] Conversion under section 9(2A) This provision was inserted in the Act by the Family Law Amendment Act 1979. It allows conversion at the request of either party into proceedings under s 48 of the Act where the parties have been separated for 12 months immediately preceding the date of making a request for conversion. It applies to proceedings pending as at 5 January 1976 where the parties had not been separated for a continuous period of 12 months prior to 5 January 1976. The court has no discretion to refuse a request: see In the Marriage of Gates (1976) 1 Fam LR 11,452. [s 9.11] Proclamations A proclamation dated 27 May 1976 fixed 1 June 1976 as the date on and after which proceedings for a decree of dissolution or nullity under the Family Law Act other than a cross-petition may not be instituted in or transferred to the Supreme Court. [s 9.12] Pending proceedings for ancillary relief — section 9(4) Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, may be continued and are to be dealt with as if they were proceedings instituted under the Act. Proceedings for maintenance, property and custody pending as at 5 January 1976 are to be dealt with according to the principles laid down in the Family Law Act. It applies to proceedings commenced under the repealed Matrimonial Causes Act, the various State Maintenance Acts and State Infants Custody Acts if such proceedings are a “matrimonial cause”. [page 128] [s 9.13] Costs — section 9(5) The provisions of s 117 do not apply to proceedings instituted prior to the commencement of the Act: see Barker v Barker (1976) 13 ALR 123; 2 Fam LR 11,453; see also In the Marriage of Utting (1976) 2 Fam LR 11,193 at 11,196; FLC 90–137; In the Marriage of Arnott (1976) 1 Fam LR 11,429; FLC 90–054; In the Marriage of Tobin (1977) 3 Fam LR 11,298; Curnow v O’Sullivan (No 3) (1977) 2 Fam LN 30.

[s 9.14] Appeals — section 9(6) Where a decree has been made before 5 January 1976 an appeal may be instituted or continued as if the Act had not been passed. The provisions of the repealed Matrimonial Causes Act remain applicable (s 92). [s 9.15] Section 55A declaration — section 9(7A) A decree nisi made after 5 January 1976 in proceedings continued under s 9(1) is subject to s 55A of the Act, relating to proper arrangements for the welfare of children.

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[page 129]

PART IA — PROTECTION OF NAMES [Part IA insrt Act 46 of 2006 s 3 and Sch 4 item 8, opn 22 May 2006]

[s 9A]

Use of protected names and symbols

9A (1) A person must not, without the Minister’s written consent: (a) use in relation to a business, trade, profession or occupation; or (b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or (c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or (d) use in relation to: (i) goods or services; or (ii) the promotion, by any means, of the supply or use of goods or services: either: (e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or (f) a protected symbol, or a symbol so closely resembling a

protected symbol as to be likely to be mistaken for it. Penalty: 30 penalty units. (2) Subsection (1), so far as it applies in relation to a particular protected name or protected symbol, does not affect rights conferred by law on a person in relation to: (a) a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995; or (b) a design registered under the Designs Act 2003; that was so registered, or was registered under the Designs Act 1906, at the protection time in relation to the name or symbol. (3) This section, so far as it applies in relation to a particular protected name or protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person: (a) was using the relevant name or symbol in good faith in that manner; or (b) would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first-mentioned person. (4) In this section: protected name means a name prescribed for the purposes of this definition. protected symbol means a symbol whose design is set out in the regulations. protection time means:

in relation to a protected name — the (a) immediately before the commencement of regulation prescribing the name; or (b) in relation to a protected symbol — the immediately before the commencement of regulation setting out the design of the symbol.

time the time the

[page 131]

PART II — NON-COURT BASED FAMILY SERVICES [Pt II subst Act 46 of 2006 s 3 and Sch 4 item 36, opn 1 July 2006]

DIVISION 1 — ACCREDITATION OF FAMILY COUNSELLORS, FAMILY DISPUTE RESOLUTION PRACTITIONERS AND OTHER FAMILY SERVICE PROVIDERS

[s 10A]

Accreditation Rules

10A (1) The regulations may prescribe Accreditation Rules. These are rules relating to: (a) the accreditation of persons as family counsellors; and (b) the accreditation of persons as family dispute resolution practitioners; and (c) the accreditation of persons to perform other roles prescribed by regulations made for the purposes of this paragraph. (2) Examples of matters that the Accreditation Rules may deal with are: (a) the standards that are to be met by persons who seek to be accredited; and (b) who is responsible for determining whether a person meets the Accreditation Rules; and

(c) (d) (e) (f)

(g) (h)

(i) (j) (k) (l)

how accreditation is to be recognised (for example, by establishment of a register or other method); and the standards and other obligations that accredited persons must continue to meet to remain accredited; and who is responsible for monitoring compliance with ongoing requirements in the Rules; and the consequences of accredited persons failing to comply with the provisions of this Act and the Rules; and the obligations of accredited persons in relation to the monitoring of their compliance; and how and by whom an accredited person may have his or her accreditation (or recognition of that accreditation) suspended or cancelled; and review of decisions to refuse, suspend or cancel accreditation (or recognition of accreditation); and the process for handling complaints involving accredited persons; and who may deliver recognised training to accredited persons, and dealing with individuals or other persons who make false or misleading representations about a person’s status as an accredited person. DIVISION 2 — FAMILY COUNSELLING

[s 10B]

Definition of family counselling

10B Family counselling is a process in which a family counsellor

helps: (a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or [page 132] (b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following: (i) personal and interpersonal issues; (ii) issues relating to the care of children. COMMENTARY ON SECTION 10B Introduction ….

[s 10B.1]

[s 10B.1] Introduction This definition, with s 10C, is significant especially in connection with s 10D (non-disclosure of communications during family counselling) and s 10E (inadmissibility of things said in family counselling).

____________________

[s 10C]

Definition of family counsellor

10C (1) A family counsellor is: (a) a person who is accredited as a family counsellor under the Accreditation Rules; or (b) a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or

(c) a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family counsellor; or (d) a person who is authorised to act under section 93D of the Federal Circuit Court of Australia Act 1999, or engaged under subsection 115(1A) of that Act, as a family counsellor; or (e) a person who is authorised by a Family Court of a State to act as a family counsellor. [subs (1) am Act 13 of 2013 s 3 and Sch 1 item 271, opn 12 Apr 2013]

(2) The Minister must publish a list of organisations designated for the purposes of paragraph (b) of the definition of family counsellor. [subs (2) am Act 113 of 2015 s 3 and Sch 3 item 1, opn 18 Aug 2015]

(3) An instrument under this section is not a legislative instrument. COMMENTARY ON SECTION 10C Introduction ….

[s 10C.1]

[s 10C.1] Introduction This definition, with s 10B, is significant especially in connection with s 10D (non-disclosure of communications during family counselling) and s 10E (inadmissibility of things said in family counselling).

____________________

[s 10D] Confidentiality of communications in family counselling 10D (1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is

conducting family counselling, unless the disclosure is required or authorised by this section. (2) A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory. [page 133] (3) A family counsellor may disclose a communication if consent to the disclosure is given by: (a) if the person who made the communication is 18 or over — that person; or (b) if the person who made the communication is a child under 18: (i) each person who has parental responsibility (within the meaning of Part VII) for the child; or (ii) a court. (4) A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of: (a) protecting a child from the risk of harm (whether physical or psychological); or (b) preventing or lessening a serious and imminent threat to the life or health of a person; or (c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or

(d) preventing or lessening a serious and imminent threat to the property of a person; or (e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or (f) if a lawyer independently represents a child’s interests under an order under section 68L — assisting the lawyer to do so properly. (5) A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families. (6) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure. Note: This means that the counsellor’s evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.

(7) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961. (8) In this section: communication includes admission. COMMENTARY ON SECTION 10D Overview …. The prohibition: subs (1) …. Exception 1: disclosure necessary to comply with law:

[s 10D.1] [s 10D.2]

subs (2) …. Exception 2: consent of the person making the statement: subs (3) …. Exception 3: reasonable belief that disclosure is necessary to protect children etc: subs (4) …. Exception 4: research purposes: subs (5) …. Exception 5: counselling in connection with underage marriage application: subs (7) …. When is family counselling being conducted? ….

[s 10D.3] [s 10D.4] [s 10D.5] [s 10D.6] [s 10D.7] [s 10D.8]

[s 10D.1] Overview This section creates a prohibition on family counsellors from disclosing communications made during family counselling, and then sets out five exceptions. Section 10E [page 134] deals with whether things said in family counselling are admissible in evidence, which is a separate question: see s 10D(6). (Sections 10H and 10J are parallel provisions, relating to family dispute resolution as distinct from family counselling). [s 10D.2] The prohibition: subs (1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section. The prohibition is general: the communication must not be disclosed to anyone. The scope of the prohibition is affected by the definitions of “family counselling” (s 10B) and “family counsellor” (s 10C). Before the amending Act of 2006, the Act required people then called “family and child counsellors” to make an oath or affirmation of secrecy, the form of which was set out in the Family Law Regulations 1984. Section 10D was intended to combine these provisions and by moving the terms of the oath or affirmation into the primary legislation, to “emphasise the importance of confidentiality”: see EM, para 113.

[s 10D.3] Exception 1: disclosure necessary to comply with law: subs (2) By subs (2), a family counsellor who reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory must make the disclosure. [s 10D.4] Exception 2: consent of the person making the statement: subs (3) By subs (3), the family counsellor may disclose a communication if the person who made it consents. In the case of a child, consent can be given by each person having parental responsibility (eg a parent) or by a court: para (b). The EM to the Act of 2006 says, in para 119: “The ability to disclose communications, with consent, will assist the people participating in family counselling in a number of ways. For example, if a person consents to the disclosure of information when the family counsellor is making a referral to another professional, this will ensure that clients will not need to relate the details of their circumstances each time they see a different professional.” Subsection (3) gives the counsellor a discretion whether to disclose the communication (“may”) and does not empower the court to require a counsellor to disclose the communication; nor do s 10E or s 69ZX: Unitingcare — Unifam Counselling & Mediation v Harkiss (2011) 252 FLR 309; 46 Fam LR 12; [2011] FamCAFC 159; BC201150452. [s 10D.5] Exception 3: reasonable belief that disclosure is necessary to protect children etc: subs (4) By subs (3), a family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for one of the six purposes listed in paras (a)–(f). The last may be of particular importance, because it would enable to counsellor to alert the child’s lawyer to something which the lawyer might then wish to draw to the court’s attention. [s 10D.6] Exception 4: research purposes: subs (5) By subs (5), a family counsellor may disclose a communication to provide non-identifying information for research relevant to families. [s 10D.7] Exception 5: counselling in connection with underage marriage application: subs (7) This exception allows the counsellor to disclose a communication in connection with obtaining the court’s consent to the

marriage of a minor: Marriage Act 1961, s 16(2A). As the EM notes in para 123, s 10D(7) ensures that the family counsellor will not be considered to have breached confidentiality requirements by providing a certificate under the Marriage Act stating that the minor has received counselling in relation to the proposed marriage. [s 10D.8] When is family counselling being conducted? The section applies only when family counselling is being conducted. In Rastall v Ball (2010) 44 Fam LR 256; [2010] FMCAfam 1290; BC201009291, Reithmuller FM expressed the view that s 10J does not extend to the intake or assessment steps: at [33]–[34]. His view was influenced by the serious consequence of the section in potentially excluding material that might be relevant to the court’s assessment of a [page 135] child’s safety and best interests (adopting in this respect remarks of Walters FM in Smirnov v Turova [2009] FMCAfam 1083; BC200909528 at [57]). It was also influenced by the requirement of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 that an assessment must be conducted before dispute resolution. The first reason, but not the second, would also apply to family counselling. It is therefore uncertain at what point family counselling is being conducted, and thus at what point s 10D commences to operate.

____________________

[s 10E] Admissibility of communications in family counselling and in referrals from family counselling 10E (1) Evidence of anything said, or any admission made, by or in the company of:

(a) a family counsellor conducting family counselling; or (b) a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person; is not admissible: (c) in any court (whether or not exercising federal jurisdiction); or (d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties). (2) Subsection (1) does not apply to: (a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or (b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse; unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources. (3) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961. (4) A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section. COMMENTARY ON SECTION 10E

Introduction …. When is family counselling being conducted? ….

[s 10E.1] [s 10E.5]

[s 10E.1] Introduction This section provides, in substance, that anything said in family counselling conducted by a family counsellor is inadmissible. Subsection (2) extends the rule to professionals to whom the person is referred (who are ‘carrying out professional services’ for the person). The referring family counsellor must inform the professional of this: sub-s (4). See the definitions of “family counsellor” (s 10C) and “family counselling” (s 10B). The only exception relates to admissions or disclosures that a child under 18 has been abused or is at risk of abuse (a term defined in section 4). The effect of subsection (2) is that evidence may be given of such admissions or disclosures, unless in the court’s opinion there is sufficient evidence of the admission or disclosure available to the court from other sources. The underlying idea is that evidence of child abuse can be given if it is really necessary for the proceedings. Determining this issue might involve evidence given on the voire dire: see Relationships Australia [page 136] (Qld) v M (2006) 37 Fam LR 12; 204 FLR 440; (2006) FLC 93-305; [2006] FamCA 1265, referred to in Trapp v Vonne [2009] FMCAfam 497; (2009) 41 Fam LR 471 at paragraph [20]. There is no general discretion to permit evidence to be given contrary to subsection (1), and the rule is not a privilege that parties can waive, but a strict rule of law: see Trapp v Vonne [2009] FMCAfam 497; (2009) 41 Fam LR 471, referring to Centacare Central Queensland and Downing v G and K (1988) 23 Fam LR 476; 146 FLC 2252; (1998) FLC 92-821; [1998] FamCA 109. The inadmissibility resulting from subsection (1) was one of the reasons why Reithmuller FM dismissed a subpoena issued to LifeWorks in Trapp v Vonne [2009] FMCAfam 497; (2009) 41 Fam LR 471.

The section does not prevent the family counsellor disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961: see subs (2). [s 10E.5] When is family counselling being conducted? The section applies only when family counselling is being conducted. In Rastall v Ball (2010) 44 Fam LR 256; [2010] FMCAfam 1290; BC201009291, Reithmuller FM expressed the view that the equivalent provision relating to family dispute resolution, s 10J, does not extend to the intake or assessment steps: at [33]– [34]. His view was influenced by the serious consequence of the section in potentially excluding material that might be relevant to the court’s assessment of a child’s safety and best interests (adopting in this respect remarks of Walters FM in Smirnov v Turova [2009] FMCAfam 1083; BC200909528 at [57]). It was also influenced by the requirement of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 that an assessment must be conducted before dispute resolution. The first reason, but not the second, would also apply to family counselling. It is therefore uncertain at what point family counselling is being conducted, and thus at what point s 10E commences to operate.

____________________ DIVISION 3 — FAMILY DISPUTE RESOLUTION

[s 10F]

Definition of family dispute resolution

10F Family dispute resolution is a process (other than a judicial process): (a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and (b) in which the practitioner is independent of all of the

parties involved in the process. COMMENTARY ON SECTION 10F Introduction ….

[s 10F.1]

[s 10F.1] Introduction This definition, with s 10G, is significant especially in connection with s 10H (non-disclosure of communications during family dispute resolution) and s 10J (inadmissibility of things said during family dispute resolution).

____________________

[s 10G] Definition of family dispute resolution practitioner 10G (1) A family dispute resolution practitioner is: (a) a person who is accredited as a family dispute resolution practitioner under the Accreditation Rules; or [page 137] (b) a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or (c) a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family dispute resolution practitioner; or (d) a person who is authorised to act under section 93D of the Federal Circuit Court of Australia Act 1999, or engaged under subsection 115(1A) of that Act, as a family dispute resolution practitioner; or

(e) a person who is authorised by a Family Court of a State to act as a family dispute resolution practitioner. [subs (1) am Act 8 of 2007 s 3 and Sch 1[9], opn 15 Mar 2007; Act 13 of 2013 s 3 and Sch 1 item 272, opn 12 Apr 2013]

(2) The Minister must publish a list of organisations designated for the purposes of paragraph (b) of the definition of family dispute resolution practitioner. [subs (2) am Act 113 of 2015 s 3 and Sch 3 item 1, opn 18 Aug 2015]

(3) An instrument under this section is not a legislative instrument. COMMENTARY ON SECTION 10G Introduction ….

[s 10G.1]

[s 10G.1] Introduction This definition, with s 10F, is significant especially in connection with s 10H (non-disclosure of communications during family dispute resolution) and s 10J (inadmissibility of things said during family dispute resolution).

____________________

[s 10H] Confidentiality of communications in family dispute resolution 10H (1) A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section. (2) A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

(3) A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by: (a) if the person who made the communication is 18 or over — that person; or (b) if the person who made the communication is a child under 18: (i) each person who has parental responsibility (within the meaning of Part VII) for the child; or (ii) a court. (4) A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of: (a) protecting a child from the risk of harm (whether physical or psychological); or (b) preventing or lessening a serious and imminent threat to the life or health of a person; or (c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or (d) preventing or lessening a serious and imminent threat to the property of a person; or [page 138] (e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or

(f) if a lawyer independently represents a child’s interests under an order under section 68L — assisting the lawyer to do so properly. (5) A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families. (6) A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8). (7) Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure. Note: This means that the practitioner’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.

(8) In this section: communication includes admission. COMMENTARY ON SECTION 10H Overview …. The prohibition: subs (1) …. Exception 1: disclosure necessary to comply with law: subs (2) …. Exception 2: consent of the person making the statement: subs (3) …. Exception 3: reasonable belief that disclosure is necessary to protect children etc: subs (4) …. Exception 4: research purposes: subs (5) …. Exception 5: disclosure in connection with a certificate under s 60I: subs (6) ….

[s 10H.1] [s 10H.2] [s 10H.3] [s 10H.4] [s 10H.5] [s 10H.6] [s 10H.7]

[s 10H.1] Overview This section creates a prohibition on family dispute resolution practitioners from disclosing communications made during family dispute resolution, and then sets out five exceptions. Section 10J deals with whether things said in family dispute resolution are admissible in evidence, which is a separate question: see s 10H(7). (Sections 10D and 10E are parallel provisions, relating to family counselling as distinct from family dispute resolution). Before the amending Act of 2006, the Act required people then called “family and child counsellors” to make an oath or affirmation of secrecy, the form of which was set out in the Family Law Regulations 1984. Section 10H was intended to combine these provisions and by moving the terms of the oath or affirmation into the primary legislation, to “emphasise the importance of confidentiality”: see EM, para 139. [s 10H.2] The prohibition: subs (1) A family dispute resolution practitioner must not disclose a communication made to the practitioner while the counsellor is conducting family dispute resolution, unless the disclosure is required or authorised by this section. The prohibition is general: the communication must not be disclosed to anyone. The scope of the prohibition is affected by the definitions of “family dispute resolution practitioner” and “family dispute resolution”: see ss 10F, 10G. It would appear that the prohibition would not apply to communications made during preliminary processes, such as assessing whether family dispute resolution should be conducted: see Rastall v Ball (2010) 44 Fam LR 256; [2010] FMCAfam 1290; BC201009291. [page 139] [s 10H.3] Exception 1: disclosure necessary to comply with law: subs (2) By subs (2), a family dispute resolution practitioner who reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory must make the disclosure. [s 10H.4] Exception 2: consent of the person making the statement: subs

(3) By subs (3), the family dispute resolution practitioner may disclose a communication if the person who made it consents. In the case of a child, consent can be given by each person having parental responsibility (eg a parent) or by a court: para (b). The EM to the Act of 2006 says, in para 144: “The ability to disclose communications, with consent, will assist the people participating in family dispute resolution in a number of ways. For example, if a person consents to the disclosure of information when the family dispute resolution practitioner is making a referral to another professional, this will ensure that clients will not need to relate the details of their circumstances each time they see a different professional.” [s 10H.5] Exception 3: reasonable belief that disclosure is necessary to protect children etc: subs (4) By subs (3), a family dispute resolution practitioner may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for one of the six purposes listed in paras (a)–(f). The last may be of particular importance, because it would enable to counsellor to alert the child’s lawyer to something which the lawyer might then wish to draw to the court’s attention. [s 10H.6] Exception 4: research purposes: subs (5) By subs (5), a family dispute resolution practitioner may disclose a communication to provide nonidentifying information for research relevant to families. [s 10H.7] Exception 5: disclosure in connection with a certificate under s 60I: subs (6) This exception allows the family dispute resolution practitioner to disclose information necessary for the practitioner to give a s 60I certificate.

____________________

[s 10J] Admissibility of communications in family dispute resolution and in referrals from family dispute resolution

10J (1) Evidence of anything said, or any admission made, by or in the company of: (a) a family dispute resolution practitioner conducting family dispute resolution; or (b) a person (the professional) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person; is not admissible: (c) in any court (whether or not exercising federal jurisdiction); or (d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties). (2) Subsection (1) does not apply to: (a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or (b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse; unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources. [page 140] (3) Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).

(4) A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section. COMMENTARY ON SECTION 10J Introduction …. Admissions or disclosures about child abuse: subs (2) …. Information necessary for a s 60I certificate: subs (3) …. When does family dispute resolution start? ….

[s 10J.1] [s 10J.2] [s 10J.3] [s 10J.4]

[s 10J.1] Introduction This section provides, in substance, that anything said in family dispute resolution conducted by a family dispute resolution practitioner is inadmissible. Subsection (2) extends the rule to professionals to whom the person is referred (who are “carrying out professional services” for the person). The referring family dispute resolution practitioner must inform the professional of this: subs (4). See the definitions of “family dispute resolution practitioner” (s 10G) and “family dispute resolution” (s 10F). There are two exceptions: admissions or disclosures indicating child abuse (subs (2)), and information necessary for a s 60I certificate (subs (3)). There is no general discretion to permit evidence to be given contrary to subs (1), and the rule is not a privilege that parties can waive, but a strict rule of law: see Trapp v Vonne (2009) 41 Fam LR 471; [2009] FMCAfam 497, referring to Centacare Central Queensland and Downing v G and K (1998) 146 FLR 252; 23 Fam LR 476; (1998) FLC 92-821; [1998] FamCA 109. The inadmissibility resulting from subs (1) was one of the reasons why Reithmuller FM dismissed a subpoena issued to LifeWorks in Trapp v Vonne (2009) 41 Fam LR 471; [2009] FMCAfam 497. [s 10J.2] Admissions or disclosures about child abuse: subs (2) Subsection (1), containing the inadmissibility rule, does not apply to admissions or disclosures that a child under 18 has been abused or is at risk of abuse (a term defined in s 4). The effect of subs (2) is that evidence may be given of such admissions or disclosures, unless in the court’s opinion there is sufficient evidence of the admission or disclosure available to the court from other

sources. The underlying idea is that evidence of child abuse can be given if it is really necessary for the proceedings. Determining this issue might involve evidence given on the voire dire: see Relationships Australia (Qld) v M (2006) 204 FLR 440; 37 Fam LR 12; (2006) FLC 93-305; [2006] FamCA 1265, referred to in Trapp v Vonne (2009) 41 Fam LR 471; [2009] FMCAfam 497 at [20]. [s 10J.3] Information necessary for a s 60I certificate: subs (3) Subsection (1), containing the inadmissibility rule, does not apply to information necessary for the practitioner to give a s 60I certificate. [s 10J.4] When does family dispute resolution start? In Rastall v Ball (2010) 44 Fam LR 256; [2010] FMCAfam 1290; BC201009291, Reithmuller FM expressed the view that the section does not extend to the intake or assessment steps preliminary to conducting family dispute resolution: at [33]–[34]. His view was influenced by the serious consequence of the section in potentially excluding material that might be relevant to the court’s assessment of a child’s safety and best interests, adopting in this respect remarks of Walters FM in Smirnov v Turova [2009] FMCAfam 1083; BC200909528 at [57]. It was also influenced by the requirement of the Regulations that an assessment must be conducted before dispute resolution.

____________________ [page 141]

[s 10K] Family dispute resolution practitioners must comply with regulations 10K (1) The regulations may prescribe requirements to be complied with by family dispute resolution practitioners in relation to the family dispute resolution services they provide. (2) The regulations may prescribe penalties not exceeding 10

penalty units in respect of offences against regulations made for the purposes of subsection (1). COMMENTARY ON SECTION 10K Regulations made under s 10K ….

[s 10K.1]

[s 10K.1] Regulations made under s 10K See the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

____________________ DIVISION 4 — ARBITRATION

[s 10L]

Definition of arbitration

10L (1) Arbitration is a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute. (2) Arbitration may be either: (a) section 13E arbitration — which is arbitration of Part VIII proceedings, or Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement), carried out as a result of an order made under section 13E; or (b) relevant property or financial arbitration — which is arbitration (other than section 13E arbitration) of: (i) Part VIII proceedings, Part VIIIA proceedings, Part VIIIAB proceedings, Part VIIIB proceedings or section 106A proceedings; or (ii) any part of such proceedings; or (iii) any matter arising in such proceedings; or

(iv) a dispute about a matter with respect to which such proceedings could be instituted. [subs (2) am Act 115 of 2008 s 3 Sch1[24]–[25], opn 1 Mar 2009]

[s 10M]

Definition of arbitrator

10M An arbitrator is a person who meets the requirements prescribed in the regulations to be an arbitrator.

[s 10N] Arbitrators may charge fees for their services 10N (1) An arbitrator conducting arbitration may charge the parties to the arbitration fees for conducting it. [page 142] (2) The arbitrator must give written information about those fees to the parties before the arbitration starts. Note: There may be Rules of Court or regulations relating to the costs of arbitration and how they are assessed or taxed (see paragraphs 123(1)(se) and 125(1)(bc)).

[s 10P]

Immunity of arbitrators

10P An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge. Note: Communications with arbitrators are not confidential, and may be admissible in court.

[page 143]

PART III — FAMILY CONSULTANTS [Pt III subst Act 46 of 2006 s 3 and Sch 4 item 36, opn 1 July 2006]

DIVISION 1 — ABOUT FAMILY CONSULTANTS

[s 11A]

Functions of family consultants

11A The functions of family consultants are to provide services in relation to proceedings under this Act, including: (a) assisting and advising people involved in the proceedings; and (b) assisting and advising courts, and giving evidence, in relation to the proceedings; and (c) helping people involved in the proceedings to resolve disputes that are the subject of the proceedings; and (d) reporting to the court under sections 55A and 62G; and (e) advising the court about appropriate family counsellors, family dispute resolution practitioners and courses, programs and services to which the court can refer the parties to the proceedings. Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.

[s 11B] 11B

Definition of family consultant A family consultant is a person who is:

(a) appointed as a family consultant under section 38N; or (b) appointed as a family consultant in relation to the Federal Circuit Court of Australia under the Federal Circuit Court of Australia Act 1999; or (c) appointed as a family consultant under the regulations; or (d) appointed under a law of a State as a family consultant in relation to a Family Court of that State. Note: The Chief Executive Officer has all of the functions and powers of family consultants, and may direct consultants in the performance of their functions. See Division 1A of Part IVA of this Act and Division 1A of Part 7 of the Federal Circuit Court of Australia Act 1999. [s 11B am Act 13 of 2013 s 3 and Sch 1 items 273, 274, Sch 2 item 2, opn 12 Apr 2013; Act 7 of 2013 s 3 and Sch 2 item 4, opn 1 July 2013]

[s 11C] Admissibility of communications with family consultants and referrals from family consultants 11C (1) Evidence of anything said, or any admission made, by or in the company of: (a) a family consultant performing the functions of a family consultant; or (b) a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person; is admissible in proceedings under this Act. Note 1: Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in

relation to consultants having several roles). Note 2: Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.

[page 144] (2) Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1). (3) Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if: (a) it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or (b) it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse; unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources. COMMENTARY ON SECTION 11C Overview …. Statements to family consultants admissible: subs (1) …. Subsection (1) to be read subject to the Act and applicable provisions of the Evidence Act 1995 …. Subsection (1) inapplicable when person has not been informed of its effect: subs (2) ….

[s 11C.1] [s 11C.2] [s 11C.3] [s 11C.4]

Position where issues of child abuse: subs (3) ….

[s 11C.5]

[s 11C.1] Overview Section 11C(1) provides, in substance, that conversations with family consultants are admissible. (The term “family consultant” and the functions of family consultants are dealt with in ss 11A and 11B.) But this provision generally does not apply where a person makes a statement without having been informed that it will be admissible: subs (2). The obvious reason for this exception is that it might be unfair to make statements admissible when people make them believing that they are to be treated as confidential. Statements indicating child abuse may nevertheless be admissible, even if the person making them has not been informed of the operation of subs (1): subs (3). Section 11C was inserted by the amending Act of 2006. It needs to be understood in the context of the changes to the procedures in children’s cases set out in Div 12A. In contrast to the work of family counsellors and family dispute resolution practitioners, which is normally done on a confidential basis, the work of family consultants is done in open court or in connection with court proceedings, and communications with family consultants, and statements by them, are intended to be available to the court as evidence: see ss 69ZT, 69ZU. [s 11C.2] Statements to family consultants admissible: subs (1) By subs (1), evidence of anything said, or any admission made, “in the company of a family consultant performing the functions of a family consultant” is admissible in proceedings under this Act. The section also refers to things said “by” the family consultant. Thus evidence can be given (presumably by anyone involved), of what was said when the family consultant interviews parties or others involved in the proceedings. While anything said by the family consultant is admissible, by s 67ZU the court “must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence”. Although subs (1) is stated in absolute terms, subss (2) and (3) effectively set out an exception to it in instances where people are not informed that what they say to the family consultant is admissible. The note to the section

usefully draws attention to s 38BD(3), dealing with the situation where consultants have several roles. [page 145] [s 11C.3] Subsection (1) to be read subject to the Act and applicable provisions of the Evidence Act 1995 Subsection (1) is unqualified, and in one case a party tendered a secretly-made recording of an interview with a family consultant, arguing that the section meant that the evidence must be admitted whatever the circumstances — regardless, for example, of whether it had been illegally or unfairly obtained. After a detailed and careful analysis, however, Watts J rejected this view, holding that s 11C(1) must be read subject to other normal evidentiary provisions: Hazan v Elias (2011) 45 Fam LR 475; [2011] FamCA 376; BC201150324. This decision is surely correct (RC): the section was intended to remove the confidentiality that had previously accompanied many of the services provided by family consultants, not to override other provisions about the circumstances in which evidence is admissible. [s 11C.4] Subsection (1) inapplicable when person has not been informed of its effect: subs (2) By subs (2), subs (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subs (1). Subsection (2) does not provide that in such circumstances the statement would be inadmissible, only that subs (1) does not apply. If a person has not been informed of the effect of subs (1), therefore, the section is silent on the admissibility of the statement. Since most of the exclusionary rules of evidence do not normally apply in children’s proceedings, it would seem therefore that it would be a matter for the judge to determine whether to admit the statement and what weight to give it: see Div 12A, especially ss 69ZT–69ZX. [s 11C.5] Position where issues of child abuse: subs (3) Subsection (3) deals with things said by an adult that indicate that a child has been abused or

is at risk of abuse, and disclosures by a child to the same effect, in circumstances where the person making the statement has not been informed of the effect of subs (1). It provides that such statements are admissible, “unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources”.

____________________

[s 11D]

Immunity of family consultants

11D A family consultant has, in performing his or her functions as a family consultant, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge. DIVISION 2 — COURTS’ USE OF FAMILY CONSULTANTS

[s 11E] Courts to consider seeking advice from family consultants 11E (1) If, under this Act, a court has the power to: (a) order a person to attend family counselling or family dispute resolution; or (b) order a person to participate in a course, program or other service (other than arbitration); or (c) order a person to attend appointments with a family consultant; or (d) advise or inform a person about family counselling, family dispute resolution or other courses, programs or services; the court: (e) may, before exercising the power, seek the advice of:

if the court is the Family Court or the Federal Circuit Court of Australia — a family consultant nominated by the Chief Executive Officer; or (ii) if the court is the Family Court of a State — a family consultant of that court; or (i)

[page 146] (iii) if the court is not mentioned in subparagraph (i) or (ii) — an appropriately qualified person (whether or not an officer of the court); as to the services appropriate to the needs of the person and the most appropriate provider of those services; and (f) must, before exercising the power, consider seeking that advice. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013; Act 7 of 2013 s 3 and Sch 2 item 5, opn 1 July 2013]

(2) If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought: (a) whom the court is seeking advice from; and (b) the nature of the advice the court is seeking. COMMENTARY ON SECTION 11E Overview ….

[s 11E.1]

[s 11E.1] Overview This section provides, in substance, that when the court has power to order people to attend family counselling, family dispute resolution, a course, program or other service (though not arbitration), or an appointment with a family consultant, or even to advise people about these things, before exercising the power, it must consider seeking the advice of a

nominated family consultant as to the services appropriate to the needs of the person, and the most appropriate provider of those services. And it must inform the person in relation to whom the advice is sought: see subs (2). The section applies when the court has power to make such orders; it does not itself create that power. The EM says in paras 189–191 that the sections “aims to ensure that the court makes orders that are appropriate to the circumstances and needs of the parties, and which take into account the family services available in different areas”. The requirement that the court must consider the advice is “to emphasise the importance of making orders that are tailored to the individual’s requirements”. The requirement in subs (2) to inform the person is to “ensure the transparency of court processes”.

____________________

[s 11F] Court may order parties to attend, or arrange for child to attend, appointments with a family consultant 11F (1) A court exercising jurisdiction in proceedings under this Act may make either or both of the following kinds of order: (a) an order directing one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant; (b) an order directing one or more parties to the proceedings to arrange for a child to attend an appointment (or a series of appointments) with a family consultant. Note: Before exercising this power, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E). [subs (1) subst Act 189 of 2011 s 3 and Sch 2[3], opn 7 Dec 2011]

(2) When making an order under subsection (1), the court must

inform the parties of the effect of section 11G (consequences of failure to comply with order). (3) The court may make orders under this section: (a) on its own initiative; or (b) on the application of: [page 147] (i) a party to the proceedings; or (ii) a lawyer independently representing a child’s interests under an order made under section 68L. COMMENTARY ON SECTION 11F Overview …. A section 11F order is a ‘degree’ which can be appealed without leave ….

[s 11F.1] [s 11F.3]

[s 11F.1] Overview Section 11F gives the court power to order one or more parties to the proceedings to attend an appointment (or a series of appointments) with a family consultant whenever the court is “exercising jurisdiction in proceedings under this Act”. It may do so on its own motion, or on the application of a party or an independent children’s lawyer: subs (3). It must inform the parties of the consequences under s 11G of failure to comply with the order (the family consultant can make a report to the court, which can then make any appropriate order): subs (2). The EM says in para 192: “The court would make such an order where it considers that one or more of the parties would benefit from the services that a family consultant is able to provide. The functions performed by family consultants are set out at s 11A and include assisting and advising people involved in the proceedings (para 11A(a)) and helping people involved in proceedings to resolve disputes (para 11A(c)).”

[s 11F.3] A section 11F order is a ‘degree’ which can be appealed without leave In Hart & Sellwood [2016] FamCAFC 254; BC201651152 (2 December 2016) the Full Court held that an order under s 11F is a “decree” which can be appealed. Leave to appeal is not required because although an interlocutory order, it is in relation to child welfare matters: see s 94AA(1) and reg 15A(2) defining “child welfare matter”. The Full Court said at [29]: … whether or not a child should attend a family consultant (or counsellor) is an aspect of the “powers, responsibilities and authority” parents have in relation to children. It is a child’s parents, acting in the exercise of their individual and collective powers, responsibilities and authority who decide whether or not to take a step on the basis of the welfare of the child objectively assessed (Secretary, Dept of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 240; 106 ALR 385; 66 ALJR 300; 15 Fam LR 392). An order coercive of one or both parents in respect of any such step is an “… aspect of parental responsibility, within the meaning of Part VII of the Act, for a child” (reg 15A(2)(c)).

____________________

[s 11G] Consequences of failure to comply with order under section 11F 11G (1) If a person who is ordered to attend an appointment with a family consultant under section 11F fails to comply with: (a) the order made by the court; or (b) any instruction the consultant gives to the person; the consultant must report the failure to the court. (1A) If: (a) a person fails to comply with an order under section 11F that he or she arrange for a child to attend an appointment with a family consultant; or (b) a child fails to attend an appointment with a family consultant as arranged in compliance with an order under section 11F; [page 148] the consultant must report the failure to the court. [subs (1A) insrt Act 189 of 2011 Sch 2 Pt 1 item 4, opn 7 Dec 2011]

(2) On receiving a report under subsection (1) or (1A), the court may make any further orders it considers appropriate. [subs (2) subst Act 189 of 2011 s 3 and Sch 2[4], opn 7 Dec 2011]

(3) The court may make orders under subsection (2): (a) on its own initiative; or (b) on the application of: (i) a party to the proceedings; or

(ii) a lawyer independently representing a child’s interests under an order made under section 68L. COMMENTARY ON SECTION 11G Overview ….

[s 11G.1]

[s 11G.1] Overview Section 11G provides, in substance, that if a person fails to comply with an order under s 11F requiring the person to attend an appointment with a family consultant, or fails to comply with “any instruction the consultant gives to the person”, the consultant must report the failure to the court, and the court “may make any further orders it considers appropriate”. There appears to be little or no judicial comment on this provision. The EM gives one example of its intended operation (para 198): For example if the person has refused to comply with a family consultant’s instructions to treat the other party in a civil manner when discussions are taking place involving the family consultant, the court might consider it appropriate to order the person to attend a course or program that informs participants of the effects that high levels of parental conflict have on children. As this example suggests, the sort of orders contemplated would obviously include orders relating to attendance at counselling or other services. Failure to comply with an order under s 11F could also, no doubt, constitute a contravention that could result in proceedings under Pt XIIIB.

____________________

[page 149]

PART IIIA — OBLIGATIONS TO INFORM PEOPLE ABOUT NON-COURT BASED FAMILY SERVICES AND ABOUT COURT’S PROCESSES AND SERVICES [Pt IIIA insrt Act 46 of 2006 s 3 and Sch 4 item 36, opn 1 July 2006]

DIVISION 1 — INTRODUCTION

[s 12A]

Objects of this Part

12A The objects of this Part are: (a) to ensure that married couples considering separation or divorce are informed about the services available to help with a possible reconciliation, in situations where a reconciliation between the couple seems a reasonable possibility; and (b) to ensure that people affected, or likely to be affected, by separation or divorce are informed about the services available to help them adjust to: (i) separation or divorce; and (ii) orders made under this Act; and (c) to ensure that people affected, or likely to be affected, by separation or divorce are informed about ways of resolving disputes other than by applying for orders under this Act.

[s 12A am Act 8 of 2007 s 3 and Sch 1[10], opn 15 Mar 2007]

DIVISION 2 — KIND OF INFORMATION TO BE PROVIDED

[s 12B] Prescribed information about non-court based family services and court’s processes and services 12B (1) The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non-court based family services and court’s processes and services. (2) Without limitation, information prescribed under this section must include information about: (a) the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and (b) the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and (c) the steps involved in the proposed proceedings; and (d) the role of family consultants; and (e) the arbitration facilities available to arbitrate disputes in relation to separation and divorce. COMMENTARY ON SECTION 12B [s 12B.1] This section is the source of power to make regulations prescribing information that is to be included in documents provided to persons under this Part, relating to non-court based family services and the court’s processes

and services. Such information is normally contained in the Family Law Regulations 1984.

____________________ [page 150]

[s 12C] Prescribed information about reconciliation 12C The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage. COMMENTARY ON SECTION 12C Prescribed information ….

[s 12C.1]

[s 12C.1] Prescribed information For prescribed information, see Family Law Regulations 1984, reg 8A.

____________________

[s 12D] Prescribed information about Part VII proceedings 12D (1) The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII. (2) Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part. COMMENTARY ON SECTION 12D Prescribed information ….

[s 12D.1]

[s 12D.1] Prescribed information For prescribed information, see Family Law Regulations 1984, reg 8B.

____________________ DIVISION 3 — WHO MUST PROVIDE INFORMATION, AND WHEN

[s 12E]

Obligations on legal practitioners

12E (1) A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non-court based family services and court’s processes and services). (2) A legal practitioner who is consulted by, or who is representing, a married person who is a party to: (a) proceedings for a divorce order in relation to the

marriage; or (b) financial or Part VII proceedings in relation to the marriage; must give the person documents containing the information prescribed under section 12C (about reconciliation). (3) A legal practitioner representing a party in proceedings under Part VII must give the party documents containing the information prescribed under section 12D (about Part VII proceedings). Note: For other obligations of legal practitioners in relation to Part VII matters, see sections 60D and 63DA. [subs (3) am Act 189 of 2011 s 3 and Sch 1 item 9, opn 7 June 2012]

(4) A legal practitioner does not have to comply with subsection (1), (2) or (3) if the practitioner has reasonable grounds to believe that the person has already been given documents containing the prescribed information mentioned in that subsection. [page 151] (5) A legal practitioner does not have to comply with subsection (2) if the practitioner considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.

[s 12F] Obligations on principal executive officers of courts 12F (1) Obligation to give prescribed information The principal executive officer of a court that has jurisdiction under this Act must ensure that any person who is considering instituting

proceedings under this Act is, on the first occasion the person deals with a registry of the court, given documents containing the information prescribed under: (a) section 12B (about non-court based family services and court’s processes and services); and (b) section 12C (about reconciliation). (2) Obligation to respond to requests for information The principal executive officer of a court that has jurisdiction under this Act must ensure that, if a person involved in proceedings under this Act requests an officer or staff member of the court for information about family counselling services or family dispute resolution services, the person is given documents containing information about those services. Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.

[s 12G] Obligations on family counsellors, family dispute resolution practitioners and arbitrators 12G (1) A family counsellor, family dispute resolution practitioner or arbitrator who deals with a married person considering instituting: (a) proceedings for a divorce order in relation to the marriage; or (b) financial or Part VII proceedings in relation to the marriage; must give the married person (and in appropriate cases, that person’s spouse) documents containing the information prescribed under section 12C (about reconciliation). Note: For other obligations of family counsellors and family dispute

resolution practitioners in relation to Part VII matters, see sections 60D and 63DA. Those sections do not apply to arbitrators. [subs (1) am Act 189 of 2011 s 3 and Sch 1 item 10, opn 7 June 2012]

(2) A family counsellor, family dispute resolution practitioner or arbitrator does not have to comply with subsection (1), if he or she: (a) has reasonable grounds to believe that the person has already been given documents containing the prescribed information; or (b) considers that there is no reasonable possibility of a reconciliation between the parties to the marriage. [subs 2 am Act 8 of 2010 s 3 and Sch 1[28], opn 1 Mar 2010]

[page 153]

PART IIIB — COURT’S POWERS IN RELATION TO COURT AND NON-COURT BASED FAMILY SERVICES [Pt IIIB insrt Act 46 of 2006 s 3 and Sch 4 item 36, opn 1 July 2006]

DIVISION 1 — INTRODUCTION

[s 13A]

Objects of this Part

13A (1) The objects of this Part are: (a) to facilitate access to family counselling: (i) to help married couples considering separation or divorce to reconcile; and (ii) to help people adjust to separation or divorce; and (iii) to help people adjust to court orders under this Act; and (b) to encourage people to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and (c) to encourage people to use, in appropriate circumstances, arbitration to resolve matters in which a court order might otherwise be made, and to provide ways of facilitating that use; and

to give the court the power to require parties to (d) proceedings under this Act to make use of court or noncourt based family services appropriate to the needs of the parties. (2) The object mentioned in paragraph (1)(b) also lies behind the general requirement in section 60I for family dispute resolution services to be used before applications for orders under Part VII are made. DIVISION 2 — HELP WITH RECONCILIATION

[s 13B] Court to accommodate possible reconciliations 13B (1) A court exercising jurisdiction in: (a) proceedings for a divorce order; or (b) financial or part VII proceedings instituted by a party to a subsisting marriage; must consider, from time to time, the possibility of a reconciliation between the parties to the marriage. (2) If, during the proceedings, the court considers, from the evidence in the proceedings or the attitude of the parties to the marriage, that there is a reasonable possibility of a reconciliation between the parties, the court may adjourn the proceedings to give the parties the opportunity to consider a reconciliation. (3) If the court adjourns the proceedings under subsection (2), the court must advise the parties to attend family counselling, or use the services of another appropriate person or organisation. Note: Before advising the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

[page 154] (4) If, after an adjournment under subsection (2), either of the parties requests that the proceedings resume, the court must resume the proceedings as soon as practicable. COMMENTARY ON SECTION 13B Introduction ….

[s 13B.1]

[s 13B.1] Introduction That Act has always had a provision to the effect that the court should assist the parties to reconcile, where that is possible. The EM notes at para 224 that subs 13B(2) reproduces the previous 14C(2) of the Act, except to the extent that it allows a judge to interview the parties in chambers to assist in that reconciliation, stating that “[f]ollowing consultation with the courts this ability has been removed, as it is felt that this role is better performed by a person specifically trained as a counsellor”. The EM also notes, at 225, that “[t]he parties are not obliged to act on the court’s recommendation under this subsection, but it is appropriate that they are made aware of, and advised to use, relevant available [services]”.

____________________ DIVISION 3 — REFERRALS TO FAMILY COUNSELLING, FAMILY DISPUTE RESOLUTION AND OTHER FAMILY SERVICES

[s 13C] Court may refer parties to family counselling, family dispute resolution and other family services 13C (1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

(a) that one or more of the parties to the proceedings attend family counselling; (b) that the parties to the proceedings attend family dispute resolution; (c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service. Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E). Note 2: The court can also order parties to attend, or arrange for a child to attend, appointments with a family consultant (see section 11F). [subs (1) am Act 189 of 2011 s 3 and Sch 2[5], opn 7 Dec 2011]

(2) The court may suggest a particular purpose for the attendance or participation. (3) The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings. Note: For example, the participation of children, grandparents or other relatives may be encouraged.

(4) The court may make any other orders it considers reasonably necessary or appropriate in relation to the order. (5) The court may make orders under this section: (a) on its own initiative; or (b) on the application of: (i) a party to the proceedings; or (ii) a lawyer independently representing a child’s interests under an order made under section 68L.

[page 155] COMMENTARY ON SECTION 13C Introduction ….

[s 13C.1]

[s 13C.1] Introduction Section 13C contains wide powers for the court to order people to attend services that might address their dispute or otherwise meet their needs. The EM notes in paras 228–230 that s 13C allows a court exercising jurisdiction in proceedings under the Act to order one or more of the parties to the proceedings to attend family counselling, family dispute resolution, or another appropriate course, program or service, and says “[t]he court would make such an order where it is felt that one or more of the parties would benefit from these services”. It states that the section consolidates and strengthens the power of the court under various other sections, “in order to make the Act simpler to access and understand … Empowering the court to order people to attend relevant services at any time in any proceedings under the Act maximises the opportunities for people to address issues and resolve disputes outside the court. The attitudes of parties may change throughout proceedings and proposed s 13C will allow the court to direct people to appropriate services at the appropriate time”.

____________________

[s 13D] Consequences of failure to comply with order under section 13C 13D (1) If a party fails to comply with an order of a court under section 13C, the family counsellor, family dispute resolution practitioner or provider of the course, program or other service must report the failure to the court. (2) On receiving the report, the court may make any further orders it considers appropriate. (3) The court may make orders under subsection (2): (a) on its own initiative; or (b) on the application of: (i) a party to the proceedings; or (ii) a lawyer independently representing a child’s interests under an order made under section 68L. COMMENTARY ON SECTION 13D Overview ….

[s 13D.1]

[s 13D.1] Overview Section 13D provides, in substance, that if a person fails to comply with an order under s 13C requiring the person to attend an appointment with a family counsellor etc, or participate in a program, the family counsellor etc must report the failure to the court, and the court “may make any further orders it considers appropriate”. Failure to comply with an order under s 11F could also, no doubt, constitute a contravention that could result in proceedings under Pt XIIIB. For this reason, despite its generality, s 13D probably does not include power to make punitive orders (RC). Section 13D is somewhat similar to s 11G, except that it does not relate to a family consultant, but to “the family counsellor, family dispute resolution practitioner or provider of the course, program or other service”. Unlike s 11G it does not have any provision requiring the person to comply with any

direction by the counsellor etc. In Rastall v Ball (2010) 44 Fam LR 256; [2010] FMCAfam 1290; BC201009291, Reithmuller FM said that in view of this section there was “no doubt that family dispute resolution processes are not limited to voluntary participants”. He added that it was also clear that the legislature intended that orders for parties to attend family dispute resolution processes under s 13C should be taken seriously, noting that “s 13D provides specific powers for the court to make such orders as it considers appropriate if a party fails to comply with an order under s 13C, even when none [page 156] of the parties make complaint”. His Honour also said that “for the provisions for compulsory attendance at such processes to have any real effect, compliance with such an order must require a genuine effort by the parties, not a merely token appearance”.

____________________ DIVISION 4 — COURT’S ROLE IN RELATION TO ARBITRATION OF DISPUTES

[s 13E] Court may refer Part VIII proceedings or Part VIIIAB proceedings to arbitration 13E (1) With the consent of all of the parties to the proceedings, a court exercising jurisdiction in: (a) Part VIII proceedings; or (b) Part VIIIAB proceedings (other than proceedings relating to a Part VIIIAB financial agreement); may make an order referring the proceedings, or any part of them, or any matter arising in them, to an arbitrator for arbitration. [subs (1) am Act 115 of 2008 s 3 and Sch 1[26], opn 1 Mar 2009]

(2) If the court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make any additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.

[s 13F] Court may make orders to facilitate arbitration of certain disputes 13F A court that has jurisdiction under this Act may, on application by a party to relevant property or financial arbitration, make orders the court thinks appropriate to facilitate the effective conduct of the arbitration.

[s 13G] Family Court and Federal Circuit Court may determine questions of law referred by arbitrator 13G (1) An arbitrator of section 13E arbitration or relevant property or financial arbitration may, at any time before making

an award in the arbitration, refer a question of law arising in relation to the arbitration for determination by: (a) a single judge of the Family Court; or (b) a single judge of the Family Court of a State; or (c) the Federal Circuit Court of Australia. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) The arbitrator may do so: (a) on his or her own initiative; or (b) at the request of one or more of the parties to the arbitration if the arbitrator considers it appropriate to do so. (3) The arbitrator must not make an award in the arbitration before the judge or Federal Circuit Court of Australia has either: (a) determined the question of law; or (b) remitted the matter to the arbitrator having found that no question of law arises. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013] [s 13G am Act 13 of 2013 s 3 and Sch 1 item 275, opn 12 Apr 2013]

[page 157]

[s 13H] Awards made in arbitration may be registered in court 13H (1) A party to an award made in section 13E arbitration or in relevant property or financial arbitration may register the award: (a) in the case of section 13E arbitration — in the court that

ordered the arbitration; or (b) otherwise — in a court that has jurisdiction under this Act. (2) An award registered under subsection (1) has effect as if it were a decree made by that court.

[s 13J] Family Court or Federal Circuit Court can review registered awards 13J (1) A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by: (a) a single judge of the Family Court; or (b) a single judge of the Family Court of a State; or (c) the Federal Circuit Court of Australia. Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1) (sf)). [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) On a review of an award under this section, the judge or Federal Circuit Court of Australia may: (a) determine all questions of law arising in relation to the arbitration; and (b) make such decrees as the judge or Federal Circuit Court of Australia thinks appropriate, including a decree affirming, reversing or varying the award. [subs (2) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013] [s 13J am Act 13 of 2013 s 3 and Sch 1 item 276, opn 12 Apr 2013]

[s 13K] Family Court and Federal Circuit Court may set aside registered awards 13K (1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in: (a) the Family Court; or (b) the Federal Circuit Court of Australia; or (c) a Family Court of a State; the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) The court may only make a decree under subsection (1) if the court is satisfied that: (a) the award or agreement was obtained by fraud (including non-disclosure of a material matter); or (b) the award or agreement is void, voidable or unenforceable; or (c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or [page 158] (d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.

[s 13K am Act 13 of 2013 s 3 and Sch 1 item 277, opn 12 Apr 2013]

[page 159]

PART IV — THE FAMILY COURT OF AUSTRALIA DIVISION 1 — INTERPRETATION [Div 1 am Act 8 of 1988 s 6]

[s 20]

Interpretation

20 In this Part, unless the contrary intention appears: Chief Judge means the Chief Judge of the Court, and includes the Deputy Chief Judge or a Judge Administrator if the Deputy Chief Judge or Judge Administrator is for the time being performing the duties and exercising the powers of the Chief Judge. Court means the Family Court of Australia. Deputy Chief Judge means the Deputy Chief Judge of the Court. Judge means a Judge of the Family Court (including the Chief Judge, the Deputy Chief Judge, a Judge Administrator or a Senior Judge). Judge Administrator means a Judge Administrator of the Court. Principal Registrar means the Principal Registrar of the Court. [def insrt Act 138 of 2003 s 3 and Sch 3 item 8 opn 14 Jan 2004]

[s 20 am Act 72 of 1983 s 11; Act 8 of 1988 s 7] COMMENTARY ON SECTION 20 Chief Judge …. Family Court …. Judge …. Full Court ….

[s 20.1] [s 20.2] [s 20.3] [s 20.4]

[s 20.1] Chief Judge As regards the specific judicial power of the Chief Judge see s 30(b). As regards the administrative powers of the Chief Judge see s 37(2). [s 20.2] Family Court Part IV establishes the Family Court of Australia. For the meaning of “court” in the Act generally, see s 4(1). The words “Family Court” where used in the Act indicate a reference to the Family Court of Australia: see s 4(1A)(a). The Family Court of Australia must be distinguished from the Family Court of a State: see s 4(1A)(b). [s 20.3] Judge As regards a senior judge exercising the functions of the Chief Judge, see s 24. [s 20.4] Full Court Section 20 formerly contained a definition of “Full Court”. The definition was omitted by the Family Law Amendment Act 1983 and a new definition was inserted in s 4(1).

____________________ DIVISION 2 — THE FAMILY COURT OF AUSTRALIA [Div 2 am Act 8 of 1988 s 8]

[s 21]

Creation of Court

21 (1) [Title] A Court, to be known as the Family Court of Australia, is created by this Act.

[page 160] (2) [Status] The Court is a superior court of record. (3) [Composition] The Court consists of: (a) a Chief Judge, who shall be called the Chief Justice of the Court; (b) a Deputy Chief Judge, who shall be called the Deputy Chief Justice of the Court; and (c) Judge Administrators, Senior Judges and other Judges, not exceeding, in total, such number as is prescribed. [subs (3) subst Act 8 of 1988 s 9]

(4) [Operation of regulations] Regulations made pursuant to subsection (3) shall take effect at the expiration of 7 sitting days after the regulations have been laid before each House of the Parliament. COMMENTARY ON SECTION 21 Introductory comment — section 21(1) …. Superior court of record — section 21(2) …. Superior court of record — Inherent jurisdiction …. Prevent an abuse of process …. No opportunity to be heard …. Determine jurisdiction …. Procedure …. Punish for contempt …. Declaration as to death …. Injunction ….

[s 21.1] [s 21.2] [s 21.3] [s 21.4] [s 21.5] [s 21.6] [s 21.7] [s 21.8] [s 21.9] [s 21.10]

[s 21.1] Introductory comment — section 21(1) The Family Court of Australia was created by statute.

[s 21.2] Superior court of record — section 21(2) The Family Court is a superior court of record. The High Court may issue a writ of prohibition under s 75(v) of the Constitution to a judge of the Family Court even though it is declared to be a superior court of record: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297; FLC 90– 059. [s 21.3] Superior court of record — Inherent jurisdiction It was once the view that although the Family Court was a superior court of record, as it was a court created by statute and was of limited jurisdiction, it had no inherent powers: see In the Marriage of Vergis (1977) 3 Fam LR 11,398; FLC 90– 275; see also In the Marriage of Kennedy (1976) 1 Fam LR 11,194 at 11,198; FLC 90–010. There has been no judicial consideration of the full extent of the inherent powers of the Family Court; however, there have been a number of authorities which indicate that the Family Court does have some inherent powers. Aspects of the inherent jurisdiction of the court were the subject of discussion in the judgment of the High Court in Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674, and by Gibbs J, as he then was, in Re Bell; Ex parte Lees (1980) 30 ALR 489; 6 Fam LR 208; FLC 90–850 and by the High Court in Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555, in which Gibbs CJ said that “such inherent jurisdiction as the Family Court may have could not go beyond protecting its function as a court constituted with the limited jurisdiction afforded by the Act”. The Family Court may have inherent jurisdiction in respect of those matters which are incidental to the exercise of judicial functions, particularly where the Act, the Rules and the Regulations are silent; see In the Marriage of Smith (1979) 5 Fam LR 169; FLC 90–642; see also In the Marriage of Manning (1977) 3 Fam LR 11,518; FLC 90–298. [s 21.4] Prevent an abuse of process The court may have inherent power to stay or dismiss actions which are frivolous or vexatious or an abuse of the process of the court: see In the [page 161]

Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; see also s 118. It was held by Strauss J in In the Marriage of Wilmoth (1981) 6 Fam LR 807; FLC 91–030, that the court has inherent power to make orders which prevent a vexatious litigant from instituting proceedings unless he obtains leave of the court. Strauss J also said that the inherent power of the court to prevent an abuse of its process is exercisable at the instance of a party to the proceedings. [s 21.5] No opportunity to be heard The court has power to set aside an order which has been made against a person who did not have a reasonable opportunity to appear: see Taylor v Taylor (1979) 5 Fam LR 289; FLC 90– 674; see also Antonarkis v Delly (1976) 1 Fam LR 11,334 at 11,338; FLC 90–063. [s 21.6] Determine jurisdiction The court has inherent power to determine whether or not it has jurisdiction to hear and determine a matter before it: see In the Marriage of McCarney (1977) 2 Fam LR 11,670; FLC 90–200. In Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888 at 907; 59 ALJR 132; FLC 91–555 at 79,496, Brennan J said that the Family Court has jurisdiction to determine — and to determine judicially — whether it has jurisdiction to entertain a particular application or to make a particular order: see also Gibbs CJ, Mason and Deane JJ. [s 21.7] Procedure The Family Court has inherent power to provide its own procedure where there is a matter properly before it and there is no procedure laid down in the Act, Rules or Regulations: see In the Marriage of Pertsoulis (1979) 4 Fam LR 613; FLC 90–613; see also Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139. [s 21.8] Punish for contempt The Family Court has no inherent power to punish for contempt: see In the Marriage of Vergis (1977) 3 Fam LR 11,398; FLC 90–275. [s 21.9] Declaration as to death The Family Court has no inherent power to make a declaration as to the death of a spouse: see In the Marriage of Manning (1977) 3 Fam LR 11,518; FLC 90–298.

[s 21.10] Injunction In Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888 at 897; 59 ALJR 132; FLC 91–555 at 79,487 Gibbs CJ said that the provisions of s 114 cannot be extended by resort to “the so called inherent jurisdiction”.

____________________

[s 21A]

Divisions of Court

21A For the purposes of the organization and conduct of the business of the Court, the Court comprises 2 Divisions, namely, the Appeal Division and the General Division. [s 21A insrt Act 72 of 1983 s 12] COMMENTARY ON SECTION 21A Introductory comment …. Appeal and General Divisions ….

[s 21A.1] [s 21A.2]

[s 21A.1] Introductory comment The court, for the purposes of the organization and conduct of its business, is divided into two divisions: (a) the Appeal Division, and (b) the General Division. This provision was inserted in the Act by the Family Law Amendment Act 1983 (Cth). [s 21A.2] Appeal and General Divisions These phrases are defined in s 4(1).

____________________ [page 162]

[s 21B]

Arrangement of business of Court

21B (1) The Chief Judge is responsible for ensuring the effective, orderly and expeditious discharge of the business of the Court. [subs (1) insrt Act 72 of 1983 s 12; am Act 117 of 2009 s 3 and Sch 3[1]– [2], opn 1 Jan 2010]

(1A) In discharging his or her responsibility under subsection (1) (and without limiting the generality of that subsection) the Chief Judge: (a) may, subject to this Act and to such consultation with Judges as is appropriate and practicable, do all or any of the following: (i) make arrangements as to the Judge or Judges who is or are to constitute the Court, or the Full Court, in particular matters or classes of matters; (ii) without limiting the generality of subparagraph (i) — assign particular caseloads, classes of cases or functions to particular Judges; (iii) temporarily restrict a Judge to non-sitting duties; and (b) must ensure that arrangements are in place to provide Judges with appropriate access to (or reimbursement for the cost of): (i) annual health assessments; and (ii) short-term counselling services; and (iii) judicial education; and (c) may deal, as set out in subsection (1B), with a complaint about the performance by another Judge of his or her

judicial or official duties; and may take any measures that the Chief Judge believes are (d) reasonably necessary to maintain public confidence in the Court, including, but not limited to, temporarily restricting another Judge to non-sitting duties. [subs (1A) insrt Act 117 of 2009 s 3 and Sch 3[3], opn 1 Jan 2010; am Act 187 of 2012 s 3 and Sch 1 item 5, opn 12 Apr 2013]

(1B) The Chief Judge may, if a complaint is made about another Judge, deal with the complaint by doing either or both of the following in respect of the complaint: (a) deciding whether or not to handle the complaint and then doing one of the following: (i) dismissing the complaint; (ii) handling the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge; (iii) arranging for any other complaint handlers to assist the Chief Judge to handle the complaint if the Chief Judge has a relevant belief in relation to the complaint about the other Judge; (b) arranging for any other complaint handlers to decide whether or not to handle the complaint and then to do one of the following: (i) dismiss the complaint; (ii) handle the complaint if each of the complaint handlers has a relevant belief in relation to the complaint about the other Judge. Note: A complaint handler (other than the Chief Judge) may handle a complaint by referring it to the Chief Judge. The Chief Judge may then do

either or both of the things referred to in paragraph (a) or (b) in respect of the complaint. [subs (1B) insrt Act 187 of 2012 s 3 and Sch 1 item 6, opn 12 Apr 2013]

[page 163] (2) The Deputy Chief Judge shall assist the Chief Judge in the exercise of the functions conferred on the Chief Judge by this section (other than paragraph (1A)(c) or (d)). [subs (2) insrt Act 8 of 1988 s 10; am Act 117 of 2009 s 3 and Sch 3[4], opn 1 Jan 2010; Act 187 of 2012 s 3 and Sch 1 item 7, opn 12 Apr 2013]

(3) A Judge Administrator shall, in relation to such part of Australia as is from time to time assigned by the Chief Judge, assist the Chief Judge and the Deputy Chief Judge in the exercise of such of the functions conferred on the Chief Judge by this section (other than paragraph (1A)(c) or (d)) as are from time to time so assigned. [subs (3) insrt Act 8 of 1988 s 10; am Act 117 of 2009 s 3 and Sch 3[4], opn 1 Jan 2010; Act 187 of 2012 s 3 and Sch 1 item 8, opn 12 Apr 2013]

(3A) The Chief Judge may authorise, in writing, a person or a body to do one or more of the following: (a) assist the Chief Judge to handle complaints or a specified complaint; (b) decide whether or not to handle complaints or a specified complaint; (c) dismiss complaints or a specified complaint; (d) handle complaints or a specified complaint. [subs (3A) insrt Act 187 of 2012 s 3 and Sch 1 item 9, opn 12 Apr 2013]

(3B) To avoid doubt, the Chief Judge may authorise under subsection (3A): (a) the Deputy Chief Judge or a Judge Administrator; or (b) a body that includes the Deputy Chief Judge or a Judge Administrator. [subs (3B) insrt Act 187 of 2012 s 3 and Sch 1 item 9, opn 12 Apr 2013]

(4) In exercising, or assisting in the exercise of, the functions or powers mentioned in paragraph (1A)(a), the Chief Judge and the Deputy Chief Judge have the same protection and immunity as if they were exercising, or assisting in the exercise of, those functions or powers as, or as members of, the Court. Note: See also section 38Y. [subs (4) insrt Act 117 of 2009 s 3 and Sch 3[5], opn 1 Jan 2010; am Act 187 of 2012 s 3 and Sch 1 item 10, opn 12 Apr 2013]

(5) Despite section 39B of the Judiciary Act 1903, the Federal Court of Australia does not have jurisdiction with respect to a matter relating to the exercise by the Chief Judge of, or relating to the Deputy Chief Judge assisting in the exercise of, the functions or powers mentioned in subsection (1A), (1B) or (3A). [subs (5) insrt Act 117 of 2009 s 3 and Sch 3[5], opn 1 Jan 2010; am Act 187 of 2012 s 3 and Sch 1 item 11, opn 12 Apr 2013] COMMENTARY ON SECTION 21B Introductory comment ….

[s 21B.1]

[s 21B.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1983 (Cth). It enables the Chief Judge to make arrangements in relation to the constitution of the court, or the Full Court, in particular matters or classes of matters.

____________________

DIVISION 3 — JUDGES [Div 3 am Act 8 of 1988 s 11]

[s 22] Appointment, removal and resignation of Judges 22 (1) Appointment of Judges A Judge: (a) shall be appointed by the Governor-General; and [page 164] (b) shall not be removed except by the Governor-General, on an address from both Houses of the Parliament in the same session praying for the Judge’s removal on the grounds of proved misbehaviour or incapacity. [subs (1) am Act 181 of 1987 s 63 and Sch; Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2) [Pre-conditions for appointment] A person shall not be appointed as a Judge unless: (a) the person is or has been a Judge of another court created by the Parliament or of a court of a State or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and (b) by reason of training, experience and personality, the person is a suitable person to deal with matters of family law. [subs (2) am Act 181 of 1987 s 63 and Sch]

(2AAA) Judges to be assigned to particular location The

commission of appointment of a Judge must assign the Judge to a particular location. The Judge: (a) must not sit at another location on a permanent basis unless the Attorney-General and the Chief Judge consent; and (b) cannot be required to sit at another location on a permanent basis unless the Judge consents (in addition to the consents required by paragraph (a)); and (c) may sit at another location on a temporary basis. [subs (2AAA) insrt Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AAB) In deciding whether to consent as mentioned in paragraph (2AAA)(a), the Chief Judge has the same protection and immunity as if he or she were making that decision as, or as a member of, the Court. [subs (2AAB) insrt Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AAC) Despite section 39B of the Judiciary Act 1903, the Federal Court of Australia does not have jurisdiction with respect to a matter relating to the exercise by the Attorney-General or the Chief Judge of the power to consent as mentioned in paragraph (2AAA)(a). [subs (2AAC) insrt Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AA) Appeal Division The members of the Appeal Division of the Court are the Chief Judge, the Deputy Chief Judge and such other Judges as are assigned to the Appeal Division under this section. [subs (2AA) insrt Act 72 of 1983 s 13; am Act 8 of 1988 s 12; Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AB) [Assignment to Appeal Division] The GovernorGeneral may, in the commission of appointment of a Judge or,

with the consent of the Judge but not otherwise, at a later time assign a Judge to the Appeal Division. [subs (2AB) insrt Act 72 of 1983 s 13]

(2AC) [Maximum of six members] The Governor-General shall not assign a Judge to the Appeal Division under subsection (2AB) if, as a result of that assignment, the number of members of the Appeal Division assigned under that subsection would exceed the prescribed number. [subs (2AC) insrt Act 72 of 1983 s 13; am Act 8 of 1988 s 12; Act 143 of 2000 s 3 and Sch 3 item 29 opn 27 Dec 2000]

(2AD) [Assignment for two-year period] [Repealed] [page 165] (2AE) [Expiration of period] [Repealed] (2AF) General Division A Judge (other than the Chief Judge or the Deputy Chief Judge) who is not assigned to the Appeal Division shall be deemed to be assigned to the General Division. [subs (2AF) insrt Act 72 of 1983 s 13; am Act 8 of 1988 s 12; Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AFA) Appointment of Deputy Chief Judge or Judge Administrator Where a person holding office as a Senior Judge or Judge of the Court is appointed Deputy Chief Judge or a Judge Administrator, the person retains that office as Senior Judge or Judge, as the case may be, and may resign the office of Deputy Chief Judge or Judge Administrator without resigning that firstmentioned office. [subs (2AFA) insrt Act 8 of 1988 s 12; am Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AG) Judge of 2 or more courts Notwithstanding anything contained in any other Act, a person may hold office at the one time as a Judge of the Court and as a Judge of a prescribed court or of 2 or more prescribed courts. [subs (2AG) insrt Act 72 of 1983 s 13; am Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(2AH) [prescribed court] In subsection (2AG), prescribed court means: (a) a court (other than the Court) created by the Parliament; or (b) the Supreme Court of the Northern Territory. [subs (2AH) insrt Act 72 of 1983 s 13]

(2A) [Judge of State Family Court] A person may be appointed to the office of Judge of the Family Court of Australia notwithstanding that he or she holds an office of Judge of a Family Court of a State and may serve in that office of Judge of the Family Court of Australia notwithstanding that he or she continues to hold, and serve in, the office of Judge of the Family Court of that State. [subs (2A) insrt Act 63 of 1976 s 11; am Act 73 of 2008 s 3 and Sch 4[289], opn 4 July 2008]

(2B) [Office not affected] If a person who holds office as a Judge of the Family Court of Australia is appointed or serves as a Judge of a Family Court of a State, the appointment or service shall not affect his or her tenure of that office of Judge of the Family Court of Australia or his or her rank, title, status, precedence, salary or annual allowance or other rights or privileges as the holder of that office of Judge of the Family Court of Australia and, for all purposes, his or her service as a Judge of the Family Court of that State shall be taken to be service as the

holder of that office of Judge of the Family Court of Australia. [subs (2B) insrt Act 63 of 1976 s 11; am Act 181 of 1987 s 63 and Sch]

(3) Resignation A Judge may resign office by writing under his or her hand addressed to the Governor-General. [subs (3) rep Act 106 of 1977 s 3; insrt Act 143 of 1992 Sch; am Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

(3A) The resignation takes effect on: (a) the day on which it is received by the Governor-General; or (b) a later day specified in the resignation document. [subs (4) insrt Act 143 of 1992 Sch; renum Act 84 of 1994 s 35]

(4) Style A Judge or former Judge is entitled to be styled “The Honourable”. [subs (4) am Act 117 of 2009 s 3 and Sch 3[6], opn 1 Jan 2010]

[page 166] COMMENTARY ON SECTION 22 Introductory comment …. Family Court …. Members of the Appeal Division — section 22(2AA) …. Appointment to the Appeal Division — section 22(2AB) …. Non-rotating members — section 22(2AC) …. Rotating members — section 22(2AD) …. When a rotating member ceases to be a member — section 22(2AE) …. Judges appointed to the General Division — section 22(2AF) …. Judges of another court — sections 22(2AG) and (2AH)

[s 22.1] [s 22.2] [s 22.3] [s 22.4] [s 22.5] [s 22.6] [s 22.7] [s 22.8]

….

[s 22.9]

[s 22.1] Introductory comment The section provides for the appointment and removal of a judge of the Family Court of Australia. It also provides that a person shall not be appointed as a judge unless he or she is a person who by reason of training, experience and personality is a suitable person to deal with matters of Family Law. [s 22.2] Family Court The Family Court is one of “the other courts created by the Parliament” within the meaning of s 72 of the Constitution. As such judges of the Family Court appointed prior to May 1977 are appointed for life, subject to the procedure for removal laid down in s 72(ii) reproduced in s 22(1)(b) of the Act. Following the approval by the Australian Electorate of the Constitution Alteration (Retirement of Judges) Act 1977 (Cth) at the referendum held in May 1977, the Act was amended by Family Law Amendment Act No 102 of 1977, s 4, to provide that the age of 65 years shall be the maximum age for judges of the Family Court of Australia. Such a judge otherwise continues to be subject to the protection of s 72(ii) of the Constitution until he reaches the age appointed for his retirement. [s 22.3] Members of the Appeal Division — section 22(2AA) This section specifies what judges are members of the Appeal Division. [s 22.4] Appointment to the Appeal Division - section 22(2AB) This section provides for the appointment of a judge to the Appeal Division. [s 22.5] Non-rotating members — section 22(2AC) This section provides that the non-rotating members of the Appeal Division are not to exceed five in number. [s 22.6] Rotating members — section 22(2AD) This section provides for the appointment of rotating members of the Appeal Division appointed for a term of two years. [s 22.7] When a rotating member ceases to be a member — section

22(2AE) This section provides that the rotating members assigned to the Appeal Division cease to be a member at the expiration of two years. [s 22.8] Judges appointed to the General Division — section 22(2AF) This section provides that judges who are not assigned to the Appeal Division are assigned to the General Division. [s 22.9] Judges of another court — sections 22(2AG) and (2AH) These sections provide that judges of the Family Court may be appointed to other Federal Courts and still hold office as judges of the Family Court.

____________________ [page 167]

[s 23]

Seniority

23 (1) [Chief Judge] The Chief Judge is senior to all other Judges of the Court. (2) The Deputy Chief Judge is senior to all other Judges of the Court other than the Chief Judge. [subs (2) subst Act 8 of 1988 s 13]

(3) Judges appointed as Judge Administrators or assigned to the Appeal Division before, or not later than 3 months after, the commencement of section 13 of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 have seniority next to the Deputy Chief Judge, and have such seniority in relation to each other as they had immediately before that commencement. [subs (3) subst Act 8 of 1988 s 13]

(4) The remaining Judge Administrators and Judges assigned to

the Appeal Division have seniority next to the Judges to whom subsection (3) applies according to the days on which their appointments as Judge Administrators and their assignments to the Appeal Division (whichever first occurred) took effect. [subs (4) insrt Act 8 of 1988 s 13]

(5) Where, because 2 or more appointments as Judge Administrator and assignments to the Appeal Division took effect on the same day, subsection (4) does not determine priority between the Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the GovernorGeneral. [subs (5) insrt Act 8 of 1988 s 13]

(6) The Senior Judges not assigned to the Appeal Division have seniority next to the Judges to whom subsection (4) applies according to the days on which their appointments as Senior Judges took effect. [subs (6) insrt Act 8 of 1988 s 13]

(7) Where, because 2 or more commissions of appointment as Senior Judge took effect on the same day, subsection (6) does not determine seniority between the Senior Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the Governor-General. [subs (7) insrt Act 8 of 1988 s 13]

(8) The Judges who are not Judge Administrators or Senior Judges and are not assigned to the Appeal Division have seniority next to the Senior Judges to whom subsection (6) applies according to the days on which their appointments as Judges took effect. [subs (8) insrt Act 8 of 1988 s 13]

(9) Where, because 2 or more commissions of appointment as

Judge took effect on the same day on or after the commencement of this subsection, subsection (8) does not determine seniority between the Judges concerned, those Judges have such seniority in relation to each other as is assigned to them by the GovernorGeneral. [subs (9) insrt Act 8 of 1988 s 13]

(10) If: (a) a person’s commission of appointment as a Judge of a particular kind terminates; and (b) a new commission of appointment of the person as a Judge of that kind takes effect immediately after the termination; [page 168] the day of appointment of the person as a Judge of that kind is, for the purposes of this section, the day on which the earlier appointment took effect and not the day on which the later appointment took effect. [subs (10) insrt Act 143 of 1992 Sch]

(11) Subsection (10) applies to the termination of a commission of appointment however it occurs (whether because of resignation or because of the expiration of the term of the appointment or otherwise). [subs (11) insrt Act 143 of 1992 Sch]

COMMENTARY ON SECTION 23 Introductory comment ….

[s 23.1]

[s 23.1] Introductory comment This section provides that the Chief Judge is senior to all other judges of the court.

____________________

[s 23A] 23A

Maximum age for Judges [s 23A rep Act 159 of 1991 s 3] COMMENTARY ON SECTION 23A

[s 23A.1] Maximum age for judges Following the approval by the Australian Electorate of the Constitution Alteration (Retirement of Judges) Act 1977 (Cth), at the referendum held in May 1977, the Act was amended by the Family Law Amendment Act 1977, Act 102 of 1977, s 4, to provide that the age of 65 shall be the maximum age for judges of the Family Court of Australia.

____________________

[s 24]

Absence or illness of Chief Judge

24 (1) Whenever: (a) the Chief Judge is absent from Australia or from duty; or (b) there is a vacancy in the office of Chief Judge; the Deputy Chief Judge or, if the Deputy Chief Judge is unavailable, the next senior Judge who is in Australia and is available and willing to do so shall perform the duties and may exercise the powers of the Chief Judge. [subs (1) am Act 8 of 1988 s 14; Act 189 of 2011 s 3 and Sch 2[6], opn 7

Dec 2011]

(2) A Judge who is, under subsection (1), performing the duties and exercising the powers of the Chief Judge shall be called the Acting Chief Justice of the Court. [subs (2) insrt Act 8 of 1988 s 14] COMMENTARY ON SECTION 24 Absence or illness of Chief Judge ….

[s 24.1]

[s 24.1] Absence or illness of Chief Judge The reference to senior judge in this section is to the ranking in seniority. If none of the senior judges are available, the functions of the Chief Judge may be exercised by the most senior of the other judges.

____________________

[s 25]

Salary and allowances

25 (1) [Fixed by Parliament] The Chief Judge, Deputy Chief Judge, Judge Administrators, Judges assigned to the Appeal Division, Senior Judges and other Judges [page 169] of the Court shall receive salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament. [subs (1) am Act 8 of 1988 s 15]

(2) [Payable monthly] The salary and annual allowances of the Judges accrue from day to day and are payable monthly. (3) [Paid from Consolidated Revenue] The Consolidated

Revenue Fund is appropriated to the extent necessary for payment of salaries and annual allowances in accordance with this section. [s 25 subst Act 63 of 1976 s 12] COMMENTARY ON SECTION 25 Salary and allowances — Introductory comment ….

[s 25.1]

[s 25.1] Salary and allowances — Introductory comment For the determination of salary and allowances of the judges of the Family Court, see Remuneration and Allowances Act 1973 (Cth), Sch 3, as amended by the Remuneration and Allowances Amendment Act 1976. The salaries are determined after inquiry by the Remuneration Tribunal appointed under the Remuneration Tribunal Act 1973 (Cth).

____________________

[s 26] office

Oath or affirmation of allegiance and

26 A Judge shall, before proceeding to discharge the duties of the office, take, before the Chief Justice or a Justice of the High Court of Australia or a Judge of the Family Court or of another court created by the Parliament, an oath or affirmation of allegiance in the form in the Schedule to the Constitution, and also an oath or affirmation in the following form: “I, , do swear that I will well and truly serve in the office of (Chief Judge, Deputy Chief Judge, Judge Administrator, Senior Judge or Judge, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or ill-will, So help me God.” or

“I, that

, do solemnly and sincerely promise and declare ” (as above, omitting the words “So help me God).”

[s 26 am Act 181 of 1987 s 63 and Sch; Act 8 of 1988 s 16] COMMENTARY ON SECTION 26 Introductory comment ….

[s 26.1]

[s 26.1] Introductory comment This is the traditional form of the judicial oath.

____________________ DIVISION 4 — JUDICIAL REGISTRARS [Div insrt Act 8 of 1988 s 17]

[s 26A]

Judicial Registrars

26A The Governor-General may appoint one or more Judicial Registrars of the Court. [page 170]

[s 26B]

Powers of Judicial Registrars

26B (1) The Judges, or a majority of them, may make Rules of Court delegating to the Judicial Registrars all or any of the powers of the Court except the power to make an excluded child order (as defined in subsection (1A)) and the power to make an order setting aside a registered award under section 13K. [subs (1) am Act 167 of 1995 s 26; Act 143 of 2000 s 3 and Sch 3 item 30 opn 27 Dec 2000; Act 98 of 2005 s 2 and Sch 1, cl 137, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 4 item 37, opn 1 July 2006]

(1A) An excluded child order is: (a) a parenting order to the extent to which it provides that: (i) a child is to live with a person; or (ii) a child is to spend time with a person; or (iii) a child is to communicate with a person; or (iv) a person is to have parental responsibility for a child; or (b) an order in relation to the welfare of a child; other than: (c) a parenting order made under paragraph 70NEB(1)(b) or an order made under paragraph 70NFB(2)(c) that has the same effect as such a parenting order; or (d) an order until further order; or (e) an order made in undefended proceedings; or (f) an order made with the consent of all the parties to the proceedings. [subs (1A) subst Act 46 of 2006 s 3 and Sch 8 item 48, opn 1 July 2006]

(2) Without limiting the generality of subsection (1), the Judges, or a majority of them, may make Rules of Court under that subsection: (a) delegating to the Judicial Registrars all or any of the powers of the Court that could be delegated to the Registrars of the Court; and (b) delegating to the Judicial Registrars powers of the Court by reference to powers of the Court that have been delegated to the Registrars of the Court under section 37A. (3) A power delegated to the Judicial Registrars shall, when

exercised by a Judicial Registrar, be deemed to have been exercised by the Court or a Judge, as the case requires. (4) The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge. (5) The provisions of this Act, the regulations and the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, under a delegation made under subsection (1), exercisable by a Judicial Registrar, apply in relation to an exercise of the power by a Judicial Registrar as if references to the Court, or to a court exercising jurisdiction under this Act, were references to a Judicial Registrar. [subs (5) am Act 194 of 1999 s 3 and Sch 11[23]]

(6) The Judicial Registrars shall have, in addition to the powers delegated to them under subsection (1), such other powers (if any) as are conferred on them by this Act, the regulations and the standard Rules of Court. [subs (6) am Act 194 of 1999 s 3 and Sch 11[23]] Note: Powers to make Rules of Court are also contained in sections 37A, 109A and 123. [Note: insrt Act 143 of 2000 s 3 and Sch 3 item 31 opn 27 Dec 2000]

[page 171] COMMENTARY ON SECTION 26B [s 26B.1] Introductory comments The provisions for delegation of power to judicial registrars are very similar to those applicable to registrars: s 37A. See generally Family Law Rules 2004 Ch 18. In relation to the constitutional validity of the delegation, the nature of the review of decisions, and related matters, see generally Harris v Caladine (1991) 172 CLR 84; 99 ALR 193;

14 Fam LR 593; FLC 92–217 (HC) and the commentary to s 37A.

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[s 26C] Review of decisions of Judicial Registrars 26C (1) A party to proceedings in which a Judicial Registrar has exercised a power delegated under subsection 26B(1) may, within the time prescribed by, or within such further time as is allowed in accordance with, Rules of Court made by the Judges or a majority of them, apply to the Court to review the exercise of the power. (2) The Court may, on application made under subsection (1) or of its own motion, review the exercise by a Judicial Registrar of a power delegated under subsection 26B(1), and may make such orders as it considers appropriate in relation to the matter in relation to which the power was exercised. (3) The Court may, on the application of a party or of its own motion, refer an application under subsection (1) to a Full Court of the Court. COMMENTARY ON SECTION 26C [s 26C.1] Introductory comments The review is by way of an “original hearing” (also known as a hearing de novo): see Family Law Rules 2004 Pt 18.2. It is essentially the same as the review of decisions of registrars: see generally Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217 (HC) and the commentary to s 37A.

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[s 26D]

Exercise of delegated powers by Court

26D (1) Where: (a) an application for the exercise of a power delegated under subsection 26B(1) is to be, or is being, heard by a Judicial Registrar; and (b) the Judicial Registrar considers that it is not appropriate for the application to be determined by a Judicial Registrar; the Judicial Registrar shall not hear, or continue to hear, the application, and shall make appropriate arrangements for the application to be heard by the Court. (2) Where: (a) a power delegated under subsection 26B(1) is proposed to be exercised in a particular case by a Judicial Registrar; but (b) the Judicial Registrar has not commenced to exercise the power in that case; a Judge may, on application by a person who would be a party to the proceedings before the Judicial Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge. (3) Where an application is made to a Judge under subsection (2) seeking an order that, in a particular case, a power be exercised by a Judge, the Judicial Registrar shall not commence to exercise the power in that case until the application has been determined. [page 172]

[s 26E]

Application of the Legislation Act 2003 to

rules of court 26E The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to rules of court made under sections 26B and 26C of this Act: (a) as if a reference to a legislative instrument were a reference to a rule of court; and (b) as if a reference to a rule-maker were a reference to the Chief Judge acting on behalf of the Judges; and (c) subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act. [s 26E subst Act 140 of 2003 s 2 and Sch 1[19], opn 1 Jan 2005; am Act 10 of 2015 s 3 and Sch 1 items 128, 129, opn 5 Mar 2016]

[s 26F]

Independence of Judicial Registrars

26F Notwithstanding any provision of this Act or any other law, a Judicial Registrar is not subject to the direction or control of any person or body in the exercise of a power delegated under subsection 26B(1).

[s 26G] Judicial Registrars hold office on full time or part time basis 26G A Judicial Registrar may be appointed on a full time or part time basis.

[s 26H]

Qualifications for appointment etc

26H (1) A person shall not be appointed as a Judicial Registrar unless: (a) the person is or has been a Judge of a court created by the Parliament or of a court of a State or the Northern Territory or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and (b) the person is, by reason of training, experience and personality, a suitable person to deal with matters of family law. (2) [subs (2) rep Act 159 of 2001 s 3 and Sch 1 item 52 opn 29 Oct 2001]

[s 26I]

Term of office

26I (1) A Judicial Registrar: (a) shall be appointed with effect from the day specified in the instrument of appointment; and (b) holds office, subject to this Act: (i) for such term (not exceeding 7 years) as is specified in the instrument of appointment, but is eligible for re-appointment; or (ii) if the instrument of appointment so provides, until

attaining 65 years of age, but is eligible for reappointment. [subs (1) am Act 159 of 2001 s 3 and Sch 1 item 53 opn 29 Oct 2001]

(2) [subs (2) rep Act 159 of 2001 s 3 and Sch 1 item 54 opn 29 Oct 2001]

[s 26J]

Remuneration and allowances

26J (1) A Judicial Registrar shall be paid such remuneration as is determined by the Remuneration Tribunal. [page 173] (2) A Judicial Registrar shall be paid such allowances as are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. [subs (3) am Act 43 of 1996 s 3 and Sch 4]

[s 26JA]

Leave of absence

26JA (1) A person appointed as a full-time Judicial Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal. [subs (1) am Act 146 of 1999 Sch 1]

(2) The Chief Judge may grant a person appointed as a full-time Judicial Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chief Judge, with the approval of the Attorney-General, determines. [s 26JA insrt Act 122 of 1991 Sch]

[s 26K]

Resignation

26K (1) A Judicial Registrar may resign office by writing under his or her hand addressed to the Governor-General. (2) The resignation takes effect on: (a) the day on which it is received by the Governor-General; or (b) a later day specified in the resignation document. [s 26K subst Act 143 of 1992 Sch]

[s 26L]

Termination of appointment

26L (1) The Governor-General may terminate the appointment of a Judicial Registrar for misbehaviour or physical or mental incapacity. (2) The Governor-General shall terminate the appointment of a Judicial Registrar if the Judicial Registrar becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit.

[s 26M]

Oath or affirmation of office

26M A Judicial Registrar shall, before proceeding to discharge the duties of the office, take, before the Chief Judge or another Judge of the Family Court, an oath or affirmation in the following form: “I, , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law and that I will well and truly serve Her in the office of Judicial Registrar of the Family Court of Australia, So help me God.”

or “I, , do solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law and that I will well and truly serve Her in the office of Judicial Registrar of the Family Court of Australia.” [page 174]

[s 26N] Terms and conditions of appointment not provided for by Act 26N A Judicial Registrar holds office on such terms and conditions (if any) in relation to matters not provided by this Act as are determined, in writing, by the Governor-General. DIVISION 5 — JURISDICTION AND EXERCISE OF JURISDICTION [Div 5 am Act 8 of 1988 s 18]

[s 27]

Place of sitting

27 (1) Sittings of the Court must be held from time to time as required and the Court may sit at any place in Australia. (2) The Court, in respect of proceedings, may be constituted by 2 or more Judges sitting at the same time, but in different places in Australia, using video link, audio link or other appropriate means to facilitate the Court sitting (split court). Note: Section 21B provides for the Chief Judge to make arrangements for the constitution of the Court for particular matters.

(3) For the purpose of determining which law to apply in proceedings in which a split court is sitting, the Court is taken to be sitting at the place at which the presiding Judge is sitting. [s 27 subst Act 138 of 2003 s 3 and Sch 2 item 4 opn 14 Jan 2004]

[s 27A]

Change of venue

27A The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes. [s 27A insrt Act 98 of 2005 s 2 and Sch 1, cl 19, opn 3 Aug 2005]

[s 28]

Exercise of jurisdiction

28 (1) [Original jurisdiction] The original jurisdiction of the Court may be exercised by one or more Judges. (2) [Appeal jurisdiction] The jurisdiction of the Court in an appeal from a court of summary jurisdiction may be exercised by one Judge or by a Full Court. [subs (2) am Act 72 of 1983 s 14]

(2A) [Jurisdiction of single Appeal Judge] Nothing in this Act prevents a Judge who is a member of the Appeal Division from exercising the jurisdiction of the Court that, under subsection (1) or (2), may be exercised by one or more Judges. [subs (2A) Act 72 of 1983 s 14]

(3) [Appeals from Supreme Courts] The jurisdiction of the Court in an appeal from a Judge of the Court or of the Supreme Court of a State or Territory shall be exercised by a Full Court. (3A) [s 94A jurisdiction] The jurisdiction of the Court to hear and determine a case stated under section 94A shall be exercised

by a Full Court. [subs (3A) insrt Act 63 of 1976 s 13]

[page 175] (4) [Constitution of Full Court altered] Where, after a Full Court (including a Full Court constituted in accordance with this subsection) has commenced the hearing, or further hearing, of proceedings and before the proceedings have been determined, one of the Judges constituting the Full Court dies, resigns his or her office, ceases to be a member of the Court by reason that the term of his or her appointment expires or otherwise becomes unable to continue as a member of the Full Court for the purposes of the proceedings, then the hearing and determination, or the determination, of the proceedings may be completed: (a) if only 2 Judges remain and one of those Judges is assigned to the Appeal Division, or if more than 2 Judges remain and a majority of those Judges are assigned to the Appeal Division — by the Court constituted by the remaining Judges; or (b) with the consent of the parties — by the Court constituted by the remaining Judge or Judges and an additional Judge or Judges, where a majority of the Judges constituting the Court are assigned to the Appeal Division. [subs (4) subst Act 72 of 1983 s 14; am Act 181 of 1987 s 63 and Sch]

(4A) [subs (4A) rep Act 72 of 1983 s 14] (5) [Evidence, arguments before prior court] A Full Court constituted in accordance with subsection (4) may have regard to

any evidence given or received, and arguments adduced, by or before the Full Court as previously constituted. (6) [Contemporaneous jurisdiction] The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court. COMMENTARY ON SECTION 28 Introductory comment …. Original jurisdiction — section 28(1) …. Appeals — courts of summary jurisdiction — section 28(2) …. Judge of Appeal Division — section 28(2A) …. Full Court — section 28(3) …. Stay of Full Court orders not exercisable by single judge — section 28(3) …. Case stated — section 28(3A) …. A Judge of the Full Court dies, resigns or is unable to continue — section 28(4) …. Continuation of Full Court hearing — section 28(5) …. Several courts — section 28(6) …. Summary dismissal ….

[s 28.1] [s 28.2] [s 28.3] [s 28.4] [s 28.5] [s 28.5A] [s 28.6] [s 28.7] [s 28.8] [s 28.9] [s 28.10]

[s 28.1] Introductory comment The Family Court exercises both an original and appellant jurisdiction and the Act provides for the number of judges able to exercise jurisdiction. The court is divided into a General Division and an Appeal Division and judges are assigned to one Division or the other. [s 28.2] Original jurisdiction — section 28(1) The original jurisdiction of the court in all matters set out in s 31 may be exercised by one or more judges.

[s 28.3] Appeals — courts of summary jurisdiction — section 28(2) Appeals from courts of summary jurisdiction can be heard by either a single judge or by the Full Court. [page 176] [s 28.4] Judge of Appeal Division — section 28(2A) A judge who is a member of the Appeal Division may exercise the original jurisdiction of the court or the jurisdiction of the court in an appeal from a court of summary jurisdiction. [s 28.5] Full Court — section 28(3) Jurisdiction in an appeal from the decision of a single judge of the Family Court or from a decision of a State or Territory Supreme Court must be exercised by the Full Court of the Family Court. [s 28.5A] Stay of Full Court orders not exercisable by single judge — section 28(3) Orders were made by a trial judge and affirmed on appeal by the Full Court. The husband sought leave to appeal to the High Court. He applied to a single judge for orders staying the operation of the orders of the Full Court. Elliott J held that he had no jurisdiction to grant the stay, the matter being specifically reserved to the Full Court by s 28(3): In the Marriage of Molier and Van Wyk (1981) 7 Fam LR 474; 50 FLR 423; FLC 91–001. Where, however, the Full Court has merely dismissed an appeal and thus the relevant orders are those of the trial judge, a single judge may exercise the jurisdiction to determine an application for a stay. [s 28.6] Case stated — section 28(3A) Jurisdiction to hear and determine a case stated under s 94A must be exercised by the Full Court of the Family Court. [s 28.7] A Judge of the Full Court dies, resigns or is unable to continue — section 28(4) This section provides for the continuation, in certain circumstances, of the hearing and determination of proceedings by the Full Court when one of the judges constituting the Full Court dies, resigns his

office or ceases to be a member by reason that the term of his appointment expires, or otherwise is no longer able to continue as a member of the Full Court in the proceedings. [s 28.8] Continuation of Full Court hearing — section 28(5) In the case of continuation of the hearing under s 28(4), there would be no need to repeat evidence or arguments unless the reconstituted bench so desires. [s 28.9] Several courts — section 28(6) Several Full Courts may be constituted and sit simultaneously. [s 28.10] Summary dismissal The court has jurisdiction to summarily dismiss an application. This jurisdiction is reserved for cases which cannot possibly succeed. See Bigg v Suzi (1998) 22 Fam LR 700; FLC 92–799; In the Marriage of Pelerman (2000) 26 Fam LR 505; FLC 93–037; Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93–054. See also In the Marriage of Prior (2002) 30 Fam LR 72; FLC 93–105 (FC). Lack of legal representation does not of itself mean that there has been a miscarriage of justice, though it might be a relevant factor: see at [48]. Nor does pressure to settle in itself constitute a miscarriage of justice: legal representatives should exercise care when dealing with an unrepresented party, but are entitled to “forcefully advance reasons why that party should settle”: at [58].

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[s 29] 29

[s 30]

Appellate jurisdiction [s 29 rep Act 72 of 1983 s 15]

Court divided in opinion

30 If the Judges constituting the Court for the purposes of any proceedings are divided in opinion as to the judgment to be pronounced, judgment shall be pronounced according to the opinion of the majority, if there is a majority, but, if the Judges are equally divided in opinion:

[page 177] (a) in the case of an appeal from a judgment of the Family Court constituted by a single Judge, or of a Family Court of a State or the Supreme Court of a State or Territory — the judgment appealed from shall be affirmed; and (b) in any other case — the opinion of the Chief Judge or, if he or she is not one of the Judges constituting the Court, the opinion of the most senior of those Judges, shall prevail. [s 30 am Act 63 of 1976 s 15; am Act 73 of 2008 s 3 and Sch 4[290], opn 4 July 2008] COMMENTARY ON SECTION 30 [s 30.1] Introductory comment This section makes provision for those cases where the judges of the Family Court are divided in opinion as to the judgment to be pronounced. It is similar to the provision made in relation to the High Court of Australia in s 23(1) of the Judiciary Act 1903 (Cth).

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[s 31]

Original jurisdiction of Family Court

31 (1) [Jurisdiction within Commonwealth] Jurisdiction is conferred on the Family Court with respect to: (a) matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and (aa) matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and (b) matters arising under the Marriage Act 1961 in respect

of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act; and *(c) matters arising under a law of a Territory (other than the Northern Territory) concerning: (i) the adoption of children; (ii) Repealed [rep Act 181 of 1987 s 14]

(iii) Repealed [rep Act 181 of 1987 s 14]

(iv) the property of the parties to a marriage or either of them, being matters arising between those parties other than matters referred to in the definition of matrimonial cause in subsection 4(1); or (v) the rights and status of a person who is an exnuptial child, and the relationship of such a person to his or her parents; and *Editor’s note: Sections 37(1) and (2) of the Law and Justice Legislation Amendment Act 1988 No 120 provide that: “37 (1) Section 31 of the Principal Act is amended by inserting in paragraph (1)(c) “(other than the Northern Territory)” after “Territory”. (2) The amendment made by subsection (1) applies in relation to a matter if, and only if: (a) it arises after the commencement of this section; or (b) it arose before that commencement but, as at that commencement, no proceedings had been instituted in respect of it.”

[page 178] (d) matters (other than matters referred to in any of the

preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act. [subs (1) subst Act 72 of 1983 s 16; am Act 120 of 1988 s 37; am Act 73 of 2008 s 3 and Sch 4[291], opn 4 July 2008; Act 115 of 2008 s 3 and Sch 1[27]–[29], opn 1 Mar 2009]

(2) [Extra-territorial jurisdiction] Subject to such restrictions and conditions (if any) as are contained in section 111AA, the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories. Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of the Court. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 1, opn 1 Aug 2003] [subs (2) am Act 72 of 1983 s 76 and Sch 1; am Act 194 of 1999 s 3 and Sch 11[24]; Act 82 of 2007 s 3 and Sch 2[101], opn 19 July 2007] COMMENTARY ON SECTION 31 Introductory comment …. Jurisdiction of the Family Court “Matrimonial Causes” — s 31(1)(a) …. The accrued jurisdiction: introduction …. Background and purpose of the accrued jurisdiction …. Trivial or insubstantial aspect …. Same parties …. Same dispute …. Discretionary …. Accrued jurisdiction of the Family Court and Federal Circuit Court …. Family Law Amendment Act 1983 (Cth) …. Pre-Warby authorities …. Law of a territory — s 31(1)(c) …. Party outside Australia ….

[s 31.1] [s 31.2] [s 31.3] [s 31.4] [s 31.5] [s 31.6] [s 31.6A] [s 31.7] [s 31.8] [s 31.9] [s 31.10] [s 31.11] [s 31.12]

Persons and things outside Australia — ss 31(2) and 39 …. Order futile ….

[s 31.13] [s 31.14]

[s 31.1] Introductory comment This section defines the original jurisdiction conferred on the Family Court. This section was amended by the Family Law Amendment Act 1983 by substituting a new s 31(1). Section 31 now expressly confers jurisdiction on the Family Court, whereas the previous section stated what the jurisdiction was and included a power for the conferring of further jurisdiction by legislative action. Jurisdiction in Part VII Proceedings (Children) Jurisdiction in Pt VII proceedings, relating to children, is dealt with in ss 69A–69N. [s 31.2] Jurisdiction of the Family Court “Matrimonial Causes” — s 31(1)(a) By the combined effect of ss 31(1)(a) and 39(1), jurisdiction is conferred upon the Family Court in respect of matters which are “matrimonial causes” within the definition of that expression in s 4(1). [s 31.3] The accrued jurisdiction: introduction The idea of an accrued jurisdiction is (to draw on a famous explanation by Barwick CJ) that when there is jurisdiction to deal with a matter, the jurisdiction extends to the “whole matter”, and includes authority to make such remedial orders as are necessary or convenient. The accrued jurisdiction enables to court to make orders [page 179] beyond those that would fall directly within its jurisdiction under the relevant legislation. In some sense, the court can also make orders that are more wideranging, where to do so enables it to deal with the “whole matter”. Identifying what falls within the accrued jurisdiction is no easy task. It is necessary to distinguish between matters that are separate and distinct from the matter over which the court has jurisdiction (which are not within the

accrued jurisdiction) and those that form part of the “whole matter”, being — on one formulation — “incidental to or arising from” the main matter. The task of identifying the accrued jurisdiction is particularly difficult in the case of the Family Court, because for many years it was uncertain whether the Family Court actually had accrued jurisdiction. We finally knew that it did only in 2001: In the Marriage of Warby (2001) 28 Fam LR 443; (2002) FLC 93–091 (FC). As a result, there are relatively few examples of the use of the accrued jurisdiction in family law matters. In this situation, it is necessary to give some account of the development of the law on the accrued jurisdiction, mostly involving other courts, especially the Federal Court. The family law decisions will then be considered. Some basic points can be noted at once: It is clear that jurisdiction cannot be conferred by consent of the parties where it does not otherwise exist: Ridley v Whipp (1916) 22 CLR 381, applied in Finlayson v Finlayson (2002) 29 Fam LR 460; FLC 93–121. The accrued jurisdiction may provide a basis for orders against third parties, so long as they have an opportunity to be heard: Warby, at [99]. Accrued jurisdiction (which has also been called “attached” or — even worse — “pendant” jurisdiction), is different from “associated” jurisdiction, which involves associated matters arising under some other federal law. Associated jurisdiction is covered by s 33 of the Family Law Act. Examples In In the Marriage of Warby (2001) 28 Fam LR 443; (2002) FLC 93–091 the facts were as follows. The wife bought a property as tenant in common with her father, each making contributions to the purchase price. For some years she lived in the property with her husband. Her father made mortgage repayments and the mortgage was discharged. There was an agreement between the wife and her father for the repayment of some money to him; but the terms of that agreement, and whether the husband was a party to it, are disputed. There was also a dispute about whether the husband assisted in making the mortgage repayments and whether he had improved the property. In property proceedings between the parties, the husband sought

to join the father and sought orders against him based on the relevant state principles of common law and equity. He sought a declaration that the father held his interest in trust for the husband (or for the parties), or subject to an equitable charge to them; and an order for a liquidated sum (based on mortgage repayments, and payments made to the father). The Full Court held that the accrued jurisdiction was attracted and prima facie it was appropriate for the Family Court to exercise it: at [92]. This was later described as a “classic example” of the use of the accrued jurisdiction: In the Marriage of Bishop (2003) 30 Fam LR 108 at [32]. The cases suggest that the main application of the accrued jurisdiction in the Family Court will be to resolve issues relating to contested interests by third parties in property owned by the parties to s 79 proceedings, where it is necessary to determine these issues in order to ascertain the extent of the property of the parties to the marriage: C v C (Accrued jurisdiction) (2001) 28 Fam LR 253; FLC 93–076; Finlayson v Finlayson (2002) 29 Fam LR 460; FLC 93–121; In the Marriage of Bishop (2003) 30 Fam LR 108; FLC 93– 144; [2003] FamCA 240. However, of course the jurisdiction is not limited to such cases (see for example Ruane v Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369; BC201250422, which dealt with a claim against a party’s solicitor arising out of a finding that a financial agreement was not [page 180] “binding”), or to property matters. It could presumably be used, for example, in children’s cases, although there appear to be no reported cases at this stage. [s 31.4] Background and purpose of the accrued jurisdiction The accrued jurisdiction The decision of the High Court in Re Wakim; Ex parte McNally (1999) 163 ALR 270; 24 Fam LR 669, that the cross-vesting scheme is invalid insofar as it purported to confer state jurisdiction on federal courts, has led to a renewed interest in the concept of “accrued” jurisdiction. Accrued jurisdiction is a means of enabling matters involving a mix of state

and federal matters to be heard together. The question is how wide is the concept, and when will it permit the Family Court to resolve matters that are strictly ones of state law. The caselaw on accrued jurisdiction mostly pre-dates the introduction of the cross-vesting scheme. While that scheme was in force, there was little need to test the limits of accrued jurisdiction. Decisions of the High Court suggest that a Federal Court does have jurisdiction over general law matters which arise in conjunction with matters arising under one of the Acts in respect of which a Federal Court has been invested with jurisdiction: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465; 55 ALJR 120; see also Fencott v Muller (1983) 46 ALR 41; 57 ALJR 317; Stack v Coast Securities (No 9) Pty Ltd (1983) 49 ALR 193; 57 ALJR 731. The reason for the existence of this jurisdiction is that where there are several legal issues to be resolved arising out of the same facts, it is more convenient to dispose of them all before one court rather than to duplicate evidence in a number of courts. The scope of the jurisdiction may be very wide as it is an attempt to attract jurisdiction over non-federal matters. The concept of an extended jurisdiction was accepted by the High Court in R v Carter; Ex parte Kisch (1934) 52 CLR 221; see also R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 464–6 per Starke J; Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665 at 673–4 per Latham J. In Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, Latham CJ said (at 580): “But in each of these cases the single claim or charge or a defence thereto was supported upon several grounds, one or more of which involved the interpretation of the Constitution. None of the cases mentioned presented the feature which is to be found in this case, namely an entirely severable claim and having no relation whatever to another claim or claims made in the same proceedings which other claim or claims alone involve the interpretation of the Constitution.” Federal Court of Australia The notion of an incidental or accrued jurisdiction has been mainly developed in connection with the Federal Court

of Australia and it is necessary to consider these authorities before discussing how the Family Court has such a jurisdiction. Section 19(1) as originally enacted provided that the Federal Court “has such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under the laws made by the Parliament”. The words “being jurisdiction vested in it by laws made by the Parliament” were deleted by Sch 1 of the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth). Section 86 of the Trade Practices Act 1974 is such a law which confers upon the Federal Court a jurisdiction “to hear and determine actions, prosecutions, and other proceedings under this part and that jurisdiction is exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under s 75 of the Constitution”. Section 22 of the Federal Court Act provides that: “The court shall in every matter before the court, grant either absolutely or in such terms as the court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.” [page 181] The Federal Court was invested with an exclusive jurisdiction in relation to proceedings under the Trade Practices Act. In Adamson v West Perth Football Club Inc (1979) 27 ALR 475, Northrop J said that he and jurisdiction in an action under the Trade Practices Act to grant a common law remedy. He said: “In my opinion the Federal Court has a judicial implied incidental power. This jurisdiction does not depend upon s 32 of the Federal Court of Australia Act. It arises from ss 76(ii) and 77(i) of the Constitution and ss 19 and 22 of the Federal Court of Australia Act.” Section 76(ii) of the Constitution defines the original jurisdiction of the High Court as including “any matter arising under any laws made by the Parliament”. Section 77(i) of the Constitution permits the vesting of that

jurisdiction in the Federal Court by the Parliament and this is, in effect, done by s 19(1) of the Federal Court of Australia Act 1976. Section 22 of the Federal Court of Australia Act directs the Federal Court to deal if possible with “all matters in controversy between the parties”. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, above, Gibbs J, as he then was, said (148 CLR 457 at 489) that s 22 is merely a direction how the jurisdiction of the Federal Court shall be exercised and is not a provision investing that court with accrued jurisdiction. Murphy J (at CLR 520–1) said that the incidental jurisdiction arises whether or not provisions such as s 22 are inserted. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, above, the question arose whether the Federal Court had jurisdiction to deal with a nonseverable common law claim in addition to claims under the Trade Practices Act, all claims arising out of the same alleged conduct by the defendant. Aickin and Wilson JJ confined the jurisdiction of Federal Courts to matters which had their source in Federal law. Murphy J (at CLR 521) referred to the implied incidental power as embracing jurisdiction in respect of issues or questions which are not separate and distinct from those which come within jurisdiction. Mason J said that the test was whether the issue could be said to form part of a “matter” in respect of which the Federal Court had been invested with jurisdiction pursuant to s 76(ii) of the Constitution. He said that the attached non-federal claim in order to form part of the matter should be non-severable from the claim directly arising under Federal law. He said that the classification of a claim as “non-severable” does not necessarily mean that it is, or must be, united to the Federal claim by a single claim for relief, although this is a common illustration of a non-severable claim. The nonseverable character of the attached claim may emerge from other aspects of the relationship between the Federal and attached claim. Likewise, it may appear that the attached claim and the Federal claim so depend on transactions and facts that they arise out of a common substratum of fact. In instances of this kind a court which exercises Federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its Federal jurisdiction. Gibbs J (at CLR 492) said that he would treat as part of the same matter a claim, the resolution of which is essential to the determination of the Federal question. Gibbs J (at CLR 494) would require

that the different claims for relief be based on the same facts. In Fencott v Muller (1983) 46 ALR 41 at 67; 57 ALJR 317 in a joint judgment, Mason, Murphy, Brennan and Deane JJ came down in favour of the wider test of claims arising out of “common transactions and facts” provided the Federal claim is “a substantial aspect of that controversy”. In Stack v Coast Securities (No 9) Pty Ltd (1983) 49 ALR 193; 57 ALJR 731, Mason, Murphy, Brennan and Deane JJ held that although the accrued jurisdiction of the Federal Court was not exclusive, that court had a discretion to assume jurisdiction. The existence of the accrued jurisdiction depends on the investment of the court with jurisdiction in respect of “matters”. The Federal Court, it appears, therefore has an accrued jurisdiction which is derived from the extended definition of “matter” in ss 75 and 77 of the Constitution and is vested in the Federal Court by virtue of the conferment upon it of jurisdiction with respect to such matters in provisions such as s 86 of the Federal Court of Australia Act. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, above, Barwick CJ said (148 CLR at 475; 55 ALJR at 125): “It is settled doctrine in Australia that when a court which can exercise Federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction [page 182] extends to the resolution of the whole matter. This accrued jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted Federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call ‘accrued jurisdiction’ is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter.”

[s 31.5] Trivial or insubstantial aspect The federal claim which is trivial or insubstantial aspect of a controversy will not attract jurisdiction over the nonfederal aspects of the controversy: see Fencott v Muller, above. [s 31.6] Same parties The parties to the federal claim need not be identical to the parties to the non-federal claim: see Fencott v Muller, above. [s 31.6A] Same dispute While the court has made it clear that the purpose of accrued jurisdiction is to enable it to deal with a single justiciable controversy, this does not mean a single justiciable issue, there “may be many issues but one broad controversy: In the Marriage of Bishop (2003) 30 Fam LR 108; FLC 93–144; [2003] FamCA 240. [s 31.7] Discretionary The assumption of accrued jurisdiction is in the discretion of the court: see Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475; 33 ALR 465; 55 ALJR 120 at 125. However, if jurisdiction is established recent authority would suggest that the court would decline to exercise it only in “rare or extraordinary circumstances”: Ruane v Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369; BC201250422. If proceedings have been instituted elsewhere first then, although this is not per se a disabling factor, if the proceedings have been determined elsewhere by judgments or orders it would be inappropriate to assume jurisdiction: see Stack v Coast Securities (No 9) Pty Ltd (1983) 49 ALR 193 at 215–6; 57 ALJR 731. [s 31.8] Accrued jurisdiction of the Family Court and Federal Circuit Court The Full Court of the Family Court in In the Marriage of Warby (2001) 28 Fam LR 443; (2002) FLC 93–091, heard a stated case to determine whether the Family Court had accrued jurisdiction. The question had previously been the subject of discussion, but not conclusion: Friis v Friis (2000) 26 Fam LR 205, and In the Marriage of Wade-Ferrell (2001) 27 Fam LR 484; FLC 93–069. Jerrard J considered — correctly, it is submitted — that there was “no reason for distinguishing this federal court from any other federal court” in relation to the existence of accrued jurisdiction. Earlier decisions which commented on the issue include In the Marriage of

Lye (1983) 8 Fam LR 999; FLC 91–324 (Elliott J); In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005; FLC 91–323 (Nygh J); In the Marriage of Prince (1984) 9 Fam LR 481; FLC 91–501; In the Marriage of Smith (1985) 10 Fam LR 283; FLC 91–604 (Evatt CJ); In the Marriage of Ireland (1986) 11 Fam LR 104; FLC 91–731 (Lindenmayer J). The High Court in In the Marriage of Smith (No 3) (1986) 161 CLR 217; 10 Fam LR 769; FLC 91-732 held that when approving a maintenance agreement under the Family Law Act, the Family Court had no accrued jurisdiction enabling it to give an effective release of the right to apply for orders under the Family Provision Act 1982 (NSW). The court held that on a consideration of the facts and the wording of the relevant provisions of both Acts, the criteria for the accrued jurisdiction were not met. The court did not expressly state, and did not in the event need to determine, whether the Family Court had any accrued jurisdiction. Following the decision of the Full Court in Warby it is clear that: “the Family Court of Australia is not restricted to determination of a family law claim or proceeding; it may exercise accrued jurisdiction to [page 183] determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part” per Nicholson CJ, Finn and Strickland JJ. The Federal Circuit Court equally can exercise accrued jurisdiction in appropriate circumstances: see Waters v Durrant (2015) 301 FLR 218; [2015] FCCA 2419; BC201509126 and the authorities cited therein. In Warby the Family Court has developed its own checklist of factors for consideration when determining whether the court will exercise its accrued jurisdiction (at Fam LR 445): (1) “what have the parties done; (2) the relationships between or among them; (3) the laws which attach rights or liabilities to their conduct and relationships;

(4) whether the claims are part of a single justiciable controversy and in determining that question whether the claims are ‘attached’ and not ‘severable’ or ‘disparate’; (5) whether the claims are non-severable from a matrimonial cause and arise out of a common sub-stratum of facts; and (6) whether the court has the power to grant appropriate remedies in respect of the ‘attached’ claims.” [s 31.9] Family Law Amendment Act 1983 (Cth) As a result of the Family Law Amendment Act 1983, the word “matters” appears in s 31(1) describing the jurisdiction of the Family Court. It has been suggested that this is an expression of parliamentary approval of the Family Court having an accrued jurisdiction. [s 31.10] Pre-Warby authorities In In the Marriage of Gubbay (1984) 9 Fam LR 758; FLC 91–545, Nygh J said (Fam LR at 760; FLC at 79,413) that if the Family Court has an accrued jurisdiction, it is a jurisdiction to deal with claims arising under State law which arise in conjunction with and are inseverable from a claim arising under the Family Law Act. He said that an example might well be a claim arising under s 79 for property adjustment and associated therewith a claim for damages arising out of a breach of contract or tortious act between the parties to the marriage. In In the Marriage of Wallace (1984) 9 Fam LR 960; FLC 91–553, Treyvaud J said that the Family Court may properly exercise jurisdiction to determine issues as between husband, wife and intervener in property proceedings within the accrued jurisdiction. In In the Marriage of McKay (1984) 9 Fam LR 850; FLC 91–573 the Full Court, per Fogarty and Nygh JJ, said that a common substratum of facts and circumstances did not exist between the issues between the husband and wife and the issues between the wife and a third party and therefore there was no accrued jurisdiction. Fogarty J doubted the existence of the accrued jurisdiction. Nygh J said that the present version of s 31(1)(a) invests the court with an accrued jurisdiction provided it arises as a non-severable part of a matrimonial cause. The requirement in s 31(1)(a) that a matrimonial cause must have been instituted in respect of a matter does not mean that the matter

can only consist of a matrimonial cause. Strauss J considered that the Family Court did not have an accrued jurisdiction. He said that the word “matters” in s 31(1)(a) refers to matters arising in proceedings for remedies which the Family Court has power to grant. The grant of jurisdiction to the court is not independent of the grant of power to grant relief. The meaning of the word “matters” in s 31(1)(a) is to be construed by reference to the powers which are conferred on the Family Court. To come within the jurisdiction specified in s 31(1)(a), the matter must arise under the Family Law Act and it must be one in respect of which a “matrimonial cause” may be instituted. In In the Marriage of Saba (1984) 9 Fam LR 780; FLC 91–579, Gee J said that the word “matters” in s 31(1)(a) should be taken as meaning “justiciable controversies” and as encompassing all claims within the scope of those controversies. Therefore, s 31(1)(a) appears to mean that, if a “matrimonial cause” is instituted as the substantial federal issue, the Family Court has jurisdiction to deal with “justiciable controversies” in respect of which the matrimonial cause [page 184] was instituted, and which justiciable controversies otherwise arise under the Family Law Act. He also said that, even if the court possessed jurisdiction in a wider sense, he was not satisfied that the tests for the application of such accrued jurisdiction as set out by the High Court would have enabled him to exercise jurisdiction. He said that as a matter of impression and of practical judgment the claims were not based on common transactions and facts. Conclusions Matters will fall within the accrued jurisdiction of the Family Court if they can be said to be “non-severable” from a matrimonial cause, and to arise out of a “common substratum of facts”. It is likely that the court will entertain such applications in circumstances where it would be impossible to determine the asset pool or the parties’ contribution without first resolving a preliminary dispute: In the Marriage of Bishop (2003) 30 Fam LR 108; FLC 93–144; [2003] FamCA 240; see also Valceski v Valceski (2007) 36 Fam LR 620; [2007] NSWSC 440.

[s 31.11] Law of a territory — s 31(1)(c) This provision confers jurisdiction on the Family Court with respect to certain matters arising under a law of a territory. The matters listed — adoption, “non-matrimonial” property and the rights and status of ex-nuptial children — fall within the Federal Parliament’s power over territories (Constitution s 122) but are not otherwise the subject of federal power. This means that the Family Court could not be given an equivalent jurisdiction in the states. The section originally applied to the Australian Capital Territory, the Northern Territory and Norfolk Island but it was amended in 1968 to exclude the Northern Territory. The effect of the amendment is to place the Northern Territory in a position equivalent to the states, that is, the Supreme Court of the Northern Territory will have the same exclusive jurisdiction in relation to the listed matters as state Supreme Courts have in relation to those matters under state law. The Family Court does not, at present, exercise the jurisdiction conferred by s 31(1)(c). The reason for this is that the court cannot exercise its jurisdiction under the Act except in accordance with proclamations under s 40. To date, no proclamation has been made in respect of s 31(1)(c). [s 31.12] Party outside Australia The Family Court’s jurisdiction may be exercised in relation to persons or things outside Australia and the Territories. The Family Court will not be deprived of jurisdiction merely because it covers a party, child or parent situated outside Australia. [s 31.13] Persons and things outside Australia — ss 31(2) and 39 Section 31(2) does not override the conditions set out in s 39 in which jurisdiction may be exercised, which are predicated upon the domicile, nationality, residence or presence of a party to the proceedings or of a child in Australia. [s 31.14] Order futile The court should not exercise extra-territorial jurisdiction where any order the court might make would be clearly futile: see Tallack v Tallack [1927] P 211; see also Nygh P E, Conflict of Laws in Australia (4th ed), Ch 5 and In the Marriage of Ding (1976) 1 Fam LR 11,231 and In the Marriage of Woo (1976) 2 Fam LN 9; FLC 90–107.

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[s 32] 32

Certain powers under Marriage Act [s 32 rep Act 209 of 1976 s 29] COMMENTARY ON SECTION 32

[s 32.1] Repeal Section 32 (which dealt with the exercise of powers under the Marriage Act 1961), was repealed by the Marriage Amendment Act (No 209 of 1976) which came into operation on 1 July 1977. The matter is now dealt with in the Marriage Act itself.

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[s 33]

Jurisdiction in associated matters

33 To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court. COMMENTARY ON SECTION 33 Introductory comment …. The Constitution …. Associated jurisdiction of the Federal Court — s 32 …. Associated jurisdiction of the Family Court ….

[s 33.1] [s 33.2] [s 33.3] [s 33.4]

[s 33.1] Introductory comment To the extent that the Constitution permits, jurisdiction is conferred on the Family Court in respect of matters not otherwise within the jurisdiction of the court, expressed by the Family Law Act or any law to be conferred on the Family Court, that are associated with matters (including matters before the Family Court on appeal) in which the jurisdiction of the court is invoked or that arise in proceedings (including proceedings upon an appeal) before the court. [s 33.2] The Constitution Section 33 is an exercise of the incidental power under s 51(xxxix), in relation to the Commonwealth powers under s 51(xxi) and (xxii) and s 77 of the Constitution. By s 77 of the Constitution, the Parliament is authorized to make laws defining the jurisdiction of any Federal Court other than the High Court in relation to any of the matters referred to in ss 75 or 76 of the Constitution. One of these is s 76(ii) which reads: “Any matter arising under any laws made by the Parliament.” [s 33.3] Associated jurisdiction of the Federal Court — s 32 Section 33 of the Family Law Act has the equivalent wording to s 32(1) of the Federal Court of Australia Act 1976, which confers jurisdiction upon the Federal Court of Australia “to the extent that the Constitution permits … in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked”. There are a number of authorities in relation to s 32 of the Federal Court of Australia Act. In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465; 55 ALJR 120, the High Court considered the effect of s 32(1) of the Federal Court of Australia Act. With the exception of Murphy J, none of their Honours saw in it a source of non-federal jurisdiction. The view of the majority was that if it did purport to do so, it would be ultra vires the powers of the Parliament under s 77(i) of the Constitution, which only permits the Parliament to invest federal courts with jurisdiction over matters enumerated in ss 75 and 76. However, most of the judges did read s 32(1) as enabling the Federal Court to exercise jurisdiction in associated federal matters over which the Federal Court would not otherwise have jurisdiction. Gibbs J (as he then was) said that once the

jurisdiction of the court is so invoked, it is extended by s 32(1) to associated matters which arise under other laws made by the Parliament, even though the Parliament has not (except by s 32 (1)) conferred jurisdiction on the court in respect of those matters. Mason J said that s 32(1) was intended to vest the jurisdiction in the Federal Court to hear and determine matters not otherwise within its jurisdiction, matters that are associated with matters in which the jurisdiction of the court is invoked: see also Fencott v Muller (1983) 46 ALR 41; 57 ALJR 317; Stack v Coast Securities (No 9) Pty Ltd (1983) 49 ALR 193; 57 ALJR 731. The associated jurisdiction has been exercised by the Federal Court: see Superstar Aust Pty Ltd v Coonan and Denlay Pty Ltd (1981) 40 ALR 183; see also Apple Computer Inc v Computer Edge Pty Ltd (1983) 50 ALR 581. [page 186] [s 33.4] Associated jurisdiction of the Family Court In R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598 at 601; FLC 90–606 at 78,102, Gibbs CJ remarked that the effect of s 33 is far from clear: “It cannot be intended to mean, and would not be constitutionally valid if it did mean, that if the jurisdiction of the court is unsuccessfully invoked, it nevertheless has jurisdiction in associated matters.” The section can only apply if the court already has jurisdiction: its jurisdiction is then extended, so far as is constitutionally permissible to associated matters: see Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555 at FLC 79,492 per Wilson and Dawson JJ. There is considerable authority for the proposition that the section must be read as confined to giving the Family Court jurisdiction in respect of matters arising under federal Acts other than the Family Law Act, such as, perhaps, the Bankruptcy Act 1966, the Trade Practices Act 1974 and the Copyright Act 1912. In Smith v Smith (1986) 161 CLR 217; 10 Fam LR 769; FLC 91– 732 (High Court) Gibbs CJ, Wilson J and Dawson J said that at best s 33 could validly do no more than give the Family Court jurisdiction in associated matters arising under some other federal law, and since it was at first sight difficult to envisage matters under other federal laws that might be

associated with matters arising under the Family Law Act, the effect of s 33 was far from clear. See also In the Marriage of Prince (1984) 9 Fam LR 481; FLC 91–501 (Fogarty J); In the Marriage of Gubbay (1984) 9 Fam LR 758; FLC 91–545 (Nygh J); In the Marriage of Saba (1984) 9 Fam LR 780 at 784; FLC 91–579 (Gee J). To the extent that the decisions In the Marriage of Wallace (1984) 9 Fam LR 960; FLC 91–553 (Treyvaud J) and In the Marriage of Lye (1983) 8 Fam LR 999; FLC 91–324 (Elliott J) are authorities for a wider reading of s 33 it is submitted (SO’R, RC) that they do not represent the law. In In the Marriage of McKay (1984) 9 Fam LR 850 at 857; FLC 91–573 at 79,641, Nygh J said that In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005; FLC 91–323, he assumed associated jurisdiction under s 33, the matter in question arising under the inherited law of the Australian Capital Territory. In In the Marriage of Saba (1984) 9 Fam LR 780 at 784; FLC 91–579 at 79,673, Gee J said that he agreed with Fogarty J in In the Marriage of Prince, above, that s 33 is, for practical purposes, in identical terms with s 32 of the Federal Court of Australia Act and that it is clear that s 32 of the Federal Court of Australia Act applies only to pick up other federal matters. He said that he did not agree with the ambit of s 33 espoused by Elliott J in In the Marriage of Lye (1983) 8 Fam LR 999; FLC 91–324.

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[s 33A] Proceedings not to be instituted in the Family Court if an associated matter is before the Federal Circuit Court 33A (1) Proceedings must not be instituted in the Family Court in respect of a matter if: (a) the Federal Circuit Court of Australia has jurisdiction in that matter; and (b) proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia.

[subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) Subsection (1) does not apply to: (a) proceedings for a divorce order; or (b) proceedings instituted in the Family Court under Division 13A of Part VII or under Part XIII or XIIIA. [subs (2) subst Act 143 of 2000 s 3 and Sch 3 item 31A opn 27 Dec 2000; am Act 98 of 2005 s 2 and Sch 1, cl 46, opn 3 Aug 2005]

[page 187] (3) If: (a) proceedings are instituted in the Family Court in contravention of subsection (1); and (b) the proceedings are subsequently transferred to the Federal Circuit Court of Australia; the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013] [s 33A insrt Act 194 of 1999 s 3 and Sch 11[25]; am Act 13 of 2013 s 3 and Sch 1 item 278, opn 12 Apr 2013] COMMENTARY ON SECTION 33A [s 33A.1] Proceedings not to be instituted in Family Court in certain circumstances “If the Federal Magistrates Court has jurisdiction” — see commentary at [s 39.14] for a discussion of the scope of the Federal Magistrates’ jurisdiction. “Proceedings in respect of an associated matter are pending” — for a discussion of “pending proceedings” see commentary on s 45.

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[s 33B] Discretionary transfer of proceedings to the Federal Circuit Court 33B (1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) The Family Court may transfer a proceeding under subsection (1): (a) on the application of a party to the proceeding; or (b) on its own initiative. (3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1). [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1). [subs (4) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia. [subs (5) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:

(a) (b)

(c)

(d)

any standard Rules of Court made for the purposes of subsection (4); and whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and the interests of the administration of justice.

[subs (6) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

[page 188] (7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia. [subs (7) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1). (8A) The Federal Circuit Court of Australia has jurisdiction in a matter that: (a) is the subject of a proceeding transferred to the court under this section; and (b) is a matter in which the court does not have jurisdiction apart from this subsection. To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.

[subs (8A) insrt Act 23 of 2006 Sch 2[1], opn 4 May 2006; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A. (10) This section does not apply to proceedings of a kind specified in the regulations. [s 33B insrt Act 194 of 1999 s 3 and Sch 11[25]; am Act 13 of 2013 s 3 and Sch 1 item 279, opn 12 Apr 2013] COMMENTARY ON SECTION 33B [s 33B.1] Discretionary transfer of proceedings from the Federal Magistrates to the Family Court The discretion to transfer is to be exercised in accordance with relevant provisions of the standard Rules of Court, as well as the factors set out in subs (6).

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[s 33C] Mandatory transfer of proceedings to the Federal Circuit Court 33C (1) If a proceeding of a kind specified in regulations made for the purposes of this subsection is pending in the Family Court, the Family Court must, before going on to hear and determine the proceeding, transfer the proceeding to the Federal Circuit Court of Australia. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) If a proceeding is transferred under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceedings by the Federal Circuit Court of Australia.

[subs (2) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(3) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1). (3A) The Federal Circuit Court of Australia has jurisdiction in a matter that: (a) is the subject of a proceeding transferred to the court under this section; and (b) is a matter in which the court does not have jurisdiction apart from this subsection. To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision. [subs (3A) insrt Act 23 of 2006 Sch 2[2], opn 4 May 2006; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

[page 189] (4) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A. (5) The Minister must cause a copy of regulations (transfer regulations) made for the purposes of subsection (1) to be tabled in each House of the Parliament. (6) Either House may, following a motion upon notice, pass a resolution disallowing the transfer regulations. To be effective, the resolution must be passed within 15 sittings days of the House after the copy of the transfer regulations was tabled in the House. (7) If neither House passes such a resolution, the transfer regulations commence on the day immediately after the last day

upon which such a resolution could have been passed. [subs (7) am Act 126 of 2015 s 3 and Sch 1 item 224, opn 5 Mar 2016]

(8) Subsections (5), (6) and (7) have effect despite anything in: (a) the Acts Interpretation Act 1901; or (b) the Legislation Act 2003. [subs (8) am Act 13 of 2013 s 3 and Sch 1 item 281, opn 12 Apr 2013; Act 10 of 2015 s 3 and Sch 1 item 130, opn 5 Mar 2016] [s 33C insrt Act 194 of 1999 s 3 and Sch 11[25]; am Act 13 of 2013 s 3 and Sch 1 item 280, opn 12 Apr 2013] COMMENTARY ON SECTION 33C [s 33C.1] Mandatory transfer of proceedings from the Federal Magistrates to the Family Court Pending proceedings specified in regulations must be transferred from the Family Court to the Federal Magistrates Court.

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[s 34]

Issue of certain writs etc

34 (1) [Power to issue where appropriate] The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate. [subs (1) am Act 181 of 1987 s 63 and Sch]

(2) [subs (2) rep Act 138 of 2003 s 3 and Sch 7 item 8 opn 14 Jan 2004] COMMENTARY ON SECTION 34 Introductory comment …. Allegation of bias …. Writ of possession — s 34(1) ….

[s 34.1] [s 34.2] [s 34.3]

“Anton Piller” orders ….

[s 34.4]

[s 34.1] Introductory comment Under s 34 the court has power, in relation to matters in which it has jurisdiction, to make whatever orders and to issue writs of such kinds as it thinks appropriate. The court may issue writs issued by superior courts generally, such as writs for attachment for contempt, writs of habeas corpus and, in the case of another court or a tribunal abrogating to itself the exclusive jurisdiction of the Family Court, writs of prohibition. Such writs, however, should only be issued where the machinery of the Act, Rules and Regulations of court are inadequate to meet the problem. [s 34.2] Allegation of bias The proper way of raising a question of bias on the part of a trial judge in the Family Court is by way of appeal under s 94: see In the Marriage of Bizannes (1977) 16 ALR 524; 3 Fam LR 11,555; FLC 90–313. [page 190] The Full Court of the Family Court does not have authority to issue a writ of prohibition against any other judge of the court. [s 34.3] Writ of possession — s 34(1) The Act contains no explicit provision for a writ of possession. Section 34(1) authorises the court to issue a variety of writs and orders to cope with circumstances which may not have been envisaged in the rules or regulations. Section 34(1) does authorise the court to issue a writ in the nature of a writ of possession: see In the Marriage of Kollmorgan (1984) FLC 91–551. [s 34.4] “Anton Piller” orders It has been held that s 34 is a statutory source of jurisdiction to make an ex parte “Anton Piller” order in appropriate cases in aid of the court’s jurisdiction in substantive proceedings properly invoked or intended to be invoked: In the Marriage of Talbot (1994) 18 Fam LR 685; (1995) FLC 92–586. In that case, Lindemayer J discussed the preconditions for making such orders, and made orders restraining the husband, three

corporations and another company director, where the wife’s application included a draft substantive application alleging that her consent to property orders had been obtained by fraud. Lindenmayer J also held that there is an inherent jurisdiction to make Anton Piller orders.

____________________

[s 35]

Contempt of court

35 Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. COMMENTARY ON SECTION 35 Introductory comments …. Judiciary Act 1903 …. Applicable rules ….

[s 35.1] [s 35.5] [s 35.10]

[s 35.1] Introductory comments Relation of section to Part XIIIA Detailed provision punishment for contravention of orders is contained 112AA–112AP), inserted into the Act in 1990 by Amendment Act 1989. See generally Introduction to commentary to those sections.

for contempt and in Pt XIIIA (ss the Family Law Part XIIIA, and

Section 35 and the contempt power Section 35 was not repealed by those amendments. It is not necessary to support the contempt power, since s 112AP(2) creates a general contempt power. High Court The main significance of s 35 since the 1989 amendments may be to specify that the general contempt power is, subject to provisions of Acts (especially Pt XIIIA of the Family Law Act) the same as that of the High Court. See for example In the Marriage of Mariti (1978) 4 Fam LN 36; FLC 90–464.

[s 35.5] Judiciary Act 1903 Section 24 of the Judiciary Act 1903 (Cth) provides that the High Court shall have the same power to punish contempts of its powers and authority as it possessed at the commencement of that Act by the Supreme Court of Judicature in England. [s 35.10] Applicable rules See generally Family Law Rules 2004 Pt 21.1. It has been held that the High Court Rules are applicable to contempt proceedings in the Family Court to the extent that the rules involved can be applied and are not displaced by the provisions of the Family Law Act or Regulations and Rules: see In the Marriage of Mariti (1978) 4 Fam LN 36; FLC 90–464.

____________________ [page 191] DIVISION 6 — REGISTRIES AND OFFICERS [Div 6 am Act 8 of 1988 s 19]

[s 36]

Registries

36 (1) [Establishment] The Governor-General shall cause such Registries of the Court to be established as the GovernorGeneral thinks fit. [subs (1) am Act 181 of 1987 s 63 and Sch]

(2) [Principal registry] Unless and until the regulations otherwise provide, the Principal Registry shall be located in Sydney.

[s 37] 37

Officers of Court (1) In relation to a proceeding under this Act, the officers

of the Court have such duties, powers and functions as are given by this Act or the standard Rules of Court or by the Chief Judge. [subs (1) Act 194 of 1999 s 3 and Sch 11[27]]

(2) The Principal Registrar of the Court may, subject to this Act, the regulations, the standard Rules of Court and any directions of the Chief Judge, give directions to the officers of the Court in relation to the manner in which the functions and duties of those officers are to be performed and the powers of those officers are to be exercised in relation to proceedings under this Act. [subs (2) Act 194 of 1999 s 3 and Sch 11[27]; am Act 46 of 2006 s 3 and Sch 4 item 38, opn 1 July 2006]

(3) Despite subsection (2), the Principal Registrar must not give directions that relate to an officer’s functions as a family consultant, family counsellor or family dispute resolution practitioner. [subs (3) insrt Act 46 of 2006 s 3 and Sch 4 item 39, opn 1 July 2006] [s 37 subst Act 157 of 1989 s 12]

[s 37A]

Delegation of powers to Registrars

37A (1) [Certain powers may be delegated] The Judges, or a majority of them, may, subject to subsection (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court: (a) the power to dispense with the service of any process under this Act; (b) the power to make orders in relation to substituted service;

(c)

(d) (e)

(ea)

the power, in proceedings under this Act, to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to the proceedings or of any other person; the power, in proceedings under this Act, to direct a party to the proceedings to answer particular questions; the power to make orders under: (i) sections 11F and 11G; and (ii) sections 13C and 13D; and (iii) subsection 65LA(1); and (iv) paragraph 70NEB(1)(a); the power to direct a family consultant to give a report under section 62G; [page 192]

(f) the power, in proceedings under this Act, to make: (i) an order under section 66Q, 67E, 77 or 90SG; or (ii) an order for the payment of maintenance pending the disposal of the proceedings; (g) the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings; (h) the power, in proceedings under this Act, to make an order adjourning the hearing of the proceedings; (j) the power under section 117 to make an order as to costs;

(k) [repealed] (m) the power to make an order exempting a party to proceedings under this Act from compliance with a provision of the regulations or Rules of Court. Note: For how this section applies in relation to powers of the Court under certain provisions, see section 37AA. [subs (1) am Act 181 of 1987 s 15; Act 167 of 1995 s 27; Act 143 of 2000 s 3 and Sch 1 item 1; Act 46 of 2006 s 3 and Sch 4 item 40, opn 1 July 2006; Act 115 of 2008 s 3 and Sch 1[30], opn 1 Mar 2009; Act 189 of 2011 s 3 and Sch 2[7], opn 7 Dec 2011]

(2) The powers of the Court that may be delegated under subsection (1) do not include the power to make: (a) a divorce order in proceedings that are defended; or (b) a decree of nullity of marriage; or (c) a declaration as to the validity of: (i) a marriage; or (ii) a divorce; or (iii) the annulment of a marriage; or (d) an excluded child order (as defined in subsection (2A)); or (e) an order setting aside a registered award under section 13K. [subs (2) subst Act 8 of 1988 s 20; am Act 167 of 1995 s 27; Act 143 of 2000 s 3 and Sch 3 items 32, 33 opn 27 Dec 2000; Act 98 of 2005 s 2 and Sch 1, cl 47–48, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 4 item 41, opn 1 July 2006]

(2A) An excluded child order is: (a) a parenting order to the extent to which it provides that: (i) a child is to live with a person; or

(ii) a child is to spend time with a person; or (iii) a child is to communicate with a person; or (iv) a person is to have parental responsibility for a child; or (b) an order in relation to the welfare of a child; other than: (c) an order until further order; or (d) an order made in undefended proceedings; or (e) an order made with the consent of all the parties to the proceedings. [subs (2A) subst Act 46 of 2006 s 3 and Sch 8 item 49, opn 1 July 2006]

(3) [Deemed exercise by Court or Judge] A power delegated by applicable Rules of Court under subsection (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires. [subs (3) am Act 138 of 2003 s 3 and Sch 7 item 9 opn 14 Jan 2004]

[page 193] (4) [Judicial powers unaffected by delegation] The delegation of a power by applicable Rules of Court under subsection (1) does not prevent the exercise of the power by the Court or a Judge. [subs (4) am Act 138 of 2003 s 3 and Sch 7 item 10 opn 14 Jan 2004]

(5) [Exercise of s 37A(1)(f power] If the power referred to in paragraph (1)(f) is delegated under subsection (1), a Registrar shall not exercise the power on application by a party to proceedings under this Act unless:

the other party to the proceedings appears at the hearing (a) of the application; or (b) the Registrar is satisfied that notice of the intention of the first-mentioned party to make the application has been served on the other party. (6) [Exercise of s 37A(1)(j) power] If the power referred to in paragraph (1)(j) is delegated under subsection (1), a Registrar shall not exercise the power except in relation to costs of or in connection with an application heard by a Registrar. (7) [Reference to Court to include Registrar] The provisions of this Act, the regulations, the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, by virtue of a delegation under subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to a Registrar. [subs (7) am Act 8 of 1988 s 20; Act 194 of 1999 s 3 and Sch 11[28]]

(8) [Exercise of powers not subject to control] Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to a delegation under subsection (1). [subs (8) am Act 146 of 1999 Sch 1]

(9) [Party may seek judicial review] A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or

a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power. [subs (9) am Act 138 of 2003 s 3 and Sch 7 item 11 opn 14 Jan 2004]

(10) [Court’s powers on review] The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised. [subs (10) am Act 181 of 1987 s 63 and Sch]

(11) [Registrar may refer matter to Court] Where: (a) an application for the exercise of a power delegated under subsection (1) is to be, or is being, heard by a Registrar; and (b) the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under the delegation; the Registrar shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court. [page 194] (12) [Removal of matter by Judge] Where: (a) a power delegated under subsection (1) is proposed to be exercised in a particular case by a Registrar; but (b) the Registrar has not commenced to exercise the power in that case;

a Judge may, on application by a person who would be a party to the proceedings before the Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge. (13) [Registrar shall not act pending application] Where an application is made to a Judge under subsection (12) seeking an order that, in a particular case, a power be exercised by a Judge, the Registrar shall not commence to exercise the power in that case until the application has been determined. (14) The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to rules of court made under this section: (a) as if a reference to a legislative instrument were a reference to a rule of court; and (b) as if a reference to a rule-maker were a reference to the Chief Judge acting on behalf of the Judges; and (c) subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act. [subs (14) subst Act 140 of 2003 s 2 and Sch 1[20], opn 1 Jan 2005; am Act 10 of 2015 s 3 and Sch 1 item 131, opn 5 Mar 2016]

(15) [Interpretation] In this section, Registrar means the Principal Registrar, a Registrar or a Deputy Registrar of the Court. [s 37A subst Act 193 of 1985 s 3 and Sch 1] Note: Powers to make Rules of Court are also contained in sections 26B, 109A and 123. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 34 opn 27 Dec 2000] COMMENTARY ON SECTION 37A PRELIMINARY

Introductory comments …. Constitutional validity …. Consent orders …. POWERS Introductory comment …. Who may exercise power …. Powers not delegated …. Deemed exercise of power …. Exercise of power by the court not prevented …. Power to order maintenance …. Costs ….

[s 37A.1] [s 37A.1A] [s 37A.1B]

[s 37A.2] [s 37A.3] [s 37A.4] [s 37A.5] [s 37A.6] [s 37A.7] [s 37A.8]

REVIEW OF DECISION Introductory comments …. Power of court on review …. Type of hearing — original hearing ….

[s 37A.9] [s 37A.10] [s 37A.11]

TRANSFER OF PROCEEDINGS By registrar …. By court …. Stay of proceedings ….

[s 37A.12] [s 37A.13] [s 37A.14] [page 195]

ENFORCEMENT Undertaking to registrar ….

[s 37A.15]

MISCELLANEOUS Other publications ….

[s 37A.16] PRELIMINARY

[s 37A.1] Introductory comments Section 37A provides that the judges or a

majority of them may make rules of court delegating any or all of a list of powers to registrars. This power has been exercised: see Family Law Rules 2004 Ch 18. Such delegation does not deprive the judges of these powers: subs (4). “Registrar” includes deputy registrars: subs (15). Such powers are deemed to have been exercised by the court or a judge: subs (3). They are subject to review by a judge in the form of an “original hearing” (also known as a hearing de novo): see Family Law Rules 2004 Ch 18. Rules The rules made under this section are contained in Family Law Rules 2004, Ch 18, set out under the guide card, FAMILY LAW RULES. Legislative history Section 37A was first inserted in the Act by the Family Law Amendment Act 1983 and came into operation on 2 January 1985. It was substituted by the Statute Law (Miscellaneous Provisions) Act 1985 (No 2) (Act 193 of 1985) which came into operation on 16 December 1985. It was then amended by the Family Law Amendment Act 1987 (Act 181 of 1987) which came into operation on 1 April 1988. In 1988 it was further amended by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act (Act 8 of 1988) which came into operation on 5 April 1988 and the Statutory Instruments (Tabling and Disallowance Legislation Amendment Act (No of 1988) which came into operation on 2 December 1988. It was further amended by the Family Law Reform Act 1995 (Cth). [s 37A.1A] Constitutional validity Section valid The High Court has (by a majority of 5 to 2) upheld the validity of the delegation by the judges under s 37A by what was then O 36A of the former Rules (now Ch 18 of the Family Law Rules 2004): Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217. Reasoning of High Court The constitutional issue was whether the Constitution permitted the delegation of the exercise of judicial power to persons other than judges appointed under the Constitution. By a majority of 5–2 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Brennan and Toohey JJ dissenting) the court held that the Constitution does permit delegation to officers of federal courts of powers that might include “judicial”

power. Broadly, the majority treated the court as having inherent power to delegate its functions, the extent of that power being limited by the Constitution. It was possible for the Parliament to limit such delegation (but it would not be possible for the Parliament to require it). So the correct approach to such delegations is to ask whether the delegation violates either the limitations arising from the Constitution or from any relevant legislation. If not, the delegation is valid. What delegation is permissible? What limits does the Constitution impose on delegation? Mason CJ and Deane J said at Fam LR 597–8 that such delegation must be consistent with the continued existence of the Family Court as a federal court constituted under Ch III ie “in conformity with the requirement that the court’s federal jurisdiction, powers and functions are to be exercised by a court whose members are judges appointed under s 72 of the Constitution”. This means that the judges of the Family Court must “effectively control and supervise the exercise of its jurisdiction … by having the capacity to review” the decisions of registrars. The role of the [page 196] latter is “secondary” to that of judges; it is “to assist the judges in the exercise of the jurisdiction, powers and functions of the court”. Delegation is permissible if two conditions are observed. First, it must not be inconsistent with the proposition that” as a practical as well as a theoretical matter, the judges constitute the court”; the judges “must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters”. Second, the delegation must not be inconsistent with the obligation of a court to act judicially and the decisions of the delegates “must be subject to review or appeal by a judge or judges of the court”. The other majority judges made generally similar comments. Dawson J spoke at at Fam LR 615–16 of the need for the court to retain “effective supervision and control over the exercise of its functions by its officers”. They must operate as delegates of the court. The provisions of s 37A and O 36A of the old 1984 Rules (now Ch 18 of the Family Law Rules

2004) clearly conformed with these limits, since they provided for a review by way of original hearing (formerly “hearing de novo”): see further, REVIEW OF DECISION at [37A.11]. [s 37A.1B] Consent orders One of the most important powers of registrars is to make consent orders: s 37A(1)(g). It appears from Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217 that it is open to a party to obtain a review of the decision by withdrawing his or her consent and applying (within time or by leave) for a review: see further, REVIEW OF DECISION at [s 37A.11]. POWERS [s 37A.2] Introductory comment Family Law Rules, Chapter 18 The Family Law Rules 2004, Ch 18, delegates to each of the registrars powers enumerated in s 37A. [s 37A.3] Who may exercise power Section 37A(15) and Ch 18 of the Family Law Rules 2004 make it clear that the powers delegated can be exercised only by the Principal Registrar, the registrars of the various registries or a deputy registrar and, of course, the court or a judge: see below, [s 37A.6]. [s 37A.4] Powers not delegated Section 37A(2) sets out certain powers of the court which may not be delegated to the registrars. Additional Jurisdiction Act Section 37A(2) was amended in 1988 by the Additional Jurisdiction and Exercise of Powers Act. Prior to the 1988 amendments, Section 37A(2) provided that the judges could not delegate to registrars the power to make: a decree of dissolution of marriage or nullity of marriage; a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage; or an order approving a maintenance agreement under s 87. As a result of the 1988 amendments the restrictions have been significantly

reduced. The judges may now confer on registrars power to make: a decree of dissolution of marriage in undefended proceedings; an order approving a maintenance agreement. [s 37A.5] Deemed exercise of power Section 37A(3) provides that any power exercised by a registrar shall be deemed to have been exercised by the court or a judge, as the case requires. [s 37A.6] Exercise of power by the court not prevented Section 37A(4) makes it clear that the delegation of power to a registrar does not prevent the exercise of any delegated power by the court or a judge. [page 197] [s 37A.7] Power to order maintenance Section 37A(1)(f) provides that the judges may delegate to registrars the power to make an order for: urgent child maintenance (s 66Q); urgent child bearing expenses (s 67E); urgent spousal maintenance (s 77); interim maintenance (s 37A(1)(f)(ii)). These powers have in fact been delegated to registrars by the Family Law Rules 2004, Ch 18. Registrars have also been delegated power to make an order for: child bearing expenses; interim maintenance; modification of interim orders; modification of child maintenance orders in undefended proceedings; child bearing expenses in undefended proceedings; spousal maintenance in undefended proceedings; modification of spousal maintenance in undefended proceedings. Restriction on exercise of power Section 37A(5) restricts the exercise by a registrar of the powers in relation to maintenance.

Restrictions A registrar shall not exercise this power unless: (a) the other party appears at the hearing; or (b) the registrar is satisfied that notice of intention to make the application has been served on the respondent to the application. Service It is submitted (SO’R) that service of the application is not necessary. An ex parte application may be made provided that notice of the application has been given to the respondent. Dispense with service It is submitted (SO’R) that the registrar cannot dispense with the requirement of notice. [s 37A.8] Costs Section 37A(6) provides that a registrar shall not exercise the powers delegated under s 117 except in relation to costs of or in connection with an application heard by the registrar. REVIEW OF DECISION [s 37A.9] Introductory comments This section provides for the review of a decision of a Registrar. Application by party Section 37A(9) provides that a party to proceedings in which a registrar has exercised any of the delegated powers may, within the time prescribed by the rules, apply to the court to review that exercise of power. On motion of the court Section 37A(10) provides that the court may, of its own motion, review an exercise of power by a registrar. Prescribed time for application to review, extension of time etc The Family Law Rules 2004, particularly in Pt 18.2, specify the time within which a party can apply for a review, and deal with such matters as the court’s power to extend that time. [s 37A.10] Power of court on review Section 37A(10) provides that on a hearing of a review of an exercise of power by a registrar, the court may make such order or orders as it thinks appropriate with respect to the matter

to which the power was exercised. In In the Marriage of [page 198] Marinko (1985) 10 Fam LR 41 at 42; FLC 91–609 Hogan J said: “This power to review is couched in wide terms, but it is beyond doubt that it must be exercised in accordance with appropriate judicial principles.” [s 37A.11] Type of hearing — original hearing The rules specify that the hearing of a review is an “original hearing”. This has the same meaning as the term used in the old 1984 Rules, “hearing do novo”. It means, in substance, that at the review hearing the court deals with the matter afresh. It is different from an appeal in which it is necessary for the appellant to show some sort of error on the part of the registrar or judicial registrar. It means that the reviewing judge starts afresh, normally considering the evidence before the registrar, the registrar’s decision, and any new evidence, and makes a decision that is appropriate at the time of the review. It is therefore possible for a review to set aside (on the basis of new evidence or changed circumstances) a decision that was impeccable in the light of the evidence before the registrar. The reason for having an original hearing on the review is that the judges’ power can be delegated to others only if the judges maintain supervision of the exercise of the delegated powers. With such supervision, the delegation has been held to be constitutionally valid: see Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217 (HC). Similar to appeals from summary jurisdiction This form of review is similar to that under s 96(4)(a) (review of magistrate’s decision). See generally the commentary to s 96. Whether court must consider evidence before registrar It has been said that unless the rules prevent it, on a review, being an original hearing, it is theoretically open to the reviewing court to “start the proceedings completely afresh and ignore whatever has happened before the magistrate”: In the

Marriage of Stredwick (1985) 10 Fam LR 964; (1986) FLC 91–724 (Nygh J). But as Nygh J also indicates in that case, the court will normally receive the evidence tendered before the registrar (together with any fresh evidence). Whether s 37A itself requires a review to be by way of an original hearing It is possible s 37A itself should be interpreted as requiring an original hearing, so that this would be the type of review even if the rules did not specify it. In Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217 Gaudron J certainly appeared to construe s 37A as requiring a hearing de novo (which the 2004 Rules now call an “original hearing”). Her Honour said at Fam LR 637, in relation to s 37A(9): “the court must first determine whether the order should be set aside. That issue may be decided on the basis that, even though there is no discernible error in the decision in question, circumstances, including intervening circumstances, require a different result” (emphasis added). Mason CJ and Deane J may have taken the same view, since their Honours say at Fam LR 598 that their comments about a review under what was then O 36A of the old Rules apply equally to a review under s 37A(9) and (10). This view would be consistent with the views of Nygh J on the interpretation of s 37A before the rules were amended to provide expressly for a hearing de novo: In the Marriage of Stredwick (1985) 10 Fam LR 964; (1986) FLC 91–724. Hogan J took a contrary view: see In the Marriage of Marinko (1985) 10 Fam LR 41; FLC 91–609; In the Marriage of Rehfeld (1986) 10 Fam LR 373; FLC 91–725. Whether hearing de novo required by Constitution It is possible that nothing less than a review de novo would satisfy the constitutional requirements. In Harris v Caladine above,, the majority stressed that the judges must retain effective control and supervision of the exercise of delegated power, especially, it would seem, in relation to “judicial” decisions. McHugh J expressly said at 14 Fam LR 644 that anything short of a hearing de novo would make the delegation unconstitutional. The court did not have to decide this question, since it held that as a matter of interpretation the existing law provided the most thorough form of supervision, namely rehearing de novo. Mason CJ and Deane J said at 14 Fam LR 597–8: “it is sufficient to say that, if the exercise of delegated jurisdiction … is subject to

review or appeal by a judge … on questions of [page 199] both fact and law, we consider that the delegation will be valid. Certainly, if the hearing is by way of hearing de novo, the delegation will be valid”. It is doubtful (RC), in the light of the apparently more relaxed approach of Mason CJ and Deane J, that McHugh J’s opinion would be the majority view. See also In the Marriage of Stredwick (1985) 10 Fam LR 964; (1986) FLC 91– 724 (Nygh J). TRANSFER OF PROCEEDINGS [s 37A.12] By registrar Section 37A(11) provides that if a registrar considers that it is not appropriate for an application to be determined by him then he shall not hear, or continue to hear, the application and shall make arrangements for the application to be heard by the court. This section is similar to the repealed s 37A(8)(a). [s 37A.13] By court Section 37A(12) provides that a judge may, on application by a party to proposed proceedings before a registrar, direct that the power proposed to be exercised by the registrar is not to be exercised by a judge. It is not strictly a transfer of proceedings as the registrar must not have commenced to exercise the power and the terms of the section provide for a direction that the power be exercised by a judge. The repealed s 37A(8)(b) provided that where an application was being heard by a registrar and an application was made to the registrar, that he arrange for the first-mentioned application to be determined by the court, then the registrar had to cease hearing the first-mentioned application and arrange for it to be heard by the court. The judge under s 37A(12) has a discretion whether to make a direction that the power is to be exercised by a judge. [s 37A.14] Stay of proceedings Section 37A(13) provides that where an application is made under s 37A(12), the registrar shall not commence to exercise the power in that case until the application has been determined.

This provision, in effect, provides that once an application has been made under s 37A(12) for a direction, it operates as a stay of the proceedings before the registrar. ENFORCEMENT [s 37A.15] Undertaking to registrar In In the Marriage of Arthur (1986) 10 Fam LR 732; FLC 91–717, Baker J said that an undertaking given by a party to a registrar pursuant to the proper exercise of powers by registrars, has the same force and effect as an undertaking given to the court. MISCELLANEOUS [s 37A.16] Other publications “Powers of a Registrar: The New Section 37A” by Stephen O’Ryan (1986) 1 AJFL 78.

____________________

[s 37AA] Delegation to Registrars of powers exercisable by court as constituted in a particular way 37AA (1) Without limiting subsection 37A(1), the powers that may be delegated to a Registrar under that subsection include: (a) the powers of the Court, constituted in any way mentioned in subsection 94(2D), to hear and determine applications to which that subsection applies; and (b) the powers of the Court, constituted in any way mentioned in subsection 94AAA(10), to hear and determine applications to which that subsection applies. [page 200]

(2) If Rules of Court under subsection 37A(1) delegate powers referred to in paragraph (1)(a) or (b) of this section to a Registrar, those Rules may specify modifications of section 37A that are to have effect in relation to the exercise by a Registrar of the delegated powers. (3) In this section: Registrar has the same meaning as in section 37A. [s 37AA insrt Act 189 of 2011 s 3 and Sch 2[8], opn 7 Dec 2011]

[s 37B]

Independence of Registrars

37B (1) [Direction and control] Notwithstanding any provision of this Act other than subsection (3), and any provision of the Public Service Act 1999 or any other law, in the performance of a function or the exercise of a power under this Act, under the regulations or under the standard Rules of Court (other than a power delegated by standard Rules of Court under subsection 37A(1)): (a) the Principal Registrar is subject to the direction and control of the Chief Judge and is not subject to the direction or control of any other person or body; (b) a Registrar is subject to the direction and control of: (i) the Chief Judge; (ii) any other Judge authorized by the Chief Judge to direct and control that Registrar; and (iii) the Principal Registrar; and is not subject to the direction or control of any other person or body; and (c) a Deputy Registrar is subject to the direction and control of:

(i) the Chief Judge; (ii) any other Judge authorized by the Chief Judge to direct and control that Deputy Registrar; (iii) the Principal Registrar; and (iv) the Registrars; and is not subject to the direction or control of any other person or body. [subs (1) am Act 193 of 1985 s 3 and Sch 1; Act 194 of 1999 s 3 and Sch 11[29]; Act 146 of 1999 Sch 1]

(2) [Arrangements by Principal Registrar] Without limiting the generality of subsection (1), the Principal Registrar may, subject to this Act and to any directions of the Chief Judge, make arrangements as to the Registrars or Deputy Registrars who are to perform any functions or exercise any power under this Act, under the regulations or under the standard Rules of Court (including a power delegated by standard Rules of Court under subsection 37A(1)) in particular matters or classes of matters. [subs (2) am Act 193 of 1985 s 3 and Sch 1; Act 194 of 1999 s 3 and Sch 11[29]; Act 146 of 1999 Sch 1]

(3) [Powers subject to Chief Judge] The powers of the Principal Registrar in relation to the Registrars and the Deputy Registrars, and the powers of the Registrars in relation to the Deputy Registrars, shall be exercised subject to the directions of the Chief Judge. (4) Subject to subsection (4A), action must not be taken in relation to the Principal Registrar, a Registrar or a Deputy Registrar (or a former Principal Registrar, Registrar or Deputy Registrar): (a) by an Agency Head under section 15 of the Public

Service Act 1999; or [page 201] (b) by the Australian Public Service Commissioner under section 41B of that Act; or (c) by the Merit Protection Commissioner under section 50A of that Act; unless the Chief Judge has requested the Agency Head, the Australian Public Service Commissioner or the Merit Protection Commissioner to take such action. Note: Sections 15, 41B and 50A of the Public Service Act 1999 make provision for dealing with an alleged breach of the Code of Conduct (within the meaning of that Act) by an APS employee or a former APS employee. [subs (4) subst Act 2 of 2013 s 3 and Sch 3 item 4, opn 1 July 2013]

(4A) Subsection (4) does not apply if the Prime Minister has requested the Australian Public Service Commissioner to take action under section 41B of the Public Service Act 1999 in relation to the Principal Registrar, a Registrar or a Deputy Registrar (or a former Principal Registrar, Registrar or Deputy Registrar). [subs (4A) insrt Act 2 of 2013 s 3 and Sch 3 item 4, opn 1 July 2013]

(5) [Registrar] In this section, Registrar means a Registrar of the Court. [s 37B insrt Act 72 of 1983]

[s 37C] 37C

Oath or affirmation of office A Principal Registrar, Registrar or Deputy Registrar

shall, before proceeding to discharge the duties of the office, take, before the Chief Judge or another Judge of the Family Court, an oath or affirmation in the following form: “I,   , do swear that I will well and truly serve in the office of (Principal Registrar, Registrar or Deputy Registrar, as the case may be) of the Family Court of Australia and that I will do right to all manner of people according to law, without fear or favour, affection or illwill, So help me God.” or “I,   , do solemnly and sincerely promise and declare that ” (as, above, omitting the words “So help me God”). [s 37C insrt Act 143 of 1992 Sch]

DIVISION 7 — PRACTICE AND PROCEDURE [Div 7 am Act 8 of 1988 s 21]

[s 38]

Practice and procedure

38 (1) [Application of regulations, rules] Subject to this Act, the practice and procedure of the Court shall be in accordance with the regulations and the standard Rules of Court. [subs (1) am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[30]]

(2) [Application of High Court Rules] In so far as the provisions applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court. (2A) This section does not apply in relation to proceedings that are transferred to the Court from the Federal Court of Australia.

[subs (2A) insrt Act 8 of 1988 s 22]

[page 202] (3) [Interpretation] In this section, practice and procedure includes all matters with respect to which regulations or standard Rules of Court may be made under this Act. [subs (3) am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[30]] COMMENTARY ON SECTION 38 Introductory comment …. “Practice and procedure” — s 38(3) …. “Subject to this Act” — s 38(1) …. Rules of the High Court — s 38(2) …. When do the High Court Rules apply? …. Limited need for reliance on High Court Rules in view of power to give directions under Ch 1 of the Family Law Rules 2004 …. Appeal …. Contempt …. Resort to state law where necessary …. Re-hearing, not appeal, where order made in absence of party ….

[s 38.1] [s 38.2] [s 38.3] [s 38.4] [s 38.5]

[s 38.6] [s 38.7] [s 38.8] [s 38.9] [s 38.10]

[s 38.1] Introductory comment By s 38(1), subject to the Family Law Act, the practice and procedure of the Family Court of Australia is to be in accordance with the regulations and rules made under the Act. The regulations are authorised by s 125. The rules are authorised by s 123. [s 38.2] “Practice and procedure” — s 38(3) By s 38(3) the expression “practice and procedure” includes all matters with respect to which regulations or rules may be made under the Act. These matters are specified

in various parts of the Act, but particularly in ss 123 and 125. A view of property may be undertaken under the section without its results being used as evidence in the proceedings. The purpose of the view may simply be to give the court a better understanding of the issues to be determined by the evidence given at the hearing: In the Marriage of Fust (1991) 15 Fam LR 77; FLC 92–264. [s 38.3] “Subject to this Act” — s 38(1) This expression in s 38(1) brings into account other provisions of the Act such as s 97. [s 38.4] Rules of the High Court — s 38(2) Section 38(2) provides that in so far as the provisions applicable in accordance with s 38(1) are insufficient, the Rules of the High Court, as in force for the time being, apply mutatis mutandis, so far as they are capable of application and subject to any directions of the Family Court or a judge of that court, to the practice and procedure of the court. [s 38.5] When do the High Court Rules apply? The High Court Rules apply where the regulations and rules are insufficient to a point of practice and procedure so far as those rules are capable of application and subject to any directions of the court or a judge: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483; FLC 90–056; see also In the Marriage of Lamb (No 2) (1977) FLC 90–232; In the Marriage of Miller (No 2) (1976) 1 Fam LR 11,466; FLC 90–042 (Watson J); on appeal to the High Court Miller v Miller (1978) 4 Fam LR 474 at 480 (Jacobs J), and In the Marriage of Mariti (1978) 4 Fam LN 36; FLC 90–464. [s 38.6] Limited need for reliance on High Court Rules in view of power to give directions under Ch 1 of the Family Law Rules 2004 The rules provide for the court to give directions in cases of doubt or difficulty: see r 1.09. The equivalent provision under the old 1984 rules was O 4 r 2. It was held that the court could give directions under this rule without giving any consideration to the High Court Rules: see In the Marriage of Lamb (No 2) (1977) FLC 90–232. See also In the Marriage of Dixon (1977) FLC 90–318. This would seem even more clearly so

[page 203] under the Family Law Rules 2004, because those rules form a coherent whole, and include statements of purpose of the rules. Also, Nygh J has said that the power is not to be confined to unusual situations which do not fall within any of the existing classifications, but extends to situations where the regulations do not make adequate provision in the circumstances of a particular case: In the Marriage of Atwill (1981) 7 Fam LR 573; FLC 91– 107. Thus in practice it is not often necessary to call in aid the High Court Rules. [s 38.7] Appeal It was held that O 70, of the High Court Rules which gives the High Court authority to order that any person may be added as a party to an appeal or that the proceedings be amended and the court may impose such conditions as appear just, and give all consequential directions, are applicable to an appeal to the Full Court under s 94 of the Act: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,485; FLC 90–056. [s 38.8] Contempt Part 11 (formerly Order 56) of the High Court Rules (“Contempt of Court”) would appear to be applicable to contempt proceedings in the Family Court to the extent that the rules involved can be applied and are not displaced by the provisions of the Family Law Act or the rules: In the Marriage of Mariti (1978) 4 Fam LN 36; FLC 90–464. [s 38.9] Resort to state law where necessary The Judiciary Act 1903 (Cth), as amended, provides that: The laws of each State, including the laws relating to procedure, evidence and the competency of witnesses, shall, except as provided by the Constitution of the laws of the Commonwealth, be binding on all Courts exercising Federal jurisdiction in that State in all cases to which they are applicable. There is authority that if the High Court Rules are insufficient then recourse may be made to the appropriate state law or, failing that, to the common law of England by virtue of ss 79 and 80 of the Judiciary Act 1903 (Cth): see In the Marriage of Miller (No 2) (1976) 1 Fam LR 11,466; FLC

90–042 (Watson J), on appeal to the High Court Miller v Miller (1978) 4 Fam LR 474. The effect of these sections is that state laws relating to procedure, evidence, competency of witnesses and modification of the common law, govern the court when it sits in that state. However, in practice there appears to be little room for the application of these provisions, since the Family Law Act, the Evidence Act 1995 and the Family Law Rules 2004 deal very comprehensively with matters of evidence and procedure. [s 38.10] Re-hearing, not appeal, where order made in absence of party It has been held that where an order is made in the absence of a party, an application may be made for a rehearing by a single judge, and indeed that this is the preferable course to filing an appeal: In the Marriage of Smith (1994) 18 Fam LR 133; FLC 92–494 (FC); In the Marriage of Wilkes (1981) 7 Fam LR 58; FLC 91–060 (FC). In the latter case reliance was placed on the High Court Rules, O 36 r 26(1).

____________________

[page 205]

PART IVA — MANAGEMENT OF THE COURT* [Pt IVA insrt Act 157 of 1989 s 13]

DIVISION 1 — MANAGEMENT RESPONSIBILITIES OF THE CHIEF JUDGE AND THE CHIEF EXECUTIVE OFFICER

[s 38A] Court

Management of administrative affairs of

38A (1) The Chief Judge is responsible for managing the administrative affairs of the Court. (2) For that purpose, the Chief Judge has power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth: (a) entering into contracts; and (b) acquiring or disposing of personal property. (3) The powers given to the Chief Judge by subsection (2) are in addition to any powers given to the Chief Judge by any other provision of this Act or by any other Act. (4) Subsection (2) does not authorise the Chief Judge to enter into a contract under which the Commonwealth is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount, except with the approval of the Attorney-General. [subs (4) am Act 122 of 2009 s 3 and Sch 3[2], opn 7 Dec 2009]

[s 38B]

Chief Executive Officer

38B In the management of the administrative affairs of the Court, the Chief Judge is assisted by the Chief Executive Officer. [s 38B am Act 7 of 2013 s 3 and Sch 2 item 6, opn 1 July 2013]

DIVISION 1AA — APPLICATION OF THE FINANCE LAW [Div 1AA insrt Act 62 of 2014 s 3 and Sch 6 item 41, opn 1 July 2014]

[s 38BAA]

Application of the finance law

38BAA For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the following group of persons is a listed entity: (i) the Chief Executive Officer (ii) the officers of the Court referred to in subsection 38N(1); (iii) the staff of the Registries referred to in subsection 38N(7); (iv) the officers of the Federal Circuit Court referred to in subsection 99(1) of the Federal Circuit Court of Australia Act 1999; *Editor’s note: Section 23 of the Courts and Tribunals Administration Amendment Act 1989 No 157, provides as follows: “Transitional arrangements — Family Court 23 Anything done under the Family Law Act 1976 before the commencement of Part 4 has the same effect, after that commencement, as it would have had if that Part had not been

enacted.”

[page 206]

(b) (c) (d) (e)

(v) the staff of the Federal Circuit Court referred to in section 112 of that Act; and the listed entity is to be known as the Family Court and Federal Circuit Court; and the Chief Executive Officer is the accountable authority of the listed entity; and the persons referred to in paragraph (a) are officials of the listed entity; and the purposes of the listed entity include the functions of the Chief Executive Officer under: (i) sections 38B and 38BA of this Act; and (ii) sections 93A and 96 of the Federal Circuit Court of Australia Act 1999.

DIVISION 1A — ADMINISTRATION OF COURT’S FAMILY SERVICES [Div 1A insrt Act 46 of 2006 s 3 and Sch 4 item 42, opn 1 July 2006]

[s 38BA] Chief Executive Officer has functions of family consultants 38BA (1) The Chief Executive Officer has all of the functions conferred on family consultants by section 11A, and any associated powers and duties. (2) Without limiting subsection (1), sections 11C (admissibility

of communications with family consultants) and 11D (immunity of family consultants) apply to the Chief Executive Officer while the Chief Executive Officer is performing those functions. (3) The Chief Executive Officer is responsible for administering the functions of family consultants.

[s 38BB] Chief Executive Officer may delegate powers and functions that relate to family consultants 38BB (1) The Chief Executive Officer may, in writing, delegate to a family consultant any of the Chief Executive Officer’s powers, functions and duties in relation to the functions of family consultants mentioned in section 11A. (2) A delegate is, in the exercise of a delegated power, function or duty, subject to the directions of the Chief Executive Officer.

[s 38BC] Chief Executive Officer may give directions that relate to family services functions 38BC The Chief Executive Officer may give directions that relate to: (a) a Court officer’s functions as a family consultant; or (b) a Court officer’s or staff member’s functions as a family counsellor or family dispute resolution practitioner.

[s 38BD] Chief Executive Officer may authorise officer or staff member to act as family counsellor or family dispute resolution practitioner 38BD

(1) The Chief Executive Officer may authorise an

officer or staff member of the Family Court to provide family counselling under this Act. [page 207] (2) The Chief Executive Officer may authorise an officer or staff member of the Family Court to provide family dispute resolution under this Act. (3) If an officer who is a family consultant also becomes a family counsellor, or family dispute resolution practitioner, because of an authorisation under this section: (a) section 11C (admissibility of communications with family consultants) does not apply to the officer at any time while the officer is acting as a family counsellor or family dispute resolution practitioner; and (b) the officer must not perform the functions of a family consultant in relation to particular proceedings, if the officer has conducted family counselling or family dispute resolution with a person involved in those proceedings. COMMENTARY ON SECTION 38BD Admissibility of communications with family consultants, family counsellors, and family dispute resolution practitioners: subs (3) ….

[s 38BD.1]

[s 38BD.1] Admissibility of communications with family consultants, family counsellors, and family dispute resolution practitioners: subs (3) Subsections (1) and (2) enable the CEO to authorise officers or members of court staff to provide family counselling and family dispute resolution. Subsection (3) deals with a problem that could arise where such roles overlap

with that of a family consultant. Broadly speaking, evidence cannot be admitted of communications with family counsellors and family dispute resolution practitioners (ss 10E, 10J), while communications with family consultants are normally admissible (s 11B). Section 38BD deals with the (unusual) situation where a person who has acted as a family consultant becomes a family counsellor or a family dispute resolution practitioner. It provides, perhaps unnecessarily, that the section making the statements admissible (s 11B) does not apply when the person is acting as a family counsellor or a family dispute resolution practitioner. It also provides that if the person has acted as a family counsellor or a family dispute resolution practitioner, the person cannot later act as a family consultant in the same proceedings. The EM says in para 280 that subs 38BD(3) “ensures that family consultants who are authorised by the Chief Executive Officer, under this section, to provide family counselling or family dispute resolution for the Family Court do not combine the two roles, by, for example, attempting to provide services as both a family consultant and a family dispute resolution practitioner in the one case. It is imperative that the work of family consultants is kept separate from the work of family counsellors and family dispute resolution practitioners as the confidentiality and admissibility applying to the processes are completely different and it would be impossible for a practitioner to offer both types of services without compromising each one”.

____________________ DIVISION 2 — CHIEF EXECUTIVE OFFICER [Div 2 heading subst Act 7 of 2013 s 3 and Sch 2 item 7, opn 1 July 2013]

[s 38C] Establishment and appointment of Chief Executive Officer 38C (1) There is to be a Chief Executive Officer of the Family Court and the Federal Circuit Court.

(2) The Chief Executive Officer is to be appointed by the Governor-General on the joint nomination of the Chief Judge of the Family Court and the Chief Judge of the Federal Circuit Court. [s 38C subst Act 7 of 2013 s 3 and Sch 2 item 8, opn 1 July 2013]

[page 208]

[s 38D]

Powers of Chief Executive Officer

38D (1) The Chief Executive Officer has power to do all things necessary or convenient to be done for the purpose of assisting the Chief Judge under section 38B. (2) In particular, the Chief Executive Officer may act on behalf of the Chief Judge in relation to the administrative affairs of the Court. (3) The Chief Judge may give the Chief Executive Officer directions regarding the exercise of his or her powers under this Act. [subs (3) am Act 7 of 2013 s 3 and Sch 2 item 9, opn 1 July 2013]

[s 38E]

Remuneration of Chief Executive Officer

38E (1) The Chief Executive Officer is to be paid the remuneration and allowances determined by the Remuneration Tribunal. (2) If there is no determination in force, the Chief Executive Officer is to be paid such remuneration as is prescribed. (3) The Chief Executive Officer is to be paid such other allowances as are prescribed. (4) Remuneration and allowances payable to the Chief

Executive Officer under this section are to be paid out of money appropriated by the Parliament for the purposes of the Court.

[s 38F] Terms and conditions of appointment of Chief Executive Officer 38F (1) The Chief Executive Officer holds office for the period (not longer than 5 years) specified in the instrument of his or her appointment, but is eligible for re-appointment. (2) [subs (2) rep Act 159 of 2001 s 3 and Sch 1 item 55 opn 29 Oct 2001] (3) [subs (3) rep Act 159 of 2001 s 3 and Sch 1 item 55 opn 29 Oct 2001] (4) The Chief Executive Officer holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined jointly by the Chief Judge and the Chief Judge of the Federal Circuit Court. [subs (4) am Act 7 of 2013 s 3 and Sch 2 item 10, opn 1 July 2013]

[s 38G]

Leave of absence

38G (1) The Chief Executive Officer has such recreation leave entitlements as are determined by the Remuneration Tribunal. [subs (1) am Act 146 of 1999 Sch 1]

(2) The Chief Judge and the Chief Judge of the Federal Circuit Court may jointly grant the Chief Executive Officer leave of absence, other than recreation leave, on such terms and conditions as the Chief Judge and the Chief Judge of the Federal Circuit Court, with the approval of the Attorney-General, jointly determine. [subs (2) subst Act 7 of 2013 s 3 and Sch 2 item 11, opn 1 July 2013] [s 38G subst Act 122 of 1991 Sch]

[s 38H]

Resignation

38H The Chief Executive Officer may resign by giving a signed notice of resignation to the Governor-General. [page 209]

[s 38J] Officer

Outside employment of Chief Executive

38J (1) Except with the consent of the Chief Judge and the Chief Judge of the Federal Circuit Court, the Chief Executive Officer must not engage in paid employment outside the duties of his or her office. [subs (1) am Act 7 of 2013 s 3 and Sch 2 item 12, opn 1 July 2013]

(2) The reference in subsection (1) to paid employment does not include service in the Defence Force.

[s 38K]

Termination of appointment

38K (1) The Governor-General may terminate the appointment of the Chief Executive Officer for misbehaviour or physical or mental incapacity. (2) The Governor-General is required to terminate the appointment of the Chief Executive Officer if he or she: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or (b) is absent from duty, except on leave of absence, for 14

consecutive days or for 28 days in any 12 months; or (c) engages in paid employment contrary to section 38J; or (d) fails, without reasonable excuse, to comply with section 38L. [subs (2) am Act 122 of 1991 Sch]

(3) The Governor-General may, with the consent of the Chief Executive Officer who is: (a) an eligible employee for the purposes of the Superannuation Act 1976; or (b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or (c) an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; retire the Chief Executive Officer from office on the ground of incapacity. [subs (3) subst Act 94 of 1992 Sch; am Act 26 of 2008 s 3 and sch 1[61], opn 23 June 2008]

(4) In spite of anything contained in this section, if the Chief Executive Officer: (a) is an eligible employee for the purposes of the Superannuation Act 1976; and (b) has not reached his or her maximum retiring age (within the meaning of that Act); he or she is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act. [subs (4) subst Act 26 of 2008 s 3 and Sch 1[62], opn 23 June 2008; am Act 58 of 2011 s 3 and Sch 1[84], opn 1 July 2011]

(5) In spite of anything contained in this section, if the Chief Executive Officer: (a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and (b) is under 60 years of age; [page 210] he or she is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act. [subs (5) insrt Act 94 of 1992 Sch; am Act 26 of 2008 s 3 and Sch 1[63], opn 23 June 2008; Act 58 of 2011 s 3 and Sch 1[84], opn 1 July 2011]

(6) In spite of anything contained in this section, if the Chief Executive Officer: (a) is an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and (b) is under 60 years of age; he or she is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act. [subs (6) insrt Act 26 of 2008 s 3 and Sch 1[64], opn 23 June 2008; am Act 58 of 2011 s 3 and Sch 1[84], opn 1 July 2011]

[s 38L] Officer

Disclosure of interests by Chief Executive

38L (1) The Chief Executive Officer must give written notice to the Chief Judge and the Chief Judge of the Federal Circuit

Court of all direct or indirect pecuniary interests that the Chief Executive Officer has or acquires in any business or in any body corporate carrying on a business. (2) The Chief Executive Officer must give written notice to the Chief Judge and the Chief Judge of the Federal Circuit Court of all material personal interests that the Chief Executive Officer has that relate to the affairs of the Family Court or the Federal Circuit Court. [subs (2) insrt Act 62 of 2014 s 3 and Sch 9 item 13, opn 1 July 2014]

(3) Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the Chief Executive Officer. [subs (3) insrt Act 62 of 2014 s 3 and Sch 9 item 13, opn 1 July 2014] [s 38L am Act 7 of 2013 s 3 and Sch 2 item 13, opn 1 July 2013; Act 62 of 2014 s 3 and Sch 9 item 12, opn 1 July 2014]

[s 38M]

Acting Chief Executive Officer

38M The Chief Judge and the Chief Judge of the Federal Circuit Court may, in writing, jointly appoint a person to act in the office of Chief Executive Officer: (a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(2) [subs (2) rep Act 46 of 2011 s 3 and Sch 2[586], opn 27 Dec 2011]

(3) [subs (3) rep Act 46 of 2011 s 3 and Sch 2[586], opn 27 Dec 2011] [s 38M am Act 46 of 2011 s 3 and Sch 2[584]–[585], opn 27 Dec 2011; Act 7 of 2013 s 3 and Sch 2 item 14, opn 1 July 2013]

[page 211] DIVISION 3 — OTHER OFFICERS AND STAFF OF REGISTRIES

[s 38N] Officer

Personnel other than Chief Executive

38N (1) In addition to the Chief Executive Officer, there are the following officers of the Court: (a) a Principal Registrar of the Court; (b) such Registrars and Deputy Registrars of the Court as are necessary; (c) such Registry Managers of the Court as are necessary; (d) such family consultants as are necessary; (da) [repealed] (daa) [repealed] (db) [repealed] (e) the Marshal of the Court; (f) such Deputy Marshals of the Court as are necessary. [subs (1) am Act 113 of 1991 s 6; Act 143 of 2000 s 3 and Sch 3 item 35 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 3 items 9–12 opn 14 Jan 2004; Act 46 of 2006 s 3 and Sch 4 item 43, opn 1 July 2006]

(2) The officers of the Court, other than the Chief Executive

Officer, have such duties, powers and functions as are given to them by this Act, by the standard Rules of Court or by the Chief Judge. [subs (2) am Act 194 of 1999 s 3 and Sch 11[31]]

(3) The officers of the Court are appointed by the Chief Executive Officer. (4) The officers of the Court, other than the Chief Executive Officer and the Deputy Marshals, are to be persons engaged under the Public Service Act 1999. [subs (4) am Act 146 of 1999 Sch 1]

(5) The Deputy Marshals may be persons engaged under the Public Service Act 1999. [subs (5) am Act 146 of 1999 Sch 1]

(6) The Chief Executive Officer may, on behalf of the Chief Judge, arrange with an Agency Head (within the meaning of the Public Service Act 1999), or with an authority of the Commonwealth, for the services of officers or employees of the Department or authority to be made available for the purposes of the Court. [subs (6) am Act 146 of 1999 Sch 1]

(7) There are to be such staff of the Registries as are necessary. (8) The staff of the Registries is to consist of persons engaged under the Public Service Act 1999. [subs (8) am Act 146 of 1999 Sch 1]

[s 38P]

Marshal

38P (1) The Marshal of the Court is responsible for the service and execution of all process of the Court directed to the Marshal.

(2) The Marshal is also responsible for: (a) dealing, on behalf of the Court, with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court directed to members of any of those police forces; and (b) the security of the Court and the personal security of the Judges and officers of the Court; and [page 212] (c) taking, receiving and detaining all persons committed to his or her custody by the Court; and (d) discharging such persons when so directed by the Court or otherwise required by law. (3) A Deputy Marshal may, subject to any directions of the Marshal, exercise or perform any of the powers and functions of the Marshal. (4) The Marshal or a Deputy Marshal may authorise persons to assist him or her in the exercise of any of his or her powers or the performance of any of his or her functions.

[s 38Q] Statutory Agency etc for purposes of Public Service Act 38Q For the purposes of the Public Service Act 1999: (a) the Chief Executive Officer and the APS employees assisting the Chief Executive Officer together constitute a Statutory Agency; and

(b) the Chief Executive Officer is the Head of that Statutory Agency. Note: The Statutory Agency declared by this section also includes officers and members of staff of the Federal Circuit Court who are APS employees (see section 112A of the Federal Circuit Court of Australia Act 1999). [s 38Q subst Act 146 of 1999 Sch 1; am Act 7 of 2013 s 3 and Sch 2 item 15, opn 1 July 2013]

[s 38R]

Engagement of consultants etc

38R (1) The Chief Executive Officer may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Chief Executive Officer. (1A) The Chief Executive Officer may engage persons to perform: (a) family counselling services under this Act; or (b) family dispute resolution services under this Act. [subs (1A) insrt Act 46 of 2006 s 3 and Sch 4 item 44, opn 1 July 2006]

(2) An engagement under subsection (1) or (1A) is to be made: (a) on behalf of the Commonwealth; and (b) by written agreement. [subs (2) am Act 46 of 2006 s 3 and Sch 4 item 45, opn 1 July 2006]

DIVISION 4 — MISCELLANEOUS ADMINISTRATIVE MATTERS

[s 38S]

Annual report

38S (1) As soon as practicable after 30 June in each year, the Chief Judge must prepare a report of the management of the

administrative affairs of the Court during the year. Note: The report prepared by the Chief Executive Officer and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 may be included in the report prepared under this section. [subs (1) am Act 62 of 2014 s 3 and Sch 9 items 14, 15, opn 1 July 2014]

(2) A report prepared after 30 June in a year must be given to the Attorney-General by 15 October of that year. [subs (2) insrt Act 62 of 2014 s 3 and Sch 9 item 16, opn 1 July 2014]

[page 213] (3) The Attorney-General must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable. [s 38S insrt Act 152 of 1997 s 3 and Sch 2]

[s 38T] 38T

[s 38U] 38U

[s 38V] 38V

Proper accounts to be kept [s 38T rep Act 152 of 1997 s 3 and Sch 2]

Audit [s 38U rep Act 152 of 1997 s 3 and Sch 2]

Estimates [s 38V rep Act 136 of 1991 Sch]

[s 38W] Delegation of administrative powers of Chief Judge 38W

The Chief Judge may, in writing, delegate all or any of

his or her powers under section 38A to any one or more of the Judges.

[s 38X] Proceedings arising out of administration of Court 38X Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Court under this Part, including any proceeding relating to anything done by the Chief Executive Officer under this Part, may be instituted by or against the Commonwealth, as the case requires.

[s 38Y] Protection of persons involved in handling etc complaints 38Y (1) In exercising powers or performing functions under paragraph 21B(1A)(c) and subsection 21B(1B), or assisting in exercising those powers or performing those functions, a complaint handler has the same protection and immunity as a Justice of the High Court. (2) In authorising a person or body under subsection 21B(3A), the Chief Judge has the same protection and immunity as a Justice of the High Court. (3) A witness requested to attend, or appearing, before a complaint handler handling a complaint has the same protection, and is subject to the same liabilities in a proceeding, as a witness in a case tried by the High Court. (4) A lawyer assisting, or appearing on behalf of a person before, a complaint handler handling a complaint has the same protection and immunity as a barrister has in appearing for a party

in proceedings in the High Court. [s 38Y insrt Act 187 of 2012 s 3 and Sch 1 item 12, opn 12 Apr 2013]

[page 215]

PART V — JURISDICTION OF COURTS [heading am Act 115 of 2008 s 3 and Sch 1[31], opn 1 Mar 2009]

DIVISION 1 — JURISDICTION IN MATRIMONIAL CAUSES [Div 1 insrt Act 115 of 2008 s 3 and Sch 1[32], opn 1 Mar 2009]

[s 39]

Jurisdiction in matrimonial causes

39 (1) [Institution of matrimonial cause] Subject to this Part, a matrimonial cause may be instituted under this Act: (a) in the Family Court; or (b) in the Supreme Court of a State or a Territory. [subs (1) am Act 72 of 1983 s 18]

(1A) Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in the Federal Circuit Court of Australia. [subs (1A) insrt Act 194 of 1999 s 3 and Sch 11[32]; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) [Institution in court of summary jurisdiction] Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) may be instituted under this Act in a Court of summary jurisdiction of a State or Territory.

[subs (2) am Act 72 of 1983 s 18; Act 8 of 1988 s 23]

(3) [Proceedings for dissolution] Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage: (a) is an Australian citizen; (b) is domiciled in Australia; or (c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date. [subs (3) am Act 72 of 1983 s 18; Act 98 of 2005 s 2 and Sch 1, cl 49–50, opn 3 Aug 2005]

(4) [Proceedings under s 4(1)] Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if: (a) in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage — either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date; and (b) in any other case — any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date. [subs (4) subst Act 72 of 1983 s 18; am Act 181 of 1987 s 16; Act 98 of 2005 s 2 and Sch 1, cl 51, opn 3 Aug 2005]

(4A) [“relevant date”] In subsection (4), relevant date, in relation to proceedings, means: (a) if the application instituting the proceedings is filed in a

court — the date on which the application is so filed; or [page 216] (b) in any other case — the date on which the application instituting the proceedings is made. [subs (4A) insrt Act 72 of 1983 s 18]

(5) [Supreme Courts] Subject to this Part and to section 111AA, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which: (a) matrimonial causes are instituted under this Act; or (b) matrimonial causes are continued in accordance with section 9; or (c) [repealed] (d) proceedings are instituted under regulations made for the purposes of section 109, 110, 111, 111A or 111B or of paragraph 125(1)(f) or (g) or under Rules of Court made for the purposes of paragraph 123(1)(r); or (da) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or (e) proceedings are instituted under section 117A. [subs (5) subst Act 72 of 1983 s 18; am Act 72 of 1983 s 76 and Sch; Act 181 of 1987 s 63 and Sch; am Act 34 of 1997 s 3 and Sch 7; Act 89 of 1998 s 3 and Sch 1; Act 69 of 2002 s 3 and Sch 1 items 2–4, opn 1 Aug 2003; am Act 82 of 2007 s 3 and Sch 2[102], opn 19 July 2007]

(5AA) [Federal Circuit Court of Australia] Subject to this Part and to section 111AA, the Federal Circuit Court of Australia has, and is taken always to have had, jurisdiction with respect to matters arising under this Act in respect of which matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act. [subs (5AA) insrt Act 161 of 2000 s 3 and Sch 1 Pt 1 item 3; am Act 82 of 2007 s 3 and Sch 2[102], opn 19 July 2007; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(5A) [Federal Circuit Court of Australia] Subject to this Part and to section 111AA, the Federal Circuit Court of Australia has jurisdiction with respect to matters arising under this Act in respect of which proceedings are instituted under: (a) regulations made for the purposes of section 109, 110, 111, 111A or 111B; or (b) regulations made for the purposes of paragraph 125(1)(f) or (g); or (c) section 117A; or (d) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ. [subs (5A) insrt Act 194 of 1999 s 3 and Sch 11[33]; am Act 69 of 2002 s 3 and Sch 1 item 5, opn 1 Aug 2003; Act 82 of 2007 s 3 and Sch 2[102], opn 19 July 2007; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(6) [Courts of summary jurisdiction] Subject to this Part and to section 111AA, each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory,

with respect to matters arising under this Act in respect of which: (a) matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act; or (b) matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are continued in accordance with section 9; or [page 217] (c) [repealed] (d) proceedings are instituted under: (i) regulations made for the purposes of section 109, 110, 111, 111A or 111B; or (ii) regulations made for the purposes of paragraph 125(1)(f) or (g); or (iii) standard Rules of Court made for the purposes of paragraph 123(1)(r); or (iv) Rules of Court made for the purposes of paragraph 87(1)(j) of the Federal Circuit Court of Australia Act 1999; or (da) proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or (e) proceedings are instituted under section 117A. Note: Under section 39A of the Judiciary Act 1903, the jurisdiction

conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court. [subs (6) subst Act 72 of 1983 s 18; am Act 72 of 1983 s 76 and Sch; Act 181 of 1987 s 63 and Sch; Act 8 of 1988 s 23; Act 34 of 1997 s 3 and Sch 7; Act 89 of 1998 s 3 and Sch 1; Act 194 of 1999 s 3 and Sch 11[34]; Act 69 of 2002 s 3 and Sch 1 items 6–8, opn 1 Aug 2003; Act 46 of 2006 s 3 and Sch 10 item 1, opn 22 May 2006; Act 82 of 2007 s 3 and Sch 2[102], opn 19 July 2007; Act 13 of 2013 s 3 and Sch 1 item 282, opn 12 Apr 2013]

(7) The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory. [subs (7) subst Act 22 of 2006 s 3 and Sch 1 item 11, opn 1 July 2006]

(7AAA) Without limiting the generality of subsection (7), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following: (a) proceedings of specified classes; (b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory; (c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way. [subs (7AAA) subst Act 22 of 2006 s 3 and Sch 1 item 11, opn 1 July 2006]

(7AA) [Effect of Proclamation] A court of summary jurisdiction in a State or Territory shall not hear or determine proceedings under this Act instituted in or transferred to that court otherwise than in accordance with any Proclamation in force under subsection (7). [subs (7AA) insrt Act 72 of 1983 s 18]

(7A) [Revocation of Proclamation] The Governor-General may, by Proclamation, declare that a Proclamation made under subsection (7) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (7)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date. [subs (7A) insrt Act 23 of 1979 s 7]

(8) [Jurisdiction of Territory court] Jurisdiction with respect to a matter arising under this Act in respect of which a matrimonial cause is instituted under this Act is not conferred on a court of a Territory unless at least one of the parties to the proceedings [page 218] is, at the date of the institution of the proceedings or the date of the transfer of the proceedings to the court of the Territory, ordinarily resident in the Territory. [subs (8) am Act 72 of 1983 s 18]

(9) [Extent of jurisdiction] The jurisdiction conferred on or invested in a court by this section includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with this Act. [subs (9) subst Act 63 of 1976 s 17; am Act 72 of 1983 s 18]

COMMENTARY ON SECTION 39 PRELIMINARY Introductory comments …. Jurisdiction — “clearly inappropriate forum” rule …. Matrimonial cause — s 39(1) …. Courts of summary jurisdiction — s 39(2) …. REQUIREMENTS FOR DIVORCE PROCEEDINGS Requirements for divorce proceedings: s 39(3) …. Party to a marriage …. Australian citizen …. Domicile …. Ordinary residence in Australia …. Present in Australia ….

[s 39.1] [s 39.1A] [s 39.2] [s 39.3]

[s 39.4] [s 39.5] [s 39.6] [s 39.7] [s 39.8] [s 39.9]

REQUIREMENTS FOR PROCEEDINGS BETWEEN PARTIES TO A MARRIAGE AND PROCEEDINGS FOR DECLARATIONS OF VALIDITY ETC Proceedings between the parties to a marriage or proceedings for a declaration as to the validity of a marriage etc — s 39(4)(a) …. Relevant date — s 39(4A) ….

[s 39.10] [s 39.11]

REQUIREMENTS FOR PROCEEDINGS UNDER PARAGRAPH (F) OF “MATRIMONIAL CAUSE” Jurisdiction in proceedings referred to in paragraph (f) of matrimonial cause ….

[s 39.12]

REQUIREMENTS FOR OTHER MATRIMONIAL CAUSES Introductory comment ….

[s 39.13]

WHICH COURTS MAY EXERCISE JURISDICTION Jurisdiction of Federal Magistrates Court …. Regulating the concurrent jurisdictions of the Family

[s 39.14]

Court and the Federal Magistrates Court …. Jurisdiction of state or territory Supreme Courts — s 39(5) …. Proclamations affecting the jurisdiction of state or territory Supreme Courts …. Courts of summary jurisdiction — s 39(6) …. ‘Ineffective’ orders made by officers of courts of summary jurisdiction: effect of Judiciary Act 1903, s 39(2)(d) …. Proclamation limiting family law jurisdiction of summary courts — s 39(7) …. A court of a territory — s 39(8) …. Transfer of proceedings — s 39(9) …. Courts in which proceedings may be instituted ….

[s 39.15] [s 39.16] [s 39.17] [s 39.18]

[s 39.18A] [s 39.19] [s 39.20] [s 39.21] [s 39.22] [page 219]

PRELIMINARY [s 39.1] Introductory comments Purpose of section Section 39 makes general provision for the exercise of jurisdiction under the Act, except in proceedings under Pt VII relating to children. It determines which courts can exercise jurisdiction under the Act, and jurisdictional requirements for contact with Australia: Citizenship: see [s 39.6] Domicile: see [s 39.7] Residence: see s 4, “ordinarily resident” [s 39.8]. Presence: see [s 39.9]. Significance of definition of “matrimonial cause” Section 39 builds on the definition of “matrimonial cause” set out in s 4(1). The terms of that definition, in conjunction with the provisions of s 39, define the limits of jurisdiction under the Act. See also s 31, which also builds on the definition

of “matrimonial cause”. Proceedings relating to children not included Jurisdiction in proceedings relating to children for parenting orders is governed by the provisions of Pt VII, not by s 39 and the definition of matrimonial cause. Prior to 1 April 1988, jurisdiction over children was also based on s 39 in conjunction with “matrimonial cause”. However the 1987 amendments relocated the provisions relating to jurisdiction over children, as well as the substantive law, into Pt VII, where they have remained. In Re Wakim; Ex parte McNally (1999) 163 ALR 270; 24 Fam LR 669 itself, Hayne and Gummow JJ made the following observations with regard to accrued jurisdiction (at p 711): “There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are ‘completely disparate’, ‘completely separate and distinct’ or ‘distinct and unrelated’ are not part of the same matter. Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.” [s 39.1A] Jurisdiction — “clearly inappropriate forum” rule In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124 the High Court, departing from certain decisions of the House of Lords, formulated the rule that a stay of proceedings should be granted in the Australian court only if it is a “clearly inappropriate forum”. This will be the case if continuation of the proceedings in the Australian court would be oppressive, in the sense of “seriously and unfairly, burdensome, prejudicial or damaging” or “vexatious”, in the sense of “productive of serious and unjustified trouble and

harassment”. The High Court also held that in determining whether the Australian court is a clearly inappropriate forum “the discussion by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 477–8, 482–4, of relevant ‘connecting factors’ and ‘a legitimate personal and juridical advantage’ provides valuable assistance” (see Voth at CLR 564–5; ALR 141). The principle received further elaboration by the High Court in Henry v Henry (1996) 20 Fam LR 171. Although the High Court confirmed that the Voth principle applied in proceedings under the Family Law Act, it was critical of the formulation of the test by the Full Court in In the Marriage of Gilmore (1993) 16 Fam LR 285; FLC 92–353, holding that the key passage at 291 was misleading in three important respects. In particular the High Court [page 220] held that that formulation gave undue emphasis to the prima facie right of a party to invoke the jurisdiction of a court. It held that while there may be cases in which the notion of a prima facie right has some role in determining whether a stay should be granted, and as for example in a finally balanced contest, “there are also cases in which that notion can do little more than indicate that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country”. Proceedings in multiple courts The High Court also identified and criticised what it considered to be an assumption in Gilmore, above, that “the duplication of proceedings in another country is not, of itself, relevant to the question whether Australia is a clearly inappropriate forum”. The High Court held that “it is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue”.

The fact that there are or may be simultaneous proceedings in different countries with respect to the same controversy is therefore “highly relevant to the question whether the local proceedings are oppressive in the sense of ‘seriously or unfairly burdensome, prejudicial or damaging’, or ‘vexatious’, in the sense of ‘productive of serious and unjustified trouble and harassment’”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation”. Relevant factors The High Court wrote as follows as to the considerations relevant to a stay of proceedings between a husband and wife with respect to their marital relationship: “Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction for the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine the question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other’s orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, is, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy. “Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that

depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.” [s 39.2] Matrimonial cause — s 39(1) Section 39, together with s 31, invests the Family Court with jurisdiction to hear and determine proceedings for matrimonial causes instituted or continued under the Act. “Matrimonial cause” is defined in s 4(1). [s 39.3] Courts of summary jurisdiction — s 39(2) Courts of summary jurisdiction of the states and territories are invested with jurisdiction under the Family Law Act to deal with all matrimonial causes other than proceedings for nullity and declarations as to the validity of a [page 221] marriage or of the dissolution or annulment of a marriage. See also s 39(6) and (7) and commentary thereto. The phrase “courts of summary jurisdiction” is defined in s 26(d) of the Acts Interpretation Act 1901 (Cth). Restrictions on granting of divorce Only prescribed courts of summary jurisdiction may deal with applications for dissolution of marriage: see s 44A, below. Restrictions on property proceedings Contested proceedings relating to property exceeding a value of $20,000 must be transferred from a court of summary jurisdiction unless the parties consent: see s 46. REQUIREMENTS FOR DIVORCE PROCEEDINGS [s 39.4] Requirements for divorce proceedings: s 39(3) Divorce proceedings Proceedings between the parties to a marriage or by the parties to a marriage for divorce are a “matrimonial cause” under s 4(1).

Jurisdictional requirements Section 39(3) requires, for jurisdiction to be exercised in divorce proceedings, that either party to the marriage is, at the date on which the application is filed, either: (a) an Australian citizen; or (b) domiciled in Australia; or (c) ordinarily resident in Australia and has been so resident for one year immediately preceding that date. The meanings of these terms are explained in the following paragraphs. [s 39.5] Party to a marriage The phrase “party to a marriage” is defined in s 4(2) to include a party whose marriage has been dissolved or annulled whether in Australia or elsewhere. [s 39.6] Australian citizen Introductory comment The legislation governing Australian citizenship is in the Australian Citizenship Act 1948 (Cth), as amended. Australian citizenship may be acquired by (a) birth in Australia; (b) descent from an Australian parent; or (c) the grant of Australian citizenship. Apart from the children of foreign diplomats temporarily stationed in Australia, or of enemy aliens in belligerent occupation of Australian territory, all persons born in Australia acquire citizenship by reason of that birth. “Australia” includes the territories of Norfolk Island, Cocos (Keeling) Islands (as regards persons born there since it became an Australian territory in 1955) and Christmas Island (as regards persons born there since it became an Australian territory in 1958). Papua New Guinea ceased to be an Australian territory on 18 September 1975. Proof of citizenship Nationality by birth or descent can be proven by a certificate of birth stating that the person concerned was born in Australia or

that the birth was registered at an Australian Consulate under s 11 of the Australian Citizenship Act or by a marriage certificate which states the place of birth to be in Australia: see s 102. Australian nationality by naturalization, registration, notification or grant of citizenship can be proven by a certificate issued by the secretary to the Department of Immigration under s 46A of the Australian Citizenship Act. [page 222] Citizenship Act 1948 (Cth) As to citizenship by birth, see s 10(1) of the Australian Citizenship Act 1948 (Cth). As to citizenship by descent, see s 11 of the Australian Citizenship Act. As to citizenship by grant, see ss 12 to 15 of the Australian Citizenship Act. As to loss of citizenship, see ss 17, 18, 19, 21, 23 of the Australian Citizenship Act. As to citizenship of persons prior to the commencement of the Australian Citizenship Act, see s 25(1) of the Australian Citizenship Act. [s 39.7] Domicile Introductory comment Domicile is, generally speaking, more difficult to prove than Australian citizenship or residence in Australia and it is likely to decline in importance as alternative grounds for jurisdiction are available. Domicile, however, is included in the Act to overcome problems that may arise with regard to the recognition of Australian decrees in overseas countries whose basis for recognition of jurisdiction in marriage and the dissolution of marriage is domicile. Domicile is the relationship that the law creates between an individual and a particular locality or country. To every adult person the law ascribes a domicile and that domicile remains his or her fixed domicile until a new and different domicile takes its place: see Bell v Kennedy (1868) LR 1 Sc & Div 307; see also Nygh P E, Conflict of Laws in Australia (5th ed), ch 12.

The Domicile Act 1982, which commenced on 1 July 1982, made a number of significant changes to the law relating to domicile for the purposes of all Commonwealth laws (including the Family Law Act 1975). Domicile Acts Certain reforms to the law of domicile were made in Australia, in particular in relation to the domicile of married women by the Family Law Act and the Marriage Act. In Australia there came into operation as from 1 July 1982 the Domicile Act 1982 (Cth). The Domicile Act applies whenever a domicile has to be determined at a time after the commencement of the Act, on the basis that the Act has always been in force. The provisions relating to domicile in the Family Law Act and the Marriage Act were repealed by the Domicile (Consequential Amendments) Act 1982 but, by virtue of s 8(b) of the Acts Interpretation Act 1901 (Cth), must be treated as still operative even if the domicile has to be determined at a date prior to 1 July 1982, in a situation where prior to the commencement of the Domicile Act their application would have been relevant: see Nygh P E, Conflict of Laws in Australia (5th ed) at p 174. Domicile of origin At common law a nuptial child took the domicile of his or her father at birth, and an ex-nuptial child that of his or her mother. At common law the domicile of origin could be displaced by the acquisition of a domicile of choice, but it could never be entirely abandoned. A person abandoning a domicile of choice without acquiring a new one would revert to his or her domicile of origin, even though he or she had no intention of ever returning to his or her country of origin. Section 7 of the Domicile Act has abolished this rule of revival and replaced it with a rule that the existing domicile, whether acquired by choice or by dependence, continues until a new domicile is acquired. The rule of revival will, however, be still relevant when the domicile of a person has to be determined at a date prior to the commencement of the Domicile Act: see Nygh P E, Conflict of Laws in Australia (4th ed) at p 138. Domicile of choice Domicile of choice is the domicile which a person of independent capacity acquires as a result of his or her voluntary choice of a

new place of residence. [page 223] A person acquires a domicile of choice in a country if he or she is lawfully present there with the intention of remaining in that country indefinitely. The elements of physical presence and intention must occur at the same time. Section 10 of the Domicile Act provides that the necessary intention is “the intention to make his home indefinitely in that country”. At common law, a domicile of choice was abandoned when a person left the territory in which he or she was domiciled with the intention of never returning, or when, having originally left the territory for a limited purpose, subsequently decided not to return. The elements were absence from the territory and an intention not to return. If the person had not acquired a new domicile of choice, then the domicile of origin would revive until a new domicile of choice was acquired. This remains the law when a domicile has to be determined at a date prior to the commencement of the Domicile Act, however after that date the rule of law whereby a domicile of origin revives upon the abandonment of the domicile of choice is abolished. By s 7 of the Domicile Act, the domicile a person has at any time continues until he acquires a different domicile: see Nygh P E, Conflict of Laws in Australia (4th ed) at p 143. Domicile of dependants Domicile of dependants is sometimes called a domicile by operation of law. It is the domicile of a person who by law lacks the capacity to acquire a domicile for him or herself and whose domicile is determined by reference to that of another person, such as a husband or a parent. At common law, married women, minors and persons lacking the necessary mental capacity fell into this category. At common law the domicile of a nuptial child followed that of his or her father and changed with the father’s domicile during the child’s minority, even though the child might not be living with the father.

Section 9 of the Domicile Act deals with the domicile of children where parents have separated or died. The common law rule therefore continues to apply to children who live with united parents. If the parents are living separately and apart, or one of them has died, the child’s domicile is dependent upon that parent with whom it has its principal home. Thereafter the child’s domicile shall follow the domicile of the parent with whom the child has its principal home, from time to time, until he or she moves to live with the other parent or the parents become reconciled. By s 9(2) of the Domicile Act, the child who is adopted by two persons will acquire the domicile of the adoptive father as at the time of the adoption. A child adopted by one person only will acquire the domicile of that parent as at the time of adoption. If the parent, adoptive or natural, with whom the child is living dies, the last domicile of that parent continues until and unless the child goes to live with the surviving parent, if any, or the child attains the age at which it can exercise its own capacity to acquire a domicile of choice and does do so. The dependency of a minor by s 8 of the Domicile Act terminates upon the attainment of the age of 18 years or marriage, whichever is the sooner. Upon the determination of the dependency, the domicile which the person had immediately before marriage, or attaining the relevant age as the case may be, continues until a domicile of choice is acquired. At common law a woman on marriage assumed the domicile of her husband. Subsequent domicile automatically changed with that of her husband until the marriage was dissolved by death or dissolution of marriage. This rule has been abolished by s 6 of the Domicile Act and the domicile of a married woman must now be determined independently and there cannot even be a presumption that it coincides with that of the husband upon marriage: see Nygh P E, Conflict of Laws in Australia (4th ed) at p 139. [s 39.8] Ordinary residence in Australia The question of whether or not an individual is resident in Australia is a question of fact: see Norman v Norman (No 3) (1969) 16 FLR 231. [page 224]

The term “ordinarily resident” is to be distinguished from occasional or temporary residence and connotes residence in a place with some degree of continuity apart from accidental or temporary absences: see Judd v Judd (1957) 75 WN (NSW) 147; see also Levene v IRC [1928] AC 217 and In the Marriage of Woodhead (1997) 23 Fam LR 559; (1998) FLC 92–813 (prisoner not ordinarily resident in Australia while in an Australian prison). A person may continue to be ordinarily resident in Australia even if that person is temporarily out of the country: see Norman v Norman (No 3) (1969) 16 FLR 231. A child who temporarily goes to live with relatives overseas remains ordinarily resident in Australia: see K v P (1978) 4 Fam LN 45. [s 39.9] Present in Australia A person is “present” in Australia when he or she is physically here, however short the stay and for whatever reason, including coming here specifically for the purpose of bringing the proceedings. REQUIREMENTS FOR PROCEEDINGS BETWEEN PARTIES TO A MARRIAGE AND PROCEEDINGS FOR DECLARATIONS OF VALIDITY ETC [s 39.10] Proceedings between the parties to a marriage or proceedings for a declaration as to the validity of a marriage etc — s 39(4)(a) Proceedings to which s 39(4)(a) relates The application of s 39(4)(a) to various classes of proceedings may be summarised as follows: (a) It does not apply to proceedings for dissolution (covered by s 39(3)) or proceedings under para (f) of “matrimonial cause” (that is, roughly, enforcement and other ancillary proceedings): as to these see below, [s 39.12]. (b) It applies to all other proceedings which fall within the definition of “matrimonial cause” and are proceedings between the parties to a marriage. (c) It also applies to proceedings for a declaration as to the validity of a marriage, or of the dissolution or annulment of a marriage (these

being proceedings under “matrimonial cause”, para (b)). Requirements of s 39(4)(a) Section 39(4)(a) requires, for jurisdiction to be exercised in the proceedings to which it applies, that either party to the marriage is, at the “relevant date”: (a) an Australian citizen; or (b) ordinarily resident in Australia; or (c) present in Australia. “Australian citizen”, “ordinarily resident”, “present” For commentary on these terms, see above, [s 39.6] –[s 39.9]. The “relevant date” See below, [s 39.11]. [s 39.11] Relevant date — s 39(4A) The phrase “relevant date” is defined to make it clear that in the case of an oral application the date on which the jurisdictional requirements must be satisfied is the date on which the application is made. REQUIREMENTS FOR PROCEEDINGS UNDER PARAGRAPH (f) OF “MATRIMONIAL CAUSE” [s 39.12] Jurisdiction in proceedings referred to in paragraph (f) of matrimonial cause Jurisdiction in proceedings of a kind referred to in para (f) of the definition of matrimonial cause in s 4(1) may be instituted under the Act in the Family Court or in the Supreme Court of a state or territory or in a court of summary jurisdiction of a state or territory without any requirement of citizenship, ordinary residence or presence in Australia provided that such [page 225] proceedings are “in relation to concurrent, pending or completed proceedings of a kind referred to in any of the paragraphs (a) to (eb)” of the definition of matrimonial cause.

Such an application may be in relation to completed proceedings which occurred many years before: see In the Marriage of Wingate and Towns (1979) FLC 90–624. Such proceedings must normally be instituted in the court in which the principal proceedings were instituted and, in the case of enforcement proceedings, where the decree was registered: see however Ulrick v Ulrick (1976) 2 Fam LR 11,286; (1977) FLC 90–242. REQUIREMENTS FOR OTHER MATRIMONIAL CAUSES [s 39.13] Introductory comment The requirements for proceedings not dealt with by s 39(4)(a) or s 39(3) and not being proceedings under para (f) of “matrimonial cause”, are set out in s 39(4)(b). The requirements are that any party to the proceedings is, at the “relevant date”: an Australian citizen; or ordinarily resident in Australia; or present in Australia. “Australian citizen”, “ordinarily resident”, “present” For commentary on these terms, see above, [s 39.6] –[s 39.9]. The “relevant date” See above, [s 39.1]. Proceedings related to children not included Section 39 does not deal with jurisdiction in proceedings relating to the custody and guardianship, or maintenance, of children: since 1 April 1988 these matters are dealt with in Pt VII. See above, [s 39.1]. WHICH COURTS MAY EXERCISE JURISDICTION [s 39.14] Jurisdiction of Federal Magistrates Court Under s 39(1A), the Federal Magistrates Court has jurisdiction in all “matrimonial causes” as defined in s 4 except for: proceedings for a decree of nullity of marriage; and proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise. The Federal Magistrates Court also has jurisdiction under regulations made

for the purposes of s 109 (interstate enforcement of child bearing expenses), s 110 (overseas enforcement of maintenance orders), s 111 (recovery abroad of maintenance), s 111A (recognition and enforcement of decisions relating to maintenance obligations), s 111B (international child abduction), regulations made for the purposes of paragraphs 125(1)(f) or (g) (recovery of child maintenance or maintenance) or s 117A (reparation for losses and expenses relating to children): s 39(5). [s 39.15] Regulating the concurrent jurisdictions of the Family Court and the Federal Magistrates Court The Federal Magistrates Court has concurrent jurisdiction with the Family Court in most proceedings arising under the 1975 Act. This generates the need for rules governing that overlap. There are three sources of these rules: provisions of the Family Law Act 1975, principally ss 33A –33C and 45A (see below); provisions in Pt V of the Federal Magistrates Act 1999 (Cth); and Rules of Court and regulations. The regime created by these interlocking rules is exhaustive, so that transfers between the Federal Magistrates Court and the Family Court are exempted from the operation of the general provisions of s 45A FLA 1975: s 45(2) FLA 1975. The combined effect of these rules may be summarised as follows: Proceedings that cannot be initiated in the Family Court — proceedings must not be instituted in the Family Court in respect of a matter if (a) the Federal Magistrates Court has jurisdiction in [page 226] that matter and (b) proceedings in respect of an associated matter are pending in the Federal Magistrates Court: see s 33A of the Family Law Act 1975 and related commentary. This rule does not apply to proceedings instituted in the Family Court under Div 13A of Part VII of the Family Law Act 1975 or under Pt XIIIA of that Act. Although not proscribed by statute, note also the

effect of Practice Direction No 6 of 2003 which requires all applictions for divorce to be filed in the Federal Magistrates Court: see [8110]. Transfers down (1): Proceedings that may be transferred from the Family Court to the Federal Magistrates Court — proceedings pending in the Family Court may be transferred to the Federal Magistrates Court by order of the Family Court, subject to Rules of Court: see commentary on s 33B. Transfers down (2): Proceedings that must be transferred from the Family Court to the Federal Magistrates Court — proceedings of a kind specified in regulations must be transferred to the Federal Magistrates Court: see commentary on s 33C. Transfers up (1): Proceedings that may be transferred from the Federal Magistrates Court to the Family Court — the Federal Magistrates Court may order the transfer of proceedings pending in that court to the Family Court: s 39 Federal Magistrates Act 1999. Decisions about such transfers are to be made in accordance with Rules of Court and three other factors: (a) whether proceedings in respect of an associated matter are pending in the Family Court; (b) whether the resources of the Federal Magistrates Court are sufficient to hear the matter; and (c) the interests of the administration of justice: s 39(4) Federal Magistrates Act 1999. Transfers up (2): Proceedings that must be transferred from the Federal Magistrates Court to the Family Court — there is power to specify in regulations certain proceedings that must be transferred up from the Federal Magistrates to the Family Court: s 41 Federal Magistrates Act 1999. Transfers up (3): Proceedings for contested property orders where the value of property exceeds $700,000 — in such cases, the Federal Magistrates Court must transfer the proceedings to the Family Court unless the parties consent to the Federal Magistrates Court hearing and determining the matter: s 45A of the Family Law Act 1975. [s 39.16] Jurisdiction of state or territory Supreme Courts — s 39(5) This provision confers jurisdiction on any state or territory Supreme Court to deal with matrimonial causes and certain other matters. Provision, however, is made in s 40(3) for the phasing out of jurisdiction of the Supreme Courts.

Section 40(4A) was inserted in the Act by the Family Law Amendment Act 1983 to enable proclamations made under s 40(3) in relation to the jurisdiction of Supreme Courts to be revoked. [s 39.17] Proclamations affecting the jurisdiction of state or territory Supreme Courts A proclamation dated 27 May 1976 fixed 1 June 1976 as the date after which proceedings of the following classes may not be instituted or transferred to the Supreme Courts of New South Wales, Victoria, Queensland, South Australia, Tasmania, Australian Capital Territory or Norfolk Island: proceedings between the parties to a marriage for a decree of dissolution or nullity, other than cross-proceedings in the course of such proceedings pending before 1 June 1976; proceedings for a declaration as to validity of a marriage or of the dissolution or annulment of a marriage; proceedings of a kind referred to in para (c), (d), (e) or (f) of the definition of “matrimonial cause” except those which were pending or which relate to proceedings for principal relief which were pending before 1 June 1976. Following amendments to the definition of “matrimonial cause” and to s 39(5), a second proclamation was made on 23 November 1983. It fixed 23 November 1983 as the date on and after which matrimonial causes or other proceedings referred to in s 39(5) could not be instituted or [page 227] transferred to the above Supreme Courts. This ensured that the Supreme Courts were divested of any jurisdiction they may have had in relation to the paragraphs added to the definition of “matrimonial cause” since the first declaration: see the remarks of Gibbs CJ in Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91–500. Western Australia A proclamation affecting the jurisdiction of the Supreme Court of Western Australia was made under s 41(2) on 27 May 1976: see [s

41.2]. [s 39.18] Courts of summary jurisdiction — s 39(6) By this provision courts of summary jurisdiction of the states and territories are invested with jurisdiction under the Family Law Act in respect of: all matrimonial causes other than proceedings for a decree of nullity or for a declaration as to validity of a marriage or of its dissolution or annulment; proceedings instituted under regulations made for the purposes of s 109 (interstate enforcement of affiliation and like orders), s 110 (enforcement of maintenance orders in and by reciprocating overseas jurisdictions), ss 111, 111A, 111B (Conventions relating to maintenance and child abduction), s 125(1)(f) (institution of maintenance proceedings by prescribed officers), s 125(1)(g) (priority of attachment orders) or under Rules of Court made for the purposes of s 123(1)(r) (attachment of moneys); proceedings instituted under s 117A (reparation for certain expenses relating to return of children). Related provisions Jurisdiction of courts of summary jurisdiction is also affected by the following provisions: s 39(7) — jurisdiction may be limited by proclamation: see below [s 39.17]; s 44A and reg 10A — dissolution proceedings limited to prescribed courts; s 46 — proceedings in relation to property above $20,000 to be transferred except by consent; Part VII — proceedings relating to children. [s 39.18A] ‘Ineffective’ orders made by officers of courts of summary jurisdiction: effect of Judiciary Act 1903, s 39(2)(d) Certain consent and other orders made by registrars or other officers of state courts of summary jurisdiction were probably invalid because they did not comply with restrictions of s. 39(2)(d) of the Judiciary Act 1903. The legislature’s solution to this problem was to provide that in

relation to such “ineffective orders”, the rights and liabilities of all persons were the same as if each such order had been an order made by the court in exercise of its federal jurisdiction. This solution first appeared in Pt XIVB of the Family Law Act 1975. It was then reproduced in terms that were not limited to family law in the Judiciary Legislation Amendment Act 2006 (which also repealed Pt XIVB of the Family Law Act 1975 and s 39(2)(d) of the Judiciary Act). The Act is reproduced with an Introduction, under the Guide card “Related Commonwealth Legislation”. [s 39.19] Proclamation limiting family law jurisdiction of summary courts — s 39(7) Introductory comment This section provides that the Governor-General may, by proclamation, phase out the use of courts of summary jurisdiction either for whole states or territories or for parts of a state or territory. Western Australia The only proclamations made under s 39(7) relate to Western Australia. The first (Gazette No S 86 of 1976) was repealed by the second, dated 10 December 1979 (Gazette No S 260 of 1979), which provided, in effect, that from 14 December 1979 the only court of summary jurisdiction that could exercise jurisdiction over matrimonial causes in the Perth metropolitan area was the court located at 45 St Georges Terrace, Perth. The second proclamation was revoked on [page 228] and from 31 January 1993 by Gazette No GN51 dated 23 December 1992. By this proclamation, 1 February 1993 was fixed as the date on and after which proceedings referred to in s 39(6) of the Act may not be instituted in or transferred to a court of summary jurisdiction in the Perth metropolitan region, but excepting from that area the premises known as 150 Terrace Road, Perth and 45 St Georges Terrace, Perth; and 15 March 1993 was fixed as the date on and after which proceedings referred to in s 39(6) of the Act may not be instituted in or transferred to a court of summary jurisdiction in the Perth metropolitan region, but excepting from that area the premises

known as 150 Terrace Road, Perth. [s 39.20] A court of a territory — s 39(8) A matrimonial cause can only be instituted in a court of a territory if at least one of the parties to the proceedings is, at the date of the institution or transfer of the proceedings, ordinarily resident in the territory. Following the proclamation of 27 May 1976 removing the jurisdiction of the Supreme Courts of the ACT and Norfolk Island, this provision only applies to the Northern Territory Supreme Court and to the summary courts of the territories. Since 1 March 1976, the Family Court also has jurisdiction in the Northern Territory. Children There is an equivalent provision to subs (8) in Pt VII: see s 69K. [s 39.21] Transfer of proceedings — s 39(9) Any court which is already seized of a matter on the date on which the Family Law Act commences, retains control over that matter. However, fresh proceedings for the same matrimonial relief can be instituted in the Family Court between parties who already have a similar matrimonial cause pending under s 9 of the Act in the Supreme Court of a state or territory. If a transfer of proceedings takes place under s 40(6) or s 45(2) the court to which the proceedings have been transferred has jurisdiction to hear and determine them under the Act. [s 39.22] Courts in which proceedings may be instituted Introductory comments Set out below is a list of the courts in which different classes of proceedings may be brought. For convenience this list includes proceedings relating to children, however provisions relating to jurisdiction in those matters are contained in Pt VII. References to territory courts are subject to s 39(8) or 69K. (i) Proceedings for dissolution: Family Court of Australia, Federal Magistrates Court, Family Court of Western Australia, Supreme Court of the Northern Territory, the Magistrates Court of the ACT (see reg 10A) or a court of summary jurisdiction

constituted by a stipendiary magistrate who is the Registrar or a Deputy Registrar of the Family Court of Western Australia: see reg 10A. (ii) Proceedings for a decree of nullity of marriage, or for a declaration as to the validity of the marriage or of the dissolution or annulment of a marriage: Family Court of Australia, Family Court of Western Australia or Supreme Court of the Northern Territory. (iii) Proceedings with respect to spousal maintenance: Family Court of Australia, Federal Magistrates Court, Family Court of Western Australia, Supreme Court of the Northern Territory or any state or territory court of summary jurisdiction; except that in the Perth metropolitan area the only court of summary jurisdiction which can exercise this jurisdiction is the court at 150 Terrace Road: see above [s 39.17]. (iv) Proceedings with respect to the property of parties to a marriage: as in (iii) above except that the jurisdiction of summary courts is limited to property not exceeding a value of $20,000, except by consent: s 46. The Federal Magistrates Court must transfer contested property proceedings to the Family Court where the property is valued at $700,000 or more unless the parties consent: s 45A and reg 12AC of the Family Law Regulations. [page 229] (v) Proceedings for an order or injunction under s 114: as in (iii) above. (vi) Part VII proceedings (children) New South Wales, Victoria, South Australia, Tasmania and the territories: Family Court of Australia, Federal Magistrates Court, Supreme Court of the Northern Territory and courts of summary jurisdiction (except that a court of summary jurisdiction cannot hear and determine

contested proceedings about residence contact or specific issues except by consent of the parties): s 69N. The Federal Magistrates Court does not have jurisdiction to hear applications for leave to adopt under s 60G. Queensland: Family Court of Australia and, subject to s 69N, courts of summary jurisdiction. Western Australia: Family Court of Western Australia.

____________________ DIVISION 2 — JURISDICTION IN DE FACTO FINANCIAL CAUSES [Div 2 insrt Act 115 of 2008 s 3 and Sch 1[33], opn 1 Mar 2009]

[s 39A]

Instituting proceedings

39A (1) Instituting proceedings under this Act A de facto financial cause may be instituted under this Act in: (a) the Family Court; or (b) the Federal Circuit Court of Australia; or (c) the Supreme Court of the Northern Territory of Australia; or (d) a court of summary jurisdiction of a participating jurisdiction. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) However: (a) in the case of proceedings between the parties to the de facto relationship — either of those parties; or (b) in any other case — at least one of the parties to the proceedings; must be an Australian citizen, ordinarily resident in Australia or present in Australia on the following day:

(c) if the application instituting the proceedings is filed in a court — the day on which the application is so filed; (d) in any other case — the day on which the application instituting the proceedings is made. (3) Subsection (2) does not apply in relation to proceedings referred to in paragraph (g) of the definition of de facto financial cause in subsection 4(1). (4) Subsection (1) has effect subject to this Part. (5) Proceedings only to be instituted under this Act A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act. (6) Subsection (5) has effect subject to subsection 90RC(5). COMMENTARY ON SECTION 39A [s 39A.1] “De facto financial cause” is defined in s 4 For commentary on courts in which proceedings may be instituted see [s 39.14-22] As to Australian citizenship see [s 39.6] As to ordinary residence in Australia see [s 39.8] As to presence in Australia see [s 39.9]

____________________ [page 230]

[s 39B]

Jurisdiction in de facto financial causes

39B (1) Jurisdiction is conferred on: (a) the Family Court; and

(b) the Federal Circuit Court of Australia; and (c) the Supreme Court of the Northern Territory of Australia; and (d) each court of summary jurisdiction of each Territory; with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act. Note 1: The exercise of this jurisdiction by the Family Court is subject to section 40. Note 2: The exercise of this jurisdiction by the Federal Circuit Court of Australia is subject to section 40A. Note 3: The exercise of this jurisdiction by a Territory court is subject to sections 39C, 39D, 39E and 39F. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) Each court of summary jurisdiction of each referring State is invested with federal jurisdiction with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act. Note: The exercise of this jurisdiction by a State court is subject to sections 39D and 39E.

(3) This section has effect subject to this Part.

[s 39C] Ceasing jurisdiction of Supreme Court of the Northern Territory of Australia 39C (1) The Governor-General may, by Proclamation, fix a day as the day on and after which a de facto financial cause: (a) may not be instituted in, or transferred to, the Supreme Court of the Northern Territory of Australia; or (b) may be so instituted or transferred only where specified conditions are complied with.

(2) Without limiting the generality of subsection (1), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following: (a) proceedings of specified classes; (b) the institution of proceedings in, or the transfer of proceedings to, the Supreme Court of the Northern Territory of Australia. (3) The Supreme Court of the Northern Territory of Australia must not hear and determine de facto financial causes otherwise than in accordance with any Proclamation in force under subsection (1).

[s 39D] Ceasing jurisdiction of State or Territory courts of summary jurisdiction 39D (1) The Governor-General may, by Proclamation, fix a day as the day on and after which a de facto financial cause may not be instituted in, or transferred to, a court of summary jurisdiction in a specified participating jurisdiction. (2) Without limiting the generality of subsection (1), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following: (a) proceedings of specified classes; [page 231] (b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a participating jurisdiction;

the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way. (3) A court of summary jurisdiction must not hear and determine de facto financial causes otherwise than in accordance with any Proclamation in force under subsection (1). (c)

[s 39E] Revoking Proclamations ceasing jurisdiction of State or Territory courts 39E (1) The Governor-General may, by Proclamation, declare that a Proclamation under section 39C or 39D is revoked on and from a specified day. (2) If, under subsection (1), the Governor-General declares that a Proclamation under section 39C or 39D is revoked: (a) this Part (including sections 39C and 39D) has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on the jurisdiction of courts before the specified day is not affected.

[s 39F] Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory 39F A court of a Territory must not hear or determine a de facto financial cause unless at least one of the parties to the proceedings is ordinarily resident in the Territory when the proceedings are instituted or are transferred to the court.

[s 39G]

Jurisdiction in relation to transferred

matters under other Commonwealth laws 39G If proceedings in relation to a matter arising under a law of the Commonwealth are transferred under this Act to a court that has jurisdiction conferred on or invested in it by this Division, the jurisdiction so conferred on or invested in the court includes jurisdiction in relation to that matter. DIVISION 3 — OTHER PROVISIONS

[s 40] Limitations on jurisdiction of Family Court and of State and Territory Supreme Courts 40 (1) The regulations may provide that, from a date specified in the regulations (not being a date before the regulations are registered under the Legislation Act 2003), the jurisdiction of the Family Court under this Act in relation to all proceedings, or a specified class of proceedings, must not be exercised in a specified State or Territory, or in 2 or more specified States and Territories. [subs (1) subst Act 32 of 2012 s 3 and Sch 2, opn 21 Apr 2012; am Act 10 of 2015 s 3 and Sch 1 item 132, opn 5 Mar 2016]

(2) [subs (2) rep Act 32 of 2012 s 3 and Sch 2, opn 21 Apr 2012] [page 232] (3) [Proclamation limiting jurisdiction of Supreme Courts] The Governor-General may, by Proclamation, fix a date as the date on and after which matrimonial causes, and other proceedings, referred to in subsection 39(5) may not be instituted in or transferred to the Supreme Court of a State or Territory specified in the Proclamation, or may be so instituted or

transferred only where specified conditions are complied with, and such a Proclamation may be expressed to apply only to proceedings of a specified class or specified classes and may be expressed to apply only to the institution of proceedings in, or the transfer of proceedings to, a particular Registry or Registries of a Supreme Court referred to in the Proclamation. [subs (3) am Act 72 of 1983 s 19]

(4) [Effect of Proclamation] The Supreme Court of a State or Territory shall not hear and determine proceedings under this Act instituted in or transferred to that Court otherwise than in accordance with any Proclamation in force under subsection (3), but nothing in this section invalidates a decree made by such a Supreme Court. (4A) [Revocation of Proclamation] The Governor-General may, by Proclamation, declare that a Proclamation made under subsection (3) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (3)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date. [subs (4A) insrt Act 72 of 1983 s 19]

(5) [Making of Proclamation] Proclamations under subsection (3) may be made from time to time. [subs (5) am Act 32 of 2012 s 3 and Sch 2, opn 21 Apr 2012]

(6) [Transfer of proceedings] A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this subsection, have been instituted in the Family Court, may apply to the Family Court for an order transferring the proceedings to the Family

Court, and the Court may order accordingly. (7) [Provisions as to transfer] The standard Rules of Court may make provision in relation to matters arising in or in connection with the transfer of proceedings in accordance with an order under subsection (6). [subs (7) am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[35]]

(8) This section does not apply in relation to proceedings under Part VII or in relation to jurisdiction conferred on a federal court or a court of a Territory, or invested in a court of a State, by regulations made for the purposes of section 111C. [subs (8) insrt Act 181 of 1987 s 17; am Act 89 of 1998 s 3 and Sch 1] [s 40 am Act 32 of 2012 s 3 and Sch 2, opn 21 Apr 2012] COMMENTARY ON SECTION 40 Jurisdiction of Family Court — introductory comment …. Proclamation by Governor-General — s 40(2) …. Proclamations …. Proclamation removing jurisdiction of Supreme Court — s 40(3) …. Proceedings in Supreme Court of state or territory — s 40(4) …. Invalidation of a decree made by such a Supreme Court — s 40(4) ….

[s 40.1] [s 40.2] [s 40.3] [s 40.4] [s 40.5] [s 40.6] [page 233]

Revocation of proclamations — s 40(4A) …. Transfer of proceedings — s 40(6) …. Proceedings in relation to children ….

[s 40.7] [s 40.8] [s 40.9]

[s 40.1] Jurisdiction of Family Court — introductory comment The jurisdiction of the Family Court of Australia is only to be exercised in accordance with the Governor-General’s proclamation. [s 40.2] Proclamation by Governor-General — s 40(2) Section 40(2) permits the Governor-General by proclamation to fix the date of the commencement of the Family Court in any area and to fix the classes of work which the court so established may undertake. [s 40.3] Proclamations 5 January 1976 A proclamation dated 11 December 1975 fixed 5 January 1976 as the date on and after which the Family Court could exercise jurisdiction in respect of all matrimonial causes, proceedings under the Marriage Act, appeals from courts of original and summary jurisdiction. 1 June 1976: (a) By two proclamations dated 27 May 1976 the jurisdiction of the various Supreme Courts was removed from all of the state Supreme Courts and those of the Australian Capital Territory and Norfolk Island from 1 June 1976; (b) the effect of the proclamation was that proceedings for principal relief could only be instituted in the Family Court of Australia, the Family Court of Western Australia or the Supreme Court of the Northern Territory; (c) proceedings for other types of matrimonial relief could only be instituted in the State Supreme Courts of the states and territories to which the proclamation applied if proceedings for principal or other relief were already pending between the parties in that court immediately before 1 June 1976. 18 February 1977 A proclamation dated 18 February 1977 fixed 18 February 1977 as the date on and after which the jurisdiction of the Family Court under the Family Law Act could be exercised in respect of: (a) appeals referred to in s 29(1)(b) of the Act in New South Wales,

Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory and Norfolk Island; (b) appeals under s 94(1) in the Australian Capital Territory, Northern Territory and Norfolk Island; (c) special cases stated under s 94A(1) of the Act in the States of New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory and Norfolk Island. 1 March 1979 A proclamation dated 28 February 1979 fixed 1 March 1979 as the date on and after which the jurisdiction of the Family Court of Australia under the Family Law Act could be exercised in the Northern Territory in respect of: (a) appeals from judgments of the Family Court, constituted otherwise than as a Full Court in the exercise of jurisdiction otherwise than under that Act; (b) matrimonial causes instituted or continued under that Act; (c) proceedings instituted or continued under the Marriage Act 1961 other than proceedings under Pt VII of that last-mentioned Act; (d) matters in which jurisdiction is conferred on the Family Court by a law made by the Parliament; (e) special cases stated under s 94A(1) of the Family Law Act 1975; and (f) appeals under s 96(1) of that last-mentioned Act. [page 234] 25 November 1983 A proclamation dated 23 November 1983 fixed 25 November 1983 as the date on and after which the jurisdiction of the Family Court under the Family Law Act 1975 may be exercised: (a) in respect of all proceedings in the States of New South Wales, Victoria, Queensland, South Australia and Tasmania and in the Australian Capital Territory, the Northern Territory and Norfolk

Island with respect to matters in which the Family Court has jurisdiction by virtue of ss 31(1)(a), (b) or (d), 39(5) or 93A(1) or 94A of that Act; or (b) proceedings in the State of Western Australia that are: (i) appeals under s 94(1) of that Act from decrees of the Family Court of Western Australia, being appeals in respect of which the Family Court has jurisdiction by virtue of s 93A(1) of that Act, or (ii) proceedings in respect of which the court has jurisdiction by virtue of s 94A of that Act. This proclamation conferred jurisdiction on the Family Court in respect of all matrimonial causes. 25 November 1983 A further proclamation dated 23 November 1983 fixed 25 November 1983 as the date on and after which proceedings that are matrimonial causes referred to in s 39(5)(a) or (b) of the Family Law Act 1975 or that are proceedings referred to in s 39(5)(c), (d) or (e) of the Act may not be instituted in or transferred to the Supreme Courts of the States of New South Wales, Victoria, Queensland, South Australia or Tasmania or to the Supreme Courts of the Australian Capital Territory and Norfolk Island. This proclamation removed the jurisdiction of the Supreme Court. [s 40.4] Proclamation removing jurisdiction of Supreme Court — s 40(3) This section gives the Governor-General power to prevent, by proclamation, the further institution of proceedings in the various Supreme Courts. The provision has been invoked in two proclamations dated 27 May 1976 and 25 November 1983. [s 40.5] Proceedings in Supreme Court of state or territory — s 40(4) The effect of this section was to prohibit the institution of proceedings in the Supreme Court of a state or territory to which the proclamation of 27 May 1976 applies, except the types of proceedings which fall within the schedule to the proclamation: see Ulrick v Ulrick (1976) 2 Fam LR 11,286; (1977) FLC 90–242; see also Mitchelson v Mitchelson (1977) 17 ALR 633; 3 Fam LR 11,344 and In the Marriage of Ellinas (1978) 4 Fam LR 65; FLC 90–419. If proceedings for maintenance were pending between parties immediately

before 1 June 1976 in the Supreme Court of New South Wales, that court is not precluded from entertaining an application for variation of an order for maintenance made in such proceedings if an application for such variation is made at any future time: see In the Marriage of Currey (1976) 2 Fam LR 11,723; (1977) FLC 90–211; see also In the Marriage of Delly (1976) 2 Fam LR 11,643; (1977) FLC 90–215. Proceedings which had resulted in a decree nisi being made in the Supreme Court of South Australia prior to 1 June 1976 could not be regarded as pending as at that date because liberty had been granted in the decree nisi to apply for maintenance and a declaration under s 63: see In the Marriage of Perta (1977) 3 Fam LN 27; see, however, In the Marriage of Barrett (1977) 3 Fam LR 11,573. [s 40.6] Invalidation of a decree made by such a Supreme Court — s 40(4) The concluding words of s 40(4) do not apply to a situation where the very issue of jurisdiction was raised at the hearing. In such a case the order of the Supreme Court is a nullity: see In the Marriage of Prentice [page 235] (No 2) (1978) 4 Fam LR 47; FLC 90–416; see also Stone v Stone and Ralph (1977) 3 Fam LR 11,101; 30 FLR 520. The exclusion normally applies to proceedings which fall within the definition of “matrimonial cause” in s 4(1): see Hillman v Hillman (1977) 4 Fam LR 274; 2 NSWLR 739; FLC 90–316. The prohibition may relate only to proceedings which were at the time of institution of proceedings a “matrimonial cause”: see Reynolds v Reynolds (1977) 3 Fam LR 11,529; (1979) FLC 90–728. It has been held that if the Family Law Act has exhibited an intention to “cover the field”, then a Supreme Court will not have jurisdiction to hear and determine an application in the same proceedings: see In the Marriage of Meyer (1978) 4 Fam LR 233; FLC 90–465; see also In the Marriage of Pylarinos and Reklitis (1979) 4 Fam LR 629; FLC 90–609.

[s 40.7] Revocation of proclamations — s 40(4A) This section was inserted in the Act by the Family Law Amendment Act 1983. It enables proclamations, made under s 40(3) in relation to the jurisdiction of Supreme Courts, to be revoked. [s 40.8] Transfer of proceedings — s 40(6) This section was intended to be of assistance during the transitional period when proceedings were possible in both the Family Court and the state Supreme Courts. This section permitted the Family Court to intervene in proceedings between parties in the state Supreme Courts and to take the proceedings from the state Supreme Court into the Family Court. It was a section used principally during the early period of the Act: see In the Marriage of Miller (No 1) (1976) FLC 90–018. It included proceedings continued under s 9(1) as if the Family Law Act had not been passed: see In the Marriage of Stubbs (1976) 1 Fam LN 10; FLC 90–016. For a recent application under the section, see In the Marriage of Springbett and Miles (1990) 14 Fam LR 359; FLC 92–177, where the wife sought to institute property proceedings, notwithstanding that an agreement between the parties had been sanctioned under s 87(1)(k) of the repealed Act. The ground upon which the wife successfully made application to the court was that, as the sanctioned agreement had not finally dealt with matters of property and maintenance, her property proceedings under the repealed Act were extant. In considering an application the court shall have regard to: (a) the availability of a court to hear the proceedings; (b) the convenience of the parties; (c) the limiting of expense and the cost of proceedings; and (d) any other relevant matter. See In the Marriage of Harrison (1976) 1 Fam LN 16; FLC 90–014. The Family Court may, however, refuse to make an order on the ground that the Supreme Court is available to the parties and that a transfer would be unfair to other parties waiting in the Supreme Court list or to other parties who had filed applications in the Family Court: see Re Reinking (1976) 1 Fam LN 12; FLC 90–012.

After an order has been made under s 40(6) the Registrar of the Supreme Court shall forward the court papers in the proceedings to the Registrar of the Family Court specified in the order and the Family Court shall proceed as if the proceedings had been originally instituted in that court: see In the Marriage of Pelbart (1976) 1 Fam LR 11,124; FLC 90–002; see also In the Marriage of Cobbin (1976) 1 Fam LN 14; FLC 90–017 and In the Marriage of Cureton (1976) 1 Fam LR 11,177; FLC 90–019. [s 40.9] Proceedings in relation to children Section 40(8) was added by the 1987 amending Act. It provides that s 40 does not apply to proceedings under Pt VII.

____________________ [page 236]

[s 40A] Exercise of jurisdiction of Federal Circuit Court in certain States and Territories 40A The jurisdiction of the Federal Circuit Court of Australia under this Act must not be exercised in respect of a particular proceeding in a particular State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory. [s 40A insrt Act 194 of 1999 s 3 and Sch 11[36]; am Act 13 of 2013 s 3 and Sch 1 item 283, Sch 2 item 2, opn 12 Apr 2013]

[s 41]

Establishment of State Family Courts

41 (1) [Establishment and funding] As soon as practicable after the commencement of this Act, the Commonwealth Government shall take steps with a view to the making of agreements with the governments of the States providing for the

creation of State courts to be known as Family Courts, being agreements under which the Commonwealth Government will provide the necessary funds for the establishment and administration of those courts (including the provision of counselling facilities for those courts). (2) [Proclamation applying s 41] Where, whether before or after the commencement of this Act, a State has created a court known as a Family Court, the Governor-General may, by Proclamation, declare that, on and after a date specified in the Proclamation, this section applies to that court. (3) [Effect of this Act] Where, by virtue of a Proclamation under subsection (2), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation, and in relation to proceedings so instituted and proceedings transferred to that court in accordance with this Act, as if references in sections 39, 46, 94 and 96 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly. [subs (3) am Act 63 of 1976 s 18]

(3A) [Proceedings pending] Notwithstanding the issue of a Proclamation under subsection (2) and the provisions of subsection (3): (a) proceedings by way of cross-proceedings in relation to proceedings for principal relief that were pending in the Supreme Court of the State concerned immediately before the date fixed by the Proclamation; or (b) proceedings of a kind referred to in any of paragraphs (c) to (f) of the definition of matrimonial cause in

subsection 4(1) that: (i) relate to proceedings for principal relief that were pending in the Supreme Court of the State concerned immediately before the date fixed by the Proclamation; or (ii) are between parties between whom proceedings of a kind referred to in any of paragraphs (c) to (f) of that definition were so pending immediately before that date; may be instituted, heard and determined in that Supreme Court on or after the date fixed by the Proclamation. [subs (3A) insrt Act 63 of 1976 s 18]

[page 237] (4) [Conditions for proclamation] The Governor-General shall not make a Proclamation under this section in respect of a court unless the Governor-General is satisfied that: (a) arrangements have been made under which Judges will not be appointed to that court except with the approval of the Attorney-General of the Commonwealth; (b) Judges appointed to that court are by reason of training, experience and personality, suitable persons to deal with matters of family law and cannot hold office beyond the age of 70 years; and (c) appropriate family counselling and family dispute resolution services, and family consultants, will be available to that court.

[subs (4) am Act 63 of 1976 ss 18 and 39; Act 181 of 1987 s 63 and Sch; am Act 159 of 1991 s 4; Act 46 of 2006 s 3 and Sch 4 item 46, opn 1 July 2006]

(4A) [Order to transfer proceedings] A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this subsection, have been instituted in a Family Court of a State, may apply to a Family Court of a State for an order transferring the proceedings to that Court, and the Court may order accordingly. [subs (4A) insrt Act 63 of 1976 s 18]

(5) [Interpretation] References in this Act or the standard Rules of Court to a court of summary jurisdiction shall not be read as including references to a court to which this section applies. [subs (5) am Act 194 of 1999 s 3 and Sch 11[37]] COMMENTARY ON SECTION 41 Introductory comments …. The Family Court of Western Australia …. Cross-vesting legislation ….

[s 41.1] [s 41.2] [s 41.3]

[s 41.1] Introductory comments This section provides for the Commonwealth Government to make agreements with the governments of states for the creation of state courts to be known as Family Courts. Under such agreements the Australian Government provides the necessary funds for the establishment and administration of the state courts. Where a state court has been established under such an agreement, the Governor-General may, by proclamation, declare that on and after a specified date, the section applies to a particular state Family Court subs (2)) and such court then acquires jurisdiction under the Family Law Act by virtue of subs (3). Only one state, Western Australia, has established a state Family Court. [s 41.2] The Family Court of Western Australia

Establishment The Family Court of Western Australia was created by the Family Court Act 1975–1976 (WA). The court has, throughout the state of Western Australia, the federal jurisdiction with which it is invested under the Family Law Act. The original legislation became fully operative on 1 June 1976. Until that time the jurisdiction conferred by the Family Law Act 1975 was exercised by the Supreme Court of Western Australia and the Summary Relief Court. By a proclamation made on 27 May 1976, the Governor-General declared that on and after 1 June 1976, s 41 of the Family Law Act 1975 applied to the Family Court of Western Australia. By virtue of s 41(3) the jurisdiction with which the Supreme Court of Western Australia had been invested under the Family Law Act 1975 at its commencement on 5 January 1976 ceased, except as provided in s 41(3A) and the Family Court of Western Australia was invested with that jurisdiction as from that date. [page 238] Any new proceedings in a matrimonial cause under the Act, as from 1 June 1976, have to be instituted in the Family Court of Western Australia. Relationship to Family Court of Australia An appeal from the Family Court of Western Australia lies to the Full Court of the Family Court of Australia, but the Family Court of Australia does not exercise original jurisdiction within Western Australia. Proceedings may be transferred from the Family Court of Australia to the Family Court of Western Australia and vice versa, whenever appropriate under s 45(2). Subject to the power of transfer, proceedings may be instituted in the Family Court of Western Australia, provided the jurisdictional connection with Australia stipulated in s 39 exists, even if there is no connection between the parties to a marriage or a child of the marriage and Western Australia. Non-federal jurisdiction The Family Court of Western Australia has also

been invested with non-federal jurisdiction conferred upon it by or under any Act of the state of Western Australia: see the Family Court Act 1975–1976 (WA), s 26. This includes jurisdiction under: (a) the Adoption of Children Act 1896–1973 (WA); (b) the Guardianship of Children Act 1972 (WA); (c) the Child Welfare Act 1947–1972 (WA); and (d) the Married Persons and Children (Summary Relief) Act 1965– 1972 (WA). Transfer of proceedings from Supreme Court — s 41(4A) Section 41(4A) makes provision similar to that found in s 40(6), providing for the transfer of proceedings from a state or territorial Supreme Court to the Family Court of Western Australia. The Family Court of Western Australia could authorise the transfer of proceedings to it of proceedings pending in the Supreme Court of another state or territory such as the Supreme Court of the Northern Territory. [s 41.3] Cross-vesting legislation The “cross-vesting” legislation passed by the Commonwealth and the states applies to the Family Court of Western Australia. See Jurisdiction of Courts (Cross-Vesting) Act 1987, in Vol 2 under guide card, RELATED COMMONWEALTH LEGISLATION.

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[s 42]

Law to be applied

42 (1) [Exercise of jurisdiction] The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court. [subs (1) am Act 194 of 1999 s 3 and Sch 11[38]]

(2) [Application of private international law] Where it would be in accordance with the common law rules of private

international law to apply the laws of any country or place (including a State or Territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place. Note: Subdivision D of Division 4 of Part XIIIAA (Applicable law) may affect the law to be applied by a court. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 9, opn 1 Aug 2003] [subs (2) am Act 72 of 1983 s 20] COMMENTARY ON SECTION 42 Jurisdiction to be exercised in accordance with the Act — s 42(1) — introductory comment …. Common law rules of private international law — s 42(2) …. Subject to the Marriage Act ….

[s 42.1] [s 42.2] [s 42.3] [page 239]

The law applicable to dissolution of marriage …. Annulment of marriage …. Proceedings relating to children and financial matters ….

[s 42.4] [s 42.5] [s 42.6]

[s 42.1] Jurisdiction to be exercised in accordance with the Act — s 42(1) — introductory comment This section limits a court, exercising jurisdiction under the Act, to exercising it in accordance with the Act. The purpose of this provision is to ensure that State Courts invested with federal jurisdiction under the Act exercise that jurisdiction in accordance with the Act, the Regulations and the Rules. [s 42.2] Common law rules of private international law — s 42(2) This provision provides that where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a state or territory), the court must apply the laws of that

country or place. This provision incorporates into the Act the common law rules of private international law. [s 42.3] Subject to the Marriage Act The section was amended by the Family Law Amendment Act 1983 to make it clear that the court shall apply the common law rules of private international law subject to the provisions of the Marriage Act 1961. [s 42.4] The law applicable to dissolution of marriage The law applicable to dissolution of marriage is the Family Law Act 1975, whatever may be the nationality or domicile of the parties and wherever the facts and circumstances alleged in the application may have taken place: see Grummett v Grummett [1966] QWN 5; see also Cherry v Cherry [1971] 1 SASR 148; see also s 53. [s 42.5] Annulment of marriage For the applicable law in annulment: see Nygh P E, Conflict of Laws in Australia (6th ed); see also In the Marriage of Schmidt (1976) 1 Fam LR 11,355; FLC 90–052; In the Marriage of Katavic (1977) 3 Fam LR 11,507; FLC 90–296; In the Marriage of Suria (1977) 3 Fam LR 11,541 at 11,544; 29 FLR 308; FLC 90–305. [s 42.6] Proceedings relating to children and financial matters The applicable law in custody and financial proceedings is the law of the forum: see Nygh P E, Conflict of Laws in Australia, 6th ed, Butterworths, Sydney, 1995. Hence, in In the Marriage of Hastings (1990) 14 Fam LR 373 where the parties were from New Zealand and the parties had agreed, through their solicitors, that New Zealand law should govern the issues of matrimonial property, it was held that New Zealand law was the proper law, and that proceedings commenced by the wife in Australia for property settlement should be stayed, so that matters could be resolved by the New Zealand court, in which the husband had brought property proceedings.

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[s 43]

Principles to be applied by courts

43 (1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to: (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; (c) the need to protect the rights of children and to promote their welfare; (ca) the need to ensure protection from family violence; and [page 240] (d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children. [subs (1) am Act 115 of 2008 s 3 and Sch 1[34], opn 1 Mar 2009; Act 189 of 2011 s 3 and Sch 1 item 11, opn 7 June 2012]

(2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2. [subs (2) insrt Act 115 of 2008 s 3 and Sch 1[35], opn 1 Mar 2009] [s 43 am Act 181 of 1987 s 18; Act 167 of 1995 s 28] COMMENTARY ON SECTION 43 Principles to be applied — introductory comment ….

[s 43.1]

Circumstances in which the principles are relevant …. Parenting order cases …. Occupation of home …. Freedom to remarry …. Section 75(2)(o) …. Injunction …. Marriage — definition and nature …. The family unit — s 43(b) …. The rights of children — s 43(c) …. Reconciliation or improvement of the relationship of the family — s 43(d) …. Family violence ….

[s 43.2] [s 43.3] [s 43.4] [s 43.5] [s 43.6] [s 43.7] [s 43.9] [s 43.10] [s 43.11] [s 43.12] [s 43.15]

[s 43.1] Principles to be applied — introductory comment This section requires the court to consider a number of general principles when making a decision in a Family Law matter. The principles apply to all proceedings under the Family Law Act including proceedings continued under s 9(4): see In the Marriage of Deguara (1976) 8 ALR 688; 1 Fam LR 11,103. This section is not a head of power; it is an exhortation to the court as to how it should exercise such power as it does have: see In the Marriage of Giammona (1985) 10 Fam LR 17; FLC 91–600 (Fogarty J). [s 43.2] Circumstances in which the principles are relevant The principles are “pervading principles” which are difficult to translate into positive rules of decision. But they do contain certain policy preferences which the courts exercising jurisdiction under the Act must keep in mind whenever a choice has to be made between several alternatives: see In the Marriage of Dean (1977) 2 Fam LR 11,691; FLC 90–213 (Wood J). It is submitted, however, that s 43 cannot be used so as to override more specific statutory provisions dealing with the particular type of application before the court: see In the Marriage of Falk (1977) 3 Fam LR 11,238 at 11,249; FLC 90–247 (FC); see also In the Marriage of Suria (1977) 3 Fam LR 11,541; 29 FLR 308; FLC 90–305; In the Marriage of Grimshaw (1981) 8 Fam LR 346; FLC 91–090.

[s 43.3] Parenting order cases The principles have been mainly invoked in custody cases: see In the Marriage of Watts (1976) 9 ALR 428; 1 Fam LR 11,266 at 11,268; 26 FLR 136; FLC 90–046 (FC). [s 43.4] Occupation of home The principles, however, may also be relevant in the determination of entitlement to remain in the matrimonial home: see In the Marriage of Stone (1976) 2 Fam LR 11,235 at 11,240; FLC 90–134 (Strauss J). [page 241] [s 43.5] Freedom to remarry The principles may also be relevant in securing the freedom to remarry of a Jewish wife according to Jewish law: see In the Marriage of Shulsinger (1976) 2 Fam LR 11,611; FLC 90–207. [s 43.6] Section 75(2)(o) The principles may be of relevance in considering conduct as a relevant fact or circumstance under s 75(2)(o) in the making of an order for maintenance or alteration of property rights in a rare and exceptional case: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528 at 11,550; FLC 90–124 (FC). [s 43.7] Injunction The principles may also be relevant in the determination of making of an order under s 114: see In the Marriage of Dean (1977) 2 Fam LR 11,691 at 11,695; FLC 90–213 (Wood J). [s 43.9] Marriage — definition and nature The language used in s 43(a) repeats the definition of “Christian marriage” given in 1866 by Lord Penzance in the case of Hyde v Hyde (1866) LR 1 P & D 130 at 133 and recognised as the authoritative definition of monogamous marriage in England and Australia, namely, that marriage is the union of a man and woman to the exclusion of all others, voluntarily entered into for life. The statement, however, must not be read in a strict literal sense, but rather as a general expression of support for the traditional concept of monogamous marriage as understood in contemporary Australian law. The validity of a marriage is usually tested by applications for decrees of

nullity, or for declarations as to the validity of a marriage: see commentaries to the Marriage Act 1961, and to s 51 of the Family Law Act. The meaning and definition of marriage was the subject of extensive discussion by the Full Court in a case where the question whether a marriage was between a man and a woman. The Full Court upheld a declaration of the validity of the marriage, which was between a woman and a female-to-male post-operative transsexual: Attorney-General (Cth) v Kevin (2003) 30 Fam LR 1; FLC 93– 127 (Nicholson CJ, Ellis and Brown JJ). In the course of an an extensive discussion of the nature and historical and social context of marriage, the Full Court said that it would “be potentially highly destructive of the institution of marriage for its definition to be frozen at any point in time”, and that the meaning of the word “marriage” was the ordinary contemporary meaning; it was not to be understood by reference to some particular point in time in the past, such as 1961: at [80], [87]. [s 43.10] The family unit — s 43(b) Introductory comment Section 43(b) refers to the need to give the widest possible protection and assistance to “the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children”. The phraseology reflects international statements of human rights, such as the UN Declaration of Human Rights 1948, Art 16(3), and the International Covenant on Civil and Political Rights 1966 (to which Australia is a party), Art 23(1). Possible effect of 1987 amendments on definition of “family” Section 43 was amended by the 1987 amending Act upon the extension of the Act to exnuptial children following the reference of power by New South Wales, Victoria, South Australia and Tasmania. In accordance with the wider scope of jurisdiction under the new Pt VII, s 43(d) was amended by replacing the words “children of the marriage” with the words “their children”. It may be (SO’R, RC) that “family” in s 43(b) will now be taken to include a wider group of persons than was contemplated before the 1987 amendment. For example, it might include step-children or ex-nuptial children of the parties to a marriage, at least while they are living with them. It might also be taken to refer to families constituted by de facto relationships. On this approach, it

might be appropriate to read s 43 as concerned to protect and assist both the institution of marriage (s 43(a)) and actual family relationships (s 43(b)). The following commentary, based on cases decided before the 1987 amendment, should be read with regard to the possible change of emphasis arising from the 1987 amendments. [page 242] Pre-1988 decisions on meaning of “family” It has been held at first instance that the family referred to in s 43(b) is the father/mother/children group and not the extended family comprising grandparents, uncles and aunts: see In the Marriage of Sylvester (1976) 10 ALR 566; 1 Fam LR 11,420 at 11,426 (Dunn J). In that case Dunn J also said that the “family” is not confined to united families: in the case of separated and divorced parents the court must still pay regard to the needs of the parental/children group: see In the Marriage of Sylvester, above. Where a party has remarried and is living in a new family unit with his or her children, the family unit which is entitled to protection is that consisting of the natural parent, the step-parent and any half or step-brothers or sisters. In such a case it is as necessary to work out a relationship with the step-father and half or step-brothers or sisters as with the natural parent: see In the Marriage of Parsons and Punchon (1978) 4 Fam LR 331 at 335–6; 31 FLR 513n; FLC 90–490 (Wood SJ). The protection may take the form of keeping what is left of the family unit, such as the mother and the children together in the family home after the father has left: see In the Marriage of Stone (1976) 2 Fam LR 11,235 at 11,240; FLC 90–134 (Strauss J). The protection also suggests a policy of encouraging a continuing and loving relationship between both parents and the children after divorce: see In the Marriage of Craven (1976) 10 ALR 148; 1 Fam LR 11,276 at 11,278; 26 FLR 131; FLC 90–049; see also In the Marriage of Raby (1976) 12 ALR 669; 2 Fam LR 11,348 at 11,360; 27 FLR 412; FLC 90–104. If possible, the children should be kept together and be

kept in the care of one of the natural parents with liberal access to the other: see In the Marriage of Sylvester, above. [s 43.11] The rights of children — s 43(c) The Family Law Act is notable in that it starts from the premise that children have rights and are not mere chattels to be disposed of as between the parents: see In the Marriage of Mazur (1976) 2 Fam LR 11,311 at 11,317; FLC 90–132 (Wood J). The court must not treat the question of custody of a child either as a prize for good behaviour or as a consolation prize for a disappointed parent. Matrimonial misconduct is also of no relevance in itself: see In the Marriage of Hayman (1976) 14 ALR 216; 2 Fam LR 11,558 at 11,578; 28 FLR 51; FLC 90–140 (FC). The court is required to place the children in a situation where the adjustments that children have to make as a result of the marriage breakdown are not more than they can cope with and are not greater than is inevitable in the circumstances: see In the Marriage of Noye (1977) 4 Fam LR 41 at 43; 30 FLR 557; (1978) FLC 90–409 (Wood J); see also In the Marriage of Parsons and Punchon (1978) 4 Fam LR 331 at 335; 31 FLR 513n; FLC 90–490 (Wood SJ). It has been said that a child has the right to be free, which involves the freedom of choice: see In the Marriage of Paisio (1978) 4 Fam LR 689 at 694–5; (1979) FLC 90–659 (Cook J). The subjection of a child to rigid religious doctrine including a separation from the rest of society may infringe that freedom of choice: see In the Marriage of Plows (1979) 4 Fam LR 764; FLC 90–607; see also In the Marriage of S (1980) 5 Fam LR 831; FLC 90– 820 (nullity/duress). The court must consider the child’s welfare from the child’s point of view and if the court feels that the parties cannot adequately put the children’s point of view before the court, the court should make provision for the separate representation of the child under s 68L. The court must also pay regard to the wishes of the child: see In the Marriage of Guillesser (1976) 2 Fam LN 19; FLC 90–127; see also In the Marriage of E (No 2) (1979) 5 Fam LR 244 at 12; 36 FLR 12; FLC 90–645 (McGovern J).

The duty to protect the rights of the child imposes on the court a positive duty to watch over the interests of the child, even if the parents themselves are not pressing those rights: see In the Marriage of Warne (1976) 1 Fam LR 11,602; 26 FLR 118; (1977) FLC 90–241. The court has a positive duty to be independently satisfied that arrangements made between the parents are really for the welfare of the children. [page 243] The court, in determining the property rights as between the parties to the marriage, should make such arrangements as will least burden the child of the marriage: see In the Marriage of Kemp (1976) 2 Fam LR 11,289; FLC 90– 109 (FC). Section 43(c) underlines or reinforces s 75(2)(c). In cases involving a stay of proceedings pending an appeal against parenting orders, the court must take into account the interests of the child: see In the Marriage of Carlin (1977) 3 Fam LN 52; FLC 90–320; see also In the Marriage of Molier and Van Wyk (1981) 7 Fam LR 474; 50 FLR 423; FLC 91–001. [s 43.12] Reconciliation or improvement of the relationship of the family — s 43(d) This paragraph reinforces the duty imposed upon the court by ss 14C, 14F, 16A and 16B and gives support to what has been said in relation to s 43(b). Paragraph (d) cannot be relied on to resist an application for annulment: see In the Marriage of Suria (1977) 3 Fam LR 11,541 at 11,543; 29 FLR 308; FLC 90–305. When considering an application for the eviction of a party from the matrimonial home the court should keep in mind the effect of barring a person from the home could destroy the relationship between the parties: see In the Marriage of Lee (1977) 3 Fam LR 11,609; FLC 90–314. [s 43.15] Family violence Paragraph (ca) referring to the need to ensure safety from family violence, was inserted by the Family Law Reform Act 1995. This matter is now dealt with specifically in numerous provisions in Pt

VII relating to children: see the commentary to that Part.

____________________

[s 44]

Institution of proceedings

44 (1) [Institution by application] Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application. [subs (1) am Act 63 of 1976 s 19; Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[39]]

(1A) [Institution by parties] Proceedings under this Act for: (a) a divorce order in relation to a marriage; or (b) a decree of nullity of marriage; may be instituted by either party to the marriage or jointly by both parties to the marriage. [subs (1A) subst Act 98 of 2005 s 2 and Sch 1, cl 52, opn 3 Aug 2005]

(1B) [Certificate to accompany certain applications for dissolution] An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate: (a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is: (i) a family counsellor; or (ii) if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State — an individual or an organisation nominated for the

parties by a family consultant; or (iii) if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and [page 244] (b) signed by that person or on behalf of that organisation, as the case may be. [subs (1B) insrt Act 72 of 1983 s 21; am Act 72 of 1983 s 76 and Sch; Act 72 of 1984 s 3 and Sch; Act 167 of 1995 s 29; Act 194 of 1999 s 3 and Sch 11[40]; Act 138 of 2003 s 3 and Sch 3 items 13 and Sch 7 item 12 opn 14 Jan 2004; Act 98 of 2005 s 2 and Sch 1, cl 53, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 4 item 47, opn 1 July 2006; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(1C) [Requirement may be waived] Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may: (a) if the application has not been filed — give leave for the application to be filed; or (b) if the application has been filed — at any time before or during the hearing of the application, declare that it is so satisfied;

and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed. [subs (1C) insrt Act 72 of 1983 s 21; am Act 98 of 2005 s 2 and Sch 1, cl 54, opn 3 Aug 2005]

(2) [Application for decree or declaration] Notwithstanding subsections (3) and (3A), a respondent may, in an answer to an application, include an application for any decree or declaration under this Act. [subs (2) am Act 72 of 1983 s 21]

(3) [Time limit on property and maintenance proceedings] Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983: (a) a divorce order has taken effect; or (b) a decree of nullity of marriage has been made; proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after: (c) in a case referred to in paragraph (a) — the date on which the divorce order took effect; or (d) in a case referred to in paragraph (b) — the date of the making of the decree.

The court may grant such leave at any time, even if the proceedings have already been instituted. [subs (3) subst Act 72 of 1983 s 21; am Act 143 of 2000 s 3 and Sch 3 items 36, 37 opn 27 Dec 2000; Act 98 of 2005 s 2 and Sch 1, cl 55–56, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cl 19, opn 18 Sep 2005]

(3AA) [Court may dismiss proceedings] However, if such proceedings are instituted with the consent of both of the parties to the marriage, the court may dismiss the proceedings if it is satisfied that, because the consent was obtained by fraud, duress or unconscionable conduct, allowing the proceedings to continue would amount to a miscarriage of justice. [subs (3AA) insrt Act 143 of 2000 s 3 and Sch 3 item 38 opn 27 Dec 2000]

[page 245] (3A) [Leave to institute s 4(1) proceedings] Notwithstanding subsection (3), where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983: (a) a divorce order has taken effect or a decree of nullity of marriage has been made; and (b) the approval under section 87 of a maintenance agreement between the parties to the marriage has been revoked; proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted:

(c) within the period of 12 months after: (i) the date on which the divorce order took effect or the date of the making of the decree of nullity, as the case may be; or (ii) the date on which the approval of the maintenance agreement was revoked; whichever is the later; or (d) with the leave of the court in which the proceedings are to be instituted; and not otherwise. [subs (3A) insrt Act 72 of 1983 s 21; am Act 98 of 2005 s 2 and Sch 1, cl 57–58, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cl 19, opn 18 Sep 2005]

(3B) [Leave to institute s 4(1) proceedings] Despite subsection (3), if, whether before or after the commencement of Schedule 2 to the Family Law Amendment Act 2000: (a) a divorce order has taken effect or a decree of nullity of marriage has been made; and (b) a financial agreement between the parties to the marriage has been set aside under section 90K or found to be invalid under section 90KA; proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) may be instituted: (c) within the period of 12 months after the later of: (i) the date on which the divorce order took effect or the date of the making of the decree of nullity, as

the case may be; or (ii) the date on which the financial agreement was set aside, or found to be invalid, as the case may be; or (d) with the leave of the court in which the proceedings are to be instituted; and not otherwise. [subs (3B) insrt Act 143 of 2000 s 3 and Sch 3 item 38A opn 27 Dec 2000; am Act 98 of 2005 s 2 and Sch 1, cl 59–60, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cl 19, opn 18 Sep 2005]

(4) [Institution of proceedings] The court shall not grant leave under subsection (3) or (3A) unless it is satisfied: (a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or [page 246] (b) in the case of proceedings in relation to the maintenance of a party to a marriage — that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit. [subs (4) am Act 181 of 1987 s 19]

(5) Subject to subsection (6), a party to a de facto relationship may apply for: (a) an order under section 90SE, 90SG or 90SM; or (b) a declaration under section 90SL;

only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period). [subs (5) insrt Act 115 of 2008 s 3 and Sch 1[36], opn 1 Mar 2009]

(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that: (a) hardship would be caused to the party or a child if leave were not granted; or (b) in the case of an application for an order for the maintenance of the party — the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit. [subs (6) insrt Act 115 of 2008 s 3 and Sch 1[36], opn 1 Mar 2009] COMMENTARY ON SECTION 44 OVERVIEW OF S 44 Proceedings under the Act to be by application — s 44(1) …. APPLICATIONS FOR DIVORCE ORDER OR NULLITY DECREE WITHIN TWO YEARS OF MARRIAGE: REQUIREMENT TO HAVE CONSIDERED RECONCILIATION Applications for divorce orders or nullity decrees may be brought by one party or jointly — s 44(1A) …. Introductory comment …. Application for divorce within two years after marriage — s 44(1B) …. Terms mandatory …. Requirement may be waived in special circumstances —

[s 44.1]

[s 44.3] [s 44.4] [s 44.5] [s 44.6]

s 44(1C) …. Whether requirement may be waived where parties have considered reconciliation but a certificate has not been filed …. ONE YEAR TIME LIMIT FOR PROPERTY AND MAINTENANCE APPLICATIONS AFTER DIVORCE ORDER OR NULLITY DECREE ETC Time limits for commencing certain property and maintenance applications: Introductory comment …. The basic rule: 12 months’ time limit for bringing financial proceedings …. Financial proceedings after divorce or nullity decree, and then revocation of approval to s 87 maintenance agreement — not to be brought more than 12 months after revocation: ss (3A) …. History of rule …. Proceedings to which the time limit does not apply ….

[s 44.7]

[s 44.8]

[s 44.9] [s 44.10]

[s 44.10A] [s 44.11] [s 44.12] [page 247]

Cross-applications — s 44(2) Time limit not applicable to cross-applications …. Amendments to application: Whether time limit applies …. Time limit does not apply to property proceedings after foreign divorce …. TWO YEAR TIME LIMIT FOR BRINGING CERTAIN FINANCIAL PROCEEDINGS AFTER DE FACTO RELATIONSHIP Introductory comment …. Application for leave separate from substantive application …. Hearing of application for leave to institute proceedings

[s 44.13] [s 44.13A] [s 44.14]

[s 44.15] [s 44.16]

…. General principles on application for leave under s 44(4) and (6) …. What constitutes hardship? …. Explanation of applicant’s delay …. Hardship or prejudice to the respondent …. Alternative ground in spouse maintenance application: applicant reliant on pension etc: s 44(4)(b) Introductory comment …. Leave to institute both property and maintenance proceedings …. Death of a party ….

[s 44.17] [s 44.18] [s 44.19] [s 44.20] [s 44.21]

[s 44.22] [s 44.23] [s 44.24]

OVERVIEW OF S 44 Section 44 deals with a number of separate matters relating to the institution of proceedings under the Act. A brief indication follows. Proceedings to be instituted by application: s 44(1) Section 44(1) simply provides that proceedings are to be instituted by application. Joint applications for divorce or nullity: s 44(1A) Section 44(1A) provides that proceedings for a divorce order or nullity decree can be instituted by a party to a marriage or jointly. Requirement to consider reconciliation where short marriage: (1B)–(1C) Section 44(1B)–(1C) provide that the marriage is less than two years old, a divorce application must be accompanied by a certificate that the parties have considered reconciliation (although the requirement can be waived in some circumstances). Time limit of one year after divorce order or nullity decree for property and maintenance proceedings: s 44(3), (3AA), (4) Section 44(3) provides that financial proceedings must be brought within a year of a divorce order taking effect or a nullity decree being made, unless the parties agree (except where the consent is affected by fraud etc — see (3AA)) or the court grants leave. Section 44(4) requires hardship etc if the court is to grant such leave.

The time limit does not stop a respondent applying for an order: see s 44(2). Time limit re-starts upon the revocation of s 87 maintenance agreement or the setting aside of financial agreement: s 44(3A), (3B), (4) The one year time limit has essentially been extended where after a divorce order or nullity decree the court has revoked approval of a s 87 maintenance agreement or has set aside a financial agreement. These situations are dealt with in s 44(3A) and (3B) respectively. In each case, there is a one year time limit from the date of the revocation or setting aside (not from the divorce or nullity order), unless the court grants leave (which again requires hardship etc): see s 44(4). De facto relationship: two year time limit for financial proceedings: s 44(5), (6) Section 44(5) provides that proceedings for certain financial orders or declarations (under s 90SE, 90SG, 90SM, or 90SL)) must be brought within 2 years after the end of the de facto relationship. Section 44(6) provides that the court may grant leave to apply after that period in cases of hardship etc. [page 248] [s 44.1] Proceedings under the Act to be by application — s 44(1) Section 44(1) provides that with some exceptions proceedings under the Act are to be instituted by application. The Family Law Rules 2004 make detailed provision for filing of various kinds of applications and related matters. APPLICATIONS FOR DIVORCE ORDER OR NULLITY DECREE WITHIN TWO YEARS OF MARRIAGE: REQUIREMENT TO HAVE CONSIDERED RECONCILIATION [s 44.3] Applications for divorce orders or nullity decrees may be brought by one party or jointly — s 44(1A) Section 44(1A) provides that applications for divorce orders (formerly called decrees of dissolution of marriage) or nullity decrees may be brought by one party or jointly.

[s 44.4] Introductory comment Section 44(1A)–(1C) makes provision for decrees of divorce (formerly called dissolution of marriage) and nullity. [s 44.5] Application for divorce within two years after marriage — s 44(1B) By s 44(1B), an application for a divorce order shall not, without the leave of the court, be filed within the period of two years after the date of the marriage unless there is filed with the application a certificate to the effect that prior to the filing of the application, the parties have considered reconciliation with a “family counsellor” (defined in s 10C) or a person nominated by a family counselor etc. The certificate must be signed by that person. As to the meaning of “considered a reconciliation etc” see In the Marriage of Nuell (1976) 9 ALR 533; 25 FLR 315; 1 Fam LR 11,239; (1976) FLC 90-031 (Fogarty J) and In the Marriage of Malyszko (1979) 35 FLR 186; 5 Fam LN N7; (1979) FLC 90-650 (Ellis J). [s 44.6] Terms mandatory The terms of s 44(1B) are mandatory and it is necessary that a certificate be filed if the parties have considered a reconciliation with a counsellor: see In the Marriage of Kelada (1984) 9 Fam LR 576; (1984) FLC 91–503. [s 44.7] Requirement may be waived in special circumstances — s 44(1C) If the court is satisfied that there are “special circumstances” by reason of which the hearing of an application for a divorce order should proceed notwithstanding that the parties have not considered reconciliation, then the court may: (a) give leave for the application to be filed; or (b) if the application has been filed at any time before or during the hearing of the application, declare that it is satisfied that there are special circumstances such that the hearing should proceed. As to the meaning of “special circumstances”, see In the Marriage of Nuell (1976) 9 ALR 533; 25 FLR 315; 1 Fam LR 11,239; (1976) FLC 90-031 (Fogarty J); In the Marriage of Birch (1976) 26 FLR 378; 2 Fam LN N8; (1976) FLC 90-088 (Barblett J); In the Marriage of Malyszko (1979) 35 FLR 186; 5 Fam LN N7; (1979) FLC 90-650 (Ellis J); In the Marriage of Kelada (1984) 9 Fam LR 576; (1984) FLC 91–503.

[s 44.8] Whether requirement may be waived where parties have considered reconciliation but a certificate has not been filed A curious situation arose in In the Marriage of Kelada (1984) 9 Fam LR 576; (1984) FLC 91–503. The parties had in fact considered reconciliation with the assistance of a family and child counsellor, but the certificate had not been filed. Asche J held that the terms of s 44(1C) did not permit him to waive the requirement. That provision did not apply, because of the words “notwithstanding that the parties have not considered reconciliation”. It seems unfortunate that the requirement cannot be waived because of a requirement as to form when the objective of the section had in fact been achieved, and it might be arguable that it would not unduly strain the language by reading the provision as meaning “notwithstanding that the parties may not have considered reconciliation”. [page 249] ONE YEAR TIME LIMIT FOR PROPERTY AND MAINTENANCE APPLICATIONS AFTER DIVORCE ORDER OR NULLITY DECREE ETC [s 44.9] Time limits for commencing certain property and maintenance applications: Introductory comment Section 44(3) creates a one year a time limit for bringing property and maintenance proceedings after a divorce order has taken effect or a decree of nullity has been made. The time limit does not apply if both parties consent, except where the consent is obtained by fraud etc — see (3AA). And the court can grant leave for the proceedings to be brought after the time limit — see (4). Section 44(3A) creates a similar one year time limit when, following divorce or nullity, the court has revoked the approval under s 87 of a maintenance agreement. Section 44(3B) is a similar provision, applying to the situation where a financial agreement has been set aside or found to be invalid. Section 44(5) creates a two year time limit for bringing certain financial proceedings after the end of a de facto relationship. The time limit relates to

applications under ss 90SE, 90SG, 90SM and 90SL. In relation to each of these time limits, the court can grant leave for proceedings to be brought outside the time limit in cases of hardship etc: see s 44(4) and (in relation to de facto relationships), s 44(6). It is quite common for leave to be sought to commence such proceedings out of time, and these provisions are of considerable practical importance. The detailed requirements are considered in the following paragraphs. [s 44.10] The basic rule: 12 months’ time limit for bringing financial proceedings Proceedings for the maintenance of a party to a marriage under s 74 (unless they relate to a maintenance order previously made), and proceedings for property settlement under s 79 (not being proceedings under s 78 or s 79A), shall not be instituted after the expiration of 12 months after the date on which the divorce order takes effect, or the date of the decree of nullity of marriage, except where the parties consent or the court grants leave. An application lodged within time but not supported by affidavit as required by the rules is not filed within time: In the Marriage of Gornalle (1992) 110 FLR 158; 16 Fam LR 101; (1993) FLC 92-334. Rule where revocation of approval to s 87 maintenance agreement After a divorce order has taken effect or a nullity decree made, proceedings for the maintenance of a party to the marriage under s 74 (unless they relate to a maintenance order previously made), and proceedings for property settlement under s 79 (not being proceedings under s 78 or s 79A), shall not be instituted after the expiration of 12 months from the date on which the approval of a maintenance agreement was revoked except by the leave of the court in which the proceedings are to be instituted. [s 44.10A] Financial proceedings after divorce or nullity decree, and then revocation of approval to s 87 maintenance agreement — not to be brought more than 12 months after revocation: ss (3A) Where a divorce order has taken effect or a decree of nullity has been made, and the approval of a s 87 maintenance agreement has been revoked — now a rare situation — financial proceedings may not be instituted without leave after the expiration of 12 months from the date of the revocation: see s 44(3A).

[s 44.11] History of rule Section 44(3) was amended by the Family Law Amendment Act 1983 to extend the period during which financial proceedings could be brought without leave after divorce to 12 months from the date on which the decree of dissolution (as a divorce order was then known) became absolute, and also to exclude specifically proceedings under ss 78 and 79A from the time limit. Section 44(3A) was inserted by the same amending Act. It effectively permits a new 12 month period to run from the date of the revocation of approval of a s 87 agreement, where the revocation is subsequent to the divorce. [page 250] [s 44.12] Proceedings to which the time limit does not apply The time limit created by s 44(3) does not apply to all financial proceedings. It applies only to proceedings under paras (c) or (ca) of the definition of “matrimonial cause” in s 4; and certain other proceedings are excluded from its operation. The result is that the rule does not apply to the following proceedings: (i) proceedings for maintenance of a child (“matrimonial cause” paras (cb), (cc),(ce)); (ii) enforcement proceedings (“matrimonial cause” para (f)); (iii) proceedings under s 114(1) or s 85 (“matrimonial cause”paras (e), (f)); (iv) proceedings for approval of (or otherwise in relation to) a maintenance agreement (“matrimonial cause” paras (d), (ea)); (v) proceedings seeking to discharge, suspend, revive or vary an order previously made in proceedings with respect to the maintenance of a party; (vi) proceedings under s 78. However the institution of proceedings under s 78 cannot be used as a means to avoid the provisions of the section: see below, [s 44.13A]. (vii) proceedings under s 79A or s 90SN; (viii) applications to restore to the list matters that have been struck

(ix) (x)

out: such reinstatement is a purely administrative matter. See In the Marriage of Bennett (1985) 10 Fam LR 68; (1985) FLC 91– 617. Where the matter has been dismissed for want of prosecution or permanently stayed, however, the Full Court implied that a fresh application would be necessary, and s 44(3) might then be applicable: see per Nygh J at Fam LR 69–70; at 79,994; cross-applications: see below, [s 44.13]; proceedings following a decree pronounced under foreign law: see below, [s 44.14].

[s 44.13] Cross-applications — s 44(2) Time limit not applicable to crossapplications In 1983 s 44(2) was amended by adding the words “Notwithstanding ss (3) and (3A)”, confirming the 1981 decision of Hogan J that the time limit in s 44(3) does not apply to an application “in an answer to an application”: see In the Marriage of Anger (1981) 8 Fam LR 333; (1982) FLC 91-248; see also In the Marriage of Berta (1988) 12 Fam LR 191; (1988) FLC 91-916. It is clear, for example, that if a party applies for property orders under s 79 the other party may apply outside the time limit for alternative property orders. Cross-applications for relief of a different kind In In the Marriage of Anger, above, Hogan J rejected a submission that subs (2) should be read down so as to enable relief to be sought in a cross-application only in relation to the subject matter of the application whereby the proceedings were instituted. He held that: “Had this been the intention of the legislature then it would have been an easy matter to so provide, for example, that such subsection was to be subject to subs (3). But the words used (‘any decree or declaration under this Act’) are very wide and I can see no reason why they should be given any interpretation other than that which they seem to me to so clearly bear.” The Full Court in In the Marriage of Berta (1988) 12 Fam LR 191; (1988) FLC 91-916, took the view that the interpretation given by Hogan J to s 44(2) in 1981 had been strengthened by its subsequent amendment. However, the court left open the question whether a cross-application for maintenance or

property filed in opposition to an application for custody or access could be described as a “reply”. As to this see also the remarks of Mullane J in In the Marriage of Ferretto (1986) FLC 91-770. [s 44.13A] Amendments to application: Whether time limit applies In In the Marriage of Woolley (1981) 48 FLR 328; (1981) 6 Fam LR 577; (1981) FLC 91-011, Nygh J pointed out that the time limit cannot be circumvented by amending an application to seek relief of a quite different kind. A party could not amend an application for access by adding a claim for property orders and thereby avoid the time limit. But what is relief of a different kind? It has been held by the Full Court that the test is whether the proceedings fall within the same paragraph of “matrimonial cause”: see In the Marriage of Good (1982) 8 Fam LR 354; (1982) [page 251] FLC 91-249 (FC) (approving In the Marriage of Woolley (1981) 48 FLR 328; 6 Fam LR 577; (1981) FLC 91-011). See also In the Marriage of Macura (1982) FLC 91-252; In the Marriage of Ferretto (1986) FLC 91-770. In Good, above, the husband had applied, after the divorce, for a declaration under s 78. At the trial, outside the time limit, the wife applied to amend her pleadings by adding an application under s 79. The trial judge held that this was a fresh application and could not be filed without leave under s 44(3). The Full Court allowed the wife’s appeal against the decision. It said that amendments may be made without leave provided that they do not provide for proceedings of a different kind from proceedings already instituted. The wife’s application for an order under s 79 was of the same kind as the husband’s s 78 application, both falling within para (ca) of “matrimonial cause”. Section 78 and 79 proceedings The time limit for the institution of proceedings for alteration of property interests under s 79 cannot be avoided simply by relying on the existence of proceedings which have been validly instituted under s 78: see In the Marriage of Smith (1990) 102 FLR 335; 14

Fam LR 521; (1991) FLC 92-200 where the decisions of the court in In the Marriage of Good (1990) 102 FLR 335; 14 Fam LR 521; (1991) FLC 92-200 and In the Marriage of Macura (1982) FLC 91-252 were held not to apply because they would have the effect of permitting the circumvention of the statutory restriction on the commencement of proceedings under s 79 out of time. However, where an application for alteration of property interests under s 79 is outside the limitation period, consideration may be given to an application under s 78: see [44.12]. Maintenance and property proceedings On the above authorities, the time limit cannot be avoided by amending property proceedings to include a claim for maintenance, or by amending maintenance proceedings to add a claim for property orders, since maintenance and property fall under different paragraphs of “matrimonial cause”. [s 44.14] Time limit does not apply to property proceedings after foreign divorce In Anderson v McIntosh (2013) 283 FLR 361; 50 Fam LR 609; [2013] FamCAFC 200; BC201350628, the Full Court (Bryant CJ, Thackray and May JJ) agreed with the careful analysis of Murphy J at first instance (49 Fam LR 316) that the s 44(3) time limit does not apply to property proceedings after foreign divorce. This is because (in contrast with the word “divorce”, which refers to the termination of a marriage by way of an order under the Act or an overseas order), since the amendment of 2005 s 44(3) uses the term “divorce order”, and this refers only to the termination of a marriage by way of an order under the Act. In short, the legislature has not imposed a time limit on bringing property or maintenance proceedings following a foreign divorce. In so holding, the Full Court overruled the contrary decision (namely that the rule does apply to foreign divorces) in Taffa v Taffa (summary dismissal) [2012] FamCA 181; BC201250198. TWO YEAR TIME LIMIT FOR BRINGING CERTAIN FINANCIAL PROCEEDINGS AFTER DE FACTO RELATIONSHIP Section 44(5) creates a two year time limit for bringing certain financial proceedings after the end of a de facto relationship. The time limit relates to applications under ss 90SE, 90SG, 90SM and 90SL. Proceedings for the maintenance of a party to a de facto relationship under

s 90SE or s 90SG and proceedings for property distribution under s 90SM shall not be instituted after the expiration of two (2) years from the end of the de facto relationship revoked except by the leave of the court in which the proceedings are to be instituted. [s 44.15] Introductory comment The time limits created by s 44 are all subject to a provision by which a court can give leave to allow the proceedings to be commenced after the time limit. The bulk of the case law relates to s 44(3), but it seems likely that the authorities under that [page 252] subsection will also be useful guides in relation to the similar provisions by which a court can grant leave in relation to de facto proceedings — s 44(6) — and where a s 87 maintenance agreement has been revoked — s 44(3A). The following commentary will focus mainly on s 44(3). Leave shall not be granted under s 44(3) unless the court is satisfied that hardship would be caused to a party or a child if leave were not granted; or, in applications for spousal maintenance, that at the end of the period the applicant would not have been able to support himself or herself without an income tested pension, allowance or benefit: see s 44(4). The equivalent provisions relating to the two-year limit in de facto relationship cases is s 44(6). Grant of leave is interlocutory It has been held that an order granting leave under s 44(3) is an interlocutory order and therefore leave to appeal is required: see In the Marriage of Emamy and Marino (1994) 122 FLR 161; 18 Fam LR 44; (1994) FLC 92-487 ((FC); Ellis, Baker and Kay JJ dissenting, and leaving this point open). (This decision overrules the decision in In the Marriage of Thallon (1992) 106 FLR 75; 15 Fam LR 805; (1992) FLC 92322.) Which court may grant leave? Section 44(3), (3A) and (5) require that leave be obtained from the court in which the proceedings are to be instituted: it may not be obtained from any other court.

[s 44.16] Application for leave separate from substantive application In In the Marriage of Slater (1985) 10 Fam LR 381; (1985) FLC 91-641, Ellis J said at 382 that a party cannot institute proceedings pursuant to s 79 in the same application in which a party seeks leave to institute those proceedings. It is submitted that a party seeking leave should, in an affidavit in support of an application for leave specify the relief sought if leave is granted (SO’R). Application under s 44(3) not a proceeding “with respect to property” In In the Marriage of Slater, above, Ellis J said that proceedings for leave under s 44(3) were not proceedings of a kind falling within para (ca) of “matrimonial cause” in s 4(1). They were proceedings with respect to leave to institute proceedings with respect to property. [s 44.17] Hearing of application for leave to institute proceedings Full hearing of merits of claim not required The Full Court has often stressed that the court is not required to undertake a detailed hearing on the merits of the claim in respect of which leave is sought. The question is not whether the claim will succeed, but “The exercise is to determine whether there is a reasonable claim to be heard. That is the essence of the inquiry into whether hardship will be suffered by denying the applicant the right to litigate that claim”: see In the Marriage of Althaus (1979) 8 Fam LR 169 at 172; (1982) FLC 91-233 at 77,267, per Evatt CJ. See also In the Marriage of Whitford (1979) 24 ALR 424; (1978) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612; In the Marriage of Mackenzie (1978) 34 FLR 56; 4 Fam LR 374; (1978) FLC 90-496; In the Marriage of Perkins (1979) 35 FLR 356; 4 Fam LR 634; (1979) FLC 90-600. Limits on evidence It follows that the evidence relevant to the application for leave will be limited. In In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91–776, the Full Court said that the general principle is that the court proceeds on the evidence of the applicant, which should be accepted unless it is inherently unbelievable or contradictory, although oral evidence may have to be called and cross examination allowed however because of lack of clarity in the applicant’s evidence: at Fam LR 343 per Nygh J, with whom Walsh and Fogarty JJ agreed. The Full Court appeared to envisage a

rather more limited hearing than that contemplated in the earlier decision in Whitford, above. See also In the Marriage of Hall (1979) 5 Fam LR 411; (1979) FLC 90–679. Applicant’s evidence In In the Marriage of Atwill (1981) 7 Fam LR 573; (1981) FLC 91-107, Nygh J said that regs 97 and 98 of the former regulations (now repealed), which required the filing of financial statements, did not apply to applications for leave under s 44(3). It is, however, [page 253] arguable that the more detailed current rules, the Family Law Rules 2004, apply to such applications, since the wording has been changed significantly. See the rules and commentary thereto. See also In the Marriage of Baynes (1978) 4 Fam LN N23; (1978) FLC 90-451 per Bell J; In the Marriage of Frost and Nicholson (1981) 7 Fam LN N9; (1981) FLC 91-051 at 76,422. Respondent’s evidence In In the Marriage of Atwill (1981) 7 Fam LR 573; (1981) FLC 91-107, Nygh J said that it is open to the respondent simply to oppose the application for leave, and if the respondent does not plead incapacity or financial hardship there is no basis on which he or she should be compelled to disclose financial information. This comment now needs to be considered in the light of the more detailed provisions of the Family Law Rules 2004: see those rules and the commentary thereto. Costs A respondent who insists on treating the application as if it were a hearing of the substantive claim may be at risk of a costs order, at least where the court concludes that the respondent conducted the proceedings “in an extravagant and wasteful way”: see In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776. Jurisdiction It is not implicit in the granting of leave pursuant to s 44(3) that the proceedings fall within para (c) or para (ca) of the definition of “matrimonial cause”. Strictly speaking, the issue of jurisdiction becomes relevant only after leave has been granted and the proceedings are in fact

instituted, although it is open to the respondent to the leave application to argue that no hardship would accrue because the substantive application is beyond jurisdiction: see In the Marriage of Skoflek and Baftirovski (1988) 90 FLR 126; 12 Fam LR 55 at 59–60; (1988) FLC 91-906; see also In the Marriage of Leibinger (No 1) (1985) 11 Fam LR 33; (1986) FLC 91-727. [s 44.18] General principles on application for leave under s 44(4) and (6) Section 44 does not state what principles should guide the court on an application for leave, except that the court must be satisfied that hardship would be caused to a party or a child if leave were not granted: s 44(4) and (6). The Full Court has stated the general principles in slightly different ways, but it is submitted (RC, SO’R) that it is now well established that on an application for leave two broad questions arise: (a) Whether hardship would be caused to a party or a child of the marriage if leave were not granted. If such hardship is not established, the application for leave must be dismissed. (b) If the court is satisfied that hardship would be caused, it should proceed to consider whether leave should be granted. This is a discretionary matter, and the court may have regard to a number of factors, including whether the applicant has an adequate explanation for the delay in bringing the proceedings, and whether to grant leave would prejudice or impose hardship on the respondent, or other persons. Questions of degree arise at this stage. Thus it might be that an applicant establishes the necessary hardship to satisfy s 44(4), but the court declines to grant leave because, for example, the hardship to the applicant if leave were refused is outweighed by the hardship to the respondent if it were granted. See generally In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776; In the Marriage of Leibinger (No 1) (1985) 11 Fam LR 33; (1986) FLC 91-727; In the Marriage of Aldred 9 Fam LR 539; (1984) FLC 91-510; In the Marriage of Hall (1979) 5 Fam LR 411; (1979) FLC 90-679; In the Marriage of Whitford (1979) 24 ALR 424; (1978) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612; In the Marriage of Cox (1981) 7 Fam LR 627; (1981) FLC 91-068; In the Marriage of Carlon (1982) 8 Fam LR 729 at

734; (1982) FLC 91-272. [s 44.19] What constitutes hardship? Introductory comment There is considerable authority on the meaning of “hardship” in s 44, and the leading cases are summarised below. In general, it may be said that the court’s approach to leave applications is a rather generous one, and the test of “hardship” is normally satisfied by [page 254] showing that the applicant has a prima facie claim of some consequence, and will thus be significantly worse off if leave is not granted. The court has been particularly inclined to grant leave in cases of applications for maintenance. Unnecessary to show poverty It is quite clear that an applicant may establish “hardship” although the applicant is not in poor or necessitous circumstances. See In the Marriage of Whitford (1979) 24 ALR 424; (1978) 35 FLR 445; (1979) 4 Fam LR 754; (1979) FLC 90-612; In the Marriage of Frost and Nicholson (1981) 7 Fam LN N9; (1981) FLC 91-051. More than appreciable detriment It is equally clear that hardship is not established by showing that the applicant would be marginally better off if leave were granted. It has been said that the applicant must show not merely an appreciable detriment but a “substantial detriment”: Whitford, above. See also In the Marriage of Mackenzie (1978) 34 FLR 56; 4 Fam LR 374; (1978) FLC 90-496. Similarly, it has been said that the mere loss of a right to litigate is not hardship: the consequence of that loss is the relevant matter: see In the Marriage of Mackenzie, above. Loss of prospective property claim may be hardship Whatever the applicant’s final situation might be, the loss of a prospective substantial claim for property adjustment may constitute hardship: see Whitford, above.

Loss of prospective maintenance claim may be hardship It seems that the court will always consider loss of a (substantial) prima facie claim for maintenance to be hardship. See Whitford, above; In the Marriage of Atwill (1981) 7 Fam LR 573; (1981) FLC 91-107. Relevance of other remedies In considering whether hardship would be caused by refusing an order the court compares the situation were leave not granted with the situation were leave granted. The availability of other remedies if leave were not granted thus appears to be a relevant matter. In particular, if the applicant will be unable to obtain a remedy under state law because any application would be a “matrimonial cause” and therefore outside the jurisdiction of the state courts, this will be a factor suggesting hardship. See In the Marriage of Aldred (1984) 9 Fam LR 539; (1984) FLC 91-510 and on appeal to the Full Court In the Marriage of Aldred (No 2) (1985) 9 Fam LR 1091; (1985) FLC 91-602; In the Marriage of Pearce (1982) 8 Fam LR 723; (1982) FLC 91-276. Similarly, in the de facto sphere the cases have focused on the existence of alternate remedies as a potential bar to leave being granted. Relevance of a potential claim under s 78 Hardship may be shown even where the applicant has a claim under s 78 (for which leave is not required). In In the Marriage of Catlin and Kent (1986) 11 Fam LR 639; (1987) FLC 91-815, the wife applied for leave to bring a s 79 application out of time. She had in fact transferred the property to the husband many years previously, but now argued that she misunderstood the nature of the transfer, and wished to set it aside. The husband argued that if established, her allegations would give her a right which could be declared under s 78. The court should determine this question before considering leave. However, the Full Court held that since s 78 rarely resolves matrimonial property issues, the trial judge was entitled to grant leave under s 44(3) for the wife to bring a s 79 application. Where no prima facie case Even if the claim is large, it has been said that hardship will not be established if the whole of the applicant’s case is inherently improbable, or demonstrably false, and has no reasonable probability of success. However, where a part of the claim has a reasonable

chance of success, the refusal of leave may cause hardship. See In the Marriage of Hall (1979) 5 Fam LR 411 at 417; (1979) FLC 90-679 at 78,627–8. [page 255] [s 44.20] Explanation of applicant’s delay Introductory comment Once the applicant has established that refusal of leave would cause hardship to the applicant or a child, the question arises whether leave should be granted. The court looks at all the circumstances in exercising its discretion, but one of the most important is the applicant’s explanation for the delay. Two common reasons are that the applicant had managed satisfactorily on the basis of voluntary arrangements, and that the applicant’s solicitors had been dilatory. As we see in the following paragraphs, the court has tended to regard these reasons as satisfactory explanations. Significance of explaining the delay Some decisions have stated or implied that as a matter of law there must always be a satisfactory explanation of the delay: see especially In the Marriage of Kercher (1981) 7 Fam LR 216; (1981) FLC 90-040. This view is now discredited. The applicant’s explanation for the delay, or the lack of it, is no more than one factor whose weight depends on all the circumstances. See In the Marriage of Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233; In the Marriage of Carlon (1982) 8 Fam LR 729; (1982) FLC 91-272. Delay by legal advisers A delay by the applicant’s legal advisers in carrying out instructions given in time should not necessarily be ascribed to the applicant. If the court is satisfied that the applicant did all that he or she could reasonably be expected to have done, such conduct by the solicitors ought not to be attributable to a party unless the delay was so long after instructions were given that even a party as a lay person ought to have become suspicious: see In the Marriage of Hall (1979) 5 Fam LR 411; (1979) FLC 90-679; see also In the Marriage of Frost and Nicholson (1981) 7 Fam LN

N9; (1981) FLC 91-051 and In the Marriage of Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233 at 77,268. Applicant content with voluntary arrangements Applications are commonly brought upon the breakdown of voluntary financial arrangements which had previously been acceptable to the applicant. For example, the applicant may have failed to proceed because the respondent had paid maintenance, or allowed the applicant to remain in the matrimonial home. The applicant may not have thought about financial applications because there was no apparent need. The courts have tended to regard this as an acceptable reason for the delay in bringing proceedings. See eg Whitford, Althaus, Aldred and on appeal to the Full Court (1985) 9 Fam LR 1091, above. In some cases, the court may say or imply that the respondent, having broken the arrangement or misled the applicant, can hardly complain at the applicant’s decision to bring proceedings; see In the Marriage of McCarron and Unsworth (1978) 32 FLR 55; 4 Fam LR 112; (1978) FLC 90-444. Failure to explain delay may nevertheless cause refusal It should not be inferred from the, above that the time limit of 12 months has been entirely disregarded. An applicant who is unable to give a satisfactory explanation for a substantial delay may be refused leave. See for example, Carlon, above, and In the Marriage of Leibinger (No 1) (1985) 11 Fam LR 33; (1986) FLC 91-727. [s 44.21] Hardship or prejudice to the respondent One of the matters relevant to the exercise of discretion is whether to grant the applicant leave would cause hardship of prejudice to the respondent: Frost and Nicholson; Hall, above. Such prejudice or hardship is particularly likely to arise where the respondent had reorganised his or her affairs on the reasonable expectation that the applicant would not bring proceedings, especially where the applicant had led the respondent to believe that no application would be made. See In the Marriage of McDonald (1977) 31 FLR 426; (1977) 3 Fam LN N72; (1977) FLC 90-317; In the Marriage of Atwill (1981) 7 Fam LR 573; (1981) FLC 91-107; In the Marriage of Mackenzie (1978) 34 FLR 56; 4 Fam LR 374; (1978) FLC 90-496.

[page 256] [s 44.22] Alternative ground in spouse maintenance application: applicant reliant on pension etc: s 44(4)(b) Introductory comment The 1987 amendments added an alternative ground in cases of applications for spousal maintenance, that the applicant would be unable to support himself or herself without an income tested pension, allowance or benefit. In such a case leave may be granted even though the court may not find hardship established. Policy of amendment The Explanatory Notes to the 1987 amending Act stated that this amendment was consequential upon the amendments to ss 75 and 87. The Attorney-General, the Hon Lionel Bowen, in his Second Reading Speech, said that the Government was concerned at “the high level of social security payments being made to divorced parties who have not made adequate financial provisions for spousal maintenance”. The amendment is presumably intended to apply to a situation in which a person remains dependent on social security payments and yet is unable to establish hardship: in such a case, it must have been feared that the time limit would, in the Attorney-General’s words, “facilitate the drain on the revenue”: hence the amendment, removing the inhibition on bringing the application for maintenance. [s 44.23] Leave to institute both property and maintenance proceedings Because property applications and maintenance applications are not really severable, if leave is to be granted to one of them, then leave should be granted to both: see In the Marriage of Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233. [s 44.24] Death of a party In In the Marriage of Slater (1985) 10 Fam LR 381; (1985) FLC 91-641 Ellis J held that the proceedings abate where the applicant for leave dies, as there is no express provision in the Act authorising the continuance of those proceedings, by substituting the legal personal representative of the deceased, as a party to the proceedings. This is so even where the respondent had indicated that he or she would consent to

an order granting leave to institute proceedings. His Honour held that s 79(8) has no application as it is a provision dealing with the non-abatement of property proceedings commenced but not completed at the date of death of a party; see also In the Marriage of Phillips (1985) 10 Fam LR 310; (1985) FLC 91-634.

____________________

[s 44A]

Proceedings for divorce order

44A The regulations may provide that proceedings for a divorce order may not be instituted in, or transferred to, a court of summary jurisdiction other than a prescribed court. [s 44A insrt Act 8 of 1988 s 24; am Act 98 of 2005 s 2 and Sch 1, cl 61, opn 3 Aug 2005] COMMENTARY ON SECTION 44A Introductory comment …. Courts prescribed ….

[s 44A.1] [s 44A.2]

[s 44A.1] Introductory comment This section provides that only prescribed courts of summary jurisdiction may deal with applications for divorce. [s 44A.2] Courts prescribed Courts of summary jurisdiction in the Australian Capital Territory and Western Australia, but not yet elsewhere, have been prescribed for the purpose of this section: see FAMILY LAW REGULATIONS, reg 10A.

____________________ [page 257]

[s 45]

Stay and transfer of proceedings

*45 (1) [Contemporaneous proceedings in another court] Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that other proceedings that have been so instituted or are being so continued in relation to the same marriage or void marriage or the same matter are pending in another court, the first-mentioned court may stay the first-mentioned proceedings for such time as it considers appropriate or may dismiss the proceedings. [subs (1) am Act 72 of 1983 s 22; Act 181 of 1987 s 63 and Sch]

(1A) [Bankruptcy proceedings] For the purposes of subsection (1), if the bankruptcy trustee of a bankrupt party to a marriage applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act, proceedings relating to that application are taken to be proceedings under this Act in relation to the marriage. [subs (1A) insrt Act 20 of 2005 s 3 and Sch 1 cl 20, opn 18 Sep 2005; am Act 115 of 2008 s 3 Sch 1[37], opn 1 Mar 2009]

(1B) For the purposes of subsection (1): (a) a de facto financial cause instituted in relation to a de facto relationship; and (b) proceedings relating to an application, by the bankruptcy trustee of one of the parties to the de facto relationship, under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act; are taken to be proceedings under this Act in relation to the same matter. [subs (1B) insrt Act 115 of 2008 s 3 and Sch 1[38], opn 1 Mar 2009]

(1C) For the purposes of subsection (1), the first proceedings set out in each item of following table, and the second proceedings set

out in that item, are taken to relate to the same matter if one of the parties to each marriage, void marriage or de facto relationship referred to in that item is the same. Proceedings relating to the same matter Item First proceedings 1 a matrimonial cause instituted in relation to a marriage (or void marriage) 2 a de facto financial cause instituted in relation to a de facto relationship

Second proceedings a de facto financial cause instituted in relation to a de facto relationship a de facto financial cause instituted in relation to a de facto relationship

[subs (1C) insrt Act 115 of 2008 s 3 and Sch 1[38], opn 1 Mar 2009]

(2) [Transfer in interests of justice] Where there are pending in a court proceedings that have been instituted under this Act or are being continued in *Editor’s Note: The Family Law Amendment Act 2000 No 143 of 2000 provided in Sch 3 item 40 as follows: “Validation of past transfers 40 To avoid doubt, a purported transfer of proceedings under subsection 45(2) of the Family Law Act 1975 before the commencement of item 39 is taken not to have been invalid or ineffective merely because it was done on the court’s own initiative.”

[page 258] accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the

proceedings to the other court. However, this subsection does not apply to particular proceedings if: (a) the first-mentioned court is the Family Court and the other court is the Federal Circuit Court of Australia; or (b) the first-mentioned court is the Federal Circuit Court of Australia and the other court is the Family Court. Note 1: For transfers from the Family Court to the Federal Circuit Court of Australia, see section 33B. Note 2: For transfers from the Federal Circuit Court of Australia to the Family Court, see section 39 of the Federal Circuit Court of Australia Act 1999. [subs (2) am Act 72 of 1983 s 22; Act 8 of 1988 s 25; Act 194 of 1999 s 3 and Sch 11[41]; Act 13 of 2013 s 3 and Sch 1 item 284, Sch 2 item 2, opn 12 Apr 2013]

(3) A transfer under subsection (2) may be made on the application of any party to the proceedings. [subs (3) insrt Act 143 of 2000 s 3 and Sch 3 item 39 opn 27 Dec 2000]

(4) A transfer under subsection (2) may be made on the transferring court’s own initiative if the transfer is: (a) from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or (b) from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State. [subs (4) insrt Act 143 of 2000 s 3 and Sch 3 item 39 opn 27 Dec 2000] [s 45 subst Act 23 of 1979 s 8] COMMENTARY ON SECTION 45 Stay of proceedings — s 45(1) — introductory comment ….

[s 45.1]

Same matrimonial relief …. Proceedings instituted under the Act …. Power of the court …. Principles to be applied …. When a proceeding is pending …. Different courts …. Transfer of proceedings to another court having jurisdiction under the Act — s 45(2) …. To which court should the application be made? ….

[s 45.2] [s 45.3] [s 45.4] [s 45.5] [s 45.6] [s 45.7] [s 45.8] [s 45.9]

[s 45.1] Stay of proceedings — s 45(1) — introductory comment This section confers power on a court to stay its own proceedings having regard to the existence of proceedings between the same parties or relating to the same matter instituted in another court having jurisdiction under the Family Law Act. In In the Marriage of Sillars (1985) 11 Fam LR 193; (1986) FLC 91– 756, Emery J said that the purpose of the section is to enable the large number of courts exercising jurisdiction under the Act to so do with a minimum of conflict and in so far as possible to act in aid of and not contrary to each other. [s 45.2] Same matrimonial relief A stay can be granted even though the application before the court granting the stay and the application before the other court are for the same matrimonial relief: see In the Marriage of Kennedy (1976) 25 FLR 305; FLC 90–057. [page 259] [s 45.3] Proceedings instituted under the Act The words “proceedings that have been instituted under this Act” cover not only matrimonial causes as defined in s 4(1), but also proceedings instituted under s 33 of the Act which are not within that definition. [s 45.4] Power of the court The court only has the power to stay or dismiss the proceedings before it; it does not have the power to interfere with the

proceedings in the other court. In In the Marriage of Sillars (1985) 11 Fam LR 193; (1986) FLC 91–756, Emery J said that the section confers jurisdiction to make orders other than those referred to in the section and that in the circumstances of that case, the trial judge had jurisdiction to stay, not the proceedings, but the orders made in the other court. Lindenmayer and Treyvaud JJ held that the trial judge had no power to stay the orders made in the other court. Lindenmayer J said that the section gives power only to stay or dismiss proceedings in the court in which the question of the exercise of that power arises and not in another court exercising jurisdiction under the Act. [s 45.5] Principles to be applied The principles to be applied on such an application are similar to those applicable in relation to s 40(6): see In the Marriage of Cobbin (1976) 1 Fam LN 14; FLC 90–017; see also In the Marriage of Ryan (1976) 1 Fam LN 32. Discretion of the court In In the Marriage of Sillars (1985) 11 Fam LR 193; (1986) FLC 91–756, the Full Court held that the word “may” where twice occurring in s 45(1) is facultative or permissive in character and not mandatory. [s 45.6] When a proceeding is pending Proceedings for maintenance are no longer pending once the order for payment of maintenance has been made: see In the Marriage of Lovich and Legovini (1977) 3 Fam LR 11,105. The section deals with the stay of proceedings, not the stay of orders: see In the Marriage of Sillars (1985) 11 Fam LR 193; (1986) FLC 91–756 (FC) and [s 45.4]. [s 45.7] Different courts Section 45(1) applies where there are proceedings pending in two different courts. The courts referred to are not to different registries of the same court, but to different courts. If there are similar proceedings in different registries, the appropriate application is to apply for a change of venue: see In the Marriage of Sillars (1985) 11 Fam LR 193; (1986) FLC 91–756 (FC). [s 45.8] Transfer of proceedings to another court having jurisdiction

under the Act — s 45(2) Section 45(2) provides that in the interests of justice, or of convenience to the parties, a court exercising jurisdiction under the Family Law Act may transfer proceedings that have been instituted under the Act, and are pending before it, to another court having jurisdiction under the Act. Section 45 does not apply to transfers between the Family Court of Australia and the Federal Circuit Court The concluding words provide in substance that the section does not apply to transfers between the Family Court of Australia and the Federal Circuit Court. As the notes to the section indicate, such transfers are provided for in s 33B of the Family Law Act and s 39 of the Federal Circuit Court of Australia Act 1999. Transfer from Federal Circuit Court to State or Territory Supreme Court The Full Court has held that s 45 permits the Federal Circuit Court to transfer a matter to a State Supreme Court: Kavan v Mallery (2015) 54 Fam LR 17; [2015] FamCAFC 82. The Full Court held that the Supreme Courts fell within the description of “another court having jurisdiction under this Act” because the Commonwealth Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(1), [page 260] provides, relevantly, that where the Family Court has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and the Supreme Court would not, apart from this section, have jurisdiction with respect to that matter; then [the State Supreme Court] “is invested with federal jurisdiction with respect to that matter”. The Full Court noted that s 39 of the Family Law Act does not confer jurisdiction on the Supreme Courts, but said at [32]: Notwithstanding the express provisions of s 39B(1) …, we are of the view that given the reference in s 4(1)(a) of the Cross-vesting Act to the conferral of jurisdiction on the Family Court “before or after the commencement” of that Act, that it must be concluded that the Supreme

Court of New South Wales does have jurisdiction under Part VIIIAB of the Family Law Act. Accordingly, the Federal Circuit Court can transfer to the New South Wales Supreme Court proceedings instituted under Part VIIIAB in the Federal Circuit Court. This is a significant decision, because the transfer provisions of the CrossVesting Act do not enable transfers other than from one superior court to another. [s 45.9] To which court should the application be made? An application under s 45(2) can only be made in the court in which the proceedings are pending and not in the court to which it is desired the proceedings should be transferred.

____________________

[s 45A] Transfer of property proceedings from the Federal Magistrates Court — value exceeds $300,000 45A

[s 45A rep Act 46 of 2006 s 3 and Sch 7 item 1, opn 1 July 2006]

[s 46] Transfer of proceedings from court of summary jurisdiction in certain cases 46 (1) Where proceedings are instituted in or transferred to a court of summary jurisdiction in relation to property of a total value exceeding $20,000 and the respondent, in answer to the application by which the proceedings were instituted, seeks an order different from that sought in the application: (a) the court must, before proceeding to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the

proceedings to: (i) the Family Court; or (ia) a Family Court of a State; or (ii) the Supreme Court of a State or Territory; or (iii) the Federal Circuit Court of Australia; and (b) unless the parties consent to the court hearing and determining the proceedings—the court must transfer the proceedings to: (i) the Family Court; or (ia) a Family Court of a State; or (ii) the Supreme Court of a State or Territory; or (iii) the Federal Circuit Court of Australia. [subs (1) subst Act 181 of 1987 s 20; am Act 8 of 1988 s 44; Act 194 of 1999 s 3 and Sch 11[43]; Act 143 of 2000 s 3 and Sch 3 item 41; Act 98 of 2005 s 2 and Sch 1, cl 28, opn 3 Aug 2005; Act 22 of 2006 s 3 and Sch 1 item 12, opn 1 July 2006; Act 186 of 2012 s 3 and Sch 4 items 1–4, opn 12 Dec 2012; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

[page 261] (1AA) Subsection (1) does not apply if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. [subs (1AA) subst Act 186 of 2012 s 3 and Sch 4 item 5, opn 21 Dec 2012]

(1A) A reference in subsection (1) to proceedings with respect to property does not include a reference to proceedings with respect to arrears of maintenance. [subs (1A) insrt Act 72 of 1983 s 23]

(1AB) In determining the value of any property for the purposes of subsection (1), any mortgage, lien, charge or other security over the property is to be disregarded. [subs (1AB) insrt Act 8 of 1988 s 26]

(1B) Subject to subsection (1C), if: (a) proceedings referred to in subsection (1) are instituted in or transferred to a court of summary jurisdiction; and (b) the parties consent to the proceedings being heard and determined by that court; a party is not entitled subsequently to object to the proceedings being so heard and determined. [subs (1B) subst Act 98 of 2005 s 2 and Sch 1, cl 29, opn 3 Aug 2005; am Act 186 of 2012 s 3 and Sch 4 item 6, opn 12 Dec 2012]

(1C) If the court subsequently gives leave to a party to object to the proceedings being so heard and determined, the court must transfer the proceedings to: (a) the Family Court; or (aa) a Family Court of a State; or (b) the Supreme Court of a State or Territory; or (c) the Federal Circuit Court of Australia. [subs (1C) insrt Act 98 of 2005 s 2 and Sch 1, cl 29, opn 3 Aug 2005; am Act 186 of 2012 s 3 and Sch 4 item 7, opn 12 Dec 2012; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) Where proceedings referred to in subsection (1) are before it, the court may transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the court to hear and determine the proceedings. (2A) If:

proceedings for a divorce order have been instituted in (a) or transferred to a court of summary jurisdiction; and (b) the proceedings are defended; the court is required to transfer the proceedings to: (c) the Family Court; or (ca) a Family Court of a State; or (d) the Supreme Court of a State or Territory; or (e) the Federal Circuit Court of Australia. [subs (2A) subst Act 98 of 2005 s 2 and Sch 1, cl 30, 62, opn 3 Aug 2005; am Act 186 of 2012 s 3 and Sch 4 item 8, opn 12 Dec 2012; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2B) Subsection (2A) does not apply if the court of summary jurisdiction is the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. [subs (2B) insrt Act 22 of 2006 s 3 and Sch 1 item 14, opn 1 July 2006; am Act 186 of 2012 s 3 and Sch 4 item 9, opn 12 Dec 2012]

[page 262] (3) Before transferring proceedings under subsection (1) or (2A), the court may make such orders as it considers necessary pending the disposal of the proceedings by the court to which they are to be transferred. [subs (3) am Act 181 of 1987 s 20; Act 8 of 1988 s 26]

(3A) If proceedings instituted under this Act, or continued under section 9, are pending in a court of summary jurisdiction, each of the following Courts: (a) the Family Court;

(aa) a Family Court of a State; (b) the Supreme Court of a State or Territory; (c) the Federal Circuit Court of Australia; may, on the application of a party or of its own motion, order that the proceedings be removed to that Court. [subs (3A) subst Act 98 of 2005 s 2 and Sch 1, cl 31, opn 3 Aug 2005; am Act 186 of 2012 s 3 and Sch 4 item 10, opn 12 Dec 2012; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(4) Where proceedings are transferred or removed to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally instituted in that court. [subs (4) am Act 8 of 1988 s 26]

(5) Without prejudice to the duty of a court of summary jurisdiction to comply with this section, failure by such a court so to comply does not invalidate any order of the court in the proceedings.

(5) Without prejudice to the duty of a court of summary jurisdiction to comply with this section, failure by such a court so to comply does not invalidate any order of the court in the proceedings. COMMENTARY ON SECTION 46 PRELIMINARY Introductory comments …. Value of property …. Steps involved in s 46 …. Different order sought in answer …. What is to be transferred ….

[s 46.1] [s 46.2] [s 46.3] [s 46.4] [s 46.5]

PROPERTY Property to which s 46 applies …. Proceedings “in relation to” property ….

[s 46.6] [s 46.7]

RELATED MATTERS Objection after contested hearing commenced — s 46(1B) …. Preliminary or interim orders — s 46(3) …. Failure to comply with the section — s 46(5) ….

[s 46.8] [s 46.9] [s 46.10]

PRELIMINARY [s 46.1] Introductory comments Effect of section Courts of summary jurisdiction of the states are invested with jurisdiction under the Family Law Act 1975 in “matrimonial causes” not being proceedings for principal relief: see s 39. Section 46 however provides for the transfer to the Family Court (or where appropriate to the Supreme Court of a state or territory) of contested proceedings in relation to property over a certain value, set out below, [s 46.2]. Briefly, the proceedings must be transferred unless the parties consent to the lower court exercising

jurisdiction; and the lower court may transfer the proceedings of its own motion. [page 263] Applications for consent orders Section 46 in no way requires or permits the transfer from courts of petty sessions of applications for consent orders, whatever the value of the property involved. Such proceedings may be transferred under s 45. Proceedings relating to children Prior to the 1987 amending Act s 46 dealt also with the transfer of proceedings with respect to the custody or guardianship of, or access to, a child of a marriage. Jurisdiction over these matters, and also child maintenance, is now dealt with in Pt VII, and not by s 46. [s 46.2] Value of property Introductory comments The section refers to “proceedings … in relation to property” of a value exceeding $20,000. Clearly “property” means property as defined in s 4 (see commentary to that section). On the required connection between the proceedings and the property, see below, under PROPERTY. Total assets, not the amount claimed The wording of the section makes it difficult to argue that the amount of $20,000 refers to the amount of the applicant’s claim. It appears to relate to the relevant property. In ordinary s 79 proceedings, since the proceedings involve all the property of the parties, it seems reasonably clear that the section means that the local court lacks jurisdiction where the total value of the property of the parties, or each of them, exceeds $20,000. This is consistent with the reasoning of Nygh J in In the Marriage of Reid (1982) 8 Fam LR 11; FLC 91–211. [s 46.3] Steps involved in s 46

When section applies It is submitted (SO’R) that s 46 applies when: proceedings are instituted in a court of summary jurisdiction in relation to property; the property exceeds the value described, above, [s 46.2]; and the respondent, in answer to the application, seeks an order different from that sought in the application. Effect of section It is submitted (SO’R) that when the section applies: the magistrate must at once inform the parties that unless they consent to the court hearing the proceedings then the court must transfer them to the Family Court (or where appropriate to the Supreme Court of a state or territory); unless each of the parties then states to the magistrate that they consent to the court hearing and determining the proceedings, the court must transfer the proceedings; if the parties do consent, it nevertheless remains open to the court, if it wishes, to transfer the proceedings. [s 46.4] Different order sought in answer Introductory comment Section 46 applies only when the respondent, “in answer to the application”, seeks an order different from that sought in the application. This phrase is no doubt intended to distinguish between contested proceedings and applications for consent orders, but it is more precise than the term “contested”. What is an answer It is submitted (SO’R) that the words “in answer to the application” include the filing of an oral application with the leave of the court: see In the Marriage of Reid (1982) 8 Fam LR 11 at 13; FLC 91–211, per Nygh J. Different order must be specified In In the Marriage of Reid, above, Nygh J also said at Fam LR 13 that it was “not enough [for the respondent] merely to indicate opposition to the orders sought. The respondent must make clear what alternative order he is seeking, even if that order is merely ‘that the application be dismissed’”. In that case, because the respondent had neither

[page 264] complied with the rules in stating with precision the order he sought nor sought leave to make an oral answer or cross-application, the preconditions of s 46 were held not to have been met. It may of course be that where the magistrate finds that there is in substance a contested proceeding even though technically the conditions of s 46 have not been met, he or she will choose to transfer the proceedings under s 46 (2). [s 46.5] What is to be transferred Introductory comments The provisions of s 46 involve the transfer only of “the proceedings”. Where several applications are made and heard together, and s 46 applies to some but not others, the question arises whether what must be transferred is the whole case or only the application or applications to which s 46 applies. Applications to be considered separately In In the Marriage of Reid (1982) 8 Fam LR 11; FLC 91–211 Nygh J held, it is submited correctly (SO’R), that only a matrimonial cause to which s 46 applies can be transferred under the section. That is, each separate application is a separate proceeding and each application has to be considered separately. Proceedings falling outside s 46 Section 46(2) applies to the same category of proceedings as s 46(1), and therefore proceedings falling outside s 46(1) cannot be transferred under s 46(2), even at the court’s own motion. They may, however, be transferred under s 45(2). PROPERTY [s 46.6] Property to which s 46 applies What value Section 46 applies only to proceedings in relation to property of a value exceeding the amount in relation to which a court has jurisdiction in

debt recovery actions. See above, [s 46.2]. Meaning of “property” See commentary to s 4(1), which includes a definition of “property”. It includes both real and personal, corporeal and incorporeal property. For example, it includes shares and choses in action. Arrears of maintenance Section 46(1) does not apply to proceedings to recover arrears of maintenance: s 46(1A). Whether maintenance orders can be “property” Although s 46(1A) now provides that proceedings with respect to arrears of maintenance is not property, it can be argued that rights under maintenance orders may be “property”, in the case of periodic payments, the value being the capitalised value. See Cocks v Junken (1947) 74 CLR 277; Kenny v Hornberg (No 1) (1963) 37 ALJR 126 discussed in Broun & Fowler, Australian Family Law and Practice, paras [52–155]–[52–160]. The point did not have to be decided in In the Marriage of Reid (1982) 8 Fam LR 11; FLC 91–211. It is tentatively submitted (RC) that the better view is that, in view of subs (1A) and the clear distinction drawn elsewhere in the Act between maintenance and property proceedings, s 46 does not apply to maintenance orders. [s 46.7] Proceedings “in relation to” property Introductory comment Proceedings under s 79 for alteration of property interests, proceedings under s 78, and proceedings for the approval of a s 87 maintenance agreement that provides for the transfer of property, are clearly proceedings “in relation to” property. However the applicability of s 46 becomes more doubtful where the proceedings have a less direct connection with property. [page 265] Change in wording: “with respect to” and “in relation to” property Before the amendment of the section by the 1987 amending Act, the phrase used in s 64 was “with respect to” property.

Authority on meaning of “with respect to” That phrase was comprehensively discussed by Nygh J in In the Marriage of Reid (1982) 8 Fam LR 11; FLC 91–211. Nygh J said, at Fam LR 16–17, that an order “with respect to” property is “an order on the subject of that property which says something about the title, possession or use of that property directly”. By contrast, an order “in relation to” property “used that property as a measuring stick” to define other rights. Thus, for example, proceedings for an injunction restraining a husband from entering residential property indisputably owned by the wife is an order “in relation to” the property but not an order “with respect to” the property. However his Honour considered that an order for exclusive occupation of property of the specified value, even a temporary order made under s 114, was an order “with respect to” property. Present law In the absence of appellate authority on the point some doubt remains as to the connection between the proceedings and property that is required by s 46. The present position may be summarised as follows: (a) Orders transferring title Proceedings for orders under ss 78 and 79, and for approval of maintenance orders involving transfer of property or rights in property, are clearly proceedings in relation to property. Proceedings for the enforcement of such orders, it is submitted (RC), would also fall within s 46. (b) Property of third parties Since s 46 does not require that the property be property of the parties or of either of them, proceedings in relation to property held by a third party fall within s 46: see In the Marriage of Reid, above. (c) Exclusive occupation In In the Marriage of Reid, above, held that proceedings for exclusive occupation of property were proceedings “with respect to” property; they would a fortiori be proceedings “in relation to” property and therefore would fall within s 46. However this decision was influenced by a decision of the Full Court that was subsequently reversed by the High Court: Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303. It might now be arguable (RC) that such proceedings do not fall within s 46: certainly the value of the property appears only remotely connected to the difficulty or importance of the proceedings and the competence of magistrates to deal with them. (d) Restraining orders Dicta in In the Marriage of Reid, above, suggest

that injunctions restraining a person from entering or using property might be proceedings “in relation to” that property. It is submitted, however, (RC) that this is open to some doubt, since the value of the property seems unrelated to the importance or complexity of the issues in such cases. (e) Other orders In In the Marriage of Reid, above, Nygh J held that orders seeking the transfer of obligations to pay mortgage instalments, orders about the use of a car, and orders restraining the removal of goods, were orders “with respect to” property, and this reasoning would apply a fortiori to the phrase “in relation to”, which his Honour considered was wider. Need for clarification of relationship between proceedings and the property As noted, above, it has been held (in relation to an earlier but relevantly similar version of s 46) that the phrase “in relation to” includes proceedings in which property is used as a measuring stick for other rights: In the Marriage of Reid (1982) 8 Fam LR 11; FLC 91–211 (Nygh J). On this view the limitation in s 46 would catch a variety of proceedings, including injunctions restraining a party from dealing with property, and occupation order and even, it seems, injunctions restraining a party from entering property: see Reid at Fam LR 16–17. This seems an odd result, however, since the value of the property would seem to have little relevance to the importance or difficulty of applications relating to the use or occupation of the property, and thus would have no sensible relationship to whether the local court should have jurisdiction. It was suggested in Reid that the only alternative view is that the section should be read as referring to proceedings under paragraph (ca)(i) of “matrimonial cause”, but this was rejected in Reid, Nygh J pointing out that the wording of s 46 includes property belonging to a third party, while para (ca)(i) is limited to property belonging to one or both of the parties. [page 266] It is submitted (RC) that neither of the two views canvassed in Reid is completely satisfactory, and, while single judges might be expected to follow Reid, the Full Court might seek a different interpretation. A possible

alternative approach might be to say that the phrase does not incorporate the precise wording of para (ca)(i), but on the other hand it is narrower than indicated in Reid. The context requires that the $20,000 test should have some connection to the difficulty or importance of the proceedings. On this approach the limit would apply to proceedings involving interests in or disposition of property (including proceedings under ss 85 and 85A), and, perhaps, issues involving the use of property, but would not include proceedings in which the real issues have no relation to the value of the property, such as proceedings under s 114(1) seeking to restrain a person from entering property. The line may not be easy to draw, however, and whether the court will take such an approach remains to be seen. Although in practice the seriousness of the problem is reduced by the fact that the court can exercise jurisdiction if the parties consent (s 46(1)(a), and can always transfer proceedings if it wishes (s 46(2)), the existing uncertainty could and should (RC) be resolved by legislative amendment. RELATED MATTERS [s 46.8] Objection after contested hearing commenced — s 46(1B) If objection is taken to a magistrate hearing contested proceedings in question after the hearing of such proceedings have commenced, then such objection can only be made with the leave of the court and if leave is granted to a party to object then the court shall transfer the proceedings. [s 46.9] Preliminary or interim orders — s 46(3) Before transferring the proceedings the court of summary jurisdiction may make such preliminary or interim orders as it considers necessary. It could issue an interim injunction to maintain the status quo pending the hearing, or it could set the machinery of the welfare reports into action under s 62A. As to interim orders for maintenance, see the comments of Watson J in In the Marriage of Malcolm (1977) 3 Fam LN 8; FLC 90–220. [s 46.10] Failure to comply with the section — s 46(5) If a court of summary jurisdiction fails to comply with the provisions of s 46 to transfer certain classes of proceedings upon request, the order made by the court of summary jurisdiction will not be invalidated.

If, however, a court of summary jurisdiction makes an order transferring the proceedings, then any order made thereafter by that court of summary jurisdiction would be void.

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[s 47]

Courts to act in aid of each other

47 All courts having jurisdiction under this Act shall severally act in aid of and be auxiliary to each other in all matters under this Act. COMMENTARY ON SECTION 47 [s 47.1] Introductory comment — s 47 This provision is relevant when proceedings between the same parties are pending in several courts having jurisdiction under the Act. The court may consider that consolidation of all relevant proceedings in one court is the most desirable course: see In the Marriage of Cobbin (1976) 1 Fam LN 14; FLC 90–017; see also In the Marriage of Pelbart (1976) 1 Fam LR 11,124; FLC 90–002.

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[page 267]

PART VI — DIVORCE AND NULLITY OF MARRIAGE [Heading subst Act 98 of 2005 s 2 and Sch 1, cl 63, opn 3 Aug 2005]

[s 48]

Divorce

48 (1) [Irretrievable breakdown of marriage] An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. [subs (1) am Act 72 of 1983 s 24; Act 98 of 2005 s 2 and Sch 1, cl 64, opn 3 Aug 2005]

(2) [Establishment of ground] Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order. [subs (2) am Act 98 of 2005 s 2 and Sch 1, cl 65–66, opn 3 Aug 2005]

(3) [Likelihood of resumption of cohabitation] A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. [subs (3) am Act 98 of 2005 s 2 and Sch 1, cl 167, opn 3 Aug 2005] COMMENTARY ON SECTION 48

PRELIMINARY: INTRODUCTION TO DIVORCE LAW Purpose of this introduction …. Basis of divorce law …. The ground of divorce …. Divorce irrelevant to financial and custody questions …. Divorce normally uncontested and straightforward …. Restrictions relating to children, and to marriages of less than two years …. Procedure …. Practice …. THE GROUND FOR DIVORCE Irretrievable breakdown of marriage — ss 48(1) and (2) …. No discretion to refuse decree where ground established …. Separation must be for twelve months period immediately preceding the filing of the application …. Requirements of s 48(2) “separated” and “lived separately and apart” …. Meaning of “separation” …. Physical separation alone insufficient …. Intention alone insufficient …. Establishing separation — Introductory comments …. Establishing separation — Relevant factors …. Whether communication necessary — introductory comment …. Whether need for external recognition that relationship has ended ….

[s 48.1] [s 48.2] [s 48.3] [s 48.4] [s 48.5] [s 48.6] [s 48.7] [s 48.8]

[s 48.9] [s 48.10] [s 48.11] [s 48.12] [s 48.13] [s 48.14] [s 48.15] [s 48.16] [s 48.17] [s 48.18] [s 48.19] [page 268]

When does a period of separation end through a

resumption of cohabitation? …. Time of commencement of separation …. Relevance of events after application filed …. SEPARATION UNDER ONE ROOF General comment …. The “two household” test inapplicable …. Matters relevant to establishing separation under one roof …. Evidentiary aspects …. Communication to other party of intention to end marital relationship ….

[s 48.20] [s 48.21] [s 48.22]

[s 48.23] [s 48.24] [s 48.25] [s 48.26] [s 48.27]

REASONABLE LIKELIHOOD OF RESUMED COHABITATION Reasonable likelihood of cohabitation being resumed — s 48(3) …. What must be proved ….

[s 48.28] [s 48.29]

ASPECTS OF EVIDENCE AND RELATED MATTERS Counselling …. Burden of proof …. Corroboration …. Whether any estoppel arises in divorce law …. Advising people about counselling and reconciliation ….

[s 48.30] [s 48.31] [s 48.32] [s 48.33] [s 48.34]

PRELIMINARY: INTRODUCTION TO DIVORCE LAW [s 48.1] Purpose of this introduction This introduction is intended to provide a very brief overview of the law of divorce, and to indicate which other sections affect divorce law. A more detailed and technical account is provided in annotations to the relevant sections. [s 48.2] Basis of divorce law Divorce law in Australia is governed entirely by the Family Law Act 1975 (Cth), and the only court that can grant a

divorce (“a decree of dissolution of the marriage”) is the Family Court of Australia (in Western Australia, the Family Court of Western Australia). See ss 39, 4 (“matrimonial cause” para (a)), 8, 41. [s 48.3] The ground of divorce Twelve months’ separation The ground of divorce is set out in ss 48–50. Section 48 provides, in effect, that the only ground is twelve months continuous separation prior to the filing of the divorce application. If the ground is established, the court must grant the application: there is no discretion to refuse a decree. However the court shall not grant the decree where it is satisfied that there is a reasonable likelihood of cohabitations being resumed: s 48(3). Meaning of “separation” Section 49 clarifies what is required under s 48. The parties may be legally “separated” even though the cohabitation was brought to an end by one party, and even though they continue to live in the same house or render household services to each other. Period of resumed cohabitation may not break “separation” Section 50 deals with the situation where the parties resume cohabitation for a period, for example in an attempt to save the marriage, and then separate. Where there is one period of resumed cohabitation, and it is no more than three months, the cohabitation period is deemed not to break the period of separation. To see if the necessary twelve months separation is established, add together the periods of separation before and after the period of resumed cohabitation: if together they amount to twelve months, then the ground under s 48 is established. [page 269] [s 48.4] Divorce irrelevant to financial and custody questions It is not necessary to obtain a divorce before making applications relating to the child custody, guardianship or access, or relating to property adjustment or maintenance. Such applications may be commenced whether or not either

party is seeking or has obtained a divorce: see annotations to s 4 (“matrimonial cause”) and provisions of Pts VII and VIII. This is a change from the previous legislation, the Matrimonial Causes Act 1959 (Cth): under that Act, such applications could not be brought until divorce proceedings (or certain others, such as proceedings for a decree of nullity) had been commenced. Not only is it possible to apply for orders relating to children and financial matters before applying for a divorce, but such applications are not affected by the fact that a divorce has been granted. Under the old law, when divorce was often based on “fault” grounds such as adultery or cruelty, the divorce proceedings could affect the result of proceedings for custody and maintenance and property adjustment. For example, a husband who obtained a divorce on the ground of his wife’s adultery might expect to pay her less maintenance than he would be ordered to pay if she had obtained the divorce against him. Under the Family Law Act, such questions are not affected by whether a divorce was granted, or who obtained it. [s 48.5] Divorce normally uncontested and straightforward Under the old law, divorces were often bitterly fought. This is rare under the present law, for at least three reasons. First, the ground for divorce is now reasonably clear cut and there is often not much room for argument about whether the parties have been separated for the necessary twelve months. Second, the divorce is now irrelevant to the resolution of questions relating to children, property, and money. Third, usually the only effect of contesting an application for divorce is to delay the inevitable, for once there has been a separation for twelve months there is no way one party can prevent the other from obtaining a divorce. [s 48.6] Restrictions relating to children, and to marriages of less than two years Children Where there are children of the marriage under eighteen years of age, a decree nisi does not become absolute unless the court has made a declaration that proper arrangements have been made for them, or that there are circumstances by which the decree should become absolute notwithstanding that the court is not so satisfied: see s 55A.

Marriages of under two years Where the marriage has lasted less than two years, an application for divorce cannot normally be filed unless the applicant also files a certificate to the effect that the parties have received counselling: see s 44(1B). [s 48.7] Procedure Either party may institute proceedings for divorce (regardless of which party might be considered to have been responsible for the breakdown of the marriage), or the parties may apply jointly for a divorce: see s 44. This does not mean that there is divorce by consent: unless the ground of twelve months’ separation is established a divorce cannot be granted, even if both parties desire it. The court initially grants a decree nisi. This does not dissolve the marriage. But normally it automatically becomes a decree absolute after one month, and the decree absolute dissolves the marriage and entitles the parties to re-marry. It is possible for a decree nisi to be set aside in certain circumstances, but it is not possible to appeal once the decree has become absolute: see ss 54–59, 93. [s 48.8] Practice The way to apply for a divorce is set out in Vol 4, behind guide card DIVORCE, NULLITY AND VALIDITY at [230,000]ff. THE GROUND FOR DIVORCE [s 48.9] Irretrievable breakdown of marriage — ss 48(1) and (2) There is only one ground for dissolution of marriage, namely that the marriage has broken down irretrievably: s 48(1). [page 270] However this is in effect defined in s 48(2) as twelve months’ separation, since the ground in s 48(1) is established if and only if the required separation is established. It is not possible to establish the ground of irretrievable breakdown by evidence other than evidence of the separation required by s 48(2), and once s 48(2) has been satisfied, nothing else needs to be proved to establish the

ground in s 48(1). In practical terms the only significance of s 48(1) is that it appears to have influenced the interpretation of s 48(2). [s 48.10] No discretion to refuse decree where ground established The terms of s 48(2) (“… shall be held to be established … decree … shall be made”) give the court no discretion to refuse a decree where the ground is made out and s 48(3) does not apply. It cannot be argued that public policy, the provisions of s 43, or the applicant’s demerits entitle the court to refuse a decree where the ground has been established. See In the Marriage of Falk (1977) 3 Fam LR 11,238 at 11,249; FLC 90–247 at 76,337. See also In the Marriage of Fahmi (1995) 19 Fam LR 517 (unsuccessful attempt to argue that application for dissolution should not be dealt with prior to proceedings under s 112AD for non-compliance with property orders). Section 48(3) provides that the decree shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. Although the subsection requires the court to make a prediction, it does not involve an evaluation of the desirability or propriety of making a decree of dissolution. See below, REASONABLE LIKELIHOOD OF RESUMED COHABITATION. [s 48.11] Separation must be for twelve months period immediately preceding the filing of the application Section 48(2) requires that the period of separation be for a continuous period of twelve months immediately before filing the petition. This period is to be calculated exclusive of the date of separation: In the Marriage of Bozinovic (1989) 13 Fam LR 804. If the parties were cohabiting immediately before this time, the ground is not established. This is so notwithstanding s 50, which only applies to a period of resumed cohabitation followed by a separation during which the application is filed. It follows (RC) that In the Marriage of Toft (1980) FLC 90–860 was wrongly decided. [s 48.12] Requirements of s 48(2) “separated” and “lived separately and apart” Section 48(2) requires it to be established (a) that the parties separated and (b) that they thereafter lived separately and apart. Cases under the Family Law Act, such as the much cited decision of Watson J in In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008 indicate

that these are closely connected notions. The Act requires a period of twelve months continuous “separation”, as distinct from “cohabitation”: see below. Despite earlier authorities on different legislation, such as Main v Main (1949) 78 CLR 636, the word “apart” in s 48(2) cannot be taken to indicate an absolute requirement of physical separation, for that would be inconsistent with s 49(2). This is also the view of Anthony Dickey: Australian Family Law and Practice, para [5–410]. [s 48.13] Meaning of “separation” Physical separation neither necessary nor sufficient Physical separation is neither necessary nor sufficient to establish “separation” within the meaning of s 48. It is not necessary, because s 49(2) contemplates the possibility that the parties may be “separated” while still living under the same roof. The Full Court said in In the Marriage of Falk (1977) 3 Fam LR 11,238 at 11,243; FLC 90–247 at 76,332 (drawing on earlier authorities), “[C]learly there is no difficulty about accepting a view that the parties have ‘separated’ notwithstanding that there has been no physical departure by either of them from the premises that they have previously jointly occupied. It is accepted that separation really means a departure from a state of things rather than from a particular place”. Neither is physical separation by itself sufficient to establish “separation” under the Act, because the authorities establish that separation involves the breakdown of the marital relationship. Thus in In the Marriage of Clarke (1986) 11 Fam LR 364; FLC 91–778 Lindenmayer [page 271] J said at Fam LR 370; FLC 75,666 that a severance of the marital relationship “involves both a physical element (ie a physical separation) and a mental element (ie an intention on the part of at least one of the parties to terminate the marital relationship)”. Definition in Todd’s case Watson J defined “separation” in an early

decision, in In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008. His Honour’s statement has been approved by the Full Court (with qualifications indicated by the words in square brackets) in In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90–051 and in later cases: In the Marriage of Falk (1977) 3 Fam LR 11,238; FLC 90–247; In the Marriage of Clarke (1986) 11 Fam LR 364; FLC 91–778. The definition is: In my view “separation” means more than physical separation — it involves the [breakdown] of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships [and the nurture and support of the children of the marriage]. Other authorities on meaning of separation The statement in Todd has considerable authority not only because it has been approved in later Full Court decisions but also because it is based upon previous authorities on the meaning of “separation”, especially cases decided under the Matrimonial Causes Act 1959, under which a period of five years’ separation was a ground for divorce. Some of the leading cases are: Main v Main (1949) 78 CLR 636; Crabtree v Crabtree (1964) 5 FLR 307; Macrae v Macrae (1967) 9 FLR 441; Morris v Morris [1972] ALR 893. See also Pulford v Pulford [1923] P 18. Terminology — “Consortium vitae”, “marital relationship”, “separation”, “cohabitation” As the above quotation from Todd indicates, the term “consortium vitae” is no more than a synonym for the marital relationship. These terms are not used in the Act in relation to divorce. They are generally used by the court to correspond with the language of the Act: parties to a marriage are “cohabiting” when the marital relationship (“consortium vitae”) exists, and are “separated” when it does not. See eg In

the Marriage of Falk (1977) 3 Fam LR 11,238 at 11,243–4; FLC 90–247 at 76,333. [s 48.14] Physical separation alone insufficient Physical separation unaccompanied by an intention of at least one party to end the marriage is not sufficient to establish “separation” under s 48: In the Marriage of Franks (1976) 10 ALR 126; 1 Fam LR 11,341; FLC 90–032; Main v Main (1949) 78 CLR 636 at 642. For example, if a party is imprisoned, the period of separation does not start to run in the absence of one party having an intention to end the marriage: In the Marriage of Whiteoaks (1980) FLC 90– 837. The same applies if a party’s job takes him or her away from home, eg to sea: In the Marriage of Stokoe (1976) 2 Fam LR 11,151; FLC 90–092. [s 48.15] Intention alone insufficient It follows from the statement in In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008 that the intention of a party to end the marriage relationship, even if convincingly proved, will not alone terminate the marital relationship and bring about a “separation” under the Act. There are many authorities to the effect that some action is required in addition to intention. See eg In the Marriage of Lane (1976) 10 ALR 204; 1 Fam LR 11,385; FLC 90–055; In the Marriage of Batty (1987) 10 Fam LR 688; FLC 91–703. [s 48.16] Establishing separation — Introductory comments Whether the parties have separated and lived separately and apart for a continuous period of twelve months is a question of [page 272] fact. However the cases indicate the factors that the courts are likely to take into account, and these are discussed in this and the following paragraphs. General approach of the court — A “before and after” test applied to “checklist” of factors The court generally draws on two ideas in determining whether there has been a separation. The first is that a marital relationship is characterised by various components (eg sexual intercourse) and when all or

most of these are missing the marital relationship does not exist. The second is that every marriage is different, and the crucial question is whether the relationship before the alleged separation was so different from the relationship following it that a separation can be said to have occurred. On this view, sexual intercourse of itself would be neutral, but it would be significant if sexual intercourse between the parties had ceased or markedly lessened after the alleged commencement of the separation. The second component, a “before and after” test, tends to dominate the thinking of the court in recent times; but the idea of a list of relevant factors remains useful, because it indicates the kinds of matters that the court will consider of particular importance in looking for the changes necessary to constitute “separation” or a breakdown of the marital relationship. The combination of the two approaches can be seen in the statement from In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008, quoted, above, and is substantially repeated in many other decisions. Difficulties in applying the “before and after” test In some cases, the alleged separation takes place before the parties have really established a working marital relationship, and the “before” part of the evidence may have to be partly constructed from their likely intentions. For example, the nonconsummation of a marriage might ordinarily suggest separation, but would not if the parties had previously accepted that there would be no sexual relations between them. See In the Marriage of G (1978) 4 Fam LR 537; FLC 90–498. [s 48.17] Establishing separation — Relevant factors Dwelling under the same roof While it may be that this factor is likely to have considerable importance, and that in practice the party applying for a decree might be expected to explain why the parties have continued to reside together when the marital relationship has ended, the court has emphasised that this factor is not decisive, and that its importance will vary from case to case: In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90–051. See also In the Marriage of Falk (1977) 3 Fam LR 11,238; FLC 90–247 especially at Fam LR 11,248; FLC 76,336–7, disapproving the reasoning in In the Marriage of Quigley (1976) FLC 90–074. See also below,

SEPARATION UNDER ONE ROOF. Sexual intercourse Sexual intercourse between the parties is often a significant factor: a cessation of sexual relations where they have previously existed may be a factor suggesting that the parties have separated. In In the Marriage of Spanos (1980) 6 Fam LR 345; FLC 90–871, the Full Court said that: “the occurrence or absence of intercourse between married partners is an important and significant aspect but it is not decisive of the issue. It must be weighed in the balance against the other concomitants which go to make up a marriage, or more importantly, go to make up the particular marriage in question” (In the Marriage of Spanos (1980) 6 Fam LR 345; FLC 90–871 at Fam LR 350). The circumstances of the sexual activity are likely to be relevant to its significance. For example the cases suggest that where the act can be described as “casual” or “isolated”, or where they take place elsewhere than in the matrimonial home or parties’ bedroom, they may be less likely to be seen as indications of a continuing marital relationship. Several decisions have held that the parties have “separated” despite the occurrence of acts of sexual intercourse: In the Marriage of Sanders [page 273] (1976) 10 ALR 604; 1 Fam LR 11,433; 26 FLR 474; FLC 90–078; In the Marriage of Bell (1979) 5 Fam LR 216; FLC 90–662; In the Marriage of Feltus (1977) 2 Fam LR 11,665; FLC 90–212. Just as the continuation of sexual activity may not necessarily mean that the marital relationship remains intact, the cessation of sexual activity does not necessarily mean that the marital relationship has ended. Thus in In the Marriage of Caretti (1977) 3 Fam LR 11,374; FLC 90–270, the decision of the parties to sleep in the same bed when there was a convenient alternative was held to indicate that the marital relationship was continuing even though there was no evidence of sexual relations between them. See also Hein v Hein (1976) 9 ALR 22; 1 Fam LR 11,128.

Mutual society and protection It seems that this general phrase would include the question of maintenance, which has been considered in the two leading cases of In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90– 051 and In the Marriage of Falk (1977) 3 Fam LR 11,238; FLC 90–247. In Pavey, the Full Court held that the trial judge had not attached sufficient importance to the fact that the wife had obtained a maintenance order against the husband; this was “a clear indication that a fundamental duty the law cast upon Mr Pavey was being breached” and “amounted to the breakdown of an important aspect of the marital relationship, and thereafter that aspect of the mutual society and protection, that should have existed was sustained only by force of a court order”. In Falk, the trial judge refused a decree partly because the husband had continued to pay money towards the general upkeep of the home. However, the Full Court said that the weight to be attached to such payments will depend on all the circumstances. Such payments do not necessarily indicate that the marital relationship still exists: they might be paid as a matter of habit or convenience, or because the person making the payments considers that the other party would be likely to obtain a maintenance order if the payments were not made “voluntarily”. Nurture and support of children of the marriage If the parties say that they have stayed together for the sake of the children, then the court may consider that they are endeavouring to fulfil the responsibilities of marriage, and that this is a factor indicating the marital relationship remains intact: see Pavey. However in Falk the Full Court at Fam LR 11,245; FLC 76,334 distinguished the situation where one party says that he or she has remained so that the children could stay in the same environment, or because of legal advice. See also In the Marriage of Potter (1976) 2 Fam LR 11,554; FLC 90– 146. The distinction appears to be between maintaining the marital relationship for the sake of the children and merely making arrangements, where the marital relationship has ended, that will cause the children minimum disruption. However it may be difficult to draw the line in some situations. [s 48.18] Whether communication necessary — introductory comment It will normally be obvious to both parties when a separation has taken place, and in some cases one party will make it clear to the other by words or

actions that he or she is intending to bring about the termination of the marriage. Sometimes however the question arises whether the parties can be considered to have separated when one party believes that the marriage is still on foot and the other has not communicated to the contrary. Present authorities leave the matter in some doubt, but suggest a distinction between cases where there has been a physical separation and cases where there has not. Where the parties have physically separated A well-known and somewhat controversial decision on this question is In the Marriage of Tye (1976) 1 Fam LR 11,235; FLC 90–028. The husband departed for another country with the intention of ending the marriage, but did not communicate his intention to the wife until later. It was held that the separation commenced, in all the circumstances, at the time he departed with the intention of ending the marriage, not at the later time when he communicated his intention to the wife. If correct, the case is authority that communication is not essential to establish that separation has commenced: one party may [page 274] effectively terminate the marital relationship even though the other believes that the marriage is on foot. Other authorities are supportive of the reasoning in Tye in that they do not appear to require communication. In Morris v Morris [1972] ALR 893, for example, Nettlefold J held that it is sufficient if one party forms an intention to abandon the matrimonial relationship and “carries it into effect sufficiently to enable the court to affirm that, on or about that time, there was an actual separation as distinct from a mere unfulfilled intent to separate”. See also In the Marriage of Xuereb (1976) 1 Fam LN 9; FLC 90–029; Santos v Santos [1972] Fam 247. However, Tye and Xuereb were criticised by Wilczek J in In the Marriage of Batty (1987) 10 Fam LR 688 at 692–3; FLC 91–703. Communication in cases where parties reside together The Full Court in In the Marriage of Falk (1977) 3 Fam LR 11,238 at 11,244; FLC 90–247 at 76,333 appeared to hold that communication was necessary in such cases:

“Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party.” Communication may be by actions (and in some circumstances inactions) as well as by words. Further, if there is a requirement of communication, it is likely to be understood as subject to the well-known principle that people cannot take advantage of deliberately shutting their eyes to what is obvious. Both these points are indicated in In the Marriage of Batty (1987) 10 Fam LR 688 at 694; FLC 91–703 at 75,090, where Wilczek J said “an intention formed by one spouse to bring the consortium vitae to an end and sufficiently implemented, would, in the normal course of events, provide the other spouse with clear signposts of the reality of the state of affairs”. In practice, therefore, there may often be little to choose between a requirement of communication and a requirement that the intention be carried out “overtly, unequivocally and specifically”: In the Marriage of Lane (1976) 10 ALR 204; 1 Fam LR 11,385; FLC 90–055. Communication — Conclusions Commentators differ on whether Tye was correctly decided: Finlay, Family Law in Australia, 3rd ed, 1983, p 186, supports Tye, while Dickey does not: Australian Family Law and Practice, para [5–450]. In support of Tye, it is clear that one party may unilaterally terminate the marital relationship — s 49(1) — and if the legislature had wished to ensure that the twelve months period did not commence until both parties were aware, it would not have been difficult to say so in the Act. To require communication arguably imposes a requirement that is not to be found in the Act. If Tye is correct, it seems wrong to confine it to cases where there has been physical separation, as distinct from “one-roof” cases. Such a distinction is difficult to justify on the wording of the Act, and would lead to awkward questions of classification. In which category, for example, is an application by a spouse who decided to end the marriage while on a regular two months business trip away from home? The most satisfactory conclusion appears to be (RC) that as a matter of law

there is no requirement of communication, but that in order to find that there has been a separation the court must find that there is unequivocal behaviour as well as intention; and in practice in “one-roof” cases such behaviour will almost inevitably bring the state of affairs to the attention of the other party. [s 48.19] Whether need for external recognition that relationship has ended In In the Marriage of Fenech (1976) 1 Fam LR 11,250; FLC 90–035 Evatt CJ appeared to hold that there must be “some overt separation”, apparent to “the outside observer”. It is submitted that even though it might well be correct on the facts, this short early judgment should not be taken to lay down a legal requirement of external recognition. It has been held, for example, that there may be a separation where the parties deliberately present themselves to outsiders as happily married to avoid embarrassment: In the Marriage of McLeod (1976) 1 Fam LR 11,280; FLC 90–034. Later [page 275] decisions such as In the Marriage of Falk (1977) 3 Fam LR 11,238; FLC 90– 247 stress the need for overt and unequivocal actions, and arguably communication in “one-roof” cases, rather than the view of an outside observer. For a contrary view, however, seeking to rely on s 43, see A Dickey, Family Law, pp 167–8. [s 48.20] When does a period of separation end through a resumption of cohabitation? There are two possible answers to the question what it takes to end a period of separation. One is that the separation ends when either the intention or the facts of separation cease. The other, which represents the law, is that once separation is established, the parties remain separated until cohabitation is resumed by both intention and actions. As it was put by Watson J in In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186 at 11,188; 25 FLR 260; FLC 90–008: “Just as intention (or acceptance) and action thereon are ingredients in the element of separation so intention (or acquiescence) and action thereon are necessary ingredients in the termination of separation”. This view, which is also derived from Macrae v Macrae (1967) 9 FLR 441, was affirmed by the Full Court in In the Marriage of

Clarke (1986) 11 Fam LR 364; FLC 91–778. [s 48.21] Time of commencement of separation The terms of s 48 indicate that the evidence must establish a time at which the separation began. It is necessary to find a distinct change in the nature of the relationship before and after the alleged separation: In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90–051. However it is submitted (RC) this requirement is satisfied if it is established that the parties must have separated at some time between two dates, even if it is not possible to identify the precise moment of separation. [s 48.22] Relevance of events after application filed Later events irrelevant to ground A careful reading of s 48 will show that the ground for dissolution either is or is not established at the time of filing the application. Subsequent events can neither establish a ground when it was not then established, or remove a ground then established. Section 50 has no application to periods after the application has been filed. Authority for these propositions is contained in In the Marriage of Thompson (1977) 2 Fam LR 11,649; FLC 90–88. It is submitted (RC) that in In the Marriage of Feltus (1977) 2 Fam LR 11,665; FLC 90–212 is wrong in so far as it is inconsistent with Thompson in this respect. If the ground is not established at the time of filing the application, a fresh application will have to be filed when the ground is established. Later events may be relevant to s 48(3) Events occurring since the application has been filed may nevertheless be relevant to the question whether, at the time of the hearing, there is a reasonable likelihood that cohabitation will be resumed. See In the Marriage of Thompson (1977) 2 Fam LR 11,649; FLC 90–88. As to s 48(3), see below, REASONABLE LIKELIHOOD OF RESUMED COHABITATION. SEPARATION UNDER ONE ROOF [s 48.23] General comment Prior to the Family Law Act, it had been established that in certain circumstances parties could be “separated” even though they continued to reside under the same roof. These decisions have

now been confirmed by s 49(2): see commentary to that section. [s 48.24] The “two household” test inapplicable Earlier authorities requiring proof of “two households” do not apply under the Family Law Act, and had indeed been abandoned before 1976: see Morris v Morris [1972] ALR 893. [s 48.25] Matters relevant to establishing separation under one roof The discussion of separation in the previous section is applicable both to cases where the parties have physically separated and to cases where they have not. In any application for dissolution the necessary period [page 276] of “separation” must be established, and continued residence of the parties under one roof is strictly no more than one of the relevant factors. Accordingly, this commentary discusses the relevant factors under the general discussion of establishing “separation”: see above, THE GROUND FOR DISSOLUTION OF MARRIAGE. [s 48.26] Evidentiary aspects The burden facing the applicant seeking to establish separation under one roof was described in the leading decision of In the Marriage of Pavey (1976) 1 Fam LR 11,358 at 11,364; FLC 90–051 at 75,213–4 as follows: “In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.” Corroboration The above passage from Pavey continues:

“For this reason many of the judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant’s evidence where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must always be given, but an applicant should always be ready to give such evidence. Whether the judge will require such evidence will depend on the circumstances of each case.” [s 48.27] Communication to other party of intention to end marital relationship In In the Marriage of Falk (1977) 3 Fam LR 11,238; FLC 90– 247 the Full Court appeared to hold that in order to establish separation under one roof where only one party has decided to end the relationship this intention must be communicated, directly or indirectly, to the other party. See generally, above, [s 48.18]. REASONABLE LIKELIHOOD OF RESUMED COHABITATION [s 48.28] Reasonable likelihood of cohabitation being resumed — s 48(3) This subsection provides that a decree of dissolution shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. Onus It has been said that the onus of establishing the likelihood of resumed cohabitation is upon the party who asserts it: In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008; In the Marriage of Bates and Sawyer (1977) 3 Fam LN 71; FLC 90–319. This statement is correct in emphasising that if the court considers that it is equally likely that cohabitation will or will not resume, or if the evidence does not enable the court to form any view on the matter, then s 48(3) does not apply and if the ground has been made out the decree must be granted. However, there is no rule that the evidence must come from the respondent or that a party must specifically argue that s 48(3) applies. In theory the court could be satisfied, after hearing the applicant, that s 48(3) applied, even where this was not argued (though this would no doubt be extremely unlikely in practice). [s 48.29] What must be proved Section 48(3) does not require that both

parties desire a resumption of cohabitation, only that there is a reasonable likelihood that cohabitation will be resumed: In the Marriage of Bates and Sawyer (1977) 3 Fam LN 71; FLC 90–319. It was said in the same case that if a party alleges that there is a chance of reconciliation, the court should allow the party to put that before the court and to ask the other party any questions on the matter. [page 277] ASPECTS OF EVIDENCE AND RELATED MATTERS [s 48.30] Counselling Where s 48(3) applies or has been argued the court may consider that counselling is appropriate. See ss 14, 43(d). [s 48.31] Burden of proof In the leading case of In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90–051, the Full Court held, at Fam LR 11,364; FLC 75,213 that although there is no provision in the Family Law Act corresponding to s 96 of the former legislation (the Matrimonial Causes Act 1959) the standard of proof is the civil standard as explained in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJ 100 per Dixon J at 361–2. [s 48.32] Corroboration There is no provision of the Act requiring corroboration of the evidence upon which an application is based. However especially in cases of separation under one roof, the court may require corroboration, and applicants are well advised to have it available where possible. An example would be evidence of other family members about the circumstances and relationship between the parties during the relevant period. See In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90–051; In the Marriage of G (1978) 4 Fam LR 537; FLC 90–498; In the Marriage of Wiggins (1976) 1 Fam LR 11,101; FLC 90–004. See also s 49 and annotations thereto. [s 48.33] Whether any estoppel arises in divorce law It has occasionally been considered whether the doctrine of estoppel has any application in

divorce law. In particular, can an application be dismissed on the ground that the applicant is estopped from asserting that the ground has been established? In In the Marriage of Toft (1980) FLC 90–860 Murray J suggested at FLC 75,472 that “the doctrine of estoppel should play some role in the question of whether in fact the consortium vitae has been destroyed”. No other authority appears to support this proposition, and it is submitted (RC) that the doctrine of estoppel has no application in relation to establishing the ground for dissolution. [s 48.34] Advising people about counselling and reconciliation Judges and legal practitioners have a duty to consider the possibility of a reconciliation between the parties: s 16C. Proceedings may be adjourned to enable the parties to receive counselling: s 16B. See also s 43(d).

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[s 49]

Meaning of separation

49 (1) [One party and cohabitation] The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. (2) [Establishment of ground] The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. COMMENTARY ON SECTION 49 Introductory comment …. Action or conduct of one party only — s 49(1) …. Common residence and household services — s 49(2) ….

[s 49.1] [s 49.2] [s 49.3]

[s 49.1] Introductory comment Section 49 provides two principles in relation to the meaning of separation: Section 49(1) provides that the parties may be held to have separated, notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. [page 278] Section 49(2) provides that parties to a marriage may be held to have separated and to have lived separately and apart, notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other. [s 49.2] Action or conduct of one party only — s 49(1) This provision makes it clear that the separation may be brought about by the unilateral act of one party to the marriage: see In the Marriage of Xuereb (1976) 1 Fam LN 9; FLC 90–029; see also In the Marriage of Stokoe (1976) 2 Fam LR 11,151; FLC 90–092 and In the Marriage of Tye (1976) 1 Fam LR 11,235; FLC 90– 028. It is no objection that the separation was caused by the unilateral act of the applicant. [s 49.3] Common residence and household services — s 49(2) The general purpose of s 49(2) is to make it clear that separation under s 48(2) can be established, despite the continued existence of some association between the parties. Section 49(2) does not have the effect of making the continued joint residence or the rendering of household services, totally irrelevant: see In the Marriage of Pavey (1976) 1 Fam LR 11,358 at 11,363; FLC 90–051. Separation may occur despite the fact that: (a) the parties still live under the same roof and no household services are rendered; or (b) the parties are physically separated though household services are rendered by either to the other or both mutually; or

(c) the parties live under the same roof and some household services are being rendered: see In the Marriage of Hodges (1977) 2 Fam LR 11,524; FLC 90–203. What amounts to “household services” which the court may ignore depends on the facts of each particular case. It would include household tasks such as cooking part of the evening meal, making the beds and washing up, washing of dishes, sweeping of floors, cleaning the carpets: see Johnson v Johnson [1964] VR 604.

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[s 50]

Effect of resumption of cohabitation

50 (1) [Resumed cohabitation not to break separation period] For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart. [subs (1) am Act 98 of 2005 s 2 and Sch 1, cl 68, opn 3 Aug 2005]

(2) [Insubstantial interruption of cohabitation] For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial. COMMENTARY ON SECTION 50 Introductory comment …. Resumption of cohabitation ….

[s 50.1] [s 50.2]

Three months …. Insubstantial interruption of cohabitation — s 50(2) …. Resumption of cohabitation after application filed ….

[s 50.3] [s 50.4] [s 50.5]

[s 50.1] Introductory comment This section provides that if parties have resumed cohabitation on one occasion but, within a period of three months after the resumption of cohabitation, they again separate, then the periods of separation before and after that short [page 279] resumption of cohabitation may be aggregated to add up to 12 months. The section is similar to s 41A of the repealed Matrimonial Causes Act 1959 (Cth). The purpose of the resumption of cohabitation is not relevant. [s 50.2] Resumption of cohabitation In order to terminate the state of separation, there must be an intention on the part of each of the parties to resume cohabitation and action on their part to carry that intention into effect: see In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008. Cohabitation is not resumed merely by casual encounters, even if sexual intercourse occurs and there is no intention to resume cohabitation: see In the Marriage of Clift (1976) 2 Fam LR 11,369; see also In the Marriage of Feltus (1977) 2 Fam LR 11,665; FLC 90–212. A resumption of residence under the same roof without the other incidents of matrimonial relationship does not amount to a resumption of cohabitation: see In the Marriage of McDermott (1976) 1 Fam LN 20; FLC 90–034. However, a state of cohabitation may be resumed if the parties lived together with most of the incidents of normal married life, even though there has been no reconciliation between them and no resumption of sexual intercourse: see Donaldson v Donaldson [1968] 1 NSWR 534. [s 50.3] Three months Were it not for s 50, a resumption of cohabitation would terminate the period of separation. Hence, if the parties then were to

separate again, the 12 month period would start from the renewed separation. Section 50 allows the parties to resume cohabitation, once, for a period not exceeding three months, during the one-year period of separation on which the applicant relies. If, within the three months they separate again, the period of separation before resumption of cohabitation and the period after they separate again may be aggregated to constitute the 12 month period. The section can only apply if there has been one period of cohabitation and it did not exceed three months. If there has been more than one period of cohabitation or the cohabitation exceeded three months duration, then the section does not apply and any new separation must start afresh: see In the Marriage of Feltus (1977) 2 Fam LR 11,665; FLC 90–212. [s 50.4] Insubstantial interruption of cohabitation — s 50(2) Section 50(2) allows the court to ignore any interruption in the period of cohabitation which is, in the opinion of the court, insubstantial. What amounts to a substantial interruption is a question of fact for the court to decide. It solves the problem which sometimes arose in relation to a resumption of cohabitation for a trial period, namely if it appeared that the parties had in fact resumed cohabitation twice and the periods of separation before and after one of them could not be aggregated. It provides that for the purposes of the three month period, you can treat as one resumption of cohabitation two periods which are split by any interruption which in the opinion of the court was insubstantial. A short temporary absence for business or health reasons without affecting the continuance of the resumed relationship would be regarded as insubstantial. However, when a wife returned to her husband to resume cohabitation, but departed for seven days to live with another man, whereupon she again returned to her husband for another short period was held to be more than “one occasion” of resumption of cohabitation: see In the Marriage of Keyssner (1976) 1 Fam LR 11,562; FLC 90–075. [s 50.5] Resumption of cohabitation after application filed Section 50 has no application where the parties resumed cohabitation for a period after the filing of the application for dissolution. Section 50 relates only to interruptions in the 12 month period immediately

prior to the filing of the application: see In the Marriage of Thompson (1977) 2 Fam LR 11,649 at 11,651; FLC 90–88; see also In the Marriage of Feltus (1977) 2 Fam LR 11,665; FLC 90–212; In the Marriage of Toft (1980) FLC 90–860. [page 280] It has been held that s 50 also has no application where the application for dissolution is filed before the three month period of cohabitation was completed. The balance of cohabitation is only relevant as to the reasonable likelihood of cohabitation being resumed: In the Marriage of Toft, above. It is submitted (RC), however, that in such a case the requirements of s 48(2) are not met, and therefore this case was wrongly decided.

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[s 51]

Nullity of marriage

51 An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void. [s 51 subst Act 209 of 1976 s 29] COMMENTARY ON SECTION 51 Introduction …. “Voidable” marriages and nullity decrees under previous law …. A void marriage nevertheless has legal consequences …. Grounds on which a marriage may be void …. Availability of nullity decree for defects in marriage not specified in the legislation …. Who can apply for a nullity decree? …. No discretion to refuse decree where ground established …. Form of decree of nullity ….

[s 51.1] [s 51.3] [s 51.5] [s 51.10] [s 51.15] [s 51.20] [s 51.22] [s 51.25]

[s 51.1] Introduction Section 51 briefly provides that a decree of nullity of marriage shall be based on the ground that the marriage is void. The grounds on which marriages are void were once contained in the Family Law Act 1975, but are now contained in the Marriage Act 1961, notably in s 23B. The various grounds on which a marriage may be void are discussed in the commentary to that section. This commentary relates to nullity decrees. [s 51.3] “Voidable” marriages and nullity decrees under previous law Under the repealed Matrimonial Causes Act 1959, an application for a decree of nullity of marriage could be based not only on the ground that the marriage was void, but also on the ground that the marriage was voidable: s 21. Under the old law, a voidable marriage was treated as a valid marriage if it was not annulled; if it was annulled, it was treated as always having been void. The mysteries of this need not be explored, since the Family Law Act 1975 brought into force the present law, that a decree of nullity can now be granted only on one ground, that the marriage is void: s 51. [s 51.5] A void marriage nevertheless has legal consequences A decree of nullity does not change the validity of a marriage; it is a determination, binding on the whole world, that the marriage is and has always been a nullity. It can therefore be said that a nullity decree is simply a declaration which confirms that the marriage in question has always been void. Nevertheless, a void marriage can have important legal consequences. In particular, Pt VIII applies to a void marriage, and so a party to a void marriage can apply for orders relating to property adjustment and spousal maintenance. Part VII also applies to a void marriage — s 60E — although this is less critical in most cases because much of the jurisdiction under the Family Law Act derives from the reference of power by the states, which does not depend on marriage: see s 69ZE. In addition, s 91 of the Marriage Act 1961 provides that a child born of a void marriage will be treated as the legitimate child of its parents, if either party at the time of conception, or at the time of the marriage, whichever was the later, believed on reasonable grounds that the marriage was valid. And because Pt VIII as a whole applies to void marriages, they can also have other consequences, such as giving rise to a presumption of parentage: s 69P.

Because a void marriage has such legal consequences, the traditional description that it is a “nullity” is a little misleading. It is necessary to distinguish not only between valid and void [page 281] marriages, but also between marriage (whether valid or void), and what we might call non-marriages, relationships that have nothing to do with marriage (there is no accepted term for the latter concept). Thus a relationship between two men, or two women, is not a valid marriage and also is not a void marriage, but something else. It does not have the legal consequences of a void marriage, and thus, for example, one cannot obtain a decree of nullity in relation to such a relationship; nor is Pt VIII of the Act available. [s 51.10] Grounds on which a marriage may be void Grounds specified in Marriage Act Today, one mainly looks to s 23B of the Marriage Act 1961 to discover the gounds on which a marriage is void. The relevant case law is discussed in the commentary to that section. For convenience, it is noted here that the grounds under s 23B are: either of the parties is, at the time of the marriage lawfully married to some other person; the parties are within a “prohibited relationship”, as defined in the Act; the marriage is not a valid marriage under the law of the place where the marriage ceremony takes place because of a failure to comply with the laws of that place about the form of the marriage ceremony; the consent to the marriage of either of the parties is not a real consent because: — it was obtained by duress or fraud; — that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or — that party is mentally incapable of understanding the nature

and effect of the marriage ceremony; either of the parties is not of marriageable age. Historical As originally enacted, s 51 of the Family Law Act 1975 set out the grounds on which a marriage was void. However as a result of the amendments affected by Act No 209 of 1976, which came into operation on 20 January 1977, the provisions previously found in s 51 were substantially re-enacted in s 23 of the Marriage Act 1961 (Cth). That provision now applies only to marriages celebrated between 20 June 1977 and 7 April 1986 (the date on which s 13 the Marriage Amendment Act 1985 came into force). The validity of marriages celebrated since then is determined according to the provisions of s 23B, although the grounds are essentially the same as those specified in s 23 of the Act in relation to marriages prior to 7 April 1986. [s 51.15] Availability of nullity decree for defects in marriage not specified in the legislation Section 23B provides that a marriage is void where [one of the grounds exists] “and not otherwise”. These words give rise to some difficulties, where a relationship lacks one of the essential characteristics of marriage not listed among these grounds. The best example is a relationship between two men, or two women. Such relationships are not valid marriages, yet none of the specified grounds applies to them, so they are not void marriage either. What are they? The answer is, probably, that they are simply not marriages at all. See generally In the Marriage of Kapadia (1991) 14 Fam LR 883; FLC 92–245. Thus, when the question arose about the status of a purported marriage between a woman and a female-to-male transsexual (to use a convenient shorthand) it was tested by an application for a declaration of the validity of the marriage (which was granted, as it happens): Attorney-General (Cth) v Kevin (2003) 30 Fam LR 1; FLC 93–127. The last words, “and not otherwise”, appear to mean that it could not have been properly tested by an application for a decree of nullity: such an application would inevitably have been dismissed, since the relationship was either a valid marriage (if the parties were held to be a man and a woman) or a non-marriage (if they were not): it could not have been a void marriage, because none of the grounds in s 23B applied. (The same issue applied in Marriage of C and D (1979) 5 Fam LR 636; FLC 90–636, a case of a hermaphrodite, but — in undefended

proceedings — the problem was not recognised). [page 282] Dickey, Family Law (5th ed, 2007, pp 122-126) gives two further examples of the problem: A marriage celebrated between 20 June 1977 and 7 April, where one party lacked capacity to marry according to the law of his or her pre-nuptial domicile, would be invalid under the rules of private international law, which are preserved by s 22 in relation to such marriage (they do not apply in relation to later marriages). Yet, if the last words are taken literally, an application for a decree of nullity in relation to that marriage would fail, even though the marriage is by law invalid. Another example is where a person goes through a second marriage ceremony with a person to whom he or she is already married. Such marriage ceremonies are prohbited, except in certain circumstances: see Marriage Act 1961 s 113. Dickey argues that the second marriage (being prohibited) must be void — and s 113(4A) arguably supports this — yet it is not covered by any of the specified grounds (not the first ground, (a), because neither party is married to “some other person”). The distinction between non-marriages and void marriages is significant, because non-marriages do not give rise to jurisdiction under the Family Law Act 1975, whereas void marriage do: see above. The question whether a relationship is a non-marriage or a marriage can be tested by an application for a declaration as to the validity of a marriage, and can, of course, be determined (so as to bind the parties) in any litigation. Despite the difficulty, is seems unlikely (RC) that the courts would defy the unequivocal last words of s 23B by granting a nullity decree where none of the specified grounds had been made out. [s 51.20] Who can apply for a nullity decree? Only the parties concerned can apply for a nullity decree. However, anyone who has a genuine interest in establishing that a marriage is not valid may apply for a declaration as to the validity of a marriage.

[s 51.22] No discretion to refuse decree where ground established “. the grant of a decree is not discretionary. If the facts establish that the marriage is invalid, relief must issue”: In the Marriage of Teves III and Campomayor (1994) 18 Fam LR 844 at 857; FLC 92–578, citing In the Marriage of C and D (1979) 5 Fam LR 636; FLC 90–636. Thus, the doctrine of estoppel has no operation in nullity proceedings. If the marriage is void, either party can obtain a decree saying so. See In the Marriage of Osman and Mourrali (1989) 13 Fam LR 444; (1990) FLC 92–111; In the Marriage of Soukmani (1989) 13 Fam LR 441; (1990) FLC 92–107; Jessep O “Fraud and Nullity of Marriage in Australia” (1989) 3 AJFL 93. A contrary view was advanced by B Davis in “Fraud and Annulment of Marriage” (1989) 2 AJFL 138 and “Fraud Logic and Sham Marriages” (1989) 3 AJFL 191. [s 51.25] Form of decree of nullity A decree of nullity is made as a decree absolute in the first instance: see In the Marriage of Schmidt (1976) 1 Fam LR 11,355; FLC 90–052.

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[s 52] Court not to make divorce order where application for decree of nullity before it 52 Where both an application for a decree of nullity of a marriage and an application for a divorce order in relation to that marriage are before a court, the court shall not make a divorce order in relation to the marriage unless it has dismissed the application for a decree of nullity of the marriage. [s 52 am Act 98 of 2005 s 2 and Sch 1, cl 69–70, opn 3 Aug 2005] COMMENTARY ON SECTION 52 Priority of application for nullity decree ….

[s 52.1]

[s 52.1] Priority of application for nullity decree If an application or crossapplication raises an issue of nullity, it should be investigated first, even though the party raising the issue does not wish to proceed with it at the

hearing: see Leonards v Leonards (1961) 2 FLR 111; see also In the [page 283] Marriage of Schmidt (1976) 1 Fam LR 11,355; FLC 90–052. A similar provision was contained in the repealed Matrimonial Causes Act 1959 (Cth).

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[s 53] Circumstances occurring before commencement of Act or outside Australia 53 A decree may be made, or refused, under this Part by reason of facts and circumstances notwithstanding that those facts and circumstances, or some of them, took place before the commencement of this Act or outside Australia. COMMENTARY ON SECTION 53 Facts or circumstances prior to commencement of Act or outside Australia ….

[s 53.1]

[s 53.1] Facts or circumstances prior to commencement of Act or outside Australia This provision is similar to s 67(1) of the repealed Matrimonial Causes Act 1959 (Cth). It allows the court to grant matrimonial relief, even though all or part of the facts took place before the commencement of the Act or outside Australia, and would at the time and place of occurrence not have constituted grounds for matrimonial relief: see Grummett v Grummett [1966] QWN 5; see also Cherry v Cherry [1971] 1 SASR 148. The section must, however, be read subject to the provisions of s 42(2), which incorporate the rules of private international law into the Act: see also s 22 of the Marriage Act 1961. Where, under the common law rules of private international law, the law of a foreign country is applicable, s 53 does

not relieve the court of the obligation to apply the law of that country: see, however, Di Mento v Visalli (1973) 1 ALR 351 in relation to s 67 of the repealed Act.

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[s 54] 54

[s 55]

Decree nisi in first instance [s 54 rep Act 98 of 2005 s 2 and Sch 1, cl 71, opn 3 Aug 2005]

When divorce order takes effect

55 (1) [One month period] Subject to this section, a divorce order made under this Act takes effect by force of this section: (a) at the expiration of a period of 1 month from the making of the order; or (b) from the making of an order under section 55A; whichever is the later. [subs (1) subst Act 98 of 2005 s 2 and Sch 1, cl 72, opn 3 Aug 2005]

(2) [Extension, reduction of period] If a divorce order has been made in any proceedings, the court of first instance (whether or not it made the order), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this subsection: (a) make an order extending the period at the expiration of which the divorce order will take effect, having regard to the possibility of an appeal or further appeal; or (b) make an order reducing the period at the expiration of which the divorce order will take effect if it is satisfied that there are special circumstances that justify its so doing.

[subs (2) subst Act 98 of 2005 s 2 and Sch 1, cl 72, opn 3 Aug 2005]

[page 284] (3) [Appeal] If an appeal is instituted (whether or not it is the first appeal) before a divorce order has taken effect, then, notwithstanding any order in force under subsection (2) at the time of the institution of the appeal but subject to any such order made after the institution of the appeal, the divorce order, unless reversed or rescinded, takes effect by force of this section: (a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or (b) on the day on which the divorce order would have taken effect under subsection (1) if no appeal had been instituted; whichever is the later. [subs (3) subst Act 98 of 2005 s 2 and Sch 1, cl 72, opn 3 Aug 2005]

(4) [Death of either party] A divorce order does not take effect by force of this section if either of the parties to the marriage has died. [subs (4) subst Act 98 of 2005 s 2 and Sch 1, cl 72, opn 3 Aug 2005]

(5) [Definition of “appeal”] In this section: appeal, in relation to a divorce order, means: (a) an appeal, or an application for leave to appeal, against: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was

(b)

(c)

(d)

(e)

(f)

made; or an intervention, or an application for a re-hearing, relating to: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or an application under section 57 or 58 for rescission of the divorce order, or an appeal or application for leave to appeal arising out of such an application; or a review by the Family Court of Australia of the making, by a Registrar or a Judicial Registrar of that Court, of: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (iii) an order determining an application under section 57 or 58 for rescission of the divorce order; or a review by the Federal Circuit Court of Australia of the making, by a Registrar of that Court, of: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or (iii) an order determining an application under section 57 or 58 for rescission of the divorce order; or a review by the Family Court of Western Australia of

the making, by the Principal Registrar, a Registrar, or a Deputy Registrar, of that Court of: (i) the divorce order; or (ii) an order under section 55A in relation to the proceedings in which the divorce order was made; or [page 285] (iii) an order determining an application under section 57 or 58 for rescission of the divorce order. [def subst Act 189 of 2011 s 3 and Sch 2[9], opn 7 Dec 2011; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013] [subs (5) subst Act 98 of 2005 s 2 and Sch 1, cl 72, opn 3 Aug 2005]

(6) [Determination, discontinuance of appeal] For the purposes of this section, where an application for leave to appeal, or for a re-hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as: (a) the leave granted remains capable of being exercised; or (b) an appeal or re-hearing instituted in pursuance of the leave is pending. COMMENTARY ON SECTION 55 Time when decree becomes absolute …. Delay of the time that decree becomes absolute …. Death of a party — s 55(4) …. Shortening or extension of time for decree absolute ….

[s 55.1] [s 55.2] [s 55.3] [s 55.4]

[s 55.1] Time when decree becomes absolute A decree nisi becomes absolute by virtue of the Act and independently of the will of the parties at

the expiry of one month from the date of making the decree nisi or order under s 55A, whichever is the later. [s 55.2] Delay of the time that decree becomes absolute The making of the decree absolute can only be delayed or defeated by: (a) instituting an appeal against the making of the decree nisi or the order under s 55A; (b) an extension of time under s 55(2)(a); or (c) the death of either party or by applying for rescission of the decree nisi under ss 57 or 58. If the decree nisi is not reversed or rescinded in appeal proceedings, the decree nisi becomes absolute upon the expiry of one month from the date of determination of the appeal or application or the date on which the decree nisi would originally have become absolute if no appeal had been instituted, whichever is the later. [s 55.3] Death of a party — s 55(4) Where a party dies prior to the date upon which the decree nisi would have become absolute, the marriage is not dissolved and the surviving spouse is to be treated as the widow or widower of the deceased: see Re Seaford (dec’d) [1968] P 53; see also the Family Law Rules 2004 and In the Marriage of Sims (1980) 6 Fam LR 20. [s 55.4] Shortening or extension of time for decree absolute The reason for imposing a delay of one month before the decree nisi becomes absolute is to give a party the opportunity to appeal. After the decree becomes absolute there can be no appeal on the issue of whether or not the decree nisi of dissolution should have been made: see In the Marriage of Spratley (1976) 3 Fam LR 11,131; (1977) FLC 90–222 and In the Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90–414 (see also s 93). Shortening of time The period of time can only be shortened if the court is satisfied that there is no possibility of an appeal from the decree nisi. It is advisable that this assurance should be forthcoming from the legal representatives of both the applicant and the respondent in a case where shortening of the period is sought: see In the Marriage of Todd (No 2) (1976)

1 Fam LR 11,186; 25 FLR 260; FLC 90–008. In the Marriage of Hodgens (1983) 10 Fam LR 538; (1984) FLC 91–502 at 79,090, the Full Court said that the court may order that the decree become absolute immediately. However, in practice, such a step is generally taken by consent or in the absence of opposition from the other party, that party being present in court. Although such a step [page 286] is a drastic one, it is one which the court may take in the proper exercise of its discretion. For an example of a shortening of time in remarkable and sad circumstances, see Price v Underwood [2009] FamCAFC 127; (2009) 41 Fam LR 614 (FC). Intention to marry The period may be shortened where one or both of the parties wish to remarry as soon as possible: see In the Marriage of Todd (No 2), above; see also In the Marriage of Warren (1987) 12 Fam LR 245 where an application for shortening of time was made on the erroneous assumption that notice of intended marriage could not be given in accordance with s 42(1) of the Marriage Act until the decree nisi had become absolute. In that case, the application was rejected. Protracted proceedings The period may be shortened where the proceedings between the parties have been protracted and the circumstances of the parties require that there should be a speedy dissolution: see In the Marriage of Todd (No 2), above. Extension of time An extension of time will be appropriate where a party satisfies the court of first instance, or the court in which an appeal has been instituted, that he or she has prima facie reasonable grounds for appeal but needs more time for the filing of documents required by the rules.

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[s 55A]

Divorce order where children

55A (1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied: (a) that there are no children of the marriage who have not attained 18 years of age; or (b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that: (i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or (ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made. [subs (1) am Act 167 of 1995 s 30; Act 98 of 2005 s 2 and Sch 1, cl 73–74, opn 3 Aug 2005]

(2) Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements. [subs (2) am Act 167 of 1995 s 30; Act 98 of 2005 s 2 and Sch 1, cl 75, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 4 item 48, opn 1 July 2006]

(3) For the purposes of this section, a child (including an exnuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a

child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time. (4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made. [subs (4) am Act 98 of 2005 s 2 and Sch 1, cl 76, opn 3 Aug 2005] [s 55A insrt Act 181 of 1987 s 22]

[page 287] COMMENTARY ON SECTION 55A Court must declare …. Children to whom the section applies: s 55A(3) and (4) …. “Proper arrangements in all the circumstances” — definition …. Court must be satisfied …. When are arrangements not proper? …. What are arrangements? …. Not confined to parties …. Proper arrangements have been made …. Arrangements must be definite …. Onus on applicant …. What is meant by care, welfare and development? …. Circumstances by reason of which the decree should become absolute …. Applicant to show one or more circumstances …. Court has unfettered discretion ….

[s 55A.1] [s 55A.2] [s 55A.3] [s 55A.4] [s 55A.5] [s 55A.6] [s 55A.7] [s 55A.9] [s 55A.10] [s 55A.11] [s 55A.12] [s 55A.13] [s 55A.14] [s 55A.15]

Examples of special circumstances …. Court’s power in the event that proper arrangements for the care, welfare and development of the children have not been found to be made ….

[s 55A.16]

[s 55A.17]

[s 55A.1] Court must declare The court must in every application for dissolution of marriage make an order declaring: (a) that there are no children to whom s 55A applies; (b) that proper arrangements have been made in respect of children under the age of 18 years; or (c) that there are circumstances by reason of which the decree nisi should become absolute even though the court is not satisfied that proper arrangements have been made. Once the court has refused to make a declaration pursuant to the section, a decree absolute issued in error by the registry cannot override that decision of the court, and that decree absolute will be void and of no effect: In the Marriage of Wardale (1990) 14 Fam LR 195; FLC 92–151. [s 55A.2] Children to whom the section applies: s 55A(3) and (4) Introductory comments The effect of subss (3) and (4) is to bring within s 55A a wider category of children than fall within the meaning of “child of a marriage” as that term is used elsewhere in the Act. For the purpose of s 55A “child of a marriage” includes any child treated by the parties as a child of their family at the relevant time. The relevant time is the time immediately before they separated, (or if they separated more than once, the time immediately before they last separated before the institution of the proceedings in which the decree of dissolution was made). Estoppel not created by declaration A declaration that a child is a “child of the marriage” does not give rise to an issue estoppel relating to the paternity of the child: see In the Marriage of Schorel (1990) 14 Fam LR 105; FLC 92– 144. Constitutional validity The validity of this provision has not been tested. It

appears to be based on the divorce and matrimonial causes power (Constitution s 51(xxii) rather than the “marriage” power (Constitution s 51(xxi)). A similar provision in the previous legislation, the Matrimonial Causes Act 1959 s 71, was generally assumed to be valid. On the other hand, it was never tested, and the judgments of the majority of the High Court in Re F; Ex parte F (1986) 66 ALR 193; 10 Fam LR 940; FLC 91–739 appear to indicate that s 51(xxii) is no wider than s 51(xxi) in respect of the necessary connection between the children and the marriage: see especially Re F at Fam LR 944 (Gibbs CJ), Fam LR 955–6 (Brennan J), Fam LR 960 (Dawson J). If this is right, the line of [page 288] decisions which held invalid portions of the extended definition of “child of a marriage” introduced in 1983 might also invalidate s 55A(3), although in this event it might be read down to save its application to children of a marriage in the narrower sense: see In the Marriage of Cormick; Salmon (Respondent) (1984) 156 CLR 170; 56 ALR 245; 9 Fam LR 880; 59 ALJR 151; FLC 91– 554; Re Cook and Maxwell JJ; Ex parte C (1985) 60 ALR 661; 10 Fam LR 99; FLC 91–619. Reference of power not relevant The reference of power from the States of New South Wales, Victoria, South Australia, Queensland and Tasmania is not relevant to s 55A, being confined to Pt VII. [s 55A.3] “Proper arrangements in all the circumstances” — definition “Proper” is equivalent to suitable and means something more than adequate arrangements: see Woolley v Woolley (1961) 2 FLR 114 at 116. In In the Marriage of Opperman (1978) 4 Fam LR 135 at 151; 33 FLR 248; FLC 90–275, a majority of the Full Court (Watson SJ and Murray J) held that “the party seeking the relief has the onus of presenting to the court sufficient evidence to satisfy the court that the arrangements, material and emotional, are the best that he or she can make in the circumstances”. Strauss J, dissenting, said (at 142) that “proper” does not mean “best”, and that “if the

needs of the children of the marriage are in fact met properly in the sense that they are met sufficiently and well and are likely to be so met for the foreseeable future, there is no onus on the applicant to show that he or she could not have made better arrangements”. [s 55A.4] Court must be satisfied The court itself must be satisfied that proper arrangements have been made. It is not sufficient that the parties are content with the arrangements: see In the Marriage of Gillen (1973) 7 SASR 569. The court must be independently satisfied that, having regard to the circumstances of the parties, appropriate arrangements have been made with respect to the children. [s 55A.5] When are arrangements not proper? Examples of where a judge may refuse to make a s 55A declaration are: (a) where the husband and the wife propose to continue to live with the children in the same house after divorce; (b) where the husband is not paying maintenance for the children, particularly where the whereabouts of the husband is known and he is able to make a financial contribution towards the support of the children but refuses to do so: see In the Marriage of Warne (1976) 1 Fam LR 11,602; 26 FLR 118; (1977) FLC 90–241 at 76,301; see also In the Marriage of Bedford (1977) 3 Fam LR 11,421; 29 FLR 332; FLC 90–287; In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275, where the court allowed an appeal by a wife who had opposed the making of a declaration under s 55A until the husband had paid maintenance for three stepchildren: see also VP v VP (1978) 1 Fam LR (Eng Series) 336 at 337, and on appeal VP v VP (1980) 10 Fam Law R 20; (c) where the husband is paying insufficient maintenance. See In the Marriage of Evans (1990) 14 Fam LR 136; FLC 92–150 where the court held that children should be spared the indignity of being supported by the social welfare system when their parents could afford to support them and that the failure by the husband to meet his children’s financial needs meant that the declaration under s 55A could not be made. This may be especially important where

there are difficulties in recovering maintenance because the father is in another country: In the Marriage of A and BV Maunder (1999) 25 Fam LR 579; FLC 92–871. [s 55A.6] What are arrangements? Arrangements mean arrangements between the parties to the marriage in respect of a child or children. [page 289] [s 55A.7] Not confined to parties Despite some suggestion to the contrary in the majority judgment in In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275, it is submitted that s 55A does not necessarily require that the “proper arrangements” have been made by the parties, or by the applicant. There may be cases where the arrangements which have been made for the welfare of the children are proper in all the circumstances although they have been made by only one party to the marriage or by persons who are not a party to the marriage. [s 55A.9] Proper arrangements have been made The court must be satisfied that proper arrangements have been made. It is not enough that they are “likely to be made”, “can be made” or “will be made”. The court should not be left to hypothesise on the arrangements: see In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275 at 77,195. [s 55A.10] Arrangements must be definite The arrangements must be definite. The court must ensure that children are not disadvantaged by the court expressing satisfaction with arrangements which are in fact nonexistent, only temporary or adequate: see In the Marriage of Warne (1976) 1 Fam LR 11,602; 26 FLR 118; (1977) FLC 90–241 at 76,301 per Muirhead J. Arrangements are not limited to matters to which the court could properly give effect by appropriate orders: see In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275 at 77,175. [s 55A.11] Onus on applicant The applicant for dissolution has the onus of presenting to the court the evidence sufficient to satisfy the court that proper

arrangements have been made: see In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275 at 77,195. [s 55A.12] What is meant by care, welfare and development? These terms are not defined in the Act. In In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275, the majority of the Full Court of the Family Court indicated that welfare of the child embraced “material and emotional” arrangements. “Welfare” does not mean just the material welfare. It extends to all factors which will affect the future of the child: see Re D (an infant) [1977] AC 602, per Viscount Dilhorne, at 633. Many elements enter into the welfare of an infant. Sometimes great importance is attached to the present and future material interest of the child and no doubt they are important matters, but they are not by any means the most important matters. The matters of immediate consideration are the comfort, the health, and the moral, intellectual and spiritual welfare of the child: see W v W [1926] P 111, per Lord Merrivale at 114–15. [s 55A.13] Circumstances by reason of which the decree should become absolute The circumstances to be found by the court are not special circumstances. Section 55A is primarily intended to put pressure on the parties to make satisfactory arrangements for their children. Where this pressure is of no avail, the court must consider the social utility of keeping a marriage alive in name only. This is particularly true when it appears that the provisions of s 55A are abused by one party for the purpose of gaining a financial advantage over the other: see In the Marriage of Murphy (1977) 3 Fam LR 11,511; 30 FLR 538; FLC 90–291. The court cannot expect the impossible; for example a parent who is unemployed may be genuinely unable to contribute financially to the support of the children. Similarly, a parent who lives at a great distance from the children may genuinely be unable to exercise regular access: see In the Marriage of Murphy, above. The court should balance on the one hand the termination of the marriage which has no social utility, as against protection of the children of the broken family unit enjoined upon the court by s 43(c); but if indeed a question arises

as to which aspect requires the more weight and attention, there is no doubt that the court should exercise its discretion so as to give more weight to the latter: see In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275. In In the Marriage of A and BV Maunder (1999) 25 Fam LR 579 at 588; FLC 92–871, the Full Court (Finn, Kay and Moore JJ) indicated, in effect, that the discretion should not be exercised lightly. The court said that the provisions of s 55A are mandatory and express a firm policy not to allow parties to be divorced without giving appropriate consideration to the arrangements that [page 290] have been made for the welfare of the children to the marriage. The section was “designed to protect children who are frequently the innocent victims of the breakdown of their parents’ marriage. It seeks to balance the right of the parents to get on with their lives as separate entities from each other with the need to ensure that the best circumstances can be created for their children”. [s 55A.14] Applicant to show one or more circumstances It is uncertain as to whether the use of the plural “circumstances” in s 55A means that an applicant must show more than one circumstance: see In the Marriage of Philippe (1977) 20 ALR 381; 4 Fam LR 153; 34 FLR 436; (1978) FLC 90– 433, where, Connor J, in dealing with special circumstances, suggested that it was not enough for a litigant to show just one circumstance. [s 55A.15] Court has unfettered discretion The court has a complete discretion to decide from the facts presented by the applicant as to whether it is satisfied that circumstances exist whereby a decree nisi should become absolute under s 55A(1)(b)(ii). [s 55A.16] Examples of special circumstances Examples, where a court has been satisfied that circumstances have existed are: (a) Where the provisions of s 55A have been used by an obstructive or

(b)

(c)

(d)

(e)

(f)

greedy spouse to frustrate the dissolution for no good purpose: see In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275 at 77,195. Where a spouse for purely financial reasons refuses to provide the only appropriate evidence as to the welfare of the child required for a s 55A declaration: see In the Marriage of Murphy (1977) 3 Fam LR 11,511; 30 FLR 538; FLC 90–291. Where the marriage has clearly become no more than an empty shell unless there is a good purpose for doing so the court should not frustrate the dissolution of such a marriage: see In the Marriage of Murphy, above. Where the whereabouts of the respondent are unknown, where the respondent has not been personally served and where the respondent has had no access to nor paid maintenance for the child: see Clarke v Clarke (1961) 2 FLR 7 at 8. Where the only arrangements proposed by the applicant to the court are not very satisfactory but where they are the best possible arrangements that can be made in the circumstances. Where an applicant desires to be free to marry his de facto wife and legitimate children by her.

[s 55A.17] Court’s power in the event that proper arrangements for the care, welfare and development of the children have not been found to be made If the court finds that proper arrangements for the welfare of the children have not been made or evidence is lacking at the issue, the court may: (a) Adjourn the application for dissolution until further evidence is provided that: (i) proper arrangements have been made; (ii) a report has been obtained from a court counsellor or welfare officer regarding the arrangements for the children (see s 62A); or (iii) circumstances arise justifying a declaration that,

notwithstanding that proper arrangements have not been made, special circumstances exist by which the decree should be made. (b) Grant a decree nisi and refuse to make a s 55A declaration until: (i) proper arrangements for the children have been made, or (ii) circumstances arise justifying a declaration that the decree nisi should become absolute, notwithstanding that the court is not satisfied. (iii) Declare that although the court is not satisfied, there are circumstances by reason of which the decree nisi should become absolute. (c) Declare that although the court is not satisfied, there are circumstances by reason of which the decree nisi should become absolute.

____________________ [page 291]

[s 56]

Certificate as to divorce order

56 (1) [Memorandum as to divorce order] If a divorce order takes effect, the Registry Manager of the court by which the order was made must prepare and file a memorandum of the fact and of the date on which the divorce order took effect. [subs (1) subst Act 98 of 2005 s 2 and Sch 1, cl 77, opn 3 Aug 2005]

(2) [Entitlement to apply for certificate] If a divorce order has taken effect, any person is entitled, on application to the Registry Manager of the court by which the divorce order was made, to receive a certificate signed by the Registrar of that court that the divorce order has taken effect.

[subs (2) subst Act 98 of 2005 s 2 and Sch 1, cl 77, opn 3 Aug 2005]

(3) [Certificate prima facie evidence of matters therein] A certificate given under subsection (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, prima facie evidence of the matters specified in the certificate. [subs (3) am Act 61 of 2016 s 3 and Sch 3 item 20, opn 21 Oct 2016]

(4) [Recording, notification of decrees] The regulations may provide for the establishment of central records of decrees made under this Act and for the notification of decrees to the appropriate marriage registering authorities of the States and Territories. COMMENTARY ON SECTION 56 Introductory comment …. Entitlement of a party to decree absolute ….

[s 56.1] [s 56.3]

[s 56.1] Introductory comment Section 56 is an administrative and evidentiary provision and makes the certificate of decree absolute admissible (but not conclusive) evidence of the matters stated in that certificate: see In the Marriage of Miller (1983) 9 Fam LR 10 at 19; FLC 91–328. [s 56.3] Entitlement of a party to decree absolute Where a decree nisi becomes absolute any person is entitled on application to receive a certificate signed by the Registrar that the decree nisi has become absolute.

____________________

[s 57] Rescission of divorce order where parties reconciled 57 Despite anything contained in this Part, if a divorce order has been made in relation to a marriage, the court may, at any time before the order takes effect, upon the application of the parties to the marriage, rescind the divorce order on the ground that the

parties have become reconciled. [s 57 subst Act 98 of 2005 s 2 and Sch 1, cl 78, opn 3 Aug 2005] COMMENTARY ON SECTION 57 Reconciliation of the parties …. Before decree absolute …. Appeal ….

[s 57.1] [s 57.2] [s 57.3]

[s 57.1] Reconciliation of the parties This section is similar to s 74 of the repealed Matrimonial Causes Act 1959 (Cth). It requires an application by both parties to the marriage. The application must be supported by the joint affidavit of the parties, or affidavits from each of them or oral evidence. [page 292] [s 57.2] Before decree absolute The application must be made before the decree nisi becomes absolute: see In the Marriage of Miller (1983) 9 Fam LR 10; FLC 91–328. Upon the application being made, the period of time on the expiry of which the decree nisi becomes absolute is automatically extended (see ss 55(3) and (5)). [s 57.3] Appeal By s 55(5), “appeal”, for the purposes of s 55, includes an application under s 57.

____________________

[s 58] Rescission of divorce order on ground of miscarriage of justice 58 If a divorce order has been made in proceedings but has not taken effect, the court by which the divorce order was made may, on the application of a party to the proceedings, or on the intervention of the Attorney-General, if it is satisfied that there has

been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance, rescind the divorce order and, if it thinks fit, order that the proceedings be reheard. [s 58 subst Act 98 of 2005 s 2 and Sch 1, cl 78, opn 3 Aug 2005] COMMENTARY ON SECTION 58 Introductory comment …. The application …. Who may apply …. Procedure: …. Miscarriage of justice …. Meaning of miscarriage of justice …. Any other circumstances ….

[s 58.1] [s 58.2] [s 58.3] [s 58.4] [s 58.5] [s 58.6] [s 58.7]

[s 58.1] Introductory comment This provision enables a court to rescind a decree nisi provided it has not become absolute. [s 58.2] The application The application must be made before the decree nisi becomes absolute: see In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226. [s 58.3] Who may apply The application may be made by any party to the proceedings or by the Commonwealth Attorney-General who may intervene to draw to the notice of the court matters relevant to the exercise of its powers (see s 91(1A) and s 91A). [s 58.4] Procedure: see Practice [4500.25] at (F). [s 58.5] Miscarriage of justice This provision corresponds to s 75 of the repealed Matrimonial Causes Act 1959: see Wilson v Wilson (1967) 10 FLR 203. It must be distinguished from an appeal. If the applicant alleges that the court, after hearing the evidence and argument, made a wrong decree either on the facts or on the law, he or she should appeal.

If, after being duly served with process, the respondent fails to defend the proceedings, he or she cannot afterwards seek a rescission of orders made in his or her absence merely by asserting that he or she did in fact have a meritorious case: see Moore v Moore (1976) 11 ALR 222; 1 Fam LR 11,473. It is not sufficient merely to show that a wrong decision was arrived at when the decree was made: see Wilson v Wilson, above. [page 293] [s 58.6] Meaning of miscarriage of justice Opportunity to hear evidence It is sufficient to satisfy the court that it was deprived of the opportunity to hear material evidence or argument for a party on a material question; if it is due to fraud or deliberate suppression of evidence the court will readily grant rescission, even if the actual decision reached might eventually be affirmed: see In the Marriage of Krebs (1976) 2 Fam LR 11,341; FLC 90–117; see also Mangano v Mangano (1974) 4 ALR 303. However, the miscarriage of justice need not be due to deliberate fraud on the part of the other party. Procedure of the court The miscarriage of justice may be due to malfunction of the procedure of the court whereby a party is prevented from appearing or defending an issue which he or she may wish to defend: see Gilpin v Gilpin (1969) 17 FLR 131; see also McKenna v McKenna (1971) 18 FLR 15. Fault of solicitor It may also be due to the failure of a party’s solicitor to act upon the instructions given: see In the Marriage of Callow (1976) 2 Fam LR 11,167; FLC 90–093. The court may, however, have to be satisfied that the appearance of the applicant would have made a difference to the outcome of the case. Section 79A The grounds on which a decree nisi can be rescinded are similar to those upon which an order for property settlement can be set aside under s 79A.

[s 58.7] Any other circumstances The words “or any other circumstances” give the words “miscarriage of justice” a wide meaning not limited to fraud, perjury or suppression of evidence. It extends to a lack of jurisdiction such as where a court purported to make a decree nisi before the 12 month period of separation had expired: see In the Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90–414; see also s 79A as to the meaning of the words “or any other circumstances”.

____________________

[s 59]

Re-marriage

59 If a divorce order under this Act in relation to a marriage has taken effect, a party to the marriage may marry again. [s 59 subst Act 98 of 2005 s 2 and Sch 1, cl 78, opn 3 Aug 2005] COMMENTARY ON SECTION 59 Introductory comment …. Decree a nullity on its face …. Decree valid on its face …. Section 47 of the Marriage Act ….

[s 59.1] [s 59.2] [s 59.3] [s 59.4]

[s 59.1] Introductory comment This is similar to s 46 of the repealed Matrimonial Causes Act 1959 (Cth). The policy is that a decree absolute should be inviolate and not open to subsequent challenge. Such a decree is a decree in rem and the parties and third parties may alter their status or circumstances in reliance upon such a decree. The setting aside of the decree may seriously infringe upon the rights and circumstances of those persons: see In the Marriage of Miller (1983) 9 Fam LR 10 at 19; FLC 91–328. A decree nisi which would have been voidable under s 58, before the making of a decree absolute, cannot be challenged afterwards whether or not one of the parties has remarried since: see In the Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90–414; see also Brennan v Brennan (1953) 89 CLR 129; In the Marriage of Miller, above.

[s 59.2] Decree a nullity on its face If the court lacked basic jurisdiction to make a decree nisi, such as a Supreme Court of a state or territory exercising jurisdiction to hear and determine [page 294] an application for principal relief filed after 1 June 1976, or a court of summary jurisdiction purporting to make a decree of divorce, then in such a case the decree will be a nullity and declared to be so in proceedings for a declaration under s 113: see In the Marriage of Prentice (No 2) (1978) 4 Fam LR 47; FLC 90–416; see also In the Marriage of Miller, above. [s 59.3] Decree valid on its face In In the Marriage of Miller (1983) 9 Fam LR 10 at 20; FLC 91–328, the Full Court said that there are limited circumstances in which a decree, made by a court which had jurisdiction to make that decree and which is valid on its face, is void or may be impeached upon that basis. Those circumstances may fall into three categories: (a) A failure to comply with legislative requirements which are a condition precedent to the decree nisi becoming absolute. There is a necessity for a declaration under s 55A before a decree nisi may become absolute. (b) Where there was the absence of an element fundamental to the granting of the decree. For example, the absence of any marriage to dissolve, the absence of any jurisdictional connection by either of the parties to the court which granted the decree, or constitutional limits in Australia. (c) Where there has been a procedural irregularity which caused a denial of natural justice. For example, where there has been no service of the proceeding and no order dispensing with service. See also In the Marriage of Hodgens (1983) 10 Fam LR 538; (1984) FLC 91–502. [s 59.4] Section 47 of the Marriage Act Under s 47 of the Marriage Act a minister of religion is not bound to solemnise any marriage and may impose

additional requirements to those required by the Act. As to where the court can order a party under s 114(3) to remove obstacles to remarriage imposed by religious law: see In the Marriage of Shulsinger (1976) 2 Fam LR 11,611; FLC 90–207.

____________________

[page 295]

PART VII — CHILDREN* [Pt VII subst Act 167 of 1995 s 31] COMMENTARY ON PART VII OVERVIEW OF THE 2006 AMENDMENTS TO PART VII In Goode and Goode [2006] Fam CA 1346, the Full Court provided the following summary of the effect of the amendments made to Pt VII by the Family Law Amendment (Shared Parental Responsibility) Act 2006: “[65] In summary, the amendments to Part VII have the following effect: 1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties. 2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)). 3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be

4.

5.

6.

7.

appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)). The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)). When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)). The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)). The concept of “substantial and significant” time is defined in s 65DAA to mean: (a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends and holidays; and (b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and [page 296] (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to

be involved in occasions and events that are of special significance to the parent. 8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests. 9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC. 10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties. 11. The child’s best interests remain the overriding consideration.”

DIVISION 1 — INTRODUCTORY

Subdivision A — What this Division does [s 60A]

What this Division does

60A This Division contains: (a) a statement of the object of this Part and the principles underlying it, and an outline of this Part (Subdivision B); and (aa) provisions dealing with the best interests of the child in

(ab)

(b) (c) (d)

court proceedings (Subdivision BA); and provisions dealing with an adviser’s obligations in relation to the best interests of the child (Subdivision BB); and provisions relevant to the interpretation and application of this Part (Subdivision C); and provisions relevant to how this Act applies to certain children (Subdivision D); and provisions about the use of family dispute resolution before applying for an order under this Part (Subdivision E).

Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12. [s 60A am Act 189 of 2011 s 3 and Sch 2[10], opn 7 Dec 2011; Act 189 of 2011 s 3 and Sch 1 item 12, opn 7 June 2012]

Subdivision B — Object, principles and outline

[s 60B] Objects of Part and principles underlying it 60B (1) The objects of this Part are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and [page 297] (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests): (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both

their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). (3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture. (4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. Note: The text of the Convention is set out in Australian Treaty Series 1991 No 4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au). [subs (4) insrt Act 189 of 2011 s 3 and Sch 1 item 13, opn 7 June 2012]

[s 60B subst Act 46 of 2006 s 3 and Sch 1 item 8, opn 1 July 2006] COMMENTARY ON SECTION 60B HISTORY AND SIGNIFICANCE OF SECTION 60B Introduction …. The 2006 changes to the previous version of s 60B: overview …. The Explanatory Memorandum to the 2006 Act …. Role and significance of s 60B …. Section 60B and the Convention on the Rights of the Child …. THE OBJECTS OF PART VII: SECTION 60B(1) Ensuring the benefit of both parents having a meaningful involvement: para (1)(a) …. Protecting children from harm from abuse etc: para (b) …. Ensuring that children receive adequate parenting: para (1)(c) ….

[s 60B.1] [s 60B.5] [s 60B.8] [s 60B.10] [s 60B.15]

[s 60B.20] [s 60B.25] [s 60B.28] [page 298]

Ensuring that parents fulfil their duties and meet their responsibilities: para (1)(d) …. THE PRINCIPLES UNDERLYING PART VII: SECTION 60B(2) Children’s right to know and be cared for by both parents: para (2)(a) …. Children’s right to spend time on a regular basis and communicate with parents and other significant people: para (2)(b) …. Parents jointly share duties and responsibilities: Para (c) ….

[s 60B.30]

[s 60B.35]

[s 60B.40] [s 60B.45]

Parents should agree: para (d) …. Children’s right to enjoy their culture: para (e); and in relation to Aboriginal and Torres Strait Islander children, subs (3) ….

[s 60B.50]

[s 60B.55]

HISTORY AND SIGNIFICANCE OF SECTION 60B [s 60B.1] Introduction Section 60B states the “objects” and “principles” of Part VII. This section was first inserted by the 1995 amending Act, and significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). [s 60B.5] The 2006 changes to the previous version of s 60B: overview Assessing the significance of the 2006 Act amendments requires consideration of the previous form of s 60B. It was as follows: Object of Part and principles underlying it 60B (1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests: (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and (c) parents share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children.

There is clearly much common ground between the old and the new versions, but as well as being considerably longer, the 2006 version makes some significant changes. The old s 60B commenced by stating that the “object” of the Part (in brief) related to the child’s needs for adequate parenting and (the other side of the coin) the need for parents to fulfil their responsibilities. The 2006 Act amendments retained these two matters, but dropped them to numbers 3 and 4 of the four “objects”. Numbers 1 and 2 are respectively (to summarise) the benefits from parental involvement, and protection from abuse. (These same two factors now achieve special priority in the list of matters to be taken into account in determining what is in the child’s best interests, being now the “primary considerations: s 60CC, formerly s 68F). Another change is that the opening words of the section place the child’s best interests at centre stage: “… to ensure that the best interests of children are met by …” The “principles” in subs (2) involve less significant changes, being essentially an elaboration of the previously stated principles. Paragraph (e) (right to enjoy culture) is new, and is spelled out in new subs (3). [page 299] [s 60B.8] The Explanatory Memorandum to the 2006 Act It is not necessary to reproduce those parts of the EM discussion of s 60B that merely re-state the section, but the following passages may be relevant to its interpretation: 31. … The new provision better focuses the objects and principles of the Part on the best interests of the child and shared parental responsibility between parents. It implements recommendation 3 of the FCAC Report and recommendation 17 of the LACA Report. 32. New subsection 60B(1) states that the objects of Part VII are to ensure that the best interests of children are met by the items set out in paragraphs (a), (b), (c) and (d). The inclusion of the reference to “the best interests of children” is to give greater emphasis to those interests when

interpreting other provisions … 33. The objects that were already provided for in section 60B of the Act are now set out in subparagraphs 60B(1)(c) and (d) … 34. Section 60B also includes two new objects. These objects mirror the primary considerations in new section 60CC that must be considered by a court in making decisions about the best interests of the child. These two new objects are placed at the start of the objects provision to draw attention to them. There is no particular priority to the objects — each is important. The first is set out in paragraph 60B(1)(a). It recognises the importance of ensuring that children are given the opportunity for their parents to have a meaningful involvement in their lives to the maximum extent possible, consistent with their best interests. The intention is to better recognise that children have a right to know their parents and the benefit to children of having a good relationship with both of their parents. However, it is also recognised that this may not be appropriate in situations such as where the safety of the child would be at risk. 35. The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term “subjected to” has been retained as well as “exposed to” in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person. 36. The terms “abuse” and “family violence” are relocated to the general definition section at subsection 4(1). Family violence is amended by item

3 to include an element of “reasonableness”. The term “neglect”, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child. 37. Subsection 60B(2) sets out the principles that underlie the objects of the Act … 38. Paragraph 60B(2)(b) is amended to specifically refer to children having a right to spend time on a regular basis with grandparents and other relatives who are significant to their care, welfare and development. This amendment recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children. [page 300] 39. Paragraphs 60B(2)(c) and (d) provide that parents should jointly share duties and responsibilities concerning the care, welfare and development of their children and should agree about the future parenting of their children. These principles remain essentially the same as in the existing Act. [s 60B.10] Role and significance of s 60B The significance of s 60B was considered in Maldera v Orbel (2014) 287 FLR 283; 52 Fam LR 24; [2014] FamCAFC 135; BC201451685 (Ainslie-Wallace, Ryan and Al dridge JJ). (This appears to have been the first time the Full Court revisited the issue since the pre-2006 version of s 60B was considered in B and B: Family Law Reform Act 1995 (1997) 140 FLR 11; 21 Fam LR 676; (1997) FLC 92-755.) The Full Court applied to s 60B the principles that normally apply to preambles and objects clauses. Their Honours cited Wacando v

Commonwealth (1981) 148 CLR 1; 37 ALR 317; 56 ALJR 16; BC8100117. At CLR 23; ALR 333 and later authorities to the effect that: … while regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power (Cole JA in S v Australian Crime Commission (2005) 144 FCR 431; 89 ALD 12; 225 ALR 123; [2005] FCA 1310 at [22]. The Full Court expressed its respectful disagreement with B and B, above, to the extent that it held that s 60B “does more than provide context, indicate the legislative purpose of the part and operate as an aid to construction of the Act.” The court concluded (at [75]): Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the part and otherwise operate as an aid to construction of the part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive. Kent J has emphasised that s 60B, consistently with Pt VII as a whole, focuses on the rights of children, and the duties, obligations and responsibilities of parents: Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064; BC201551169, especially at [101]–[115]. [s 60B.15] Section 60B and the Convention on the Rights of the Child Convention on the rights of the child: subsection (4) Subsection (4) was added by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The legislative history does not indicate whether it was intended to result in any specific consequences, or why this subsection provided for it to be an “additional” object rather than simply being added to the objects in subs (1). It remains to be seen what effect, if any, this subsection will have. Before this amendment, the significance of the Convention was considered in B and B: Family Law Reform Act 1995 (1997) 140 FLR 11; (1997) 21 Fam

LR 676; (1997) FLC 92–755 (Nicholson CJ, Fogarty and Lindenmayer JJ) and B (Infants) & B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181; (2003) FLC 93–141; [2003] FamCA 451 (FC) (Nicholson CJ, Ellis and O’Ryan JJ). The second of these was overruled by the High Court, although the majority of the High Court Justices did not find it necessary to discuss s 60B or the Convention: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; [2004] HCA 20; BC200402148 (HC). These decisions indicated that the Convention itself had not become part of Australia’s domestic law, but that in interpreting the Family Law Act it is right to assume that the legislature would have wished the law to be consistent with the Convention. The addition of subs (4) appears to confirm this, but whether it adds anything in practice remains to be seen. The topic is considered [page 301] in Patrick Parkinson, “The Family Law Act and the UN Convention on Children’s Rights: A New Focus on Children?” in Right Now: Human Rights in Australia (2012) http://rightnow.org.au/topics/children-and-youth/thefamily-law-act-and-the-un-convention-on-children’s-rights-a-new-focus-onchildren/. THE OBJECTS OF PART VII: SECTION 60B(1) [s 60B.20] Ensuring the benefit of both parents having a meaningful involvement: para (1)(a) This paragraph was added by the 2006 Act. The EM explains that para (a): … recognises the importance of ensuring that children are given the opportunity for their parents to have a meaningful involvement in their lives to the maximum extent possible, consistent with their best interests. The intention is to better recognise that children have a right to know their parents and the benefit to children of having a good relationship with both of their parents. However, it is also recognised that this may not

be appropriate in situations such as where the safety of the child would be at risk. Paragraph (a) is mirrored in s 60CC(2)(a), being the first of the two “primary considerations” to be taken into account in determining the child’s best interests. See generally the commentary to s 60CC. [s 60B.25] Protecting children from harm from abuse etc: para (b) The EM says that this paragraph: … recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term “subjected to” has been retained as well as “exposed to” in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person. 36. The terms “abuse” and “family violence” are relocated to the general definition section at subsection 4(1). Family violence is amended by item 3 to include an element of “reasonableness”. The term “neglect”, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child. Paragraph (b) is mirrored in s 60CC(2)(b), being the second of the two “primary considerations” to be taken into account in determining the child’s best interests. See generally the commentary to s 60CC. [s 60B.28] Ensuring that children receive adequate parenting: para (1)(c) This paragraph has been retained from the 1995 Act. With what is now para

(1)(d), it formed the single “object” as s 60B was originally formulated (the original s 60B is set out above). In B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 727; (1997) FLC 92–755 at 84,215 the Full Court said, of the “object” as stated in the original s 60B, that it “provides an optimum set of values for children of separated parents and is the goal to which parents, society and the courts should aim”: para 9.6. [page 302] [s 60B.30] Ensuring that parents fulfil their duties and meet their responsibilities: para (1)(d) This paragraph has also been retained from the 1995 Act: see the above commentary to para (1)(c). The importance of parents meeting their responsibilities is now underlined by a number of specific provisions in s 60CC: see the commentary to that section. THE PRINCIPLES UNDERLYING PART VII: SECTION 60B(2) [s 60B.35] Children’s right to know and be cared for by both parents: para (2)(a) Paragraph (a) has been retained from the original s 60B. In B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92–755 the Full Court said, in relation to this provision: 9.10 Paragraph (a) emphasises two matters, namely, the rights of a child to “know” both parents and to be “cared for” by both parents. These rights apply “regardless” of whether the parents are married, separated, have never been married or have never lived together. “9.11 The first of those matters, including the broad issue of a child’s psychological identity, has always been recognised as a fundamental consideration and it is unlikely that orders made under Pt VII would interfere with that other than in the most exceptional of circumstances. The right to be “cared for” by both parents has to be read in the context that typically the parents of whom the paragraph speaks are separated and that is likely to involve different degrees of care by the individual parents, a matter which is largely addressed by the categories of parenting orders

which the court may make or the parties may agree upon. [s 60B.40] Children’s right to spend time on a regular basis and communicate with parents and other significant people: para (2)(b) Paragraph (b) has been retained from the original s 60B (set out earlier in this commentary), with two minor changes. Consistently with other provisions in the 2006 Act, the term “contact” has been replaced by the terms “spending time with” and “communicating with”; and the former reference to “other people significant to their care, welfare and development” has been elaborated to make specific reference to grandparents and other relatives. The EM says, in para 39, that the latter change: … recognises the important role that grandparents and other relatives play in a child’s life. It implements recommendation 43 of the LACA Report and is consistent with the other amendments in the Bill to facilitate greater involvement of extended family members in the lives of children. In relation to the provision in its original form, in B and B, above, the Full Court said: 9.12 Paragraph (b) is the critical one in this appeal and that is likely to be so in most proceedings under Pt VII. It provides, in effect, that children have a “right of contact, on a regular basis, with both their parents” and other people significant to their care, welfare and development. In that latter respect, the right of a child to have contact with, for example, a grandparent or other siblings, is provided for by s 65C which enables “any other person concerned with the care, welfare or development of the child” to apply for a parenting order. In that respect it is no different from the position which existed prior to the Reform Act and the law which had developed around the right of non-parents to seek a contact order. 9.14 It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term. That principle has been well established in Australia and in comparable overseas countries for many years … 9.15 But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some

occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children’s best [page 303] interests there is nothing in s 60B which suggests or requires any different outcome. During the course of submissions it was accepted for the Attorney-General and we agree that the Reform Act makes no relevant change to the principles to be applied in relation to physical or sexual abuse cases as stated by the High Court in M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91–979; BC8802632 and acted upon consistently by this court in the years since. 9.16 Paragraph (b) refers to the right of contact “on a regular basis”. This gave rise to submissions as to the meaning of that term and in particular whether “regular” carried with it concepts of frequency as well as regularity … 9.18 In considering this aspect the court must make the order which it considers to be in the best interests of the child. The nature and degree of contact is ultimately influenced by that, para (b) providing guidance in that respect. This court has in the past consistently attempted to make orders for contact which are practical and maintain as much direct and indirect contact between the children and the contact parent as is appropriate in the circumstances of that case. That remains the approach … para (b) should not be narrowly interpreted. Fundamentally it emphasises the desirability of contact, and “regular” carries with it a clear understanding that it should also be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests. For a detailed and helpful explanation of the position of grandparents under the Family Law Act 1975, see Church v Overton (2008) 40 Fam LR 357; [2008] FamCA 952 (Benjamin J).

[s 60B.45] Parents jointly share duties and responsibilities: Para (c) Paragraph (c) has also been retained from the original s 60B (set out earlier in this commentary), with one change: the addition of the word “jointly” before “share”. Interestingly, the EM seems to suggest that there was no particular reason for the change: 40. Paragraphs 60B(2)(c) and (d) provide that parents should jointly share duties and responsibilities concerning the care, welfare and development of their children and should agree about the future parenting of their children. These principles remain essentially the same as in the existing Act. This statement, and the decision not to amend s 61C (each parent has parental responsibility) may have some significance in considering whether the exhortation to parents to cooperate was intended to create legal obligations. See the commentary to ss 61C and 65DAC. In B and B, referring to the original provision, the Full Court said: 9.19 Paragraph (c) requires parents “to share duties and responsibilities” concerning the care, welfare and development of their children … The paragraph emphasises the second of the two objects in subs (1), namely, notwithstanding separation parents still have duties and responsibilities to their children and they are expected to continue to carry out those duties and responsibilities. [s 60B.50] Parents should agree: para (d) In B and B, above, the Full Court said, of the original provision, “It is an important provision but is in the nature of an exhortation to the parents …” There is nothing in the EM (which has nothing to say about para (d) other than the short passage quoted above in relation to para (c)) to indicate the contrary. [s 60B.55] Children’s right to enjoy their culture: para (e); and in relation to Aboriginal and Torres Strait Islander children, subs (3) These provisions were added by the 2006 Act. The EM explains: [page 304]

41. New subparagraph 60B(2)(e) expands the existing principles that underlie the objects of Part VII, by including a reference to children having a right to enjoy their culture. The provision is intended to ensure that children are able to share their culture with others in their cultural community or communities (in situations where a child might belong to more than one community). The inclusion of this principle is consistent with the provisions relating specifically to Aboriginal and Torres Strait Islander children resulting from recommendation 3 of the Family Law Council’s December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. It is not intended to be limited only to Aboriginal and Torres Strait Islander children … 42. … New subsection 60B(3) expands this principle, which underlies the objects of Part VII, in relation to Aboriginal and Torres Strait Islander children by identifying matters included in the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture … 43. These changes implement recommendation 3 of the Family Law Council’s December 2004 Report … These changes are also consistent with other changes in the Act to ensure the role of relatives and extended family is better recognised. A brief reference is necessary to the documents referred to. The Pathways Report contained Recommendation 22, which was as follows: (b) [that] section 60B(2) includes a new paragraph stating that children of indigenous origins have a right, in community with other members of their group, to enjoy their own culture, profess and practise their own religion, and use their own language. This was the subject of later advice by the Family Law Council in its Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze (December 2004):

Council agrees with this recommendation but with modified wording to avoid the creation of a presumption potentially favouring an Aboriginal or Torres Strait Islander parent over a non-Aboriginal or Torres Strait Islander parent. Council took the view that a presumption could arise from the references to culture, religion and language, because this would seem to imply that the Aboriginal or Torres Strait Islander parent should be preferred in the making of a residence order. Council did not support such a presumption. Further, Council concluded that the presumption problem arising from the proposed amendment to s 60B could not be overcome by a rider to the recommendation to the effect that any amending legislation should make clear that it is not creating a presumption. On the other hand, if the reference was limited to enjoying the child’s Aboriginal or Torres Strait Islander culture, that could be achieved in a variety of ways, not necessarily by ordering residence with the Aboriginal or Torres Strait Islander parent. For example, it could be achieved by contact orders to the other parent or grandparents, or specific issues orders requiring that the child remain involved with his or her Aboriginal or Torres Strait Islander family and community. Hence, Council recommends that s 60B be amended along the lines of: a right, in community with other members of their group, to enjoy their own culture.

Council considers this would not create a presumption. It is submitted that these background documents make it clear that s 60B was not intended to create a presumption favouring an Indigenous parent against a non-indigenous parent.

____________________ [page 305]

[s 60C]

Outline of Part

60C An outline of this Part is set out below. OUTLINE OF PART Item Divisions and coverage 1 Division 1 — Introductory object of Part and principles underlying it, and outline of Part best interests of the child: court proceedings best interests of the child: adviser’s obligations interpretation and application of this Part how this Act applies to certain children family dispute resolution Note: The extension and application of this Part is also dealt with in Subdivision F of Division 12. 2 Division 2 — Parental responsibility the concept of parental responsibility 3 Division 3 — Reports relating to children under 18 preparation of reports for use in proceedings relating to children under 18 4 Division 4 — Parenting plans what parenting plans are 5 Division 5 — Parenting orders — what they are what parenting orders are 6 Division 6 — Parenting orders other than child maintenance orders applying for and making parenting orders (other than child maintenance orders) after attending, if necessary, family dispute resolution (see section 60I) general obligations created by parenting orders, other than child maintenance orders measures to promote the exercise of parental responsibility dealing with people who have been arrested obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia 7 Division 7 — Child maintenance orders objects and principles relevant to the making of child

8

maintenance orders the relationship between Division 7 and the Child Support (Assessment) Act 1989 applying for and making child maintenance orders other aspects of courts’ powers in relation to child maintenance orders varying the maintenance of certain children when child maintenance orders stop being in force recovery of amounts paid under maintenance orders Division 8 — Other matters relating to children liability of a father to contribute towards child bearing expenses if he is not married to the child’s mother

[page 306] OUTLINE OF PART Item

9 10

11

12

Divisions and coverage orders for the location and recovery of children reporting of allegations of child abuse and family violence other orders about children Division 9 — Injunctions proceedings for injuctions in relation to children Division 10 — The representation of the child’s interests the representation of a child’s interests in proceedings by an independent children’s lawyer Division 11 — Family violence the relationship between certain parenting orders and family violence orders Division 12 — Proceedings and jurisdiction institution of proceedings and procedure jurisdiction of courts presumptions of parentage parentage evidence

places and people to which this Part extends and applies 12A Division 12A — Principles for conducting child-related proceedings principles for conducting proceedings under this Part and certain other incidental proceedings duties and powers of the court related to giving effect to the principles matters relating to evidence 13 Division 13 — State, Territory and overseas orders registration of State and Territory orders dealing with children registration of overseas orders dealing with children transmission of Australian orders to overseas jurisdictions 13A Division 13A — Enforcement of orders affecting children court may do any or all of the following: (a) require a person who contravenes an order affecting children to participate in an appropriate postseparation parenting program designed to help in the resolution of conflicts about parenting; (b) make a further parenting order that compensates a person for time that a child did not spend with the person, or for time that a child did not live with the person, as a result of the contravention; (c) adjourn the proceedings to enable an application to be made for a further parenting order; court must take other action in respect of a person who contravenes an order affecting children if the court is satisfied: (a) where the contravention is an initial contravention — that the person has behaved in a way that showed a serious disregard for his or her parenting obligations; or

[page 307]

OUTLINE OF PART Item

14

Divisions and coverage (b) where the contravention is a second or subsequent contravention — that it is not appropriate for the person to be dealt with by requiring his or her attendance at a post-separation parenting program; Division 14 — Miscellaneous miscellaneous matters relating to children

[Table am Act 143 of 2000 s 3 and Sch 1 items 2, 3 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 1 item 1 opn 14 Jan 2004; Act 46 of 2006 s 3 and Sch 3 item 3, Sch 2 items 1–3; Sch 5 item 4; Sch 8 items 50–53, opn 1 July 2006; Act 189 of 2011 s 3 and Sch 2[11]–[14], opn 7 Dec 2011; Act 189 of 2011 s 3 and Sch 1 items 14 and 15, opn 7 June 2012]

Subdivision BA — Best interests of the child: court proceedings [subdiv BA insrt Act 46 of 2006 s 3 and Sch 1 item 9, opn 1 July 2006; am Act 189 of 2011 s 3 and Sch 1 item 16, opn 7 June 2012]

[s 60CA] Child’s best interests paramount consideration in making a parenting order 60CA 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.

COMMENTARY ON SECTION 60CA PRELIMINARY Introduction …. Arrangement of commentary …. History of section …. Section applies to question whether any parenting order should be made …. Whether s 60CA applies to child maintenance proceedings …. Scope — general …. THE DISCRETION TO EXERCISE JURISDICTION Court has discretion whether to exercise jurisdiction …. What principles apply when determining forum issues in parenting proceedings? …. Child’s welfare paramount under former provisions …. Present law: summary …. RECEPTION OF FURTHER EVIDENCE ON APPEAL UNDER SECTION 93A Introductory comments …. Wollongong Corporation v Cowan not applicable to s 93A …. Relevance of paramountcy principle to reception of further evidence on appeal …. APPLICATION OF SECTION 60CA TO OTHER DECISIONS Introductory comments …. Section 60CA not applicable to child maintenance …. Scope — evidence and procedure ….

[s 60CA.1] [s 60CA.5] [s 60CA.8] [s 60CA.10] [s 60CA.12] [s 60CA.15]

[s 60CA.20] [s 60CA.22] [s 60CA.25] [s 60CA.30]

[s 60CA.40] [s 60CA.42] [s 60CA.45]

[s 60CA.60] [s 60CA.62] [s 60CA.65] [page 308]

PRELIMINARY [s 60CA.1] Introduction This section sets out the well-known “paramount consideration” principle: in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration. “Parenting order” is effectively defined in s 64B: for details, see that section and the commentary thereto. In brief, that section provides that a parenting order may deal with various matters, namely: (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; (e) the communication a child is to have with another person or other persons; (f) maintenance of a child [as to this, see below at s 60CA.12]; (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: i a child to whom the order relates; or ii the parties to the proceedings in which the order is made; (h) the process to be used for resolving disputes about the terms or operation of the order; (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. Formerly, orders falling within para (a) were referred to as “residence orders”, those under para (b) as “contact orders”, and those under para (i) as “specific issues orders”. However the 2006 Act removed those labels. [s 60CA.5] Arrangement of commentary This commentary to s 60CA deals

mainly with the scope and application of the paramountcy principle, rather than the question how the best interests of children is to be determined. That question is the subject of a number of other provisions, notably s 60CC, and a great deal of case law. In general, for convenience, the discussion of the principles and the extensive case law has been dealt with in the commentary to s 60CC. [s 60CA.8] History of section The paramount consideration principle had already become a familiar basic principle by the time of the Family Law Act 1975, and it was contained in s 64(1) of the original Act. The principle was relocated to s 60D by the Family Law Amendment Act 1987 (Cth), and then returned to s 64 by the Family Law Amendment Act 1991. It became s 65E as a result of the 1995 amending Act, and was relocated to its present home, s 60CA, by the 2006 Act. There have been no significant changes in the formulation of the principle, the only real changes being the inconsequential changes of “shall” to “must” by the 1991 Act, and “welfare” to “best interests” by the 1995 Act. However there have been significant changes in other provisions that guide the courts in determining the best interests of the child. See now s 60CC and the commentary thereto. There has also been a significant change in the way the principle is treated in the Act. In the original Act, it applied “In proceedings with respect to the custody or guardianship of a child of a marriage”. Since the 1995 amending Act, the principle has been stated in a number of separate sections, applying respectively to different areas, s 60CA, for example, providing for it to apply to the making of parenting orders. See generally the commentary to s 60CC. [s 60CA.10] Section applies to question whether any parenting order should be made It might be thought that strictly speaking s 60CA applies to the question of which of several possible parenting orders should be made, but does not apply to the question whether to make some parenting order rather than making no parenting order. This would however be an extremely narrow and literalistic reading, and would be absurd, since there seems no reason why the

[page 309] principle should apply to the question of which parenting order to make but not to the question of whether to make a parenting order at all. It is therefore submitted that the principle in s 60CA applies to the question of whether any parenting order should be made. [s 60CA.12] Whether s 60CA applies to child maintenance proceedings It is obvious that the principle that the child’s best interests are paramount cannot sensibly apply to child maintenance proceedings. However, read literally, s 60CA does make the principle applicable to child maintenance cases, because it applies whenever a court is “deciding whether to make a particular parenting order”, and s 64B defines parenting order to include child maintenance orders: s 64B(2)(f). The literal application of the paramountcy principle to child maintenance proceedings must be a drafting error. Before the 2006 Act, s 65E (the provision that is now s 60CA) was in Div 6, which related (as it still does) to parenting orders other than child maintenance orders: see s 65B. However as part of the reorganisation of Pt VII by the 2006 Act, the paramountcy provision was relocated to Div 1, as the new s 60CA. Div 1, however, is not expressed to exclude child maintenance matters. Unfortunately, it seems to have been overlooked that it was therefore necessary to amend the paramountcy provision itself so that it would not apply to child maintenance matters. As it happens, this is the second time the problem has arisen as a result of amendments to Pt VII of the Act. The paramountcy rule had been contained in s 64(1)(a) in the original Family Law Act 1975 (Cth). It was relocated to s 60D by the Family Law Amendment Act 1987 (Cth), where it applied to the whole of Pt VII. The problems of applying it to maintenance were pointed out — R Chisholm, “Children and the Family Law Act: the 1988 Changes” (1989) 11 UNSWLJ 153–83 — and later solved by the Family Law Amendment Act 1991, which repealed s 60D and relocated the rule in s 64(1) (a). As the Explanatory Memorandum (EM) to the Family Law Amendment Act 1991 (Cth): pointed out:

In custody, guardianship, welfare and access proceedings the child’s interests are properly the paramount consideration. But in other proceedings, such as child maintenance or injunction proceedings, the child’s interests are properly only one of a number of relevant considerations. It is submitted that the error is so obvious, and the absurdity of a literal reading of the section so patently illogical, that this is one of those rare occasions on which the courts could depart from the literal meaning of the section and hold that it does not apply to child maintenance proceedings. [s 60CA.15] Scope — general The scope of s 60CA (then s 65E) has been the subject of authoritative consideration by the High Court in three cases which deal with the question whether it directly applies to, or influences, decisions of matters other than the making of parenting orders, such as the admission of further evidence on appeal, and the exercise of jurisdiction, and the obligation to produce documents under subpoena. They are CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442, ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600; FLC 92–480; BC9404636 and Northern Territory of Australia v GPAO (1999) 196 CLR 553; 161 ALR 318; 24 Fam LR 253; FLC 92–838; [1999] HCA 8; BC9900714 (HCA) (GPAO case). These cases are discussed below. Those discussions provide the basis for the following summary: 1. The principle in s 60CA will not be held to apply directly to the resolution of issues other than those to which it expressly applies, that is, “in deciding whether to make a particular parenting order in relation to a child”. 2. In general, discretionary decisions on ancillary matters (for example, exercise of discretion on evidentiary matters), while not strictly governed by the paramountcy principle, will be determined having regard to the principle, and the fact that it does apply to the ultimate decisions in parenting cases. Thus the best interests of the children, while not the paramount consideration, will be relevant, and often of great importance,

[page 310] although other matters may also be taken into account. To adapt the metaphor used by the Full Court of the Family Court in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442, and approved by Kirby J in the High Court, ancillary decisions will be made “in the shadow of” the paramountcy principle. In the GPAO case, above, the High Court emphasised the importance of the paramount consideration principle, even though it did not strictly apply to the issue in that case. Gleeson CJ and Gummow J, with whom Hayne J agreed, said at [68]: Section 65E identifies the issue in the case. In any kind of litigation, the formulation of the ultimate issue may have an important influence upon the practical operation of the adjectival rules which apply to such litigation. It has long been recognised that the paramountcy principle has such an influence in proceedings concerning the welfare of children. However, the question in the present case concerns its effect, if any, upon a specific statutory provision which is itself aimed at protecting the interests of children by securing confidentiality of information. A similar approach was taken by the other members of the court: see Kirby J at [233], Gaudron J at [139] and McHugh and Callinan JJ at [198]. 3. Decisions by the Family Court prior to the High Court decisions applying the paramountcy principle to specific issues, such as the reception of evidence at trials, will have to be read subject to the above principles which emerge from the High Court’s decisions. THE DISCRETION TO EXERCISE JURISDICTION [s 60CA.20] Court has discretion whether to exercise jurisdiction Even where the court has jurisdiction (eg child is present in Australia: s 69E(1)), it will not necessarily exercise its jurisdiction, in the sense of making a final determination, in all matters brought before it. The court has discretion whether to engage in a full hearing of the matter, or whether to make some

other order, such as a summary order for the return of the child to a country from which the child has been abducted. This is clear from all the authorities, and in particular that of the High Court in ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600; FLC 92–480; BC9404636 (HC). The High Court confirmed that the Family Court may consider, on the facts of the particular case, to what extent it should engage in an initial hearing of the matter in order to determine whether to order summary removal of the child: see at CLR 648; ALR 6–7; Fam LR 605, see also at CLR 671; ALR 23–4; Fam LR 622–3. The issue often arises when a party seeks a stay of the Family Court proceedings, as in B v B (Re Jurisdiction) (2003) 31 Fam LR 7; FLC 93-136; [2003] FamCA 105. The question seems to arise most frequently in child abduction cases. However, somewhat similar issues also arise in relation to interim custody, and in the case of applications which can be seen as repeated or vexatious or frivolous. [s 60CA.22] What principles apply when determining forum issues in parenting proceedings? A number of authorities deal with the question what principles apply when determining forum issue in parenting or similar proceedings. See generally [s 60CA.15], above. The question has been whether the court should treat the child’s best interests as the paramount consideration, applying s 60CA, or should apply the common law “clearly inappropriate forum” test. B v B (Re Jurisdiction) (2003) 172 FLR 286; 31 Fam LR 7; (2003) FLC 93-136; [2003] FamCA 105 holds that the “clearly inappropriate forum” test should be applied, but as we will see later Full Court decisions have distinguished this decision and held that the paramount consideration principle applies. [page 311] The clearly inappropriate forum test: B v B In B v B (Re Jurisdiction) (2003) 172 FLR 286; 31 Fam LR 7; (2003) FLC

93-136; [2003] FamCA 105, the Full Court held that as a result of the 1995 amending Act, the paramount consideration principle does not apply now to the choice of forum issue. After referring to ZP v PS (1994) 122 ALR 1; 17 Fam LR 600; (1994) FLC 92-480; BC9404636, the Full Court noted the relevant change made by the 1995 amendments, at [17]: The most significant aspect of the amendments was that Pt VII of the Act containing provisions relating to children was repealed and remade. The new Pt VII contains no section equivalent to the former s 64 which extended the paramountcy principle across all proceedings relating to the custody, guardianship, or welfare of or access to a child. Rather, the paramountcy principle is now expressed to apply in respect of particular types of orders referred to in particular sections. The Full Court rejected the argument that in considering the application for a stay the court is, in effect, deciding whether to make a particular parenting order in relation to a child. Consistently with the views expressed in this Service, and with High Court decisions cited in the judgment, the Full Court said that the paramount consideration principle now applies only to decisions to which the Act expressly says it applies: “the clear legislative intention of the 1995 amendments was to limit the reach of the paramountcy principle”. The Full Court’s conclusion was, at [37]–[39]: It is our view that as a result of the 1995 amendments the test is no longer that propounded by the High Court in ZP v VS, above. The test to be applied is the “clearly inappropriate forum” test. In determining, however, whether or not a forum is “clearly inappropriate” one of the matters to be taken into account is what is in the best interests of the children. The importance to be attached to what is in the children’s best interests will vary according to the facts of the case. For instance, in the case of an abduction from a non-Hague Convention country, what is in the best interests of the children may be a very important consideration. In a case such as this, what is in the best interests of the children may be of little importance. In general, therefore, it may be said that the best interests principle does not govern various procedural and jurisdictional matters that arise prior to and in the course of parenting proceedings but that the

child’s interests will normally be a relevant matter in exercising discretion on such matters and may, in many situations, be the most important matter. In B v B, above, the mother was from New Zealand, the father from Australia. There had been children’s proceedings in Australia, after which the mother took the children to New Zealand. The father applied in Australia for defined contact, and the mother then took proceedings in New Zealand, where the father objected to jurisdiction. The mother sought a stay of the Australian proceedings, so the children’s issues could be determined in New Zealand. The Full Court held that the “paramount consideration” principle did not apply in determining this stay application. If the decision is to be reconciled with later cases — see below — it seems that it must be on the basis that on the facts there was “no necessity to make any order other than a stay to determine the application before the Court”: see EJK, below, at para (ii). Children’s best interests paramount when court making parenting orders, including orders relevant to forum issues: EJK and other decisions In EJK v TSL (2006) 202 FLR 240; 35 Fam LR 559; (2006) FLC 93-287; [2006] FamCA 730, the Full Court distinguished B v B, above, and commented that “the principles espoused in paras [37]–[39] of the judgment in that case were made obiter dicta, are perhaps too widely stated for general application, and require some clarification and refinement”. The Full Court continued: We consider the following principles can be distilled from authority: (i) where an Australian court’s jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue [page 312] of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit

injunction are those applicable at common law; (ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the court’s inherent power to grant a stay or an anti suit injunction based on common law principles; (iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the court; (iv) in proceedings involving competing fora when the child is in Australia and the court’s jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the court must make such orders as are necessary with the child’s best interests as its paramount consideration (s 65E); (v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Pt VII of the Act and determined in accordance with s 60CA; (vi) in some circumstances, such as an abduction from a nonHague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the court will have regard to the child’s best interests as its paramount consideration; (vii) in cases, such as in (ii) above, where the Act does not proscribe a “best interests” requirement, the child’s best

interests will often be a significant and weighty matter to be taken into account; and (viii)that litigation involving children is not strictly inter partes litigation, and the child’s best interests will almost inevitably be a significant matter. In EJK v TSL, above, the parents were Korean — they lived there and had children there, and when they separated the mother obtained orders for contact from a Korean court. She later brought the children to Australia, where she obtained ex parte interim parenting orders. When these orders were served on the father he sought orders from the Australian court that the children be returned to Korea. At that time there were no current Korean proceedings. The Full Court held that in this situation, in which the mother had invoked the Australian jurisdiction and it was necessary to determine an application for parenting orders, the paramount consideration principle (s 60CA) applied. EJK v TSL has been followed, and the paramount consideration applied, in several subsequent Full Court decisions: Karim v Khalid (2007) 38 Fam LR 300; (2007) FLC 93-348; [2007] FamCA 1287; BC200750317; Pascarl v Oxley (2013) 49 Fam LR 364; [2013] FamCAFC 47; BC201350085; Zanda v Zanda (2014) 293 FLR 1; 51 Fam LR 502; [2014] FamCAFC 173; BC201451439. As the Full Court neatly put it in Pascarl, above, at [86]: “Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply”. In brief, what emerges from the above authorities appears to be that if the court is making parenting orders (or other orders governed by the “paramount consideration principle”), that principle will apply, even if the orders in effect determine forum questions. If the court can determine the forum issues without determining applications for a parenting order (or other orders governed by the “paramount consideration principle”) it will apply the common law

[page 313] “inappropriate forum” test, although in applying that test the best interests of the child will be a relevant and often very important consideration. [s 60CA.25] Child’s welfare paramount under former provisions As a matter of history, it can be noted that the High Court had held (prior to the 1995 amendments) that the question of whether to proceed to a full hearing or to make some other order, such as an order for summary removal of the child to another country, was governed by the principle in the old s 64(1)(a), namely that the child’s welfare must be regarded as the paramount consideration: ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600; FLC 92–480; BC9404636. The High Court held that the “clearly inappropriate forum” test, established in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124; BC9002894 had no application in proceedings relating to custody and guardianship: ZP v PS, above. This was because it was effectively displaced by the requirement of the old s 64(1)(a) that the court must regard the welfare of the child as the paramount consideration. However, as indicated above, the position has changed as a result of the 1995 amendments. [s 60CA.30] Present law: summary It follows that in parenting proceedings, the court has discretion whether to embark on a full hearing even though it has jurisdiction. The exercise of discretion is not governed by the principle that the child’s welfare is the paramount consideration. The child’s best interests is however a relevant matter, and likely to be of great weight, having regard to the fact that it would be the paramount consideration if the court were to embark on the hearing and determine what parenting order to make. Other matters may however also a part plays in the decision. Some of the relevant matters are indicated in ZP v PS (1994) 181 CLR 639; 122 ALR 1; 17 Fam LR 600; FLC 92–480; BC9404636 (even though the child’s best interests are not now paramount). The first is the damage the child might experience from the fact of being in Australia during the proceedings. The court has emphasised the danger arising from the disruption of familiar bonds and circumstances: see for example at Fam LR 621–2 and

617. The second factor that is clearly relevant is whether the overseas court will be likely to properly inquire into the matter and make a determination based on the child’s welfare: see, eg, at Fam LR 617 and 623. Other facts relevant to the child’s welfare will also be taken into account. For example, if most of the important witnesses are available in one country that will normally be a factor suggesting a hearing in that country, because the child’s welfare would probably be promoted by a hearing in which the important witnesses can give evidence. Other decisions, although in some ways their reasoning may not now represent the law, may provide useful examples of matters that can properly be taken into account. They include ZP v PS, above (HC); In the Marriage of Scott (1991) 14 Fam LR 873; FLC 92-241; In the Marriage of El Alami (1987) 11 Fam LR 852; (1988) FLC 91-930; In the Marriage of Taylor (1988) 12 Fam LR 423; FLC 91-943. RECEPTION OF FURTHER EVIDENCE ON APPEAL UNDER SECTION 93A [s 60CA.40] Introductory comments The leading decision in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442 deals with the principles applicable to the discretionary power of the Full Court, under s 93A, to receive further evidence on appeal. The decision is important not only for its narrow ruling, which deals with the admission of fresh evidence on appeal, but the indication it gives as to the High Court’s likely attitude to the impact of the paramountcy principle on the determination of other issues of an evidentiary or procedural kind in children’s cases. In CDJ v VAJ, a parenting case, the Full Court had allowed an appeal, partly on the basis of further evidence admitted under s 93A. On appeal to the High Court, McHugh, Gummow and Callinan JJ allowing the appeal in a joint judgment, and Gaudron and Kirby JJ dissented in separate judgments. Despite the difference as to the outcome, there was a high degree of unanimity regarding the questions of statutory construction and principle, matters considered in the following paragraphs.

[page 314] [s 60CA.42] Wollongong Corporation v Cowan not applicable to s 93A The High Court has held that the power conferred on the Full Court by s 93A of the Family Law Act 1975 (Cth) to receive further evidence on appeal is not governed by the principles in Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435; BC5500160 (Cowan). The reason was, in essence, the difference between the nature of appeals in such cases as Cowan and appeals from parenting orders under the Family Law Act 1975 (Cth). See also the commentary to s 93A. [s 60CA.45] Relevance of paramountcy principle to reception of further evidence on appeal CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442 considered to what extent the Full Court must regard the best interests of the child as the paramount consideration in determining the admissibility of further evidence in an appeal involving a parenting order. The High Court’s answer to this is considered in some detail in the commentary to s 93A. In brief, the majority said that the paramountcy principle was relevant to the question whether the Full Court should admit further evidence. They said (at [87]: … In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order. Other matters referred to relating to the admission of further evidence on appeal are considered in the commentary to s 93A.

APPLICATION OF SECTION 60CA TO OTHER DECISIONS [s 60CA.60] Introductory comments As mentioned earlier, there are a number of specific provisions of the Act which deal with the relevance of the child’s best interests in particular contexts: see above, [s 60CA.8]. Prior to the 1995 amendments, the court had in a series of decisions dealt with the question whether the paramountcy principle applied to particular decisions, such as the exercise of discretion in relation to evidentiary matters. This part of the commentary considers these issues in the light of the 1995 amendments, and in particular the decision in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442. This part of the commentary will not repeat the earlier summary of the reasoning of the High Court in that decision. [s 60CA.62] Section 60CA not applicable to child maintenance As discussed above, although read literally s 60CA applies the paramountcy principle to child maintenance proceedings, there is a good argument that this is a drafting error and that the correct position is that it does not: see [s 60CA.12]. [s 60CA.65] Scope — evidence and procedure A number of authorities held that under the law as it was prior to 11 June 1996 the principle that the child’s welfare was the paramount consideration affected the operation of some of the ordinary rules of evidence and procedure. Thus it was held that in some circumstances the court could admit evidence which was made inadmissible by some rule of law where it considered that the child’s best interest in admitting the evidence outweighed the interests or policies advanced by the exclusionary rule: Hutchings v Clarke (1993) 113 ALR 709; 16 Fam LR 452; FLC 92–373; Reynolds v Kilpatrick (1992) 16 Fam LR 601; FLC 92–351; Benson v Hughes (1994) 17 Fam LR 761; FLC 92–483; Re Z (1996) 20 Fam LR 651; 134 FLR 40; FLC 92–694 (FC); In the Marriage of CW (1998) 22 Fam LR 750; [page 315]

FLC 92–802 (legal professional privilege will not lead to evidence being excluded where it is in the child’s best interests that it be admitted). These decisions need to be reconsidered in the light of the 1995 amendments and the High Court’s decision in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442. At least in general, the decisions, although purporting to apply the principle that the child’s welfare was paramount, appeared willing to balance the child’s interests against other policy considerations. See especially Hutchings v Clarke, above; Reynolds v Kilpatrick, above; and the analysis of these authorities in Benson v Hughes, above. Consistently with the decision in CDJ v VAJ (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442 above, the position under the 1995 amendments appears to be that s 60CA does not strictly apply to these and similar questions (because the court is not considering what parenting order to make, but instead is considering, for example, whether to admit certain evidence). However, as explained in the above commentary, the best interests of the child will be a relevant matter, often one of overwhelming importance. The pre-1996 decisions appear to remain relevant to the court’s likely approach to similar issues. Illustrations The principle stated in the last paragraph appears to be relevant to a large number of discretionary matters determined every day by the courts, and where the relevance of the child’s best interests is not expressed by the Act. The following are suggested illustrations (but for which there is not authority): In determining an application that a particular parenting case be expedited, it cannot be said that the court is bound to expedite the case if to do so would promote the best interests of that particular child. It would be entirely proper for the court to have regard to whether there were circumstances that made it appropriate to expedite that case, taking into account the effect of such an order on other cases. However it would be open to the court to give greater weight to the interests of the child than to the interests of one of the adults involved, having regard to the fact that the principle that will apply when the court is considering which parenting order to make is that

the child’s best interests are paramount. In considering whether to appoint a child’s representative, it would be open to the court to take into account the limited legal aid funds available and, perhaps, to conclude that while such an appointment might benefit the child, the need to preserve legal aid funds for more deserving or difficult cases might make it more appropriate not to make the appointment. In deciding whether to grant an adjournment in a parenting case, it would be open to the court to take into account unfairness or prejudice to an adult party; it would not be right for the court to consider exclusively the best interests of the child, and disregard all other interests and matters. In considering whether to grant an injunction in a parenting case, it might be open to the court to take into account (as well as the interests of the child) the interests of a third party: see the commentary to s 68B. The same approach appears to apply to the obligation to produce documents under a subpoena: see Northern Territory of Australia v GPAO (1999) 196 CLR 553; 161 ALR 318; 24 Fam LR 253; FLC 92–838; [1999] HCA 8; BC9900714 (HCA).

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[s 60CB] applies

Proceedings to which Subdivision

60CB (1) This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. Note: Division 10 also allows a court to make an order for a child’s interests to be independently represented by a lawyer in proceedings under this Part in which the best interests of a child are the paramount consideration.

[page 316] (2) This Subdivision also applies to proceedings, in relation to a child, to which subsection 60G(2), 63F(2) or 63F(6) or section 68R applies. COMMENTARY ON SECTION 60CB Introduction …. Subdivision BA applies to proceedings in which the best interests of a child are the paramount consideration: subs (1) …. Subdivision BA applies to certain other proceedings: subs (2) ….

[s 60CB.1]

[s 60CB.5] [s 60CB.10]

[s 60CB.1] Introduction The section identifies the proceedings to which Subdiv BA applies. In brief, these comprise parenting proceedings and other proceedings in which the child’s best interests are the paramount consideration (subs (1)), and certain other specified proceedings: subs (2). [s 60CB.5] Subdivision BA applies to proceedings in which the best interests of a child are the paramount consideration: subs (1) By subs (1), Subdiv BA applies to “any proceedings under this Part in which the best interests of a child are the paramount consideration”. Such proceedings are readily identified, because the Act specifically states that the best interests of the child are to be regarded as the paramount consideration in relation to particular proceedings. Those proceedings are set out below, starting with the most important, proceedings for a parenting order: Proceedings for a parenting order The meaning of parenting order is set out in s 64B: for details, see that section and the commentary thereto. In brief, s 64B provides that a parenting order may deal with various matters, notably the person or persons with whom a child is to live; the time a child is to spend with another person or other persons; and the allocation of parental responsibility for a child; a number of other more specific matters, and “any

aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. On the question whether the “paramount consideration” principle applies to child maintenance proceedings, see the commentary to s 60CA. [s 60CB.10] Subdivision BA applies to certain other proceedings: subs (2) By subs (2), Subdiv BA also applies to the following proceedings in relation to a child: leave to commence proceedings for adoption: s 60G(2); variation of registered parenting plans: s 63F(2); non-enforcement of registered parenting plan where enforcement would be contrary to child’s best interests: s 63F(6); varying parenting orders in family violence proceedings: s 68R.

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[s 60CC] How a court determines what is in a child’s best interests 60CC (1) Determining child’s best interests Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). (2) Primary considerations The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

[page 317] (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). [subs (2A) insrt Act 189 of 2011 s 3 and Sch 1 item 17, opn 7 June 2012]

(3) Additional considerations Additional considerations are: (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; (b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child); (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child; (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or

(e)

(f)

(g)

(h)

(i) (j)

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; any family violence involving the child or a member of

the child’s family; [page 318] (k) if a family violence order applies, or has applied, to the child or a member of the child’s family — any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter; (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant. [subs (3) am Act 189 of 2011 s 3 and Sch 1 items 18 and 19, opn 7 June 2012]

(4) [subs (4) rep Act 189 of 2011 s 3 and Sch 1 item 20, opn 7 June 2012]

(4A) [subs (4A) rep Act 189 of 2011 s 3 and Sch 1 item 20, opn 7 June 2012]

(5) Consent orders If the court is considering whether to make

an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3). (6) Right to enjoy Aboriginal or Torres Strait Islander culture For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture. COMMENTARY ON SECTION 60CC PRELIMINARY Application of s 60CC …. Scope of this commentary …. HISTORY, SCOPE AND PURPOSE OF THE SECTION History of s 60CC …. Interpretation of parenting provisions prior to the 2006 Act …. THE “PARAMOUNT CONSIDERATION” PRINCIPLE — MEANING AND SIGNIFICANCE History of “paramount consideration” principle …. Changing versions of relevant factors …. References to children’s best interests in the Family Law

[s 60CC.1] [s 60CC.2]

[s 60CC.3] [s 60CC.4]

[s 60CC.5] [s 60CC.6]

Act 1975: overview …. INTERPRETATION OF SECTION 60CC: GENERAL Introduction …. Background materials on the 2006 Act …. Significance of division between “primary” and “additional” considerations …. Greater weight to be given to protection: s 60CC(2A) …. Need to apply the s 60CC guidelines …. Application of s 60CC in proceedings involving nonparents ….

[s 60CC.8]

[s 60CC.10] [s 60CC.12] [s 60CC.16] [s 60CC.18] [s 60CC.20] [s 60CC.21] [page 319]

Significance of guidelines on the child’s best interests: former case law …. Guidelines and previous case law …. Meaning of “paramount consideration” ….

[s 60CC.22] [s 60CC.25] [s 60CC.27]

THE FIRST PRIMARY CONSIDERATION: BENEFIT FROM MEANINGFUL RELATIONSHIP WITH BOTH PARENTS: PARA 2(A) Introduction …. Parent ….

[s 60CC.30] [s 60CC.31]

THE SECOND PRIMARY CONSIDERATION: PROTECTION FROM HARM Introduction to s 60CC(2)(b) …. Family violence relevant — pre-1996 case law …. Allegations of child abuse ….

[s 60CC.35] [s 60CC.37] [s 60CC.40]

THE CHILD’S VIEWS: PARA (3)(A) History of provision ….

[s 60CC.45]

THE CHILD’S CHARACTERISTICS: PARA (3)(G)

Overview of paragraph ….

[s 60CC.55]

ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN: PARA (3)(H), SUBS (6) Introduction …. Connection with lifestyle etc of Aboriginal peoples or Torres Strait Islanders ….

[s 60CC.60] [s 60CC.65]

THE CHILD’S RELATIONSHIPS: PARA (3)(B) Overview of paragraph ….

[s 60CC.70]

PARENTAL ABILITIES AND COMMITMENT: PROVIDING FOR THE CHILD’S NEEDS: PARAS (3)(C), (CA), (F) AND (I) Preliminary: history of provisions relating to parental abilities and commitment …. Providing for the child’s needs: overview ….

[s 60CC.75] [s 60CC.80]

PARENTAL ABILITIES AND COMMITMENT: PROVIDING FOR THE CHILD’S NEEDS: PARA (3)(F) AND SUBSS (4), (4A) Is a parent’s willingness to encourage a child’s having a good relationship with the other parent still relevant after the repeal of old paragraph (c)? …. Older authorities on assessment of parenting ….

[s 60CC.85] [s 60CC.87]

EFFECTS OF CHANGES IN CHILD’S CIRCUMSTANCES: PARA (3)(D) Overview of para (d) …. “Status quo” factor …. Siblings — should they be separated? ….

[s 60CC.93] [s 60CC.95] [s 60CC.97]

DIFFICULTY AND EXPENSE OF SPENDING TIME AND COMMUNICATING WITH A PARENT: PARA (3)(E) Overview ….

[s 60CC.100]

FAMILY VIOLENCE AND FAMILY VIOLENCE ORDERS: PARAS (3)(J) AND (3)(K) Family violence: overview of para (3)(j) …. Inferences from family violence orders: para (3)(k) ….

[s 60CC.105] [s 60CC.107] [page 320]

AVOIDING FURTHER PROCEEDINGS: PARA (3)(L) Overview of paragraph ….

[s 60CC.110]

OTHER FACTS OR CIRCUMSTANCES: PARA (3) (M) Overview of paragraph …. The health of the parents …. Natural parent versus stranger …. Sexual orientation of parent …. Religious beliefs and practices …. Maternal or paternal preferences ….

[s 60CC.120] [s 60CC.122] [s 60CC.125] [s 60CC.127] [s 60CC.130] [s 60CC.132]

PARTICULAR TYPES OF PARENTING ISSUES Change of child’s name …. Relocation ….

[s 60CC.135] [S 60CC.140]

ASPECTS OF EVIDENCE AND PROCEDURE “Less adversarial” treatment of children’s cases …. Court not limited by parties’ proposals …. Ex parte orders (orders made on applications without notice) …. Varying parenting orders: the “rule” in Rice v Asplund …. The conduct of interim proceedings: A limited hearing …. The conduct of interim proceedings: Relevant principles ….

[s 60CC.200] [s 60CC.210] [s 60CC.215] [s 60CC.220] [s 60CC.225] [s 60CC.226]

Permanent stay not generally appropriate …. Separate hearing of discrete issues dangerous …. McKenzie friend …. Appeals and fresh evidence …. Appeals — stay pending appeal …. Intervention …. Cross-vesting legislation …. Supervision of parenting orders …. Aspects of evidence …. Witness protection programs: impact on parenting proceedings …. Role of lawyers in Part VII proceedings ….

[s 60CC.240] [s 60CC.242] [s 60CC.245] [s 60CC.250] [s 60CC.251] [s 60CC.255] [s 60CC.260] [s 60CC.265] [s 60CC.270] [s 60CC.275] [s 60CC.290]

PRELIMINARY [s 60CC] Application of s 60CC Commencement Section 60CC is a detailed legislative prescription about how the courts are to determine what is in the child’s best interests. The section applies to the determination of all relevant orders after the date of commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), ie 1 July 2006. Application to certain proceedings Section 60CC is expressed to apply “in determining what is in the child’s best interests”. This would suggest that s 60CC applies in all situations where the court is making such a determination. However the application of s 60CC is controlled by s 60CB which limits the application of the Subdiv BA (in which s 60CC appears). Thus, s 60CC applies only to: proceedings in which the child’s best interests are the paramount consideration (notably but not only proceedings for parenting orders); proceedings for leave to commence proceedings for adoption: s 60G(2); proceedings for variation of registered parenting plans;

non-enforcement of registered parenting plans where enforcement would be contrary to the child’s best interests; proceedings to vary parenting orders in family violence proceedings. For details, see the commentary to s 60CB. [page 321] Application to consent orders: subs (5) By subs (5), when making consent orders the court is not required to consider any or all of the matters in subs (2) and (3). This provision, which was not changed by the 2006 Act, is obviously intended to avoid any challenge to consent orders based on a lack of evidence, or lack of consideration, relating to the range of matters. Nevertheless, the consent of the parties does not in principle relieve the court from determining parenting orders on the basis of the child’s best interests: s 60CCA applies to consent orders. And in considering this, the list of possibly relevant factors in s 60CC remains significant. In practice, where the parties are in agreement and there is no evidence to excite the court’s concern, the court will usually comfortably come to the conclusion that the agreed orders will be in the child’s best interests. Where the evidence does not lead to this conclusion, of course, the court may require further evidence, or a report, or may refuse to make the order by consent. A valuable example is T v N (2003) 31 Fam LR 257; FLC 93-172 (court not satisfied about the safety of the child under the proposed consent orders). Application to consent orders: no obligation to give reasons Nothing in MRR v GR (2010) 240 CLR 461; 263 ALR 368; 42 Fam LR 531; FLC 93– 424; [2010] HCA 4 or elsewhere requires a court to give reasons when making parenting orders by consent, although there may be circumstances in which the court considers that giving reasons is desirable: Maurice v Barry (2010) 44 Fam LR 62; [2010] FamCA 687; BC201050761 (Faulks DJC). T v L, above, is a good example of such a case. [s 60CC.2] Scope of this commentary As can readily be imagined, there is a

great deal of case law on the determination of the child’s best interests, and it is dealt with in this commentary. We have decided to deal with the case law primarily in connection with this section, rather than, for example, in the commentary to s 60CA, which states that when considering what parenting order to make the court must treat the child’s best interests as the paramount consideration. This commentary to s 60CC also deals with a number of closely related issues: the main topics are conveniently indicated by the major headings. The legislative provisions setting out the way in which the court should determine the child’s best interests, now contained in s 60CC, have been expanded over a series of amendments, mostly in 2006. The result is judicial guidance at the expense of prolixity. The provisions have become somewhat repetitious, and the structure is now untidy. For example, the need to protect children against harm from family violence is now included as a “primary consideration” in subs (2), yet one still finds among the “additional considerations” in subs (3) a reference to any family violence involving the child or a member of the family. Similarly, a number of separate provisions, all relating to the ability and willingness of parents to do their job, can be found not only in the list of additional factors, but also in some new subsections added by the 2006 Act. The following commentary is structured broadly to reflect the section, but with some modifications to reduce repetition and give the discussion some coherence. A glance at the major headings will show the approach we have taken. HISTORY, SCOPE AND PURPOSE OF THE SECTION [s 60CC.3] History of s 60CC Section 60CC, inserted in 2006, and replaced s 68F, the previous section listing the matters to be taken into account in determining the best interests of the child. It modified the list in various ways, and introduced for the first time two categories of considerations: those that are “primary” and those that are “additional”. The section was again amended by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (the 2011 family violence amendments), in particular by the introduction of subs (2A), which required the court to give “greater weight” to the second of the two “primary considerations” (roughly, protection against family violence and child abuse) than to the first (roughly,

the value of parental involvement). [s 60CC.4] Interpretation of parenting provisions prior to the 2006 Act Before the 2006 Act, significant changes to Pt VII had been made by the Family Law Reform Act 1995, which, [page 322] among other things, introduced s 60B. The leading authority on the interpretation of Pt VII generally prior to the 2006 Act was B and B: Family Law Reform Act 1995 (1997) 140 FLR 11; 21 Fam LR 676; (1997) FLC 92– 755 (Full Court — Nicholson CJ, Fogarty and Lindenmayer JJ). The Full Court expressed its view on how the main provision of Pt VII should be read in the following passages (at Fam LR 733–4; at FLC 84,219–20), saying, among other things: 9.51 In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Pt VII of the type to which we have referred, starts from that essential premise and it remains the final determinant… 9.59 In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz (1996) 134 DLR (4th) 321 is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in In the Marriage of Brown and Pedersen (1991) 15 Fam LR 173; FLC 92–271. “… persuasion to the contrary”. See the judgment of Brennan J (as he

then was) in In the Marriage of Brown and Pedersen (1991) 105 FLR 83; 15 Fam LR 173; (1992) FLC 92-271. (In [9.61] the Full Court made comments about s 60B which (at least so far as they applied to the version of s 60B resulting from the amendments of 2006) were rejected by the Full Court in Maldera v Orbel (2014) 287 FLR 283; 52 Fam LR 24; [2014] FamCAFC 135; BC201451685.) THE “PARAMOUNT CONSIDERATION” PRINCIPLE — MEANING AND SIGNIFICANCE [s 60CC.5] History of “paramount consideration” principle This fundamental rule has dominated custody law in Australia and numerous other common law countries for many years. In slightly different forms, it was to be found in the Matrimonial Causes Act 1959 (Cth) and in state legislation dealing with custody, guardianship and access. It has always been part of the Family Law Act 1975 (Cth). The use of the word “paramount” has been said to derive from Ward v Laverty [1925] AC 101 at 108 where Viscount Cave said: “It is the welfare of the children, which, according to rules which are now well accepted, forms the paramount consideration in these cases”: see A v Liverpool City Council [1982] AC 363; [1981] 2 All ER 385 at 387; see also Re A and B (Infants) [1897] 1 Ch 786 at 792 per Lopes LJ. The early English case law and legislation is set out in detail in J v C [1970] AC 668; [1969] 1 All ER 788. See generally, A Dickey, Family Law, 2nd ed, 1990, pp 319–24. Previous locations in the Family Law Act The rule was set out in s 64(1)(a) in the original Family Law Act 1975 (Cth) (with the word “shall” instead of “must”). It was relocated to s 60D by the Family Law Amendment Act 1987 (Cth), where it applied to the whole of Pt VII. Its application to such areas as injunctions and child maintenance was criticised: R Chisholm, “Children and the Family Law Act: the 1988 Changes” (1989) 11 UNSWLJ 153–83. The mistake was acknowledged in the explanatory memorandum to the Family Law Amendment Act 1991 (Cth): In custody, guardianship, welfare and access proceedings the child’s interests are properly the paramount consideration. But in other

proceedings, such as child maintenance or injunction proceedings, the child’s interests are properly only one of a number of relevant considerations. The Family Law Amendment Act 1991 accordingly repealed s 60D and relocated the rule in s 64(1)(a). [page 323] The Family Law Amendment Act 1995 (Cth) considerably changed Pt VII. The “paramount consideration” principle was slightly changed, by substituting the words “best interests” for “welfare”. More importantly, the principle was repeated in a number of sections each applying it to particular types of proceedings. For example, it appeared in s 65E in relation to parenting orders. For a detailed discussion of this, see Family Law Council, The “Child Paramountcy Principle” in the Family Law Act, December 2004; Family Law Council, Letter of Advice on the “Child Paramountcy Principle” in the Family Law Act 17 January 2006. The 2006 Act retained the approach of having the principle expressed in a number of sections each applying to particular matters. In relation to parenting orders, it was relocated (unchanged) from s 65E to s 60CA. [s 60CC.6] Changing versions of relevant factors The Family Law Act 1975 Like previous legislation up to that time, the Family Law Act 1975 (Cth) originally did not attempt to spell out the factors that should be considered in determining the child’s welfare, although it did introduce one specific rule, namely that the court should not make an order contrary to the wishes of a child over fourteen except in special circumstances. The 1983 amendments Amendments in 1983, however, inserted detailed guidelines for the first time, relating to avoiding further litigation (s 64(1) (ba)), and setting out a list of factors to be taken into account by the court: s 64(1)(bb). Since many of the authorities relate to the period when these

guidelines were in force, it will be convenient to set them out: 64 (1) In proceedings in relation to the custody, guardianship or welfare of, or access to, a child: (a) the court must regard the welfare of the child as the paramount consideration; (b) the court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case; (ba) subject to paras (a) and (b), the court shall, unless in the opinion of the court it is not practicable, make the order that, in the opinion of the court, is least likely to lead to the institution of further proceedings in relation to the custody or guardianship of the child; (bb) the court shall take the following matters into account: (i) the nature of the relationship of the child with each of the parents of the child and with other persons; (ii) the effect on the child of any separation from: (A) either parent of the child; or (B) any child, or other person, with whom the child has been living; (iii) the desirability of, and the effect of, any change in the existing arrangements for the care of the child; (iv) the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child; (v) the capacity of each parent, or of any other person, to provide adequately for the needs of

the child, including the emotional and intellectual needs of the child; (vi) the need to protect the child from abuse, illtreatment, or exposure or subjection to behaviour which psychologically harms the child; (vii) any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account; and (c) subject to paras (a), (b), (ba) and (bb), the court may make such order in respect of those matters as it considers proper, including an order until further order. [page 324] The 1995 amendments The Family Law Reform Act 1995 relocated the list to s 68F, which read as follows: How a court determines what is in a child’s best interests 68F (1) Subject to subsection (3), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2). (2) The court must consider: (a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes; (b) the nature of the relationship of the child with each of the child’s parents and with other persons; (c) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of

(d)

(e)

(f)

(g)

(h) (i) (j) (k)

any separation from: (i) either of his or her parents; or (ii) any other child, or other person, with whom he or she has been living; the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs; the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant; the need to protect the child from physical or psychological harm caused, or that may be caused, by: (i) being subjected or exposed to abuse, illtreatment, violence or other behaviour; or (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person; the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; any family violence involving the child or a member of the child’s family; any family violence order that applies to the child or a member of the child’s family; whether it would be preferable to make the order that would be least likely to lead to the institution of further

proceedings in relation to the child; (l) any other fact or circumstance that the court thinks is relevant. (3) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2). (4) In paragraph (2)(f): Aboriginal peoples means the peoples of the Aboriginal race of Australia; Torres Strait Islanders means the descendants of the indigenous inhabitants of the Torres Strait Islands. [s 60CC.8] References to children’s best interests in the Family Law Act 1975: overview The provisions dealing with the child’s best interest fall into two categories: some sections provide that in particular areas the best interests of the child are to be regarded as the paramount consideration; others mention the best interests of the child without expressly making those interests paramount. [page 325] Best interest paramount under certain provisions The following sections provide that in particular areas the best interests of the child are to be regarded as the paramount consideration: s 60CA (determining which parenting order to make); s 63H(2) (setting aside registered parenting plan where it is in interests of the child to do so); s 65L(2) (assistance or supervision of parenting orders by family consultant); s 67L (location orders); s 67V (recovery orders); s 67ZC(2) (welfare orders). Best interest mentioned in certain provisions The following sections mention the best interests of the child without expressly making those interests paramount: s 60B(2) (opening words of subss (1) and (2): objects

are “to ensure that the best interests of the child are met by …”; principles “(except when it is or would be contrary to the child’s best interests)”); s 60G(2) (court to consider whether granting leave for adoption proceedings to be commenced would be in child’s best interests); s 63E(3) (court to revoke registered parenting plan if it considers it appropriate to do so “having regard to the best interests of the child to whom the plan relates”); s 63F(2) (child welfare provisions of parenting plan may be varied if court considers the variation required in the best interests of the child); s 63F(6) (child welfare provisions of parenting plan not to be enforced if contrary to the best interests of the child); s 68B(1) (court may “make such order or grant such injunction as it considers appropriate for the welfare of the child”); s 68R(5) (varying contact orders in family violence proceedings — court to have regard to purposes of Division, and to whether contact in child’s best interests). INTERPRETATION OF SECTION 60CC: GENERAL [s 60CC.10] Introduction Particular provisions in s 60CC are discussed in detail below. This part of the commentary deals with general matters relating to the interpretation of the section. [s 60CC.12] Background materials on the 2006 Act The most important of the background materials is, no doubt, the Explanatory Memorandum (EM). However for a deeper understanding of the origins and purposes of the 2006 Act, reference may also be made to the following: House of Representatives Standing Committee on Family and Community Affairs (FCAC), Report, “Every Picture Tells a Story” 29 December 2003. Government Response to FCAC Report, June 2005. Report of the House of Representatives Standing Committee on Legal & Constitutional Affairs, on the Exposure Draft of the Family Law (Shared Parental Responsibility) Bill 2005, 18 August 2005 (LACA Report). Government Response to LACA Report, tabled 8 December 2005. Senate Legal & Constitutional Legislation Committee Report “Provisions of the Family Law Amendment (Shared Parental

Responsibility) Bill 2005”, March 2006 (LCLC Report). [s 60CC.16] Significance of division between “primary” and “additional” considerations Introduction As noted above, the previous s 68F consisted essentially of a single list of factors to be considered. The new s 60CC creates a two-tiered structure, of “primary” considerations (subs (2)), and merely “additional” considerations: subs (3). There are two primary ones, in brief the benefit of parental involvement: para (a) and protection from ill-treatment: para (b). This commentary considers how decision-making is affected by the classification of considerations as “primary” or “additional”. The EM says: 49 … The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B (inserted by item 8). […] [page 326] 51. There may be some instances where these secondary considerations may outweigh the primary considerations. […] 52. The primary factors mirror the first two objects set out in new section 60B. These objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility. Primary considerations do not “trump” additional considerations Although the quoted passage from the EM is of limited assistance in interpreting the significance of the word “primary”, it clearly indicates, as has been noted in judicial decisions, that “primary” considerations do not

necessarily outweigh, or trump, any combination of “additional” considerations. This is clearly correct: the language of the considerations involves matters of degree, not absolutes, and treating some factors as necessarily outweighing others would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration — a principle stated in s 60CA and re-emphasised by the opening words of s 60B (“to ensure that the best interests of the child are met by …”). Further, had the legislature intended a strictly hierarchical structure, it would have been more accurate to refer to the considerations under subs (3) as “secondary” rather than “additional”. No mathematical or quantitative approach It is also clear that the question cannot be resolved by some mathematical or quantitative approach, for example that if a consideration is “primary” it should receive an additional loading or weighting of a certain percentage. One reason for this conclusion is that such an approach is inconsistent with the task of treating the child’s best interests as paramount. Another is that there is no support for any quantitative approach in the EM or any of the background documents relating to the 2006 Act. Focus of the first “primary” consideration is on benefit to the child Paragraph (a) refers to “the benefit to the child of having a meaningful relationship with both of the child’s parents” (emphasis added). The Act is not saying that maintaining the relationship is an end in itself. The focus is to be called the benefit to the child, and on a “meaningful” relationship. Whatever precisely these terms mean, it is clear that many things have to be taken into account in considering the ways in which the relationship might be “meaningful”, and what benefits it might have for the child. In the context, benefits must mean net benefits. So if a relationship had pluses and minuses for the child, they would have to be weighed up. For example, if a child is highly antagonistic to a parent, this would have to be taken into account both in deciding the extent to which the relationship is meaningful, and also in assessing its benefit to the child. “Primary considerations” inter-related to the “additional” considerations The previous example illustrates that there is an inevitable

interplay between the “primary” and the “additional” considerations. In the example, the child’s antagonism is an aspect of the child’s views, which is the first of the “additional” considerations in subs (3). Thus it will often be impossible to determine the primary consideration in para (a) without taking into account the whole picture, and thus considering the “additional” considerations. The two sets of considerations are not separate. The fact that the “primary” considerations are inextricably entangled with the “additional” considerations precludes one “trumping” the other, or any mathematical approach. Conclusions In earlier versions of this commentary, an attempt was made to formulate the significance of the characterisation of some considerations as “primary”. But Full Court decisions generally have not sought to do this. Instead, they indicate that ultimately the court must weigh up all the considerations having regard to their importance in the circumstances of the case, and not give any particular weighting to considerations which are characterised as “primary”. For [page 327] example, in Mulvany v Lane (2009) 41 Fam LR 418; (2009) FLC ¶93-404; [2009] FamCAFC 76; BC200950209 May and Thackray JJ said (paras [76]– [77]): 76. It is important to recognise that the miscellany of ‘considerations’ contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. […] they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests. […] the importance of each s 60CC factor will vary from case to case. […] See also Aldridge v Keaton (2009) 235 FLR 450; 42 Fam LR 369; [2009] FamCAFC 229; BC200951134. In Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1; BC201150001 at [45] the Full Court treated the point as well-established, saying: “The Act does not mandate the discussion of

considerations under s 60CC in any particular order, and it is well-recognised that additional considerations may outweigh primary considerations despite the nomenclature of s 60CC(2) and (3)”. [s 60CC.18] Greater weight to be given to protection: s 60CC(2A) The general purpose of the 2011 family violence amendments is expressed in the Explanatory Memorandum (EM) as follows: The family law system must prioritise the safety of children to ensure the best interests of children are met. The Family Violence Bill sends a clear message that family violence and child abuse are unacceptable. In relation to this provision, the EM says (para 30): “Where child safety is a concern, this new provision will provide the courts with clear legislative guidance that protecting the child from harm is the priority consideration.” [s 60CC.20] Need to apply the s 60CC guidelines Even before the 2006 amendments the authorities stressed the need for judges to apply the legislative guidelines: In the Marriage of Smith (1994) 122 FLR 479; 18 Fam LR 55 at 63; (1994) FLC 92–488 at 81084; In the Marriage of Maday (1985) 10 Fam LR 357 at 363; (1985) FLC 91–636 at 80,142–3; Peters (aka Eustace) and Castuera (1994) 117 FLR 388; 18 Fam LR 203; (1994) FLC 92–500. At least since 2006, it can no longer be assumed that the guidelines are a codification of previous case law (compare In the Marriage of Holmes (1988) 90 FLR 319; (1988) 12 Fam LR 103 at 113; (1988) FLC 91–918 at 76,662 (FC)). It remains true, of course, that the court should consider, weigh and assess the evidence on each of the relevant matters, and then indicate the relative weight the court attaches to each of those matters, and “how all of those matters balance out”: Smith, above. [s 60CC.21] Application of s 60CC in proceedings involving non-parents Many of the provisions of s 60CC, and some other sections of Pt VII, deal with the children’s best interests in relation to parents. Thus, for example, the first of the “primary considerations” in s 60CC(2)(a) is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. It is settled law that the word “parent” in Pt VII means a biological or adopted parent, and does not include a person who stands in loco parentis to a child.

Thus in a case where the question is whether the child should live with a nonparent (such as a grandparent who has had the care of the child) or the parents, the child’s relationship with the non-parent would be relevant as an “additional consideration” under other paragraphs, such as s 60CC(3)(b)(ii) and (m); but it would not be a “primary consideration” under s 60CC(2)(a). Do such provisions mean that the court must treat the child’s relationship with the parent as more valuable than the child’s relationship with the other person, regardless of the facts? The authorities indicate that the answer is no. The issue has been considered in a number of authorities, notably Donnell v Dovey (2010) 42 Fam LR 559; (2010) FLC 93–428; [2010] FamCAFC 15; BC201050115: see the discussion by Kent J in Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064; BC201551169. Many of the particular issues are discussed in this commentary in connection with specific provisions of Pt VII. [page 328] Blaze v Grady shows the complexity of applying the detailed provisions of Pt VII, and also indicates some judicial differences of opinion on approaches to statutory interpretation. But ultimately it forms another of a set of authorities that establish, first, that the provisions of s 60CC and Pt VII do not prevent the court from considering any matter relevant to the child’s best interests, and secondly that ultimately the weight to be attached to all matters, whether “primary” or not, is the weight appropriate to determining the child’s best interests in the particular circumstances of the case. It is important for practitioners and judges to pick their way through the legislation, explaining what provisions do and do not apply, but (RC) the authorities seem clear that this process should not compromise the court’s overarching task of determining what will be in the best interests of the child. [s 60CC.22] Significance of guidelines on the child’s best interests: former case law Before considering the guidelines in detail it may be useful to consider the authorities on the significance of such guidelines. The authorities relate

mainly to the guidelines contained in the Act between 1983 and 1996, although a number were decided since the amendments of 1995. The application of the authorities to the law as modified by the 2006 Act remains to be seen. [s 60CC.25] Guidelines and previous case law Meaning of “best interests” Prior to the 1995 amendments, the rule was that the child’s “welfare” was to be the paramount consideration. The Family Law Reform Act 1995 (Cth) substituted “best interests” for “welfare”. It appears that this substitution was the result of a recommendation by the Family Law Council, which recommended that “best interests” be used to bring the law into conformity with the United Nations Convention on the Rights of the Child and because “ ‘welfare’ has particular connotations which detract from its use in this context”: Family Law Council, Letter of Advice, 1994, p 10. The authorities (mostly on the previous term “welfare”) have consistently stressed that the term covers a wide range of matters. In the language of the nineteenth century, it “is not to be measured by money only or by physical comfort only … The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded”: Re McGrath (Infants) [1893] 1 Ch 143 at 148 per Lindley LJ. To similar effect see W v W [1926] P 111 at 114–5 per Lord Merrivale. In more contemporary language, it includes “all factors which will affect the future of the child”: O’Conner v A and B [1971] 2 All ER 1230; [1971] 1 WLR 1227 at 1237 per Lord Simon of Glaisdale. It includes the child’s happiness: In the Marriage of K and Z (1997) 22 Fam LR 382; FLC 92–783; In the Marriage of Bishop (1981) 6 Fam LR 882 at 888; FLC 91–016 at 76,193 per Treyvaud J. It includes both the immediate well-being of the child and matters relevant to the child’s healthy development. Thus it is relevant that a situation causes a child real distress, whether or not it can be shown to cause long-term harm to the child, although it may be argued that immediate distress is outweighed by long-term developmental advantages, an argument that is often advanced in favour of returning children from a caregiver to a natural parent: see for example Tull v McGuire (1981) 7 Fam LR 326; FLC 91–098.

Long and short-term prospects both relevant Both long-term and shortterm future prospects are relevant to the overall assessment of the child’s welfare. For example, In the Marriage of Watts (1976) 9 ALR 428; 1 Fam LR 11,266; 26 FLR 136; FLC 90-046 the Full Court, approving orders which placed a child in the custody of her mother and the company of her sisters, said that the trial judge was right to find that these factors “outweighed the likelihood of upset and distress occasioned by the change in custody after more than three years”. On the other hand, in In the Marriage of Sanders (1976) 10 ALR 604; 1 Fam LR 11,433; 26 FLR 474; FLC 90–078 the court focused on the short-term welfare of the child, in that case a two month old baby. Practitioners should therefore consider both short-term and long-term issues when preparing and presenting applications. For example, if a custody application involves removing a young child from a secure relationship with caregivers, it might be possible to provide evidence that such a move would be likely to cause significant short-term distress, and also permanent or longterm damage to the [page 329] child’s emotional development. Both are relevant, but the second, if it can be established, is likely to be more important. See, for example, the evidence presented in Bortolus v Samazan (1983) 9 Fam LR 174. Whether court will focus on long or short term prospects The courts have given some indication of the circumstances in which they will concentrate on immediate or more remote aspects of the child’s welfare. The most consistent theme of the cases is that while long-term prospects may arguably be ultimately more important, they are often more difficult to predict, and the more difficult they are to predict in a particular case, the more the court is likely to concentrate on more immediate matters. See In the Marriage of Hall (1979) 29 ALR 545; 5 Fam LR 609 at 620; FLC 90-713 at 78,824 where the Full Court (Evatt CJ, Asche SJ and Hogan J) said: “It is permissible for any court to take a longer view of the child’s future than the immediate future before it; this must be done with caution. In the end the decision must accord

with the overall welfare of the child. It might not always be legitimate to look so far into the future that a child should be taken from surroundings where he is well and happy, and placed in other surroundings, on some conjectural basis that in the ultimate, he will prosper better in the latter surroundings.” In In the Marriage of Hayman (1976) 14 ALR 216; 2 Fam LR 11,558; 28 FLR 51; FLC 90–140 at 75,681, Murray and Lusink JJ said: “The one question and the only question in this case is what is best for M for the immediate present and so far ahead as any of us can foresee.” Age of child relevant The authorities suggest that the age of the child is highly relevant to whether the court will focus on the shorter or longer term. Several cases, such as In the Marriage of Sanders, above, suggest that the future is so difficult to predict in the case of very young children that the court should concentrate on the immediate future; as children become older, it becomes more feasible to plan further into the future. This approach is expressly stated in In the Marriage of Raby (1976) 12 ALR 669; 2 Fam LR 11,348; 27 FLR 412; FLC 90–104. It is submitted however that on this as on other aspects of custody cases everything depends on the court’s assessment of the facts, and in a particular case a court may feel able to make predictions about the longer-term future of a young child, or unable to make such predictions about an older child. Authorities emphasising longer term matters Cases in which the court focused on longer-term matters include: Powell v Anderson (1976) 1 Fam LN N38; FLC 90–235; Tull v McGuire (1981) 7 Fam LR 326; FLC 91–098 at 76,691, per Hutley JA; Miller v Miller (1968) 11 FLR 226; 88 WN (Pt 1) (NSW) 94 at 97; Lloyd v Lloyd (1980) FLC 90–816; In the Marriage of Mathieson (1977) 6 Fam LR 116; FLC 90–230 at 76,219; Allen v Allen (1984) 9 Fam LR 440; FLC 91–531; Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064; BC201551169. Authorities emphasising short-term matters Cases in which the court focused on short-term matters include: In the Marriage of Sanders, above; In the Marriage of Raby, above; Calder v Charlton (1983) 9 Fam LR 285 at 300–2; FLC 91-523, per Powell J.

[s 60CC.27] Meaning of “paramount consideration” The rule that the child’s welfare (“best interests” appeared for the first time in the 1995 amendments to the Family Law Act 1975) should be regarded as paramount is expressed in slightly different ways in state legislation dealing with custody, guardianship and adoption, and in legislation of other countries. Most recent cases treat the different formulae (eg “first and paramount” in the Infants Custody and Settlements Act 1899 (NSW)) as immaterial, and cite as relevant to the case at hand decisions under differently worded legislation. See generally A Dickey, Family Law, 2nd ed, 1990, pp 340–1, agreeing with H Finlay that the varying terminology involves “a distinction without a difference”: “First” or “Paramount”? The Interests of the Child in Matrimonial Proceedings (1968) ALJ 96 at 103. Whether other factors subordinated to child’s welfare There has been considerable discussion in the cases and in family law texts about whether the paramountcy provision means that other interests or considerations are completely subordinated to the child’s welfare. Most [page 330] reported cases, however, simply proceed without discussion to determine what orders the child’s welfare requires: eg Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719; FLC 90–716; BC7900112 (HC). However in some older cases and occasional decisions in state Supreme Courts there are statements to the effect that the rule permits other considerations to be taken into account (eg Chisholm v Chisholm [1966] ALR 1101; (1966) 7 FLR 347 per Selby J; Powell v Anderson (1976) 1 Fam LN N38; FLC 90–235; Tabe v Tabe (1984) 9 Fam LR 730 at 732 per Bollen J). Whether any authorities in favour of taking matters into account in competition with child’s welfare Statements referring to “other considerations” are unexceptionable if they merely draw attention to the wide range of matters relevant to the determination of the child’s welfare. Obviously, the fact that a parent has, say, kidnapped a child may be a highly relevant fact relating to the parent’s suitability as a future custodian or

guardian of the child. It has been argued that some such statements can be interpreted in this way: In the Marriage of Smythe (1983) 48 ALR 677; 8 Fam LR 1029; FLC 91–337 at 78,289–90 per Gee J. However, some judicial statements appear to say that at least in some situations the court might be able to take factors into account other than for their relevance to the child’s welfare. This must mean that in principle there might be situations where the court would be justified in making an order other than that which would best promote the child’s welfare, although it is important to note that in no recent cases has a court been prepared to make an order of this kind. In the cases where such remarks are made the court has always found that its decision will also best promote the children’s welfare, and the remarks may perhaps be regarded as obiter dicta. Suggested interpretation The result of the authorities is that in effect when the governing principle is that the child’s best interests are the paramount consideration, the court’s single task is to make whatever orders it considers will best promote the welfare of the children who are the subject of the proceedings. It follows that the court will make the orders that it considers will best promote the welfare of the child, even if such orders lead to what might be regarded as injustice between the parties. It also follows that the court is not permitted to make orders designed to advance some policy, such as the discouragement of kidnapping, even where that policy relates to the welfare of children in general (as distinct from the welfare of the children before the court, whose welfare is paramount). For a detailed discussion, see R Chisholm, “The Paramount Consideration: Children’s Interests in Family Law” (2002) 16 Aust J Family Law 87–115. Leading authorities Authority for the propositions in the last paragraph is contained in the Full Court decisions In the Marriage of Schenck (1981) 7 Fam LR 170; FLC 91–023 (Schenck) and In the Marriage of Smythe, above. In Schenck, the Full Court considered the relevance of findings that the husband had kidnapped a child, concealed his whereabouts, and actively sought to avoid compliance with orders of the Family Court. In a joint judgment the Full Court (Evatt CJ, Marshall SJ and Lindenmayer J) expressly rejected an argument advanced by the wife that the “paramount consideration” principle did not exclude other relevant considerations, and

that in such a case the court should “visit its displeasure” on the husband, and award him custody only if the mother was found to be unfit. The Full Court said: “There is to be no departure from the basic principle that the welfare of the child is the paramount consideration (see In the Marriage of Reihana (1980) 6 Fam LR 134; FLC 90-835 and the cases there cited) … [I]f it were a question of justice as between parties, [the wife] would have a genuine grievance at being deprived of custody by the court. But the court’s concern is with the child and its welfare, and to that principle the ‘justice’ of the case must be subordinated … In a sense, it could be said that [the husband] has profited by his own wrongdoing. Nevertheless, we are required to consider the case from the point of view of the child and the welfare of the child.” In the Marriage of Smythe, above, is further Full Court authority to similar effect, holding in particular that notions of justice between the parties cannot be taken into account even when the child’s welfare is said to be evenly balanced. [page 331] These decisions appear consistent with recent High Court decisions, although the High Court has not expressly dealt with the issue. It is difficult to imagine more unequivocal and emphatic language than that used by the High Court M v M (1988) 166 CLR 69 at 75–6; 82 ALR 577 at 581; 12 Fam LR 606; FLC 91–979; BC8802632 where Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said (of the legislation as it was prior to the 1995 amendments): In proceedings under Pt VII of the [Family Law] Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration”: s 60D. The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. Other authorities Other cases in which the meaning of s 64(1)(a) or its

equivalents has been considered include: In the Marriage of E (No 2) (1979) 5 Fam LR 244; 36 FLR 12; FLC 90–645; In the Marriage of Watts (1976) 9 ALR 428; 1 Fam LR 11,266; 26 FLR 136; FLC 90–046; In the Marriage of Kress (1976) 13 ALR 309; 2 Fam LR 11,230; 30 FLR 508b; FLC 90–126. THE FIRST PRIMARY CONSIDERATION: BENEFIT FROM MEANINGFUL RELATIONSHIP WITH BOTH PARENTS: PARA 2(a) [s 60CC.30] Introduction Paragraph (3)(a) sets out the first of the two “primary considerations” introduced by the 2006 Act, namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Except that “parent” is defined in s 4 to include the adoptive parent of an adopted child, the words are obviously used in their ordinary sense. There is nothing in the EM or background papers to indicate the contrary. The adjective “meaningful” seems to indicate that it was not intended to focus on the parental relationship as an abstraction or factor in itself, but rather on its significance for the child or children in question. For example, in a case where a father has had no contact of any kind with a child from birth to, say, aged 7, para (a) does not suggest that there is necessarily a benefit to the child merely from the biological father-child relationship. If, however, there is a prospect of the father becoming involved in the child’s life, then the effect of para (a) appears to be that the court would give careful consideration to the possible benefit for the child if that relationship, now purely biological, were to become meaningful. The context strongly indicates that the point is whether the relationship is meaningful for the child, not for the parent as such. The legislative context also provides a clue both to “meaningful” and “benefit” in para (a). The detailed provisions relating to the exercise of parental responsibility in subs (4), and the spelling out of what is “significant and meaningful time” in s 65DAA(5), suggest that the legislature had in mind that children normally benefit where both parents are actively involved in their lives in an appropriate way. The legislature might also have had in mind research to the effect that children benefit from parents who are emotionally close and engage in “authoritative parenting”, a phrase used to distinguish

both unduly authoritarian and unduly permissive parenting. It is clear from the legislation itself (eg the opening words to s 60B) and the background documents that para (a) was not intended to elevate this consideration for the benefit of the parent, but for the benefit of the child. Thus, para (a) does not invite the court to act on a superficial view that anything that would increase a parent’s involvement must be in the child’s interest. In some circumstances, for example where such involvement exposes the child to intense conflict that may not be in the child’s interests. The words “benefit” and “meaningful” require the court to focus on the particulars of each case, and to assess the quality of the parent-child relationship. In Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 after a thorough and helpful analysis, Brown J concluded (para [25]) that a meaningful relationship or meaningful involvement ‘is one which is important, significant and valuable to the child’; the word ‘meaningful’ is ‘a qualitative adjective, not a strictly quantitative one’. [page 332] In McCall v Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; BC200950264 the Full Court (Bryant CJ, Faulks DCJ and Boland J) discussed three possible interpretations of s 60CC(2)(a): (a) [It requires the court] to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (the present relationship approach); (b) .. a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (the presumption approach); (c) ……the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful

relationship with both parents (the prospective approach). The Full Court preferred the third (‘prospective’) approach, adding that ‘depending upon factual circumstances, the present relationship approach may also be relevant’. It expressly rejected the presumption approach in paragraph (b): ‘if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language’. The fc expressed agreement with the analysis of Brown J in Mazorski, above, and that of Bennett J in G v C [2006] FamCA 994. The Full Court went on to make the important point that the legislation does not focus on the relationship as such, but the benefit it might have for the child: [122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. Similarly, in Mulvaney v Lane [2009] FamCAFC 76; (2009) 41 Fam LR 418 it was succinctly said by May and Thackray JJ (Finn J agreeing) at paragraph [88]: ‘The question that truly arises from s 60CC(2)(a) is not “What outcome will best ensure that [the child] has a meaningful relationship with his mother” but rather “What is the benefit to the child of having a meaningful relationship with his mother?”. For further discussion, see Richard Chisholm, ‘The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006’ (2008) 22 Australian J Family Law 175. The general question of the relationship between the “primary” considerations in subs (4) and the “additional” considerations in subs (3) has been considered above. [s 60CC.31] Parent The word ‘parent’ includes adoptive parents (s 4), but probably does not necessarily include a person who acts in a parental role.

Thus, for example, a man who was thought to be the child’s father, and acted as such, but is shown (eg by DNA testing) not to be the child’s biological father, is probably not a ‘parent’ for the purpose of s 60CC. Similarly, in the case of a same-sex couple, the non-biological mother or father would probably not fall within the legal categories of ‘parent’, ‘father’ or ‘mother’, however close and loving the relationship with the child. Where a child is born as a result of artificial conception, difficult issues can arise: see s 60H. Of course, in determining the child’s best interests, the relationship between such persons and the children may well be of enormous importance, even if, technically, s 60CC(2) does not apply because they are not ‘parents’. Many of the ‘additional’ factors in s 60CC(3) will apply, in a very similar way to the way they would apply to parents. Attempts to argue that the legislation devalues the relationships between the children and such involved non-parents have not succeeded: Mulvany v Lane (2009) 41 Fam LR 418; (2009) FLC 93-404; [2009] FamCAFC 76; Aldridge v Keaton (2009) 42 Fam LR 369; [2009] FamCAFC 229; Donnell v Dovey (2010) 42 Fam LR 559; [2010] FamCAFC 15; Simpson v Brockmann (2010) 43 Fam LR 32. As the Full Court put it in Donnell v Dovey, at paragraph 95: ‘the fact that the benefit to the child of the maintenance of a [page 333] meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent’. See also Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064; BC201551169. THE SECOND PRIMARY CONSIDERATION: PROTECTION FROM HARM [s 60CC.35] Introduction to s 60CC(2)(b) Paragraph (2)(b) sets out the second of the two “primary considerations” introduced by the 2006 Act,

namely “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. The importance of the child’s safety had already been stressed in connection with the amendments of 2006. For example, the EM to the 2006 amendments stated in para 49, in connection with the two primary considerations: “The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents”. The importance of this consideration, relative to the first “primary consideration” has been elevated by the subs (2A), inserted by the 2011 family violence amendments, and discussed below. The scope of subs (2)(b) is affected by the definitions of “family violence” and “abuse” in ss 4 and 4AB: see the commentary to those definitions. There is an obligation on parties to file a Notice of Child Abuse or Family Violence when there is an allegation of child abuse: see s 67Z, and the commentary thereto. It is clear, however, that the court is obliged to deal with evidence of abuse or violence whether or not a notice has been filed. It is equally clear that the filing of the notice is no substitute for evidence of child abuse or family violence. Both these propositions are stated in Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1; BC201150001 at [46]. Issues relating to children’s need for protection against harm have of course been the subject of considerable case law prior to 2006. There seems no reason why that body of case law should not continue to be instructive, and it is considered in the remainder of this commentary to para (2)(b). Where there are allegations of child abuse or family violence, the party making the allegation is required by the rules to file a Notice of Child Abuse or Family Violence (Form 4): Family Law Rules 2004, rr 2.04–2.04B. The filing of such a notice triggers s 60K: see the commentary to that section. Experience shows that parties frequently fail to file such notices although required to do so by the rules. It is clear, however, the court is obliged to deal with evidence of abuse or violence whether or not a notice has been filed. It is equally clear that the filing of the notice is no substitute for evidence of child abuse or family violence. Both these propositions are stated in Slater v Light (2011) 45 Fam LR 41; [2011] FamCAFC 1; BC201150001 at [46]. The scope of subs (2)(b) is affected by the definitions of “family violence”

and “abuse” in ss 4 and 4AB: see the commentary to those definitions. Violent and other behaviour falling outside those definitions may, of course, be highly relevant to determining a child’s best interests. Thus in a case featuring violence of various kinds, Austin J said that although the father’s aggressive behaviour towards the police and family consultant was not “family violence”, because they were not family members, it was “equally inimical to responsible parenting” and an apt consideration pursuant to s 60CC(3) of the Act: Sherif v Sherif (2012) 47 Fam LR 280; [2012] FamCA 215; BC201250290 at [72]. [s 60CC.37] Family violence relevant — pre-1996 case law It had become accepted at least shortly prior to the 1995 amendments that family violence is a matter relevant to assessing the best interests of children. The 1995 amendments may thus be seen as confirming the existing case law. Family violence may be a factor of great importance in assessing the welfare of children. It is now well established that family violence may harm children even when it is not directed at them. If they witness violence between adults, or if they are implicated in it in various ways, it can cause great fear, stress, and damage. Similarly, violence between family members can adversely affect children’s health and development in a variety of ways. Apart from such consequences, the use of [page 334] violence to achieve one’s objectives in family relationships reflects very poorly on a parent’s attitudes to parenting and capacity to discharge parental responsibilities. Pre-1996 authorities Authorities since 1994 emphasise the above points. See especially In the Marriage of Jaeger (1994) 18 Fam LR 126; FLC 92492 (FC); In the Marriage of JG and BG (1994) 18 Fam LR 255; FLC 92– 515; In the Marriage of Patsalou (1994) 18 Fam LR 426; FLC 92–580 (FC); In the Marriage of Merryman (1994) FLC 92–497; In the Marriage of Grant (1994) FLC 92–506. Certain remarks in two earlier decisions, namely In the Marriage of Heidt (1976) 11 ALR 594; 1 Fam LR 11,576; FLC 90-077 and

In the Marriage of Chandler (1981) 6 Fam LR 736; FLC 91–008, might be taken to indicate that: (i) family violence between adults is unimportant in assessing children’s welfare; or (ii) the court will refrain from making findings on family violence, where such findings are relevant to the child’s welfare, because of a desire to preserve the self-esteem of the adult parties. These remarks are considered in In the Marriage of JG and BG, above, in which Chisholm J concluded that to the extent that these remarks support those propositions, they are inconsistent with the paramountcy of the child’s welfare and do not represent the present law. Such propositions are inconsistent with recent case law discussed in this commentary, and with this and other provisions of the Family Law Reform Act 1995 (Cth). In In the Marriage of JG and BG, above, the principles were summarised as follows: (1) In proceedings relating to custody, guardianship and access evidence of family violence is relevant in so far as it assists the court in determining what orders will best promote the welfare of the children. (2) The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. (3) So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children. (4) Where the evidence permits the court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child’s welfare, the court will make the findings. (5) Where the court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the court to refrain from making the findings. If such a discretion exists, the

court will exercise it on the basis of a consideration of whether the children’s welfare is most likely to be promoted by making or declining to make such findings. [s 60CC.40] Allegations of child abuse Introduction There is a considerable body of case law on the handling of cases involving allegations of child abuse. The High Court’s decision in M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; FLC 91–979; BC8802632 remains the leading authority. It has been applied and discussed in numerous later decisions. See R Chisholm, “Child abuse allegations in family law cases: A review of the law” (2011) 25 Australian Journal of Family Law 1–32. Where cases involve allegations of sexual or other forms of child abuse, two issues normally arise: (1) whether the court can or should make a finding that the parent (or another person) has in fact abused the child, and (2) whether making orders for the child to spend time with the person would expose the child to what the High Court famously called an ‘unacceptable risk’ of further abuse. In practice, it seems common for judges to avoid making findings of past abuse, basing their orders on a finding of ‘unacceptable risk’. This cautious approach is consistent with the High Court decision and numerous other cases, although it should not be assumed that a court will never properly make the finding: it can be properly made where the evidence supports it and the court considers that it is appropriate (eg because it is in the child’s interests) that the finding be made. [page 335] Although attention tends to focus on these important questions, it is necessary to keep in mind that they do not exhaust the matters that the court must consider. Making parenting orders remains governed by the ‘paramount consideration’ principle, and there will always be other matters relevant to determining what is best for the child. For example, there may be factors other than the risk of sexual or other abuse that may properly lead the court to

conclude that it would not be in the child’s interests to spend time (or unsupervised time) with the person. It might be important to consider the impact that contact or unsupervised contact might have on the parent or other person having the care of the child. This may be relevant to the best interests of the child apart from the question whether the child has actually been abused, or is actually at risk of abuse. Decisions illustrating this general point include In the Marriage of M and J M Bieganski (1993) 16 Fam LR 353 and Partington & Cade (No.2) [2009] FamCAFC 230. The High Court’s ruling in M v M The key passage extracted below emphasises that the essential task is not to determine the truth of the allegations in the way a criminal court must do, but to treat the best interests of the child as the paramount consideration. Thus the court should not make an order, eg for residence or contact, if to do so would expose the child to an unacceptable risk of abuse. The Court said: [I]t is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence …. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] ALR 334; (1938) 12 ALJ 100 …. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. [T]here will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her …. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A [1976] VR 298 at 300), “an element of risk” or “an appreciable risk” (In the Marriage of M (1987) 11 Fam LR 765 at 770 and 771; FLC 91-830 respectively), “a real possibility” (B and B (Access) (1986) FLC 91–758 at 75,545), a “real risk” (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an “unacceptable risk” (Re G (a minor) [1987] 1 WLR 1461 at 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s [page 336] paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that

custody or access would expose the child to an unacceptable risk of sexual abuse. Published discussions The issues relating to the determination of cases involving allegations of child abuse have been discussed in the standard texts on family law and numerous published articles, including: A. Nicholson, “Child sexual abuse - problems in family law” (1989) 4 Australian Family Lawyer, 1-5; Family Law Council, Child Sexual Abuse (Canberra: AGPS, 1988); P. Parkinson: ‘Unacceptable Risks and the Investigation of Child Sexual Abuse (1990) 4 AJFL 254; ‘Child Sexual Abuse Allegations in the Family Court’ (1990) 4 AJFL 60), and ‘Family Law and Parent-Child Contact: assessing the risk of sexual abuse’ (1999) 23 Melb Uni LR 345; J. Fogarty, ‘Unacceptable risk - A return to basics’ (2006) 20 AJFL 249; and R. Chisholm “Child Abuse allegations in family law cases: A review of the law” (2011) 25 AJFL 1–32. Statement of principles in Johnson and Page (2007) The essential principles are stated authoritatively and conveniently in Johnson and Page [2007] Fam CA 1235; (2007) FLC ¶93-344 (May, Boland and Stevenson JJ), paragraph 68, in which the Full Court specifically endorsed the following seven-point summary by the Hon John Fogarty AM: 1 The decisive issue is and always remains the best interests of that child. All other issues are subservient. 2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. 3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies. 4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk. 5 The concentration in these cases should normally be upon the question

whether there is an unacceptable risk to the child. 6 The onus of proof in reaching that conclusion is the ordinary civil standard. 7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. The Full Court added, in relation to the last point: We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638). Making findings of past child abuse In the passage quoted above, the High Court put the question of a finding that a person has abused a child in its proper context: it is ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. The High Court noted that the evidence will often fall short of what is required to make such a finding (‘there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place’). The Court also said that [even where the evidence would justify a finding that a person has sexually assaulted a child] ‘there are strong practical family [page 337] reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so’. The Full Court of the Family Court has discussed the making of a finding of abuse in a number of subsequent cases, including Johnson and Page, above. Obviously, the making of such a finding is a matter of great

consequence for all concerned: for the person against whom the finding is made, and for others: for example a child who might have had the courage to disclose abuse, and a parent or other person who might have taken appropriate action to protect the child. If the court makes such a finding and it is not correct, there will almost inevitably be disastrous consequences for the wrongly accused parent or person, and the child might be disadvantaged by losing contact with an innocent parent. On the other hand if the court fails to make a finding where a child has in fact been abused, there may be other disastrous consequences: for a child who has disclosed abuse and who has been wrongly disbelieved, and will perhaps be exposed to the risk of further abuse, for the protective parent, and even, perhaps, for the abusive parent, who might continue to deny having abused the child and might be less likely to participate in a therapeutic program. Are findings of abuse ‘almost too horrible to contemplate’? John Fogarty has criticised one line of Full Court decisions on the basis that the emphasis on the adverse consequences of a false finding that a person has abused a child (eg ‘almost too horrible to contemplate’) is so strong that it ‘warps the process explained by the High Court’ in M v M. That is, it is difficult to reconcile such language with a careful balancing of the various consequences of false positive and false negative findings about child abuse. See his article in (2006) 20 AJFL 249, cited above. Similarly, Brown J once remarked ‘With respect to the Full Court, one might as well say that the harm and injustice that flows to a child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of the child’: McCoy v Wessex (2007) 38 Fam LR 513. This critique refers, in particular, to K v B (1994) 17 Fam LR 722, WK v SR (1997) 22 Fam LR 592; (1997) FLC 92-787, and Re W (Sex Abuse: Standard of Proof (2004) 32 Fam LR 249; FLC 93-192. For further discussion, see Hemiro v Simla [2009] FamCA 181 (Brown J), and the Chisholm paper cited above. More recent Full Court decisions do not repeat the language of these criticised decisions, and their status is not entirely clear: see for example Potter v Potter (2007) 37 Fam LR 208, Johnson and Page [2007] Fam CA 1235; (2007) FLC ¶93-344, and Partington & Cade (No.2) [2009] FamCAFC 230. Court should assess risk The Full Court has held that it does not follow

from the High Court’s statement that the Family Court should not attempt to make findings on allegations, including allegations that involve criminal offences. While the residence parent’s belief about whether it was risky to bring the children into contact with the other parent may be relevant in itself, the court should not avoid attempting to determine what risk if any really existed: see In the Marriage of A (1998) 22 Fam LR 756; FLC 92–800 (FC). Implications of findings of risk to be considered The Full Court has indicated that where the Court makes a finding that spending time with a parent would expose a child to unacceptable risk, it should consider the significance of that finding in the course of determining what arrangements are likely to be best for the child (for example it might be relevant to the parent’s ability to parent the child): Partington & Cade (No.2) [2009] FamCAFC 230. Self-evidently, the same would apply when the Court makes a finding that a parent or other person has in fact abused a child. ‘Unacceptable risk’ applied to areas other than sexual abuse A number of cases illustrate the point that there is no reason to limit the use of ‘unacceptable risk’ to cases involving allegations of sexual abuse: Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Re Frieda and Geoffrey (2009) 40 Fam LR 608, at paras 71 ff; Re Jayden [2007] NSWCA 35, para 79; BC200901594. Other decisions Other significant decisions include In the Marriage of Sedgley (1995) 19 Fam LR 363; FLC 92–623; In the Marriage of N and S (1995) 19 Fam LR 837; FLC 92–655; Re Karen and Rita (1995) 19 Fam LR 528; FLC 92-632; In the Marriage of Irvine (1995) 19 Fam LR 374 [page 338] at 385; FLC 92–624; M and H and Separate Representative (1996) 20 Fam LR 625; FLC 92–695; Re C and J (1996) 20 Fam LR 930; FLC 92–697; Re Andrew (1996) 20 Fam LR 538; FLC 92–692; Napier v Hepburn (2006) 36 Fam LR 395 (discussed by J. Fogarty in ‘An unusual case’ (2007) 19(4) Australian Family Lawyer.); KN and Child Representative v & Ors (2006) 35

Fam LR 518; FLC 93–284; KAM v CM (2006) 35 Fam LR 377 Potter v Potter (2007) 37 Fam LR 208. Making of repeated unfounded allegations may be considered emotional abuse In some circumstances, if a parent makes repeated groundless allegations of child abuse, leading to the child being separated from the other parent, the court may consider that such repeated allegations could create an unacceptable risk of emotional abuse, and in such cases the court may consider that it would be in the child’s best interests to live mainly with the other parent: eg Ruth v Hutton (2011) 45 Fam LR 399; [2011] FamCAFC 99; BC201150259 (FC) (where, however, the 5 year old child seemed to have had a good relationship with the other parent — such a reversal of what used to be called “custody” is more problematical where the child has a poor relationship with the other parent (RC)). See also Donaghey v Donaghey (2011) 45 Fam LR 183 (mother’s sincerely held but false beliefs that the child had been sexually abused), Murphy J. THE CHILD’S VIEWS: PARA (3)(a) [s 60CC.45] History of provision The original provision Between 1975 and 1983, the Act provided that where the child was over the age of 14 the court should not make an order contrary to the child’s wishes except in special circumstances. Accordingly, pre-1983 decisions on children’s wishes must be treated with some caution. The wishes of children aged 14 or over may have been given somewhat greater weight than under the present law, because the court was required to find “special circumstances”; it is also possible that the wishes of children under 14, not being mentioned in s 64, may have been given less weight than they will be given under the present law. Pre-1983 decisions include In the Marriage of Wotherspoon and Cooper (1981) 7 Fam LR 71; FLC 91–029; Re C and V (1983) 50 ALR 441; 9 Fam LR 31; FLC 91-333; In the Marriage of Ryan (1976) 14 ALR 466; 2 Fam LR 11,510; FLC 90–144 at 75,708 (FC); In the Marriage of Spry (1977) 3 Fam LR 11,330; 30 FLR 537; FLC 90–271. Despite the change in the legislation, pre-1983 cases remain instructive as to the circumstances affecting the weight the court will give to children’s views.

Indeed, it is arguable that the 1983 amendment did little more than acknowledge the approach that the court was in fact taking. The 1983 amendment Between 1983 and Family Law Reform Act 1995 (Cth), s 64(1)(b) provided that the court shall consider any wishes expressed by the child in relation to custody etc, or in relation to any other matter relevant to those proceedings, and shall give those wishes such weight as it considers appropriate in the circumstances. The reference to “any other matter” made it clear that the child’s wishes were relevant to aspects of the situation, not only to wishes as to custody etc. For example, the court could consider the wish of a child to remain with siblings. The 1995 amendment As a result of the 1995 Act, the wording of the provision — now s 65F(2)(a) — was changed to read “(a) any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes”. The Full Court held that the change made no difference to the principles relevant to the assessment of children’s wishes. In the Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC 92–598 (Harrison and Woollard) remained good authority. The Full Court said, in In the Marriage of Brear and Corcoles-Alfaro (1997) 22 Fam LR 219 at 233; FLC 92–768 at 84,460: While the language is different to the previous s 64(1)(b) we do not think for present purposes that there has been any substantial change to the law as considered in Harrison and Woollard. The section as recast emphasises that the court must consider any wishes expressed by the [page 339] child and the factors which might affect the weight to be given to such wishes. The section does not require the court to be bound by the child’s wishes. The 2006 amendment: “views” not “wishes” The present form of the provision, s 60CC(3)(a), results from the 2006 Act. The only change from the

previous wording was the substitution of “views” for “wishes”. The EM explains the change as follows: 56. The amendment recognises that a child may not necessarily want to express a “wish” about which of his or her parents the child will live with or spend time with. It is intended that “views” will also capture a child’s perceptions and feelings, and will allow for any decision to be made in consultation with the child without the child having to make a decision or express a “wish” as to which parent he or she is to live with or spend time with. It is intended that references to a child’s “views” will not exclude a child expressing his or her “wishes”. 57. Replacing references to a child’s “wishes” to a child’s “views” is also consistent with the wording in Article 12 of the United Nations Convention on the Rights of the Child. Scope of children’s views not limited The scope of children’s views is not limited to any particular topic. In particular, it is not limited to the ultimate questions that the court has to decide, such as residence. It might be important for the court to take into account children’s views on particular matters, such as whether they wish to remain at a school, or whether they wish to remain together, or whether they want to be informed about some matter. Children’s likely reaction to a decision contrary to their views The Full Court has indicated that the ascertainment of children’s views should not be done in a superficial way. Specifically, it has said that where children do feel comfortable to express a preference on a matter before the court it would seem to be generally desirable that authors of family reports ask them about their attitude to the court making a decision contrary to their views. Such information, it said, may be “an aid to better understanding the wishes of children and the process of giving weight to them”. Similarly, it has said that it would be desirable for child representatives to arrange for evidence to be before the court as to how the child would feel if the court did not reach a conclusion which accorded with the child’s wishes, provided of course that the child is comfortable to express a view: see R v R (2000) 155 FLR 29; 25 Fam LR 712 at 725; FLC 93–000; [2000] FamCA 43.

Children’s views often important Children’s views are often very important in the assessment of what order is likely to promote their best interests. Examples include In the Marriage of K and Z (1997) 22 Fam LR 382; FLC 92–783 (FC); In the Marriage of Brear and Corcoles-Alfaro (1997) 22 Fam LR 219; FLC 92–768 (FC) (dangerous for judge to put “psychological gloss” on children’s wishes, without supporting expert evidence); In the Marriage of Harrison and Woollard (1995) 18 Fam LR 788; FLC 92–598. Children’s views not to be ignored It may constitute an appealable error to disregard the views of children, even as young as four to eight years. In In the Marriage of Joannou (1985) FLC 91–642, there was a successful appeal from a decision in which the judge said that the children’s wishes were “not particularly relevant” and “I am not going to take any notice of their wishes”. However, it is a different matter for a trial judge to have regard to children’s views but consider that in the circumstances they do not coincide with the children’s welfare: see below. Child’s views not conclusive Although children’s views are given some prominence in that they are specially mentioned, it is clear that like all other matters they constitute only one factor (though often a very important one) to be taken into account in determining the child’s welfare. It is by no means uncommon for courts to make orders contrary to the views of children: see, for example, In the Marriage of Daines (1986) 10 Fam LR 597; FLC 91–705 (FC); In the Marriage of Barrios and Sanchez (1989) 13 Fam LR 477; FLC 92-054 (FC). [page 340] Factors relevant to the weight given to children’s views The court is to give to children’s views such weight as the court considers appropriate in the circumstances of the case. To make orders contrary to a child’s views, it is not necessary to find that the views of the children were unsound, founded on improper considerations or influenced by others, although of course these will be relevant in many cases. The Full Court (Nicholson CJ, Finn and Guest JJ) put it this way, in R v R (2000) 155 FLR 29; 25 Fam LR 712 at 724; FLC

93–000; [2000] FamCA 43: There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests. Relevant factors, frequently overlapping, include the following: The child’s age and maturity See, for example, Allen v Allen (1984) 9 Fam LR 440 at 442; FLC 91-531 (seven-year-old said not to be in a position to make a mature, responsible and considered assessment either of the relevant factors or the significance of the decision). But note that even the views of younger children cannot simply be disregarded: Joannou above. The strength of the views, and the length of time held by the child See In the Marriage of Wotherspoon and Cooper (1981) 7 Fam LR 71; FLC 91–029; In the Marriage of Cartlege (1977) 3 Fam LR 11,339; FLC 90-254. The extent to which the child’s views appear to be based on a choice that is well thought through and based on appropriate as distinct from irrelevant or peripheral matters See In the Marriage of Boman (1981) 7 Fam LR 586; FLC 91–077 at 76,549; Mitchell v Mitchell (1983) 9 Fam LR 267; (1984) FLC 91–531. The extent to which the child’s views are the result of pressure on the child, or emotional attachment by the child, and thus how far they reflect the child’s own choice See In the Marriage of Schmidt (1979) 28 ALR 84; 5 Fam LR 421; FLC 90–685; In the Marriage of Price (1976) 2 Fam LN 21; FLC 90–125; In the Marriage of Fitzgerald and Robinson (1978) 3 Fam LN 78; 30 FLR 550; FLC 90–401; In the Marriage of Curr (1978) 4 Fam LN 63; (1979) FLC 90–611; In the Marriage of Guillesser (1976) 2 Fam LN 19; FLC 90–127; In the Marriage of Tilmouth (1977) 3 Fam LN 63; In the Marriage of R (Children’s wishes) (2002) 29 Fam LR 230; FLC 93–108; [2002]

FamCA 383 (FC). The likely consequences of an order contrary to the children’s views Thus a judge at first instance considered that in the particular case the children were likely to be so resentful if they were taken from their mother that their relationship with the father would be damaged irreparably, and this was upheld on appeal: In the Marriage of Radford and Alpe (1985) 10 Fam LR 135; FLC 91-622; but compare In the Marriage of Wotherspoon and Cooper (1981) 7 Fam LR 71; FLC 91–029. Whether other factors are evenly balanced In BBT and JMT (1980) FLC 90– 809 Wood SJ said at 75,104, citing as authority N and N (1977) 2 Fam LN 31; 30 FLR 516; FLC 90–208, that when competing claims are very closely matched, the wishes of children are of great significance and can be the deciding factor. A striking example is In the Marriage of K and Z (1997) 22 Fam LR 382; FLC 92–783, where the Full Court took the unusual step of reversing the decision of the trial judge. THE CHILD’S CHARACTERISTICS: PARA (3)(g) [s 60CC.55] Overview of paragraph A specific reference to the need to take into account the child’s characteristics was added for the first time by the Family Law Reform Act 1995 (Cth). The relevant paragraph, then s 68F(2) (f), was as follows: [page 341] the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant; The effect of the 2006 Act was to break this up into two, now s 60CC(3)(g) and (h), separating out and elaborating the provisions relating to Aboriginal and Torres Strait Islander children.

The main significance of paragraph (g) would appear to be to emphasise the importance of paying attention to the evidence relating to the particular child or children. Children can of course vary considerably in temperament, ability, understanding, and so on. The provision underlines the importance of the court having as much evidence as possible about the particular child or children who are the subjects of the proceedings. ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN: PARA (3)(h), SUBS (6) [s 60CC.60] Introduction The EM states that this paragraph supports recommendation 4 of the Family Law Council’s Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze (December 2004). The Pathways recommendation had been that: (c) [that] in section 68F(2)(f) the phrase “any need” is replaced by “the need of every indigenous child” [so that it would read “the need of every indigenous child to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders” In its report, the Family Law Council gave the following advice in relation to this recommendation: Council agrees, and further recommends that a definition of “connection” might be usefully included in the Family Law Act. Council believes that the implementation of the recommendation would not amount to a presumption that an Aboriginal or Torres Strait Islander child needs to maintain a connection with a particular parent simply because that parent is Aboriginal or Torres Strait Islander. [s 60CC.65] Connection with lifestyle etc of Aboriginal peoples or Torres Strait Islanders The paragraph makes specific mention of any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders. It thereby recognises the importance of this

aspect of children’s needs. The express mention of Aboriginal peoples or Torres Strait Islanders no doubt arises because of the notorious past failure of child welfare and adoption law to have regard to these matters, and in particular to the former policy of removing selected Aboriginal children from their families and communities in order that they should become assimilated into the general population. In applying Pt VII, and in identifying a person’s parental responsibility for an Aboriginal or Torres Strait Islander child, the court may have regard to kinship obligations, and child-rearing practices, of the relevant culture: see s 61F. This paragraph confirms existing law. See in particular the leading case In the Marriage of B and R (1995) 19 Fam LR 594; FLC 92–636, where the Full Court examined the history of the matter and emphasised the importance of obtaining evidence on this aspect of children’s best interests. See also the detailed discussion in Donnell v Dovey (2010) 237 FLR 53; (2010) 42 Fam LR 559; [2010] FamCAFC 15; BC201050115 and the cases there cited. Historical background It is now well known that for many decades, especially before the 1980s, state authorities acting under child welfare legislation, and in earlier times legislation relating to Aboriginal people, removed many children from Aboriginal families and placed them [page 342] in the care of non-Aboriginal families, or in institutions. The intentions behind these removals appeared to include what would now be regarded as racist assumptions about the capacity of Aboriginal families and communities to serve their children’s welfare, as well as policies of assimilating Aboriginal children of mixed blood into the non-Aboriginal community. These policies and assumptions have been widely rejected in recent years, and replaced by what has become known as the “Aboriginal child placement principle”. This is a principle or policy that where Aboriginal children need to be placed for care, they should as far as possible be placed with members of their own extended families, or with their Aboriginal communities, or at least with

other Aboriginal families. This policy has been reflected in legislation as well as the policies and practices of welfare authorities. This principle appears to have its main application in situations where a foster placement is being sought for a child, rather than situations where an Aboriginal and a nonAboriginal parent are competing for custody or guardianship. Nevertheless the story of the extensive removal of many Aboriginal children from their families, and the reversal of that policy since the 1980s, forms a part of the background to Aboriginal custody decisions, and can be instructive in drawing attention to the dangers of identifying a child’s “welfare” with childrearing patterns and values of one sector of Australia’s multi-cultural community. For a detailed discussion, see Australian Law Reform Commission, Report on the Recognition of Aboriginal Customary Laws (1986) ALRC 31, especially vol 1, ch 16, and In the Marriage of B and R, above, where the Full Court examined the history of the matter in detail. The pre-1996 authorities indicate that in determining Pt VII proceedings the court should not make any assumptions or express any preferences as to the relative merits of different racial or cultural groups. For example, in a contest between an Aboriginal parent and a non-Aboriginal parent, the court will not assume that Aboriginality is either an advantage or a disadvantage. It seems, too, that the court will attempt to adopt a position of neutrality as to the merits of styles of life, and styles of child-rearing, among different racial or cultural groups. In a much quoted passage, Evatt CJ has said: The case before us … is a difficult one, raising as it does issues of crosscultural values. It would be wrong to fall into the trap of concluding that white Australian suburban values are to be preferred as it would be to idealise the life of the tribal Aboriginal and imagine that it has survived the corrosive influences of white settlement …”: In the Marriage of Sanders (1976) 10 ALR 604; 1 Fam LR 11,433; 26 FLR 474; FLC 90– 078. It has thus been held, eg that it should not be assumed to be disadvantageous for a child to grow up in a remote community: In the Marriage of R and R (1985) FLC 91–615 per Asche J; In the Marriage of McL (1989) 15 Fam LR 7 at 23; (1991) FLC 92–238. In the latter case, Rourke J said at 24:

By comparison with the accommodation offered at Birany Birany, the husband’s house at Nhulunbuy exhibits a marked superiority on conventional European standards … It seems to me to be quite inappropriate to judge the standards of accommodation available at Birany Birany by reference to a European yardstick. Birany Birany is an Aboriginal community offering a lifestyle markedly different from that available in a conventional Australian community. For reasons associated with their Aboriginality it appears to me that the boys’ prospects of growing up as well adjusted individuals will be positively enhanced if they are allowed to live in a community in which they are already accepted as part of a caring extended family … There are a considerable number of recent authorities involving Aboriginal parties, illustrating these and other points, including In the Marriage of B and R, above; Dunstan v Jarrod and Another (2009) 41 Fam LR 535; [2009] FamCA 480; BC200950341; M v L (Aboriginal Culture) (2007) 37 Fam LR 317; [2007] FamCA 396; Davis v Davis (2007) 38 Fam LR 671; [2007] FamCA 1149; BC200750229 (Young J); as Re CP (1997) 21 Fam LR 486; (1997) FLC 92-741; Donnell v Dovey (2010) 237 FLR 53; (2010) 42 Fam LR 559; [2010] FamCAFC 15; BC201050115. [page 343] Older cases include In the Marriage of Sanders, above; In the Marriage of R and R, above; F v Langshaw (1983) 8 Fam LR 833; Torrens v Fleming (1980) FLC 90-840; Connors v Douglas (1981) 7 Fam LR 360; In the Marriage of Goudge (1984) 54 ALR 514; (1984) 9 Fam LR 500; FLC 91– 534. Other cultures etc It should not be thought that the express mention of Aboriginal peoples or Torres Strait Islander culture means that the court should disregard other aspects of children’s cultural connections. It is obviously important that consideration be given to other all cultural connections that the child has. Where the child has well-established links with people of a particular racial or cultural group, the court will consider

(among other factors) that the child’s welfare is likely to be promoted by maintaining continuities of place and lifestyle, rather than subjecting the child to discontinuities, by removing him or her to a very different environment or way of life. The wording of para (g), in the use of the word “including” and the last words (“any other characteristics …” makes this clear, quite apart from the open ended terms of para (m) (“any other fact or circumstance …”). THE CHILD’S RELATIONSHIPS: PARA (3)(b) [s 60CC.70] Overview of paragraph This provision states the obvious, namely that apart from the parents, the persons who will often be most important in the child’s life are grandparents and other relatives. It is a slightly expanded version of the previous version, s 68F(2)(b), which referred, more briefly, to “the nature of the relationship of the child with each of the child’s parents and with other persons”. As the EM states: 58. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents. In relation to parents, this provision is largely redundant, since other parts of s 60CC refer more specifically to the importance of parents and the way the court is to consider them and their value to the child: see in particular paras (2)(a), (c), (f) (g), (i), and subss (4) and (4A). These matters are considered below, under the main headings referring to “parental abilities and commitment”. The main relevance of this paragraph is to draw attention to the importance, for many children, of their relationship with grandparents and other relatives. Of course, the importance of such relationships depends largely on the facts of each case. Where there is a valuable relationship from the child’s point of view, the court will take into account any outcome that would terminate the relationship, or undermine its value for the child. See further below, under the main heading “Effects of Change”. PARENTAL ABILITIES AND COMMITMENT: PROVIDING FOR THE CHILD’S NEEDS: PARAS (3)(c), (ca), (f) and (i)

[s 60CC.75] Preliminary: history of provisions relating to parental abilities and commitment Before the 2006 Act two paragraphs of s 68F related specifically to parental abilities and commitment. Paragraph (e) referred to “the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs”; and para (h) referred to “the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents”. In substance, these paragraphs had remained unchanged since they were introduced into the Act by the 1983 amendments. The effect of the 2006 Act was to spell out in more detail what are referred to in the main headings to this commentary as “parental abilities and commitment”. One of these provisions, namely old para (c), “the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”, was omitted by the 2011 family violence amendments. The other provisions in this group were reorganised but remained essentially the same. [page 344] The main considerations relating to parental abilities and commitment since the 2011 family violence amendments may be summarised as follows: participating in making long term decisions about the child; spending time with, and communicating with the child: para (c); fulfilling obligations to maintain the child: para (ca); capacity to provide for the needs of the child, including emotional and intellectual needs: para (f); and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents: para (i). [s 60CC.80] Providing for the child’s needs: overview Paragraph (c) refers to parents participating in making decisions about major long term issues in relation to the child, and spending time with and communicating with the child. Paragraph (ca) refers to the extent to which they have fulfilled their obligation to maintain the child. These paragraphs can be seen as spelling out

some of the more obvious ways of assessing the consideration in para (3)(f), namely the capacity of each parent and any other person “to provide for the needs of the child, including emotional and intellectual needs”. This would be consistent with the remarks of the Full Court, albeit in relation to the pre2012 law, to the effect that such provisions “demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent”: Goldrick v Goldrick [2007] FamCA 1260; BC200750345 at [41] (Finn, Warnick and May JJ). PARENTAL ABILITIES AND COMMITMENT: PROVIDING FOR THE CHILD’S NEEDS: PARA (3)(f) AND SUBSS (4), (4A) [s 60CC.85] Is a parent’s willingness to encourage a child’s having a good relationship with the other parent still relevant after the repeal of old paragraph (c)? The 2011 family violence amendments deleted old para (c), which referred to the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”. Paragraph (c) had been introduced for the first time by the 2006 Act although it had been well established in previous case law that this was one of the aspects that the court took into account, as shown by criticism of parents who unjustifiably alienated the child from the other parent: eg Re David (1997) 22 Fam LR 489; FLC 92-776 (FC). In ordinary circumstances enhancing the child’s relationship with the other parent is an obviously important component of being a good parent. The EM to the 2011 bill (in paras 32–33) cites reports indicating that sometimes parties were not disclosing concerns of family violence and child abuse for fear of being found to be an “unfriendly parent”. It says that the repeal of para 60CC(3)(c) was: intended to remove this disincentive and enable all relevant information to be put before the courts for consideration in making parenting orders. Removal of the “friendly parent” provision will not prevent the court from considering a range of matters relevant to the care, welfare and development of the child such as a parent’s attitude to the responsibilities of parenthood.

Given this, the previous case law, and the history of the 2011 bill, it is submitted (RC) that in a proper case it would still be correct for a court to have regard to this matter as a relevant consideration under s 60CC(3)(m). In practice, it remains important to distinguish between a parent who is unjustifiably unsupportive of the child’s relationship with the other parent, and one whose actions stem from a genuine concern about the safety of the child in the care of the other parent. [s 60CC.87] Older authorities on assessment of parenting Although older authorities pre-date the current formulation in s 60CC(3), they remain instructive. Some of the leading themes emerge from the following discussion. [page 345] Parenting ability may be compromised in particular situations It may be necessary for the court to consider a parent’s ability to provide for the child in particular situations. This is well illustrated by C v B (2006) 35 Fam LR 285; [2006] Fam CA 513 (FC). In that case, contact was refused where the mother had a bona fide and reasonable fear that the father had been involved in a violent home invasion that left her unconscious, and in the circumstances the imposition of an ongoing contact regime would have had serious consequences upon her ability to parent the child. Conduct of parents The significance of parents’ conduct was well summarised by Goldstein J in In the Marriage of Kress (1976) 13 ALR 309; 2 Fam LR 11,230; 30 FLR 508b; FLC 90-126: Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other. Similarly, in Barnett v Barnett [1973] 2 NSWLR 403; (1973) 2 ALR 19; 21 FLR 335 at 343, Hutley JA said:

The issue is not what is justice to the parents but what is for the welfare of the child, and the welfare of the child can best be weighed by disregarding entirely any concept of claim, just or unjust, on the part of the parents. It is their conduct, in so far as it bears on welfare, which is important. In In the Marriage of Smythe (1983) 48 ALR 677; 8 Fam LR 1029; FLC 91–337 Evatt CJ and Asche J said: Matrimonial fault or conduct is relevant in relation to custody or access only if it has some bearing on the fitness of the person as a parent and, as a consequence, on the welfare of the children (see Barnett v Barnett [1973] 2 NSWLR 403; (1973) 2 ALR 19; 21 FLR 335 per Hutley JA; In the Marriage of Heidt (1976) 11 ALR 594; 1 Fam LR 11,576; FLC 90– 077 at 75,360 per Murray J; In the Marriage of Kress (1976) 13 ALR 309; 2 Fam LR 11,230; 30 FLR 508b; FLC 90–126 at 75,601 per Goldstein J; In the Marriage of Lythow (1976) 1 Fam LN N3; FLC 90– 007 at 75,075 per Watson SJ). This principle applies not only to issues of fault, such as adultery, cruelty, or desertion, but also to other aspects of a party’s behaviour which may have a bearing on the justice of the situation (eg In the Marriage of Schenck (1981) 7 Fam LR 170; (1981) FLC 91– 023 at 76,240). In this context, behaviour can include the attitude of one parent towards the other and the willingness of a parent to make unfounded allegations against the other (Mills and Mills (1978) FLC 90– 404 at 77,080 per Tonge J; In the Marriage of E (No 2) (1979) 5 Fam LR 244; 36 FLR 12; FLC 90–645 at 78,388–9 per Strauss J; Cuncliffe and Younger (Fam C of A, Full Court, 1983, unreported) to the extent that a child’s welfare may be adversely affected by the influence and attitude of such a parent … the overriding principle is whether the evidence and the conduct are relevant to the welfare of the child. It follows that practitioners should not lead evidence of misconduct except where the misconduct can be shown to be related to the children’s welfare. See also In the Marriage of JG and BG (1994) 18 Fam LR 255; FLC 92515, and the commentary below. Mud-slinging discouraged In several cases the court has urged practitioners

to refrain from mud-slinging in custody cases: Mills and Mills (1978) FLC 90–404; In the Marriage of Keaton (1986) FLC 91–745. The making of irrelevant or unfounded allegations can be highly disadvantageous: the court will sometimes doubt whether a party irresponsible enough to make such allegations is responsible enough to have custody or guardianship: see Smythe, above. However the court cannot refuse to hear, or disregard, evidence that is relevant to the child’s welfare. Conventional morality and community standards The attitudes of judges differ in relation to the effect a de facto relationship has on the capacity of a parent to provide adequately for the needs [page 346] of the child. In In the Marriage of McEnearney (1980) 7 Fam LN N5; FLC 90–866, Nygh J held that while the court cannot condemn people living in de facto relationships on moral grounds, the stability of a de facto relationship may compare unfavourably with that of a marriage: this is very much a question of fact in each case. It would follow that a stable de facto relationship might well be a positive advantage to a spouse seeking custody or guardianship, especially where the partner had established a close relationship with the child. The remarks of Hogan J in In the Marriage of Lonard (No 2) (1977) 13 ALR 596; 2 Fam LR 11,657 at 11,663; 30 FLR 529; FLC 90–202 (“… if there is an appropriate alternative consistent with the best interests of the child available to the court then the court should not give its official sanction as representative to the community to what does not conform to the concepts of conventional morality”) are unlikely to be followed today. The court in more recent decisions has stressed that it should not rely on preconceived notions of parental role models: McMillan and Jackson (1995) 19 Fam LR 183; FLC 92–610. See also In the Marriage of Sheridan (1994) 18 Fam LR 415; FLC 92-517. Conventional morality and community standards — drug abuse — unsettled lifestyle Judges have stressed that it is desirable to acknowledge and respect the diversity of lifestyles and values in the community, and that

the courts should beware of imposing a particular set of standards through decisions on custody. On the other hand, they have considered that some kinds of lifestyle and some approaches to child rearing create risks for the children and are thus relevant to determining custody disputes. The reconciliation of these two principles is notoriously difficult, and custody decisions frequently involve the application by courts of assumptions, values and standards relating to sensitive questions of morality and childrearing. Relevant authorities include In the Marriage of Horman (1976) 5 Fam LR 796; FLC 90–024; In the Marriage of Rowe (1979) 5 Fam LN N25. See also the following paragraph. Cultural differences and differences in moral standards The court has on occasions to consider the different moral values of parents from different cultures. In In the Marriage of DKI and OBI (1979) 5 Fam LR 223; FLC 90661, the court dealt with a custody application by a wife who had engaged in prostitution. The court considered the prostitution in the context of the economic and social problems facing the family, and found that the wife, coming from a background in which prostitution was sometimes the only alternative to starvation, was neither guilty nor coy about her behaviour, nor did she show any lack of adequacy as a mother. Lusink J said: “… the connotations of horror are ours, not hers. To apply our own criteria and then condemn her behaviour is unrealistic and may be unjust”: at Fam LR 229. In the result, custody was awarded to the wife upon her giving undertakings to refrain from further prostitution. See also the thoughtful consideration of cultural and religious differences in In the Marriage of H v H (2003) 198 ALR 383; 30 Fam LR 264; FLC 93–162; [2003] FMCAfam 31: per Ryan FM. EFFECTS OF CHANGES IN CHILD’S CIRCUMSTANCES: PARA (3)(d) [s 60CC.93] Overview of para (d) This paragraph replaces old s 68F(c), which referred to the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from parents and other persons with whom the child has been living. The paragraph was slightly expanded by the 2006 Act, so that s 60CC(2) (d) includes specific reference to grandparents and other relatives. The EM

says (para 60) that “This change ensures that the court recognises the importance of the relationships that the child has with wider family in particular grandparents.” Scope of paragraph It would include such matters as the likely effects of change of school, removal from friends, and changes in lifestyle. It would include the value to the child of continuity and stability in these things. It would also include beneficial effects that might arise from such separation, for example where there was a particular problem associated with the school the child is currently attending, or beneficial effects of a separation from some person who was harming the child. [page 347] [s 60CC.95] “Status quo” factor The authorities sometimes speak of a “status quo” factor to refer to these matters. That phrase is not a term of art but refers to the general view that if a child’s situation is stable and the child is doing satisfactorily, it is sensible to be cautious about changing the situation unless there are good reasons for considering that doing so will benefit the child. In this context, “status quo” usually refers to the child’s relationships with parents and others as well as the child’s physical surroundings. In practice, it is wise to be cautious about such terms as “status quo” because they can tend to lead to simplistic analyses of the various matters that may be relevant to a child’s best interests. The “status quo” factor was well expressed by Demack J in an influential early decision, In the Marriage of Jurss (1976) 9 ALR 455; 1 Fam LR 11,203; FLC 90–041: In this case the children are with their father with whom they have lived all their lives. They are in a household where they have established relationships with two other children in their age group. They are well cared for by a young but competent and loving woman. To move them from this environment is to choose uncertainty and to require them to make a variety of emotional adjustments which are not necessary for their well being … [T]here is nothing shown to indicate that their welfare will

be enhanced if they are to be given to their mother. They are well and properly cared for now, and their welfare is very well advanced and ensured by leaving them with their father. The Full Court has reaffirmed the importance of the “status quo”, indicating that trial judges should give clear reasons if they wish to disturb a long-standing and satisfactory settled arrangement: In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92–191 (Nicholson CJ, Simpson and Finn JJ: Young children had lived with their mother for most of their lives and were well-settled; the mother had obtained custody orders in two contested proceedings; the trial judge ordered that the husband have custody of the boy and the wife have custody of the girl. The appeal was allowed on grounds which included insufficient explanation by the trial judge of disturbance of the status quo); Peters (aka Eustace) and Castuera (1994) 18 Fam LR 203; FLC 92-500. An example of the court reversing a status quo is Re David (1997) 22 Fam LR 489; FLC 92–776 (FC). In that case, the children were with the mother, who had opposed any contact between the children and the father and who “effectively conceded that that the sexual abuse allegations [against the father] were ill-founded” (at Fam LR 506; FLC 84,574). The Full Court (Nicholson CJ, Lindenmayer and Buckley JJ) concluded that on the facts a change of residence was the only way to preserve contact with the other parent. The Full Court, having noted that altering a residence order is a “serious step”, referred at Fam LR 506–7; FLC 84,574 to a number of matters, including the obligation of a residence parent to take all reasonable steps to ensure that the child is made available to the other parent for the purpose of contact in compliance with the order; that in high conflict situations the child might adopt the position he or she thinks is desired by the residence parent; and that it is necessary to determine if there is any basis for the child’s attitude, such as a genuine complaint of ill-treatment or abuse. It went on to consider the argument that the problem of non-contact could be avoided by “a more rigorous attitude on the part of the court to the enforcement of its orders”, referring to a number of difficulties: it is a civil court and cannot enforce an order unless someone asks it to; the material put before it is often deficient; the motives of the person alleging breach in high conflict situations may be questionable; and enforcement options open to the

court are “extremely limited”, because where there is implacable opposition by the residence parent the orders may have a destructive impact on the child and achieve little or nothing to bring about meaningful contact. Another example of a reversed result in a residence case is In the Marriage of K and Z (1997) 22 Fam LR 382; FLC 92-783 (FC). Status quo as an indication of children’s need for continuity and stability It is generally assumed that children need at least some continuity and stability, and the most important component of such continuity may often be the child’s relationship with a caring parent or other [page 348] persons. In psychological jargon, the child might be “attached” or “bonded” to the “psychological parent”. For a discussion of this kind of evidence see, for example, McGuire v Tull (1981) 7 Fam LR 195 (Helsham J) and Tull v McGuire (1981) 7 Fam LR 326; FLC 91–098 (CA(NSW), dismissing the appeal). It is wrong however to assume that in all cases the court will or should necessarily make an order that will preserve such a relationship. In this respect the views of J Goldstein, A Freud and A Solnit in Beyond the Best Interests of the Child, The Free Press, NY, 1972 are an unsafe guide to the court’s approach, and, also, it is submitted, to the promotion of children’s welfare. It is well established that even abused children may be, in psychological terms, “attached” or “bonded” to abusive parents, yet their welfare may be best served by removal. Further, in some circumstances children might receive in the long run more stability and continuity in a new environment, as where the person having the child’s care is living in an unstable relationship and the court believes that the alternative situation offers a greater chance of stability over time. In such cases, the court must make a difficult assessment of the potential advantages of the move as against the initial trauma (and possible longer-term effects) of removing the child from the current caregivers. The appeal of such simplistic phrases as “psychological parent” should not deflect practitioners or the courts from engaging in the difficult task of assessing, in the light of all the facts, what

order would best promote the child’s welfare. Status quo no more than a factor to be weighed The status quo is no more than one factor to be taken into account in determining the child’s welfare. The weight to be attached to it depends on all the facts. Thus, in In the Marriage of Raby (1976) 12 ALR 669; 2 Fam LR 11,348; 27 FLR 412; FLC 90–104 the Full Court disapproved statements in an earlier decision (Jones v Jones (1960) 77 WN (NSW) 682) because they suggested that a change in the status quo was automatically a serious inroad into a child’s sense of stability and security. The court continued: This may or may not be so in a particular case. Several matters may be relevant — the age of the child, the length of the status quo, its quality, and in particular, the nature of the child-adult relationships developed within it. If the status quo is predictably more detrimental to the child’s welfare than proposed alternatives, a change may not only be desirable, it may be necessary. Other authorities to a similar effect include In the Marriage of Burton (1978) 24 ALR 378; 4 Fam LR 783; FLC 90–622; In the Marriage of Hayman (1976) 14 ALR 216; 2 Fam LR 11,558; 28 FLR 51; FLC 90–140; In the Marriage of Mathieson (1977) 6 Fam LR 116; FLC 90–230; In the Marriage of Hobbs (1976) 12 ALR 443; 2 Fam LR 11,380; 29 FLR 101; FLC 90–119. Status quo does not create a legal onus In some cases judges appear to say that the status quo will prevail unless the court is positively persuaded that changing it will benefit the child: see, for example, In the Marriage of Hayman (1976) 14 ALR 216; 2 Fam LR 11,558; 28 FLR 51; FLC 90–140, per Murray and Lusink JJ. It may be, of course, that in the facts of a particular case the court considers that the status quo is an important factor and that strong evidence to the contrary will be required to persuade it to disturb the child’s present situation: see, for example, In the Marriage of Curr (1978) 4 Fam LN 63; (1979) FLC 90–611. It is however an error to say that there is a legal onus upon a party to show that a change in the status quo will be a positive advantage to the child: In the Marriage of Burton (1978) 4 Fam LR 783; (1979) FLC 90–622, where the Full Court allowed an appeal

from a decision in which the judge said: “The onus lays [sic] on the husband to demonstrate the positive advantage to the children to be removed from the mother’s environment ….” The court considered the matter at some length, and said that nothing in In the Marriage of Hayman (1976) 14 ALR 216; 2 Fam LR 11,558; 28 FLR 51; FLC 90-140 should be regarded as authority to the contrary. See also In the Marriage of Mathieson (1977) 6 Fam LR 116; FLC 90–230. It has however been suggested that trial judges should give clear reasons if they wish to disturb a long-standing and satisfactory settled arrangement: In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92-191 (FC). [page 349] Significance of status quo a subject for evidence Evidence may of course be led from experts on the significance of a change in the status quo in the particular circumstances of the case, and relevant evidence may also be contained in a report under s 62G. [s 60CC.97] Siblings — should they be separated? It is generally assumed that children will benefit from remaining with their siblings, and the court will normally be reluctant to separate siblings unless this appears, in all the circumstances, to be for their welfare. For expressions of this principle see Hutley JA in Barnett v Barnett [1973] 2 NSWLR 403; (1973) 2 ALR 19 at 29; 21 FLR 335; see also In the Marriage of Heidt (1976) 11 ALR 594; 1 Fam LR 11,576; FLC 90–077; In the Marriage of Pailas (1976) 11 ALR 493; 26 FLR 149; 1 Fam LR 11,545; FLC 90-083; In the Marriage of Price (1976) 2 Fam LN 21; FLC 90–125; In the Marriage of Van Dijk (1977) 3 Fam LR 11,406; In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92–191 (FC). It has been held that the view that the children should not generally be separated may override the wishes of a child to live with a parent, where to follow such wishes would result in the separation of siblings: see In the Marriage of Boman (1981) 7 Fam LR 586; FLC 91-077. When siblings might be separated It has been said that the circumstances in

which the court is most likely to find that siblings should be separated include the following: (a) where children detest each other; (b) where children are of mixed race; (c) where children are widely separated in age; (d) where the circumstances of either parent alone prevent him or her taking care of all the children: see Barnett v Barnett [1973] 2 NSWLR 403; (1973) 2 ALR 19; 21 FLR 335; (e) where the children have already been separated and are happy and adjusted in their existing surroundings; (f) where one child, particularly a child of mature years, expresses strong views to be with one parent: see In the Marriage of Wright (1976) 2 Fam LN N27; FLC 90–114; see also In the Marriage of Schmidt (1979) 28 ALR 84; 5 Fam LR 421; FLC 90–685; (g) where one parent has difficulty controlling and caring for certain of the children and the other parent would be better able to perform this task: see In the Marriage of Ahmad (1979) 24 ALR 621; 34 FLR 501n; 5 Fam LR 15; FLC 90-633; see also Thompson v Thompson (1980) 29 ALR 634; 5 Fam LR 737; FLC 90-815. Such lists are however only illustrative, and each case must be considered individually. It would be wrong to think that there is a legal rule or onus that siblings should not be separated except in the above-mentioned circumstances. DIFFICULTY AND EXPENSE OF SPENDING TIME AND COMMUNICATING WITH A PARENT: PARA (3)(e) [s 60CC.100] Overview This paragraph retains what was formerly para 68F(2)(d), itself inserted for the first time by the Family Law Reform Act 1995 (Cth), except that the word “contact” has been replaced by “spending time with and communicating with”. This change reflects the decision, implemented by the 2006 Act, to abandon the use of the words “residence” and “contact”. In so far as it directs the court to have regard to the practical difficulty and expense of the child spending time with and communicating

with a parent, it requires no particular comment, this obviously being a relevant matter. FAMILY VIOLENCE AND FAMILY VIOLENCE ORDERS: PARAS (3)(j) AND (3)(k) [s 60CC.105] Family violence: overview of para (3)(j) The protection of children from “harm” as a result of family violence is dealt with in the second of the two “primary” considerations: subs (2)(b), considered above, as well as other provisions. The main additional significance of para (j) appears to be that it does not require the court to find any actual or likely physical or psychological harm to the child in order to conclude that [page 350] family violence is relevant. Thus it would be open to a court, for example, to find it relevant that a person inflicted family violence, because such conduct indicates a limitation of the person’s parenting ability — see para (f) — and would provide children with an undesirable model of adult relationships. The term “family violence” is defined in s 4AB. [s 60CC.107] Inferences from family violence orders: para (3)(k) In substance, s 60CC(3)(k) includes, among the relevant considerations for determining the child’s best interests, the inferences that can be drawn from the nature of a family violence order and the circumstances in which it was made, including any findings or other relevant material from the family violence proceedings in which it was made. This provision has a significant history. The amendment of 1995 first inserted a reference to family violence orders in the list of matters to be considered in determining the child’s best interests in the following formulation: “any family violence order that applies to the child or a member of the child’s family”: old s 68F(2)(j). The amendments of 2006 substituted “any family violence order that applies to the child or a member of the child’s

family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person”. The significance of the change was in substance to remove interim and consent orders. As stated in the EM to the 2006 amendments, para 68, “The intention of this subsection is to ensure that the court does not take account of uncontested or interim family violence orders. This should address a perception that violence allegations are taken into account without proven foundation in some family law proceedings.” After a number of suggestions were considered, the 2011 family violence amendments inserted the present wording of para (k), which was based on the Legal and Constitutional Affairs Legislation Committee, Report, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 [Provisions] (August 2011). For further details, see R Chisholm, “The Family Law Violence Amendment of 2011: A progress report, featuring the debate about Family Violence Orders” (2011) 25 AJFL 79. AVOIDING FURTHER PROCEEDINGS: PARA (3)(l) [s 60CC.110] Overview of paragraph This paragraph is identical to the provision it replaced, s 68F(2)(k). That formulation, inserted by the 1995 Act, was a revised version of the previous s 64(1)(ba), quoted above. It provided in effect that subject to the principle that the child’s welfare was the paramount consideration, the court should “unless in the opinion of the court it is not practicable, make the order that, in the opinion of the court, is least likely to lead to the institution of further proceedings in relation to the custody or guardianship of the child”. In its present form, the provision is neutral (“whether it would be preferable to make the order that would be least likely …”). The main significance of the changed wording of the para (l) appears to be that there is now no suggestion of a presumption that further proceedings are undesirable. There may be cases in which it seems appropriate for the court to make orders that the matter come back to court for a form of review. In many other cases, no doubt, the child’s best interests would be promoted by avoiding the stress, disruption and expense of further litigation. Paragraph (l) tells the court to consider what impact any future proceedings might have on the child’s best interests.

Pre-1996 authorities Decisions under the pre-1995 version of this guideline include In the Marriage of McEnearney (1980) 7 Fam LN N5; (1980) FLC 90–866 at 75,499 per Nygh J (the principle that there be an end to litigation has force in custodial disputes); Smith and Swaine (1978) FLC 90–400; and In the Marriage of Archbold (1984) 9 Fam LR 798; FLC 91–532. In Archbold, the Full Court set aside the order in favour of the husband and ordered custody to the wife on an interim basis with a direction for a further welfare report and a further hearing in six months’ time. Evatt CJ and Fogarty J said that “finality cannot always be achieved and should not be a decisive consideration where the risk factors outweigh the benefits to the parties and the children of a final decision”. [page 351] OTHER FACTS OR CIRCUMSTANCES: PARA (3)(m) [s 60CC.120] Overview of paragraph Non-exclusive list This paragraph is essentially the same as its predecessor, s 68F(2)(l), and before that s 64(1)(bb)(vi). The most significant point about para (l) is that it is open ended. This is important in understanding s 60CC as a whole. It is in substance a check-list of particularly important matters that should not be overlooked. It is not an attempt to confine the court to particular matters in determining what the child’s best interests require. In a particular case, a matter not specifically mentioned in other paragraphs may be important: see eg In the Marriage of K and Z (1997) 22 Fam LR 382; FLC 92–783 (child’s happiness). In Mulvany v Lane (2009) 41 Fam LR 418; (2009) FLC ¶93-404; [2009] FamCAFC 76; BC200950209 May and Thackray JJ said at [77] that while the list of considerations in s 60CC is lengthy, “no list could ever encompass all the matters that experience demonstrates could be of relevance” and that this was no doubt why Parliament had included the catchall consideration in s 60CC(3)(m); “By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s

best interests. […]”. Relevant matters It would not be possible, or specially useful, to attempt to catalogue all the matters that might conceivably be relevant to a child’s welfare. However it might be useful to mention some matters that have been considered in the authorities and have not been discussed under the above paragraphs. [s 60CC.122] The health of the parents The health of the parents may affect both parents’ capacity to care for the child. In cases where the health problem of a parent is of a psychiatric nature the court may be assisted by psychiatric evidence: see In the Marriage of Spry (1977) 3 Fam LR 11,330; 30 FLR 537; FLC 90–271. [s 60CC.125] Natural parent versus stranger As a result of an intervention by a third party a competition may develop between a natural parent and a stranger for the custody of the child. In such circumstances the welfare of the child remains the paramount consideration, and any preference for natural parents against a stranger must be based on an assumption that children’s welfare is normally best promoted by their being in the care of their parents, or a parent. In any case, such an assumption or preference is only one among the factors to be taken into account in determining the child’s welfare. Examples of such cases include In the Marriage of E (No 2) (1979) 5 Fam LR 244; 36 FLR 12; FLC 90–645; Powell v Anderson (1977) 1 Fam LN N38; FLC 90–235; Overton v Martinez (No 2) (1978) 3 Fam LN N79; FLC 90– 406; Matthews v Chapman (1981) 7 Fam LR 982; FLC 91-237; C v D (1983) 9 Fam LR 161; Allen v Allen (1984) 9 Fam LR 440; FLC 91–531. The leading authorities include Hodak v Newman (1993) 17 Fam LR 1; FLC 92421. Lindenmayer J said in that case, at Fam LR 15, that the approach adopted by the English Court of Appeal in Re K [1990] 3 All ER 795 “… does not represent the state of the law in Australia under the Family Law Act”. He also said that the decisions in In the Marriage of Drew (1993) 16 Fam LR 536; FLC 92-360 and Braithwaite v Braithwaite and Stocks (Fam C of A, Kay J, 19 December 1991, unreported) “misstate the position under the Family Law Act. In my opinion, it is incorrect, in a custody dispute as between a natural parent and a non-parent, to state that the role of the natural

parent is to be ‘preferred’, or to have recourse to a ‘presumption’ that the welfare of a child will best be served by an order in favour of a natural parent.” After reviewing the authorities Lindenmayer J said at Fam LR 17–18: I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the court commences its [page 352] decision making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved. This approach was confirmed (correctly, it is submitted) by the Full Court in Rice v Miller (1993) 16 Fam LR 970 at 977–8; FLC 92–415. See Re Evelyn (1998) 23 Fam LR 53; FLC 92-807; [1998] FamCA 55 and Re Evelyn (No 2) (1998) 23 Fam LR 73 (Child of surrogacy arrangement). As the Full Court has put it, the fact of parenthood does not establish a presumption in favour of a natural parent; each case must be decided on its own particular facts, the best interests of the child being the paramount consideration: Re Lynette (1999) 25 Fam LR 352; FLC 92–863 (FC). [s 60CC.127] Sexual orientation of parent Not to be over-emphasised The sexual orientation or behaviour of a parent, like other aspects of a parent’s behaviour, is no more than a factor to be considered in assessing the welfare of the child. While it should not be ignored, it should not be over-emphasised: see Jarman v Lloyd [1982] 2 NSWLR 836; 8 Fam LR 878. In a leading case, In the Marriage of Schmidt (1979) 28 ALR 84; 5 Fam LR 421; FLC 90–685, Evatt CJ said:

The homosexuality of the mother, or lesbianism, is not of itself a disqualifying factor … It is necessary for the court to consider the extent to which a homosexual or lesbian relationship affects the parenting abilities of the mother and to consider whether the association that the mother is involved in may occasion any risk to the child … The ordinary observations of life would lead me to the view that one lesbian relationship should not necessarily be judged by another. There may be many variations in the personalities involved, in the intensity of feeling, in the social relationship with other persons, male and female, heterosexual or homosexual. It could be a mistake to regard a person’s sexual proclivities as the dominating trait of their personality as if it were something that occupied their sole attention and thoughts … See also In the Marriage of Doyle (1992) 15 Fam LR 274; FLC 92–286 where it was held that the morality and sexual orientation of the parents were only two of the factors which were relevant to the welfare of the child and which were to be taken into account in a custody determination. Whether homosexuality assumed to be a negative factor A number of early decisions indicated that although there was considerable difference in emphasis between judges on this matter, homosexuality was often treated as at least a potential disadvantage. An example is In the Marriage of L (1983) FLC 91–353, where Baker J (although awarding custody to the homosexual parent) gave a list of matters that he considered should be taken into account. Item 3 was “Whether a homosexual parent would show the same love and responsibility as a heterosexual parent”. While Baker J may well not have intended this, such a formulation can be read as suggesting that a homosexual parent needs to prove to the court ordinary human feelings and capacities that are taken for granted in the case of heterosexual parents. While evidence may be found to rebut what is in effect a presumption (as it was in In the Marriage of L, above) such approaches mean that homosexual parents commence at a significant disadvantage. It is however submitted that more recent authorities do not support approaching such cases in this way, in the absence of any specific evidence disadvantageous to homosexual parents. There appears to be no rational basis for assuming that homosexual parents are likely to lack love and

responsibility for their children. The correct approach, it is submitted, is for the court to treat a parent’s sexual orientation as relevant only to the extent that there is evidence relating to its effect on the child. There is considerable support for this approach in the authorities. Thus Wootten J in Jarman v Lloyd [1982] 2 NSWLR 836; 8 Fam LR 878 at 889 said, referring to In the Marriage of Brook (1977) 3 Fam LN N81; FLC 90-325, “I agree with Lindenmayer J that there is no basis upon which it could be suggested that a court should judicially notice that a practising homosexual parent cannot provide as good and healthy an upbringing for his or her children as a heterosexual one”. It follows that the court will not assume that homosexual persons are more likely than heterosexual persons to commit sexual assaults on children, or that a child is more likely to adopt [page 353] a homosexual lifestyle if brought up by a homosexual parent: see especially In the Marriage of Schmidt, above. If this is correct, then it may be an error of law for a court to rely merely on a parent’s homosexuality as a reason for making orders less favourable to that parent than would otherwise have been made, in the absence of any evidence that homosexuality would adversely affect the child. Evidence will displace assumptions. The reported cases indicate that, whatever might be assumed in the absence of evidence, the court will concentrate on the available evidence rather than assumptions about homosexuality and effect of homosexual parents on children. Thus in In the Marriage of Brook, above, Lindenmayer J said: “A court of law must act upon evidence, not upon assumption or theory”, a statement approved by Ross-Jones J in In the Marriage of Shepherd (1979) 5 Fam LN N20; (1979) FLC 90–729 at 78,931. See also eg In the Marriage of L, above; In the Marriage of O’Reilly (1977) 3 Fam LN N53; (1977) FLC 90–300. This is clearly correct, being in accordance with other authorities holding that the court should avoid stereotypes and focus on the evidence relating to the actual qualities of the individuals before the court: see especially Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719; FLC 90–716; BC7900112. Thus in In the Marriage of G (1988) 12 Fam LR 185; FLC 91–

939 the court awarded custody to a mother, treating her lesbianism as of little significance in the light of expert evidence on the rearing of children in a homosexual household: at Fam LR 188. [s 60CC.130] Religious beliefs and practices The religious beliefs of a parent or any other person are in themselves irrelevant to the making of parenting orders, first because they are irrelevant to the child’s welfare and second because it is well established that the court should not assume that any particular religious beliefs are true, nor should it prefer one religion to another, or religious over non-religious beliefs. Religion is primarily relevant because of its influence on the behaviour of people. In particular, where the religious beliefs of a person require the person to adhere to an unusual lifestyle or approach to childrearing, the person’s behaviour may well be relevant to the child’s welfare. The problem most commonly encountered is where a person seeking custody proposes, in accordance with religious beliefs, to impose unusually tight control on the child, or keep the child separate from other children or other members of the family (especially nonbelievers), or require the child to engage in extensive religious practices which conflict with the usual activities of children. In such cases the courts struggle to find the right balance between promoting the child’s welfare and maintaining strict neutrality between different religious views and practices. See generally In the Marriage of N (No 2) (1981) 7 Fam LR 889; FLC 91– 111; In the Marriage of Paisio (No 2) (1978) 5 Fam LR 281; (1979) 26 ALR 132; FLC 90–659; In the Marriage of Wellington (1976) 14 SASR 321; 1 Fam LN N30; 30 FLR 516b; (1977) FLC 90–277; In the Marriage of Plows (No 2) (1979) 5 Fam LR 590; FLC 90–712; K v K (1979) 5 Fam LR 179; 34 FLR 525; FLC 90–680; In the Marriage of Grimshaw (1981) 8 Fam LR 346; FLC 91–090; In the Marriage of Litchfield (1987) 11 Fam LR 435; FLC 91– 840; In the Marriage of Firth (1988) 12 Fam LR 547; FLC 91–971; In the Marriage of Morrison (1995) 19 Fam LR 662; FLC 92–639 (FC); In the Marriage of H v H (2003) 198 ALR 383; 30 Fam LR 264; FLC 93–162; [2003] FMCAfam 31 (Ryan FM). Orders about religious upbringing It has been the court’s general practice to refrain from making orders regarding the religious upbringing of the child: see In the Marriage of Jurss (1976) 9 ALR 455 at 459; 1 Fam LR 11,203;

FLC 90–041 at 75,184–5. A child’s religious upbringing was previously regarded as ordinarily a matter to be determined by the parent with custody, subject to the court’s intervention in appropriate cases. However, since the 1995 amendments, it is clear that the parent with whom the child lives has no greater responsibility than the other parent for decisions about religious upbringing of the child. Any questions about religious matters that need to be determined will be controlled by the paramount consideration principle. Thus the court may impose as a condition of residence that the child shall not be enrolled in a religiously orientated school if it is satisfied that this would not be in the best interests of the child: In the Marriage of Lehman (1977) 3 Fam LN N73; FLC 90–321. See also In the Marriage of Morrison (1995) 19 Fam LR 662; FLC 92-639 (FC), and In the Marriage of H v H, above (Ryan FM). [page 354] It is the court’s general practice to refrain from making orders regarding the religious upbringing of the child: see In the Marriage of Jurss, above, at ALR 459; FLC 75,184–5. It is often stated that it is the right of the parent having custody (or since 1983, custody and guardianship) to determine the child’s religious upbringing, but the court may intervene in regard to the religious upbringing of the children if this is relevant to their welfare. The court for example may impose as a condition of custody that the child shall not be enrolled in a religiously orientated school if it is satisfied that this would not be in the best interests of the child: In the Marriage of Lehman, above; see also In the Marriage of Morrison, above. Religious beliefs of the child Where the child has strong religious beliefs, these may be relevant in so far as placement of the child in the care of a person having different beliefs might create difficulties for the child. See In the Marriage of Litchfield, above (access); In the Marriage of Firth, above (unsuccessfully argued that the trial judge’s order violated child’s right to religious freedom). [s 60CC.132] Maternal or paternal preferences

No “mother principle” Some older cases appear to have suggested that mothers are assumed to be the best persons to have custody, at least of young female children. This position however has been firmly rejected by the Family Court: see especially In the Marriage of Raby (1976) 12 ALR 669; 2 Fam LR 11,348 at 11,360; 27 FLR 412 at 427; FLC 90–104 at 75,486, where the Full Court stated that “the suggested preferred role of the mother is not a principle, a presumption, a preference or even a norm. It is a factor to be taken into consideration where relevant”: see also In the Marriage of Hobbs (1976) 12 ALR 443; 2 Fam LR 11,380; 29 FLR 101; FLC 90–119; In the Marriage of Laidley (1976) 2 Fam LN N26; FLC 90–120. The matter was fully canvassed by the High Court in Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719; FLC 90–716; BC7900112 in which the Family Court’s approach was confirmed. A full investigation of the relevant circumstances will provide a more accurate assessment of the suitability of each parent than will any arbitrary presumption about the roles and characteristics of men or women: Re Evelyn (1998) 23 Fam LR 53; FLC 92807; [1998] FamCA 55. “Mother principle” not to be confused with value of close parenting relationship The non-existent “mother principle” is sometimes confused with the widely held view among judges that a child is best in the custody of the parent with whom the child may have a continuing caring relationship and who can give his or her individual attention to the child and who has had the greatest contact with and experience in caring for the child. In many circumstances this person, of course, is the mother: see, for example, In the Marriage of Sanders (1976) 10 ALR 604; 1 Fam LR 11,433; 26 FLR 474; FLC 90–078. No “father principle” Just as there is no judicial preference for the relationship of a young child or girls to the mother similarly there is no judicial preference that the father should be a preferred custodian to boys: see In the Marriage of Mulligan (1976) 11 ALR 561; 26 FLR 51; 1 Fam LR 11,599 at 11,600; FLC 90-080. Surrogacy agreements Surrogacy agreements may present unusual factual circumstances, but involve no real departure from the ordinary approach to

the application of the principle that the child’s best interests must be regarded as the paramount consideration: see Re C and D (1998) 23 Fam LR 375; (1998) FLC 92–815; [1998] FamCA 98. The Full Court there said at Fam LR 387; FLC 85,243: This Court made it clear in Rice v Miller (1993) 16 Fam LR 970; FLC 92–415 and more recently in Re Evelyn, above, that the biological parent does not stand in any preferred position and that fact does not in any way impinge upon the principle that the best interests of the child are paramount. [page 355] PARTICULAR TYPES OF PARENTING ISSUES [s 60CC.135] Change of child’s name Introduction Issues relating to the child’s name mainly arise following separation, when one parent, usually the mother, seeks to change the child’s surname from that of the father to the mother’s current name, which may be her original surname or may be the name of a new partner. The case usually comes before the court when the father seeks to restrain the change of name. (The general law relating to names is beyond the scope of this commentary: for an excellent treatment, see Dickey, A Family Law, Lawbook Company, Sydney, 5th Ed, 2007, pp 281-284. As one might expect, the early cases stressed that the decision whether to allow the change of name was to be made on the familiar principle that the child’s best interests (formerly ‘welfare’) must be regarded as the paramount consideration, and that the outcome will depend on the facts of each case. As the Full Court put it in the early leading case, Chapman & Palmer, In the Marriage of (1978) 34 FLR 405; 4 Fam LR 462; FLC 90-510: In deciding the issue in each case there is no onus of proof. It is for the court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount

consideration. It must stand above the wishes or proprietary interests of the parents. Though this proposition is clear and obvious, a number of comments should be made about it. First, the proposition makes it clear that there is no principle of law to the effect that the child should have any particular surname, and no basis, of course, for any rule that the surname is the decision of one parent or the other. Second, since the 1995 amendments to the Family Law Act 1975 the ‘paramount consideration’ principle does not strictly apply to injunctions under s 68B. (At the time of Chapman and Palmer, it was an overarching principle that was treated as obviously applicable to such proceedings.) This difference should not be overstated, however, because in practice the child’s best interests, even if not expressed to be paramount, will usually be of overwhelming importance. Third, decisions in such cases as Chapman and Palmer took place against the widely-accepted convention (it was never a rule of law) that on marriage the wife took the husband’s surname, and the children also took that surname. Considering what is in the child’s best interests might require consideration of what is seen as normal in the wider community, or, perhaps, in the particular community in which the child will be living. It is possible that such conventions might change, or might have changed. Also, there might be different conventions, or perhaps no clear convention, in the case of other family structures, such as de facto relationships, or families involving surrogacy, or same-sex parenting. For example, in Skipworth, Re; Maney & Skipworth (1989) 13 Fam LR 137; FLC 92-018, Rowlands J noted that where the mother was not married it was the more usual social custom for the child to use her surname. Most obviously, in Australia’s multicultural community, there may be particular practices and conventions in particular groups. (For a detailed discussion see Director-General, Dept of Community Services v Adoptive Parents (2005) 64 NSWLR 268; 34 Fam LR 372; [2005] NSWCA 385; BC200509756. Fourth, the legislation has been amended on two occasions in ways that might be relevant to the determination of these cases. In 1995 amendments

were made that emphasised the importance of the continuing involvement of both parents. This was also a theme of the 2006 amendments. But they went further, and created a distinction between ‘primary’ and ‘additional’ considerations relating to the determination of the child’s best interests: s 60CC. One of the two ‘primary’ considerations is ‘the benefit to the child of having a meaningful relationship with both of the child’s parents.’ It might be arguable that this change, along with the 2006 amendments to s 60B, should lead the courts to give greater weight to this aspect in these cases. Early statements of the matters that should be considered might now have to be read subject to the provisions introduced in 2006. See, by way of analogy, the discussion in W v G (No 1) (2004) 35 Fam LR 417; (2005) FLC 93-247; [2004] FamCA 427.

[page 356] Determining what is most likely to be in the child’s best interests Most of the authorities proceed on the basis that the governing principle is that the child’s best interests must be considered the paramount consideration. They are useful as illustrations of the matters the courts have taken into account in this respect, and some decisions provide lists of relevant matters. Broadly speaking, in the usual situation where the mother seeks to change the child’s surname following separation (and often re-partnering), she tends to rely on matters such as the inconvenience and embarrassment of the child having a different surname from herself and other members of her new family, while the father, seeking that the child retain his name, tends to argue that notwithstanding some short-term difficulty the child is likely to benefit from continuing to have a name which links the child to the father and the father’s side of the family. The typical issues were vividly stated by Ormrod LJ in D v B (otherwise D) (child: surname) [1979] Fam 38; 1 All ER 92 at 582; [1978] 3 WLR 573, (whatever one may think of the third sentence): I am sure everyone understands that the question of the surname of a child is a matter of great emotional significance, particularly to fathers. If the name is lost, in a sense the child is lost. That strong patrilineal feeling we all, to some extent, share. But this has to be kept within the bounds of common sense, in my judgment. Fathers feel very sensitive about it. Mothers feel that it is a plague on a day to day basis; they have to explain to schools, people have to make special notes in records and so on, about the name. In Chapman and Palmer, above, the Full Court identified the following matters as relevant: (a) The welfare of the child is the paramount consideration. (b) The short and long term effects of any change in the child’s surname. (c) Any embarrassment likely to be experienced by the child if its

name is different from that of the parent with custody or care and control. (d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed. (e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage. (f) The effect of frequent or random changes of name. Beach & Stemmler, In the Marriage of (1979) 5 Fam LN N13; FLC 90692, Connor J added the following: The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now. The contact that the husband has had and is likely to have in the future with the children. The degree of identification that the children now have with their father. The degree of identification which the children have now with their mother and their stepfather. The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored. The desire of the father that the original name be restored. It is doubtful, however (RC), if the last matter, one parent’s desire, is of itself significant. Connor J also said ‘In many cases it might be convenient for a custodial parent to have a child’s name changed but I do not believe that mere convenience by itself is a sufficient reason for changing a name.’ Other illustrative decisions include Mahony & McKenzie, In the Marriage of (1993) 117 FLR 107; 16 Fam LR 803; (1993) FLC 92-408 (in which Warnick J decided that a hyphenated surname would be in the child’s best interests); Skrabl & Leach, In the Marriage of (1988) 13 Fam LR 83; (1989) FLC 92-016; Skipworth, Re; Maney & Skipworth (1989) 13 Fam LR 137; FLC 92-018; Pylarinos & Reklitis, In the Marriage of (1979) 4 Fam LR 629; FLC 90-609; Putrino & Jackson, In the Marriage of (1978) 33 FLR 94; 4

Fam LR 71; FLC 90-441; George v Radford (1976) 11 [page 357] ALR 428; 25 FLR 461; 1 Fam LR 11,510; FLC 90-060, Flanagan v Handcock (2001) 27 Fam LR 615; FLC 93-074; [2000] FamCA 150; Ralph, In the Marriage of (1977) FLC 90-292; Arthur & Comben, In the Marriage of (1977) 29 FLR 262; 3 Fam LR 11,199; FLC 90-245. Orders relating to children’s names The courts cannot simply make an order changing a child’s name. Instead the order will normally restrain a parent or other person from changing a child’s name, or requiring them to do so. Such orders can relate to either the surname or forename. It is also possible to make an order that a parent or other person should make an application for a change of registered name, if the court were to decide that such a step would be in the child’s interests. It is open to the court to frame the order in different ways. For example, in Parkes & Parkes, In the Marriage of (1980) 8 Fam LR 375; (1982) FLC 91-231, Baker J said: Having considered all the evidence and given due weight to the legal principles involved I am firmly of the view that the wife should be permitted to use the name “Edwards” as the children’s surname in the Bomaderry/Nowra area as a matter of common usage. In addition the name Edwards should be used on school reports and school enrolment documents provided that on all school enrollment records it be stated that the children’s legal surname is Parkes. It goes without saying therefore that for birth death and marriage records and for all other official and legal purposes that the children’s surname remain Parkes. See generally Chapman & Palmer, In the Marriage of (1978) 34 FLR 405; 4 Fam LR 462; FLC 90-510; Pylarinos & Reklitis, In the Marriage of (1979) 4 Fam LR 629; FLC 90-609; C v S [1979] 2 NSWLR 598; (1980) FLC 90846; Arthur & Comben, In the Marriage of (1977) 29 FLR 262; 3 Fam LR 11,199; FLC 90-245 at p 76,322; Putrino & Jackson, In the Marriage of (1978) 33 FLR 94; 4 Fam LR 71; FLC 90-441.

[S 60CC.140] Relocation Introduction It is common for disputes to arise when one parent wishes to move the child’s residence to another town, state or country, in circumstances where the move will greatly reduce the amount of time and involvement the child will have with the other parent. In practice, such cases are often referred to as ‘relocation’ cases, and there is a considerable body of case law relating to them. There is no legally distinct category of children’s cases called ‘relocation’ cases, in that the provisions in Part VII about determining children’s cases apply as much to relocation cases as to any other proceedings in which the parties ask for parenting orders. However in many reported cases the courts have formulated guidelines and approaches on how the general legislative provisions are to be applied in ‘relocation’ cases, and there is, therefore, an identifiable body of case law and commentary on these cases. Relocation cases have excited difficulty and controversy in many countries, and there is a large body of secondary literature. For a valuable recent review of Australian and overseas developments, and a detailed bibliography, see Family law Council, Report, Relocation (May 2006) (available on the Council’s Website http://www.law.gov.au/flc). Secondary materials include G. Watts ‘Can we go or must we stay? Being able to relocate with the children’ (2002) 40(10) Law Society Journal 66; R. Kaspiew, ‘Equal parenting or the effacement of mothers? B and B and the Family Law Reform Act 1995 (Cth)’ (1998) 12 Australian Journal of Family Law 69; L Young, ‘AIF v AMS: The High Court and Relocation’ (1999) 13 Australian Journal of Family Law Journal 264; Easteal, Patricia; Behrens, Juliet & Young, Lisa, ‘Relocation decisions in Canberra and Perth: a blurry snapshot’ (2000) 14 Australian Journal of Family Law 234; R. Chisholm, “The paramount consideration’: children’s interests in family law” (2002) 16 Australian Journal of Family Law 87. For a review of the issues relating to children’s development, see eg. J. Kelly & M. Lamb, ‘Developmental issues in relocation cases involving young children: when, whether and how?’ (2003) 17(2) Journal of Family Psychology 193. [page 358]

Notable overseas decisions include: USA: In re Marriage of Burgess (1996) 13 Cal 4th 25; UK: Payne v Payne [2001] 1 FLR 1052; Canada: Goertz v Gordon: Women’s Legal Education and Action Fund [1996] SCR 27; New Zealand: D v S (2001) NZCA 374 (NZ). Most of the authorities relate to the period before the Family Law Amendment (Shared Parental responsibility) Act 2006. Accordingly, it is useful to discuss the pre-2006 position and then consider to what extent it has been changed by the amendments of that year. That Act made significant amendments to the provisions relating to determining the best interests of the child, notably s 60CC and s 60B. Academic opinion on the interpretation of the provisions has been somewhat divided: see, eg, Patrick Parkinson, ‘The values of parliament and the best interests of children – a Response to Professor Chisholm’ (2007) 21 AJFL 213; R Chisholm, ‘A brief reply to Professor Parkinson’, in the same issue at 229. The pre-2006 case law The High Court decisions on relocation cases in recent times are AMS v AIF (1999) 24 Fam LR 756; FLC 92–852; [1999] HCA 26 and U v U (2002) 29 Fam LR 74; FLC 93–112; [2002] HCA 36. Commentary on the latter decision includes Lisa Young, ‘U and U: the High Court reconsiders relocation in the Family Court’ (2002) 6 University of Western Sydney Law Review 241; J. Roebuck, ‘U v U: A chauvinistic approach to relocation?’ (2003) 17 Australian Journal of Family Law 208; J. Behrens, ‘U v U: The High Court on relocation’ (2003) 27 Melbourne University Law Review 572. Patrick Parkinson, ‘New High Court decision on relocation’ (2002) 16(3) Australian Journal of Family Law 170. Among the large number of Full Court decisions on relocation, the leading decision relating to the law before 1 July 2006 is probably Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458 (FC). Of the earlier Full Court decisions, the best known are B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC 92–755 (in which the Full Court offered a very detailed review of the legislation as it was amended in 1995, and an equally detailed review of the relevant matters in relocation cases); and A v A; Relocation Approach (2000) 26 Fam LR 382; FLC 93-035; [2000] FamCA 751 (in which the Full Court clearly intended to set out principles

that would assist trial judges, but, with respect, did it so elaborately that the guidelines have proved cumbersome and difficult to follow, and, indeed a differently constituted Full Court in Bolitho v Cohen, above, said that in U v U the High Court had “. ameliorated the somewhat rigid and/or formulaic approach set out in A v A”). Other useful decisions include: D and SV (2003) 30 Fam LR 91; FLC 93137; Martin v Matruglio (1999) FLC 92-876; Paskandy v Paskandy (1999) FLC 92-878; VG & M [2005] FamCA 1015 (27/10/05). There is an extensive review of the law and the authorities (before the 2006 amendments) in W v R (2006) 35 Fam LR 608 (Carmody J), and in Morgan & Miles [2007] Fam CA 1230, Boland J usefully summarised some of the main principles as the law was prior to the 2006 amendments. Key points The following is a simple list of key points frequently articulated in the above authorities: The court is not limited by the proposals of the parties; but it must consider those proposals; and the court must give the parties an opportunity to consider and make submissions about any orders it proposes that have not been proposed by one or more of the parties. There is no onus of proof, either on the party who proposes to relocate or on the party opposing the relocation. It is an error of law to require the party who seeks to relocate to give compelling reasons for the relocation. The court should not overlook the possibility that the party who opposes the relocation might himself or herself relocate to the relevant place, so that the child would have the benefit of both parents in that place. The court may not make orders preventing an adult party from relocating, but may make orders preventing a party from relocating the children. [page 359]

The child’s best interests must be considered as the paramount consideration, but not the sole consideration. The wording of the last dot point reflects many judicial statements to the effect that although the child’s best interests are the paramount consideration, they are ‘not the sole consideration’ (see eg A v A, above, and later Family Court decisions, accurately reflecting the High Court’s statements in AMS, above). It has not always been clear whether such statements mean that the courts can give some weight to the separate interests of the party who wishes to relocate, or whether they mean only that the court should take into account the likely detriments for the child if that party is unhappy. (See Family Law Council, Discussion Paper, The ‘child paramountcy principle’ in the Family Law Act (available from the Council’s website), and R. Chisholm, “The paramount consideration’: children’s interests in family law’ (2002) 16 Australian Journal of Family Law 87). But the most authoritative decision, that of the High Court in U v U, above, seems to focus squarely on the best interests of the child, and we have yet to see a decision that expressly makes an order that the court says is less than optimum for the child. Post-2006 case law Full Court decisions The Full Court has not yet provided a comprehensive account of the impact of the amendments of 2006 on relocation matters. It did provide a helpful review of many of the provisions in Goode v Goode (2006) 36 Fam LR 422; [2006] FamCA 1346; (2006) FLC 93–286, but that was not a relocation case. And in G & S (2007) FamCA 102, Kay J, sitting as a Full Court in an appeal from a Federal Magistrate, endorsed the reasoning of Dessau J in M & S (2006) 37 Fam LR 32;; (2007) FLC 93–313; [2006] Fam CA 1408, considered below. In Morgan & Miles [2007] Fam CA 1230, Boland J (sitting alone on an appeal from a Federal magistrate) considered the application of the 2006 amendments to a relocation issue in an interim parenting case. The first 3-member Full Court decision on a relocation case since the 2006 amendments appears to be Taylor and Barker (2007) 37 Fam LR 461; [2007] FamCA 1246. In that case, however, the Court mainly confined its discussion to the specific grounds of appeal, which were rather narrow: see R Chisholm,

“The Full Court rules on relocation: Taylor and Barker (2007) 37 Fam LR 461” Australian Family Law Bulletin No 227 December 2007. The matters of general interest canvassed by the Full Court in that case are considered below. In Sampson v Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365 a majority of the Full Court (Bryant CJ and Warnick J; Kay J disagreeing on the issue) expressed the view (obiter) that the Court could make relocation orders that restrain a parent from relocating, or require a parent to relocate. (In that case, the orders were such that in practice the parent could not comply with them unless she lived with the children in a particular case). The majority stressed that the court would rarely exercise such a power (paras [57]–[59]. Curiously, the majority found the source of such power in s 114 rather than s 68B. The decision is discussed in R. Chisholm, ‘To what extent can the Court make orders that inhibit a parent’s right to relocate? Sampson v Hartnett’, Australian Family Law Bulletin No 228, February 2008. First instance decisions Reported first instance decisions since the 2006 amendments include M & S (2006) 37 Fam LR 32; (200&) FLC 93–313; [2006] Fam CA 1408 (Dessau J)(endorsed by Kay J in G & S (2007) FamCA 102); Mazorski & Albright [2007] FamCA 520 (Brown J), and H v H (2007) 37 Fam LR 126 (Altobelli FM). There are numerous other first instance decisions on the impact of the 2006 amendments, some readily found through the websites of the Family Court and the Federal Magistrates Court, including Elspeth and Peter [2006] FamCA 1385 (Benjamin J), which includes a substantial discussion of the legislative provisions and their interpretation. Such judgments include various attempts to summarise the impact of the intricate provisions of Part VII, for example: [page 360] R v B [2007] FamCA 406 (Collier J): There can be no doubt that the primary considerations have to be given

full weight and effect. To my view, however, they do not subsume the additional considerations. Rather the additional considerations are a useful tool in identifying the matters to be looked at to arrive at a decision in respect of the primary considerations. B and F-B [2007] FamCA 377, para [121] (Strickland J): Section 60CC(1)(a) clearly operates at the level of general principle, and is a reminder to the court of the importance of the benefits to a child of having a meaningful relationship with each parent. It requires the court to take those benefits into account but leaves the additional considerations in Section 60CC to determine whether those benefits can be achieved in each individual case consistent with the best interests of the child involved. Way of approaching relocation cases since 2006 In Taylor and Barker (2007) 37 Fam LR 461; [2007] FamCA 1246 the Full Court provided some guidance on the correct approach to relocation matters since the amendments of 2006: 60. a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA […] 62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests. 63. We make it clear, however, that a failure to follow what we see as the

logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered. A particularly helpful overall analysis of way the 2006 amendments apply in relocation cases was provided by Dessau J in the reported decision M v S (2006) 37 Fam LR 32; (2007) FLC 93–313. Her Honour wrote: [26] There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (the Report on the Bill) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child’s living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered. [page 361] [27] The amended Act has one reference to a parent moving away from another, in s 4(e), where “major long-term issues” are defined. [Dessau J quoted the provision and continued]…Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.

[28] Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s case observed (at [72]): [72]. it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children[…] [29] Before July 2006, the object of Pt VII was expressed in s 60B(1) as follows: (1) The object of this Part is to; (c) ensure that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [30] In the recent amendments, s 60B(1)(a) provides that the objects are to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; [31] The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”. [32] The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two

considerations expressed as “primary considerations” [Dessau J quoted s 60CC(2)(a) and (b), and (3)(c), referred to the explanatory memorandum, the second reading speech, the A-G’s submission to a parliamentary committee, and continued] [36] Although not in relation to relocation, Goode’s case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. In [65] of Goode’s case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case. [38] Counsel for the father submitted that the new Pt VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly [page 362] Another helpful analysis of the legislative provisions, drawing on Goode, is the decision of Boland J in Morgan & Miles [2007] Fam CA 1230, considered below.

Relocation issues in interim proceedings In Morgan & Miles [2007] Fam CA 1230, Boland J, sitting alone on an appeal from a Federal Magistrate, considered the principles that apply in dealing with relocation issues in interim proceedings since the 2006 amendments. Having reviewed the authorities and the legislation, Boland J set out a list of matters that she obviously intended as a guide for practitioners and judicial officers, as follows: 79. In considering whether the child should live with the parent who proposes to relocate a court: Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute. Make orders having regard to the child’s best interest as the paramount, but not the sole consideration. Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child. If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child. In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing. When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made. Will carefully weigh and balance the primary considerations and the

additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide: that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent; that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent; that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale; the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent. Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. Boland J added, in paragraph [88], that the difficulties of interim relocation cases [.] make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an [page 363] interim basis. It further appears to me the comments of Warnick J in C and S C and S [1998] FamCA 66 remain apt and relevant to determination of these cases. Whether a parent’s partner’s possible relocation may be considered In Taylor and Barker (2007) 37 Fam LR 461; [2007] FamCA 1246 the Full

Court rejected a ground of appeal to the effect that the Federal Magistrate should have made a finding about the likelihood that if the mother was not permitted to relocate with the children to North Queensland, her partner (with whom she had a child) might come to live with her in Canberra. The basis for this ruling seems to have been that there was no reported authority in which such a matter had been taken into account and that to do so would be ‘social engineering’, a phrase used by the Federal Magistrate, but not explained by him or by the Full Court. Whatever the basis of the reasoning, the decision seems to be authority that the possibility of a relocating parent’s partner moving to live in the place where the child has been living cannot be taken account in relocation cases. (This point is discussed in R Chisholm, ‘The Full Court rules on relocation: Taylor and Barker (2007) 37 Fam LR 361’: Australian Family Law Bulletin No 227 December 2007) Possible relevance of protection under Child Protection Convention In appropriate cases, when considering whether a child should be permitted to travel overseas, it might be relevant to consider the possible protection afforded by the Child Protection Convention (full title: “The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children”). See Pt VIIIAA, Div 4 (ss 111CA–111D; and Cape v Cape (2013) 278 FLR 212; 50 Fam LR 1; [2013] FamCAFC 114; BC201350643. ASPECTS OF EVIDENCE AND PROCEDURE [s 60CC.200] “Less adversarial” treatment of children’s cases Judicial statements that children’s cases are not strictly adversarial Since at least the 1980s there have been authoritative statements to the effect that proceedings in which the child’s best interests are the paramount consideration are not strictly adversary proceedings: for example proceedings for custody or access are not to be viewed as adversary proceedings in the ordinary sense, but as an investigation of what order will best promote the welfare of the child: M v M (1988) 166 CLR 69 at 76; 82 ALR 577 at 581; 12 Fam LR 606; FLC 91-979. See generally Separate Representative v JHE and GAW (1993) 16 Fam LR 485; FLC 92-376 and the cases discussed therein. It

was not entirely clear, however, to what extent such statements meant that the court would depart from the ordinary rules of evidence and procedure in dealing with children’s cases. The limited extent to which the court could in practice depart from the ordinary pattern of litigation was illustrated by T v S (2001) 28 Fam LR 342; FLC 93-086 (FC). Some of the grounds of appeal focused on the way the trial judge handled difficulties arising from the fact that one party, the mother, was largely unrepresented at the trial. These grounds did not succeed, the Full Court saying, at [196]: Although proceedings involving the welfare of children are not strictly adversary in the usual sense … they are not to be equated with inquisitorial proceedings. The court and its procedures are simply not equipped to conduct inquisitorial proceedings which would have been required of his Honour if this criticism was to be accepted. The Family Court’s Children’s Cases Program and Div 12A In the early 2000s, the Family Court developed a new approach to the conduct of children’s cases called the Children’s Cases Program. The underlying idea was expressed in the court’s Annual Report for 2002–3: What is becoming increasingly apparent is that the adversarial system (rather than particular legislative provisions) is not working satisfactorily, even when it is modified for use in children matters. In recognition of this, the Court is examining ways in which children’s disputes may [page 364] be better managed, possibly by judges playing a more active role in defining the issues to be determined, deciding whether a particular witness is necessary, and how her or his evidence is to be provided. Too many children’s matters at trial are unduly long, and involve reliance on irrelevant and unnecessary material which is of little or no value to the judge, or to the best interests of the child in question. The Court has begun to examine various European systems, which tend to be conducted within a short period after proceedings are commenced and

are of limited duration. Characteristically these are actively managed by the judge, whose task is largely to look for a solution, and who emphasises what will be best for the child in the future, rather than what might have occurred in the past. The program was introduced on a trial basis, at first in Sydney and Parramatta, and was later extended to other registries. The program involved the parties agreeing to a process in which the judge exercised greater control over the proceedings than is usual in the common law “adversarial” tradition. The following description was given in the court’s Annual Report for 200–5: [The critical features of the Children’s Cases Program] are that the proceedings are conducted, with the informed written consent of the parties, in a less adversarial way. Ordinary rules of evidence do not apply. The trial is deemed to commence on the first occasion that the matter comes before the judge. The judge controls the way in which the hearing proceeds. After discussions with the parties and their legal representatives, the judge determines what the real issues are and directs what evidence is to be required and the manner in which it is to be given. The judge may at his/her discretion limit cross-examination. The proceedings concentrate upon the parties’ proposals for the future of the child, rather than the past history of the parental relationship except in so far as it may be relevant to determining the primary issue. The judge may interview the children concerned and is entitled to act upon what they say at such interviews as he/she sees fit. During the hearing the judge may actively encourage the parties to examine the possibility of settlement and is able to call upon the assistance of a court mediator to assist in that process. The hearing may take the form of various appearances rather than one event, and the judge may shift between the processes of determining contentious material facts and issues and using mediation techniques to assist in determining the case. The process is intended to occupy much less court time and to provide a determination in a far shorter time than occurs with the traditional, more adversarial trial.

Early in the history of the Children’s Cases Program, however, the idea of less adversarial processes was embraced by the Government and a number of parliamentary committees in the process of developing what was to become the Family Law Amendment (Shared Parental Responsibility) Act 2006. This legislation contained, in Pt VII Div 12A, a set of principles and guidelines very much along the lines of the Children’s Cases Program. The Children’s Cases Program has been evaluated: see Jennifer E McIntosh, Ph D, Children’s Cases Pilot Project: Final Report to the Family Court of Australia (March 2006). A further evaluation, by Professor Jill Hunter, is expected. For a link to the evaluation and other information about the Children’s Cases Program, see the website of the Family Court of Australia. In the result, therefore, it can be seen that the goal of treating children’s cases in a “less adversarial” way, now implemented in Div 12A, developed from somewhat vague but persistent judicial statements about children’s cases not being fully adversarial, thence to the Children’s Cases Program, and thence to legislation. Although one now turns first to the provisions of Div 12A in relation to the conduct of children’s cases, the history of the provisions, and in particular the judicial statements of principle cited earlier, may be of assistance in understanding and applying the present provisions. [page 365] [s 60CC.210] Court not limited by parties’ proposals One of the clear implications of the principle that the child’s best interests are the paramount consideration, and one of the main practical ways in which the proceedings can be distinguished from adversary proceedings, is that the court is not limited to making orders as sought by one or other party. The court may make different orders if it is persuaded that those orders will better serve the children’s best interests. Where the court is minded to make orders not sought by either party, procedural fairness will require that the parties have an opportunity to address the court on whether such orders should be made. Both points emerge clearly from U v U (2002) 29 Fam LR 74; FLC 93-112 (HC), and had previously been established by the Full Court: see In the

Marriage of Guthrie (1995) 19 Fam LR 781; (1995) FLC 92-647; In the Marriage of Thorsby (1997) 22 Fam LR 785. Similarly, there are circumstances in which a trial judge should refuse to proceed with a hearing if the evidence is manifestly inadequate to enable a proper decision to be made, and where it is possible for that evidence to be obtained. The judge in such circumstances has the right, and possibly the duty, either to require the parties to call additional evidence, or to call the evidence if it is available: see Re Evelyn (1998) 23 Fam LR 53 at 65; FLC 92807 at 85,103. [s 60CC.215] Ex parte orders (orders made on applications without notice) Introductory comments Parenting orders may be made ex parte, that is, in the absence of a respondent party and without the respondent receiving any prior notice of the application or the hearing. The Family Law Rules, in an admirable use of English rather than Latin, refers to “applications without notice”: see r 5.12. General principles The general principle applicable to ex parte applications is that the court must be satisfied that the matter is of such urgency that the interests of the child can be protected only by an immediate order: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90-627 at 78,254. An order that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the court cannot wait even the period of time necessary for short service: see In the Marriage of Sieling. In In the Marriage of Kennedy (1993) 17 Fam LR 324; FLC 92-409, Baker J said: Ex parte orders have become the bane of this court. There are far too many ex parte orders made, accompanied by warrants, with a result that children are, in effect, taken by members of the police force from one parent and placed into the custody of another, on many occasions based upon very thin evidence. An ex parte order, in my view, should not be made except in extreme circumstances and only if the physical, sexual and emotional welfare of children is at risk.

See also Family Law Rules 2004 r 5.12 and the commentary thereto. [s 60CC.220] Varying parenting orders: the “rule” in Rice v Asplund There is some authority to the effect that although parenting orders are never final, in that the court always retains jurisdiction, the court will not readily reopen parenting orders recently made. In the leading case, In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725, an order was made in October 1975 granting the husband custody of the child of the marriage. In August 1977 a further hearing as to custody resulted in an order reversing the previous order and granting custody to the wife. There was then an appeal to the Full Court. It was submitted on behalf of the appellant husband that in order to justify the review of the custody order the applicant should have satisfied the court that there had been substantial change in the circumstances since the earlier order. The leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J express their agreement. Having discussed certain authorities, namely McManus v McManus (1969) 13 FLR 449; In the Marriage of Hayman (1976) 14 ALR 216; 2 Fam LR 11,558; 28 FLR 51; FLC 90-140 at 75,680; and Gilder v Gilder (VSC, Barber J, 17 February 1967, unreported), Evatt CJ said at 572–3: [page 366] The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as Mr Broun submitted, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material … These are not necessarily matters for preliminary submission, but they are matters that

the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case. Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of s 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard. In In the Marriage of Langham (1981) 6 Fam LR 862; FLC 91-014, another Full Court, having cited this passage, said: This quotation in general and in particular the reference to the matters referred to not being necessarily for preliminary submission but being matters that the judge should consider in his reasons for decision makes it quite clear that no absolute rule was being laid down. True it may well be that should there be a judgment and order in a contested hearing or even an order made by consent, and, upon a further application seeking to reverse, vary or modify such order, it may be conceded at the outset by or on behalf of the applicant that no relevant circumstance has changed since the last order nor is it alleged that some factor was not disclosed at the previous hearing. In such a case, which would indeed be unusual, clearly the application would not be entertained. Such a testing of the previous order upon the unchanged evidence would be in the nature of an appeal

and could only be instituted as such. In In the Marriage of Zabaneh (1986) 11 Fam LR 167; FLC 91-766, there was no express reference to Rice and Asplund, but the judgment of the Full Court (Evatt CJ, with whom Fogarty and Renaud JJ agreed) included the following passage: The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account. Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. The court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same [page 367] attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access. The issue was also considered by the Full Court in In the Marriage of Newling and Mole (1987) 11 Fam LR 974; FLC 91-856. The leading judgment was given by Nygh J, with whom Barblett and Fogarty JJ agreed. Nygh J said: … I would start off by saying, first and foremost, that, I wholeheartedly agree with the general policy expressed by the Full Court on previous

occasions In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 and In the Marriage of Zabaneh (1986) 11 Fam LR 167; FLC 91-766, that fresh applications for custody or access should not be entertained unless there exists a substantial change in circumstances. Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the court. There must, in other words, be an end to litigation. The principle is often referred to and applied: se e for example In the Marriage of L (1989) 15 Fam LR 157 (FC); In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92–191; In the Marriage of D and Y (1995) 18 Fam LR 662 at 671–2; FLC 92-581, SPS & PLS [2008] FamCAFC 16 — 28 February 2008; Miller v Harrington (2008) 39 Fam LR 654; (2008) FLC 93383; [2008] FamCAFC 150; Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1; BC200950664(FC). Examples of changed circumstances resulting in variation of orders include: the proposal of a custodial parent to take a child out of the country to permanently live: see Fryda v Johnson (1979) 5 Fam LN 2; FLC 90634; the remarriage and recovery from prior mental illness by the noncustodial wife: see Houston v Sedorkin (1979) FLC 90-699 at 78,732; remarriage and stabilising of the life of the non-custodial wife: see In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725; In the Marriage of F and N (1987) 11 Fam LR 664; (1987) FLC 91-813 (FC); failure of a party to disclose an intention to take the children out of Australia, such an intention having been formed at the time of the original hearing: see In the Marriage of Mobasser and Nankervis (1982) 8 Fam LR 1049; (1983) FLC 91-335. In more recent decisions, the rule is unequivocally based on the principle

that the child’s best interests must be the paramount consideration: SPS v PLS (2008) 39 Fam LR 295; (2008) FLC 93-363; [2008] FamCAFC 16 (Warnick J: ‘Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue’); Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1; BC200950664. In applying the rule, the court is not confined to two options, namely to determine the matter on the available material or to have a full hearing. Procedural fairness must be provided to the applicant, and, for example, the court should consider whether to allow an applicant to present further evidence to establish that there has been a relevant change in circumstances: Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1; BC200950664. In that case the Full Court indicated that the Court must look at (1) The past circumstances, including the reasons for the decision and the evidence upon which it was based. (2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing. [page 368] (3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. The impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 The question arises whether the substantial amendments to Pt VII made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 require any reconsideration of the rule in Rice and Asplund. The question was carefully considered by Warnick J in SPS & PLS [2008] FamCAFC 16 — 28 February 2008. His Honour held that the

principle remains applicable, and explained how it was to be applied since the amendments. The judgment is of particular importance for its explanation of how the principle can be applied either as a threshold question or not, and emphasising that the principle is to be seen as an application of the fundamental principle that the child’s best interests must be the paramount consideration. No need to consider every factor in s 60CC when determining Rice v Asplund application In Carriel v Lendrum (2015) 53 Fam LR 157; [2015] FamCAFC 43; BC201550050, the Full Court considered whether it is necessary to address all the factors in s 60CC when applying the principle in Rice and Asplund (In Re Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725). In short, the Full Court’s answer was that in such applications it is necessary only that the court consider evidence and argument relevant to whether a sufficient change in circumstances has occurred since the parenting order was made to justify further litigation. The Full Court followed the pronouncement by the Full Court in SCVG v KLD (2014) FLC 93-582 to the effect that “the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings” and also applied remarks in SPS v PLS (2008) 39 Fam LR 295; (2008) FLC 93-363; [2008] FamCAFC 16; BC200850088; and Poisat v Poisat [2014] FamCAFC 128; BC201451691. Their Full Court said (at [57]): In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in

circumstances has occurred since the parenting order was made. [s 60CC.225] The conduct of interim proceedings: A limited hearing In Goode and Goode [2006] Fam CA 1346, the Full Court appears to have confirmed the long-standing practice in the Family Court, authoritatively approved by the Full Court, to conduct limited hearings in cases where interim parenting orders are sought in about 2 hours, usually permitting no cross-examination, or very limited cross-examination. It said that the procedure for making interim parenting orders will “continue to be an abridged process where the scope of the enquiry is significantly curtailed”. In the leading case C and C (1995) 20 Fam LR 24; (1996) FLC 92-651 the Full Court had indicated that the imposition of time limits in interlocutory proceedings, such as interim custody proceedings, was necessary and desirable to prevent serious injustices caused by increased delays. It went on to say, at Fam LR 32: [page 369] … in Australia at least, while a judge always retains the discretion to permit the calling of evidence and cross-examination on interlocutory hearings, as a general rule this should not be permitted. Similar remarks were made by the Full Court in In the Marriage of D and Y (1995) 18 Fam LR 662 at 673; FLC 92-581 at 81,765. This approach was confirmed in In the Marriage of C (1998) 22 Fam LR 776; FLC 92-801 (Cowling), in which the Full Court, after agreeing with these authorities, held in [18]: [18] The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final

determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues. Although Goode and Goode [2006] Fam CA 1346 did not call for a detailed discussion of the procedural issues, the Full Court seems to have endorsed the existing practice. Commenting on [18], just quoted, the Full Court said: [68] In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future. [s 60CC.226] The conduct of interim proceedings: Relevant principles Introduction The 2006 amendments to Pt VII were held in the leading case of Goode and Goode (2006) Fam LR 422; [2006] Fam CA 1346 to require a considerable departure from the previous approach, as laid down particularly in In the Marriage of C FLC 92-801 (Cowling). After setting out the principles formulated in Goode, some of the earlier authorities will be discussed.

The Guidelines in Goode In Goode, above, the Full Court set out helpful and authoritative principles relating to the conduct of interim proceedings in children’s cases. [81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. [82] In an interim case that would involve the following: (a) identifying the competing proposals of the parties; (b) identifying the issues in dispute in the interim hearing; (c) identifying any agreed or uncontested relevant facts; [page 370] (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place); (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption; (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests; (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or

impracticable; (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable; (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child. Previous authorities and principles An appreciation of the principles stated in Goode and Goode [2006] Fam CA 1346 will be enhanced by a familiarity with the previous authorities, now largely displaced by the 2006 amendments as interpreted in Goode. The previous line of authority started with an influential decision in 1980 that emphasised the child’s stability, or, in the phrase much used in this context, the “status quo”. In In the Marriage of Cilento (1980) 6 Fam LR 35 at 37; FLC 90-847 at 75,345 (Cilento) the Full Court said: On the hearing of application for interim custody of a child, it must be borne in mind that it is not then the task of the court to determine whether the interests of the child would be better served by being in the custody of one particular party. That is the task which will face the court when the contested custody application comes on for hearing and all the evidence is

placed before the court. While the court must always have regard to the welfare of the child as the paramount consideration that welfare will not be promoted by a decision based on inadequate and hastily prepared material presented at a circumscribed hearing. In many cases a period of settling down is necessary to enable a proper decision to be made … No two cases are the same and it would be unwise to lay down any hard and fast rule. Nevertheless we consider that the interests of children will best be met by ensuring a degree of stability in their lives until the matter can be fully investigated by the court and a full hearing of the issues within a reasonable time. Unnecessary disruption to the life of the child should therefore be avoided. If the child has remained in the matrimonial home after separation with one party this stability will usually be ensured by continuing that arrangement unless convincing proof is provided that the child’s physical or mental health or moral welfare will be really endangered by the child remaining in that home with that party until the contested application is heard. Circumstances will arise however where a party leaves the matrimonial home taking a child and becomes established in a new environment before the matter first [page 371] comes before the court. In such cases the child’s life would be disrupted and his stability endangered by removing the child from the new surroundings and returning him to the spouse remaining in the matrimonial home unless convincing proof is provided that the child’s physical or mental health or moral welfare will be really endangered by the child remaining where he is until the contested application is heard … If the above approach is adopted the court can ensure that the evidence adduced is confined to relevant issues. Such evidence would in the majority of cases be short. The principles in Cilento were considered in a number of later cases. The significant decisions prior to 1998 were In the Marriage of Rainer (1982) 8

Fam LR 210 at 216; (1982) FLC 91-239 at 77,314 (approving Cilento, and a summary of the law by Lindenmayer J in In the Marriage of Griffiths (1981) 7 Fam LR 322 at 324; (1981) FLC 91-064 at 76,500; L v Director of Family Services (1997) 22 Fam LR 275, applying the Cilento principle in proceedings under the Children’s Services Act 1986 (ACT)); In the Marriage of Tate (1996) 22 Fam LR 530; (1997) FLC 92-724 (Rowlands J), suggesting that “there is a case for the Full Court to revisit Cilento”. See also the discussion, canvassing alternative approaches by P Doolan, “Cilento and Cilento Revisited — In the Best Interests of the Child?” (1996) 10 AJFL 86. In In the Marriage of C (1998) 22 Fam LR 776 (Cowling), however, the Full Court (Ellis, Lindenmayer and Jordan JJ) affirmed the principles but (at 780– 2) albeit in a somewhat different way, as follows: [18] The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties’ respective proposals for the future. In some cases, it may also be necessary to consider child protection issues. [19] Having regard to the earlier authorities of the court to which we have referred and to the current provisions of the Act, we would summarise the relevant criteria for the determination of interim proceedings for

residence and contact as follows. [20] First, having regard to the provisions of s 65E, in determining what interim parenting order should be made, the court must regard the best interests of the child as the paramount consideration. [21] Second, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability. [22] Third, where the evidence clearly establishes that, at the date of hearing, the child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the child’s welfare to the contrary. Such indications would include but are not limited to convincing proof that the child’s welfare would be really endangered by his/her remaining in that environment. [page 372] [23] Fourth, the court is entitled to place such weight upon the importance of retaining the child’s current living arrangements as it sees fit in all the circumstances. In determining what weight to place upon that factor, it is appropriate for the court to take account of the circumstances giving rise to the current status quo. In particular, the court may examine the following issues: whether the current circumstances have arisen by virtue of some agreement between the parties or as a result of acquiescence. whether the current arrangements have been unilaterally imposed by one party upon the other. the duration of the current arrangements and whether there has

been any undue delay in instituting proceedings or in the proceedings being listed for hearing. [24] Fifth, where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child’s best interests. In undertaking that evaluation, regard must be had to the interim nature of the proceedings and the procedure referred to in C and C (1995) 20 Fam LR 24; (1996) FLC 92651. [25] Finally, in determining whether, at the date of hearing, a child is living in a settled environment, consideration should be given, inter alia, to the following: the wishes, age and level of maturity of the child; the current and proposed arrangements for the day-to-day care of the child; the period during which the child has lived in the environment; whether the child has any siblings and where they reside the nature of the relationship between the child, each parent, any other significant adult and his or her siblings; the educational needs of the child. The earlier principles revised by Goode’s case In Goode, above, as can be seen from the guidelines already quoted, the Full Court held that the 2006 amending Act significantly changed the principles to be applied in interim proceedings: the Cowling principles no longer apply (although, as will be seen, significance will still be given to the child’s need for stability). The judgment explains that in significant respects the principles stated in Cowling, especially in [22], cannot stand with the 2006 amendments: [70] There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above. While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if

the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order. [71] The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time. [72] In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and [page 373] family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. [73] That is not to say that stability derived from a well-settled

arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3) (d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A). [s 60CC.240] Permanent stay not generally appropriate Custody, guardianship and access orders can never be final in the sense that they are incapable of change. The Full Court has indicated that although frequent applications are undesirable, a party should not be deprived of the opportunity to make applications if there are reasonable grounds for doing so, and unless there are special reasons, the court should not order that such an application should be permanently stayed: In the Marriage of L (1989) 15 Fam LR 157 at 163–4. The Full Court also referred to the uncertain effect of the order made in that case, presumably because it was unclear whether the order was intended to prevent any future application by that party. For a somewhat similar approach to an application for a stay or permanent dismissal of an access application, see In the Marriage of N and R (1991) 15 Fam LR 39; FLC 92-252. [s 60CC.242] Separate hearing of discrete issues dangerous In a complex case in which the child welfare authority was involved and there were allegations of sexual abuse, a Federal Magistrate made orders setting a date for the court to determine as a preliminary issue whether the return of the child to the father or the exercise of contact by the father would expose the child to an unacceptable risk of harm. Strickland J upheld the appeal by the child welfare authority, holding that having a final hearing about the discrete issue of unacceptable risk would be to lose sight of the fact that the issue was just part of the wider consideration of all the factors relevant to the determination of the child’s best interest: Director-General, Dept of Community Services (NSW) v C and L and Legal Services Commission (2006) 35 Fam LR 363. [s 60CC.245] McKenzie friend The court has on occasion allowed litigants in person to be assisted by a “McKenzie friend”. (The term derives from the English Court of Appeal decision McKenzie v McKenzie [1970] 3 All ER

1034; [1970] 3 WLR 472.) In one case the Full Court granted M’s application that her own mother act as her “McKenzie friend” and, exceptionally, allowed M’s mother to go beyond the role of McKenzie friend set out in precedent (that is, taking notes and making suggestions) by allowing her to address the court. The court granted the application on the grounds that: (a) the party represented did not object; (b) M’s emotional state meant that she was unable to represent herself effectively; and (c) any application by M for legal aid would have required an adjournment, which was not in the best interests of the children. In doing so, the Full Court stressed that the permission granted in this case should not be taken as a precedent in future cases and was strictly as a result of the special circumstances of the case: see In the Marriage of Cooke and Stehbens (1998) 24 Fam LR 5; (1999) FLC 92-839. [s 60CC.250] Appeals and fresh evidence On an appeal from a decision under Pt VII, the normal rules will apply relating to the admission of fresh evidence. A considerable number of authorities concern Pt VII proceedings. See generally the commentary to s 93A. [s 60CC.251] Appeals — stay pending appeal The principles relating to granting a stay pending an appeal from orders under Part VII have been considered in K v B (2006) 202 FLR 416; [page 374] 37 Fam LR 1; FLC 93-288; [2006] FamCA 848, EJK v TSL; sub nom Kwon and Lee (FLC) (2006) 202 FLR 240; 35 Fam LR 559; FLC 93-287; [2006] FamCA 730; EJK v TSL (No 2) (2006) 35 Fam LR 590; [2006] FamCA 806. Granting or refusing a stay involves the exercise of discretion, which must be exercised judicially; sometimes circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of

children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders. The grant or refusal of a stay is not a parenting order, and thus the principle of the paramountcy of the child’s best interests does not apply; but the best interests of a child may well be highly relevant or deserving of the greatest weight: EJK v TSL; sub nom Kwon and Lee (FLC) (2006) 202 FLR 240; 35 Fam LR 559; FLC 93-287; [2006] FamCA 730. [s 60CC.255] Intervention As to intervention in Pt VII proceedings see s 92 and the commentary thereto. For an early example see In the Marriage of Hogue (1976) 2 Fam LN 6; 26 FLR 306; FLC 90-097, where the intervener was a relative. When a state or territory child protection authority intervenes in a parenting case under the Family Law Act 1975, the court applies that Act and not the legislation of the relevant state or territory; and, indeed, if there is an inconsistency, the Family Law Act 1975 would prevail under Constitution s 109: see Director-General, Dept of Human Services (NSW) v Tran (2010) 242 FLR 1; 44 Fam LR 1; (2010) FLC ¶93-443; [2010] FamCAFC 151; BC201050772 (FC). [s 60CC.260] Cross-vesting legislation State and Commonwealth legislation which came into force on 1 July 1988 included provisions under which one court could exercise the jurisdiction of another, and provisions for the transfer of proceedings from one court to another in certain circumstances. It applies to parenting cases. The legislation, called the Jurisdiction of Court (Cross-vesting) Acts, is set out and discussed in the guide card RELATED COMMONWEALTH LEGISLATION in Australian Family Law, Vol 3. [s 60CC.265] Supervision of parenting orders Meaning of supervisions The nature of supervision had been defined in relation to earlier versions of the legislation in terms that probably still have relevance. The function of a supervising counsellor or welfare officer is not that of a police officer or a probation officer but as a “properly trained

resource person” to whom the parties and their relatives can turn to discuss problems and difficulties and to help both parties and the child to accept and adjust to the circumstances imposed by the order: see In the Marriage of Bainrot (1976) 1 Fam LN 2; FLC 90-003 per Watson J; see also In the Marriage of Rose (1976) 12 ALR 107 at 122; 2 Fam LR 11,101 at 11,114; FLC 90-064 at 75,325; In the Marriage of O’Reilly (1977) 3 Fam LN 53; FLC 90-300. Circumstances where supervision has been ordered Cases illustrating the use of supervision orders include In the Marriage of O’Reilly (1977) 3 Fam LN 53; FLC 90-300; In the Marriage of Bainrot (1976) 1 Fam LN 2; FLC 90-003; LC and MRC (1978) FLC 90-518; In the Marriage of DKI and OBI (1979) 5 Fam LR 223; FLC 90-661; In the Marriage of Filipovic (1977) FLC 90-266; In the Marriage of M (1978) 4 Fam LN 16; 30 FLR 562n; FLC 90– 429 at 77,182; In the Marriage of Horman (1976) 5 Fam LR 796; FLC 90024; In the Marriage of Garland (1976) 2 Fam LN 4. The Full Court has indicated that supervised contact, at least by member of the family of the alleged abuser, may be inappropriate where there is an unacceptable risk that the child will be exposed to physical, emotional or psychological harm: In the Marriage of Bieganski (1993) 16 Fam LR 353; FLC 92-357. [s 60CC.270] Aspects of evidence On the relevance and probative value of “similar fact” evidence in civil proceedings: see WK v SR (1997) 22 Fam LR 592; FLC 92-787 following Hoch v R (1988) 165 CLR 292; 81 ALR 255. [page 375] The Full Court has pointed out that the fact that a witness is under the age of 18 does not necessarily render his or her evidence implausible, nor should it be assumed that as a child he or she is more likely to lie than an adult: WK v SR (1997) 22 Fam LR 592; FLC 92-787. [s 60CC.275] Witness protection programs: impact on parenting proceedings The impact of witness protection programs on parenting proceedings is considered in T v F (1999) 25 Fam LR 36; FLC 92–855. See

also commentary to s 65D. [s 60CC.290] Role of lawyers in Part VII proceedings Whether duty to adduce evidence not in client’s interests It was said by Selby J in Clarkson v Clarkson (1972) 19 FLR 112 that in custody and similar proceedings, legal representatives of the parties owe a duty to the court to put before it any material relevant to the child’s welfare, whether or not it is in the interests of the client. This statement was referred to with approval in In the Marriage of Baines (1981) 7 Fam LR 226 at 229–30; FLC 91-045 at 76,387, per Lusink J. Such a duty appears to go further than the usual duty of lawyers in litigation, which is limited to the duty not to mislead the court, as distinct from the positive duty to lead evidence not in the client’s interests: see Saif Ali v Sydney Mitchell [1980] AC 198 at 220 per Lord Diplock; and see generally J Disney and others, Lawyers, 2nd ed, 1986, especially ch 25. However, the decision raises difficult issues, since the duty stated in Clarkson may be difficult to reconcile with existing rules and understandings about confidentiality and the duty to obey instructions of the client, and indeed professional privilege. The Clarkson approach appears to treat a party’s representative as something akin to amicus curiae, and may be an early indication of moves away from the adversary model in what are now called parenting cases. Compare such earlier decisions as Re JRL; Ex parte CJL (1986) 161 CLR 342; 66 ALR 239; 10 Fam LR 917; FLC 91-738 (HC), and In the Marriage of Rocks (1983) FLC 91-340, where (though this particular issue did not arise and Clarkson was not cited) Gee J described the lawyer’s role in traditional terms, saying that the lawyer’s principal function is to aid the client and present the client’s case in the most favorable light. It is surprising that this issue has not been much discussed in the standard family law texts. It may be that in practice such a duty as stated in Clarkson is not unduly onerous, since it will normally be good advocacy to deal specifically with weaknesses in one’s client’s case rather than have them introduced for the first time by the other side. Impact of Div 12A on role of lawyers It remains to be seen what impact Div 12A will have on the role of lawyers. It would seem that they will be called on, perhaps more than previously, to co-operate with the court in focusing on

the interests of the children.

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[s 60CD]

How the views of a child are expressed

60CD (1) Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child. (2) The court may inform itself of views expressed by a child: (a) by having regard to anything contained in a report given to the court under subsection 62G(2); or (b) by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or (c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate. Note 1: Paragraph (a) — subsection 62G(3A) generally requires the person giving the report to ascertain the child’s views and include those views in the report. Note 2: Paragraph (b) — paragraph 68LA(5)(b) requires the independent children’s lawyer for the child to ensure that the child’s views are fully put before the court.

[page 376] COMMENTARY ON SECTION 60CD Overview of section ….

[s 60CD.1]

History of provision …. Application of provision to parenting issues …. Situation in other proceedings where child’s views relevant …. Reports under s 62G: para (2)(a) …. Appointment of independent children’s lawyer: para (2) (b) …. Such other means as the court thinks appropriate, subject to rules of court: para (2)(c) ….

[s 60CD.3] [s 60CD.5] [s 60CD.6] [s 60CD.10] [s 60CD.12] [s 60CD.15]

[s 60CD.1] Overview of section This section provides, in substance, that in deciding what parenting order to make the court may take children’s views into account by any of three methods: a report under s 62G(2); making an order under s 68L for the child to be independently represented by a lawyer; and, subject to the applicable Rules of Court, by such other means as the court thinks appropriate. [s 60CD.3] History of provision This section, inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (2006 Act), replaces the former s 68G. There are two significant changes. First, the word “wishes” in old s 68G was changed to “views” (on this, see the commentary to s 60CC). Second, the reference to the independent children’s lawyer (now para (b)) was added (the former s 68G had only the other two methods, ie the s 62G(2) report, and “such other means as the court thinks appropriate” (now paras (a) and (c)). [s 60CD.5] Application of provision to parenting issues Subsection (1) makes it clear that the substantive part, subs (2), applies to situations in which the court is, “deciding whether to make a particular parenting order in relation to a child”. [s 60CD.6] Situation in other proceedings where child’s views relevant Although the subdivision itself applies “to any proceedings under this Part in which the best interests of a child are the paramount consideration” (s 60CB), subs (1) appears to indicate that subs (2) does not apply except where the court is deciding whether to make a particular parenting order. If this is the

correct interpretation of the unusual wording of subs (1), it follows that subs (2) does not apply to other proceedings in which a child’s wishes might be relevant, eg whether to exercise jurisdiction in a parenting application, or child injunction proceedings under s 68B. It does not follow, of course, that the court may not inform itself of a child’s views by the three methods in other situations. It simply means that the authority to do so must be found elsewhere than in this section. It would be wrong to read the section as intended in any way to prevent or discourage the court from considering the wishes of children in other types of proceedings where their best interests are involved and it is proper to do so. Indeed such an interpretation would be contrary to the spirit, at least, of the Convention on the Rights of the Child: see Art 12. [s 60CD.10] Reports under s 62G: para (2)(a) Such reports are a very common and important form of evidence about children’s views: see generally the commentary to s 62G. [s 60CD.12] Appointment of independent children’s lawyer: para (2)(b) The addition, in 2006, of a reference to the independent lawyer for the child (formerly the child representative), is somewhat curious, because such an appointment is only an indirect way of the court discovering the child’s views. The Explanatory Memorandum (EM) does not indicate why this paragraph was added. The lawyer would not normally give direct evidence of the child’s views, since that would put the lawyer in the role of a witness. However the independent children’s lawyer role will normally include ensuring that appropriate evidence is placed before the court relating to the child’s views. See generally commentary to s 68L and s 68LA. [page 377] [s 60CD.15] Such other means as the court thinks appropriate, subject to rules of court: para (2)(c) This open-ended provision is expressed only to be limited by the Rules of Court (see in particular Ch 15, especially Pt 15.1, Children). The flexibility of this provision may well have been expanded as a

result of the “less adversarial procedures” provisions in Div 12A of the Act. The scope of the provision remains to be determined. It is an interesting question whether the provision should be read widely as authorising measures that are not precluded by the Rules of Court, or more narrowly as authorising only measures that are provided for in the rules of court.

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[s 60CE]

Children not required to express views

60CE Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter. COMMENTARY ON SECTION 60CE Child not to be compelled to express views ….

[s 60CE.1]

[s 60CE.1] Child not to be compelled to express views Section 60CE provides that nothing in Pt VII permits the court or any person to require a child to express his or her views. It was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006, replacing s 68H, which was in similar terms (“wishes” being changed to “views”). This important provision reflects the view of the court that it is wrong for children to be required to choose between parents or to express views about parenting issues: their right to remain silent, as it were, may be regarded both as a recognition of their rights and as a wise approach to promoting their welfare: see Re C and V (1983) 9 Fam LR 31; FLC 91–333.

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[s 60CF] Informing court of relevant family violence orders 60CF (1) If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s

family, that party must inform the court of the family violence order. (2) If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order. (3) Failure to inform the court of the family violence order does not affect the validity of any order made by the court. COMMENTARY ON SECTION 60CF Informing court of family violence orders ….

[s 60CF.1]

[s 60CF.1] Informing court of family violence orders This section, inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006, replicates the former s 68J. A party must, and a non-party may, inform the court of any family violence order that applies to the child. The court will need to be aware of such orders so it will not inadvertently make an order inconsistent with the family violence order. See also s 60CC(3)(k), providing that the court must have regard to inferences that can be drawn from the order and the circumstances in which it was made. (Although para (k) also refers to old orders as well as current ones, the obligation under s 60CF to inform the court appears to be limited to current orders (because subs (1) uses the present tense: “applies”)). Failure to comply with this provision does not render invalid any order made — subs (3). In appropriate circumstances it might be relevant to an application for costs.

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[s 60CG] violence

Court to consider risk of family

60CG (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order: (a) is consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family violence. (2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order. COMMENTARY ON SECTION 60CG Overview ….

[s 60CG.1]

[s 60CG.1] Overview This section, inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006, replicates the former s 68K. It deals with two quite separate matters. Paragraph (a) requires the court to ensure that its orders are not inconsistent with any family violence order, unless treating the child’s best interests as paramount requires such an order. The parties should inform the court about any such family violence orders: see s 60CF. More detailed provisions about the relationship between the state and territory family violence laws and the Family Law Act are contained in Div 11. Paragraph (b) is of a more general nature, in effect requiring the court to ensure that its orders do not expose a person to an unacceptable risk of family violence, unless treating the child’s best interests as paramount requires such an order (something difficult to imagine). The provision is not limited to parenting orders and would apply, for example, to injunctions. The term “family violence” is defined in s 4AB.

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[s 60CH] Informing court of care arrangements under child welfare laws 60CH (1) If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter. (2) If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter. (3) Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected). [s 60CH insrt Act 189 of 2011 s 3 and Sch 1 item 21, opn 7 June 2012] COMMENTARY ON SECTION 60CH Overview ….

[s 60CH.1]

[s 60CH.1] Overview Under this section a party must, and a non-party may, inform the court that the child or another child in the family is under the care of a person under a (state or territory) child welfare law. The obvious purpose is to ensure that the court is aware of these circumstances. (The relationship between the Family Law Act and child welfare laws is governed by s 69ZK, under which, in short, the child welfare law prevails over any inconsistent order under the Family Law Act.) [page 379]

No specific method is required for informing the court, and the obligation would presumably be satisfied by affidavit evidence or, for example, advising a registrar or judicial officer in court. It may be that informing an Independent Children’s Lawyer or Family Counsellor would also be considered as complying at least with the spirit of this law. No time frame is stated, but it is obviously desirable that the court be informed as soon as practicable.

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[s 60CI] Informing court of notifications to, and investigations by, prescribed State or Territory agencies 60CI (1) If: (a) a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of: (i) a notification or report (however described) to a prescribed State or Territory agency; or (ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and (b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse; that party must inform the court of the matter. (2) If: (a) a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

a notification or report (however described) to a prescribed State or Territory agency; or (ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and (b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse; that person may inform the court of the matter. (3) Failure to inform the court of the matter does not affect the validity of any order made by the court. (4) In this section: prescribed State or Territory agency means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW. (i)

[s 60CI insrt Act 189 of 2011 s 3 and Sch 1 item 21, opn 7 June 2012] COMMENTARY ON SECTION 60CI Overview ….

[s 60CI.1]

[s 60CI.1] Overview Under this section a party must, and a non-party may, inform the court that the child or another child in the family has been the subject of notification, investigation, inquiry or assessment by the child welfare authorities, where the notification etc relates to child abuse. The obvious purpose is to ensure that the court is aware of these circumstances. No specific method is required for informing the court, and the obligation would presumably be satisfied by affidavit evidence or, for example, advising a registrar or judicial officer in court. It may be that informing an Independent Children’s Lawyer or Family Counsellor would also be considered as complying at least with the spirit of this law. No time frame is stated, but it is obviously desirable that the court be informed as soon as

practicable.

____________________ [page 380]

Subdivision BB — Best interests of the child: adviser’s obligations [Subdiv BB insrt Act 189 of 2011 s 3 and Sch 1 item 22, opn 7 June 2012]

[s 60D] Adviser’s obligations in relation to best interests of the child 60D (1) If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must: (a) inform the person that the person should regard the best interests of the child as the paramount consideration; and (b) encourage the person to act on the basis that the child’s best interests are best met: (i) by the child having a meaningful relationship with both of the child’s parents; and (ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (iii) in applying the considerations set out in subparagraphs (i) and (ii) — by giving greater weight to the consideration set out in subparagraph (ii).

(2) In this section: adviser means a person who is: (a) a legal practitioner; or (b) a family counsellor; or (c) a family dispute resolution practitioner; or (d) a family consultant.

Subdivision C — Interpretation and application of Part

[s 60E]

Application of Part to void marriages

60E This Part applies in relation to a purported marriage that is void as if: (a) the purported marriage were a marriage; and (b) the parties to the purported marriage were husband and wife. COMMENTARY ON SECTION 60E Introductory comments ….

[s 60E.1]

[s 60E.1] Introductory comments This section provides that Pt VII applies in relation to a purported marriage that is void. On void marriages, see commentary to s 51.

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Subdivision D — Interpretation — how this Act applies to certain children [s 60EA]

Definition of de facto partner

60EA For the purposes of this Subdivision, a person is the de facto partner of another person if: (a) a relationship between the person and the other person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or

[page 381] (b) the person is in a de facto relationship with the other person. [s 60EA insrt Act 115 of 2008 s 3 and Sch 3A[2], opn 21 Nov 2008; am Act 46 of 2011 s 3 and Sch 2[587], opn 27 Dec 2011]

[s 60F] Certain children are children of marriage etc 60F (1) A reference in this Act to a child of a marriage includes, subject to subsection (3), a reference to each of the following children: (a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other; (b) a child of the husband and wife born before the marriage; (c) a child who is, under subsection 60H(1) or section 60HB, the child of the husband and wife. [subs (1) am Act 115 of 2008 s 3 and Sch 3A[3], opn 21 Nov 2008]

(2) A reference in this Act to a child of a marriage includes a reference to a child of: (a) a marriage that has been terminated by divorce or annulled (in Australia or elsewhere); or (b) a marriage that has been terminated by the death of one party to the marriage. [subs (2) am Act 98 of 2005 s 2 and Sch 1, cl 79, opn 3 Aug 2005]

(3) A child of a marriage who is adopted by a person who, before the adoption, is not a prescribed adopting parent ceases to

be a child of that marriage for the purposes of this Act. (4) The following provisions apply in relation to a child of a marriage who is adopted by a prescribed adopting parent: (a) if a court granted leave under section 60G for the adoption proceedings to be commenced — the child ceases to be a child of the marriage for the purposes of this Act; (b) in any other case — the child continues to be a child of the marriage for the purposes of this Act. (4A) To avoid doubt, for the purposes of this Act, a child of a marriage is a child of the husband and of the wife in the marriage. [subs (4A) insrt Act 115 of 2008 s 3 and Sch 3A[4], opn 21 Nov 2008]

(5) In this section: this Act includes: (a) the standard Rules of Court; and (b) the related Federal Circuit Court Rules. [subs (5) insrt Act 194 of 1999 s 3 and Sch 11[45]; am Act 13 of 2013 s 3 and Sch 1 item 285, opn 12 Apr 2013] COMMENTARY ON SECTION 60F Introductory comments …. Relevance of definition …. History …. Child adopted since the marriage by the husband and/or wife — s 60F(1)(a) …. Child of the parties born before the marriage — s 60F(1) (b) …. Artificially conceived child …. Marriages dissolved, annulled, or terminated by death — s 60F(2) ….

[s 60F.1] [s 60F.3] [s 60F.5] [s 60F.9] [s 60F.11] [s 60F.13] [s 60F.14]

[page 382] Adoption of child by non-parents — subs (3) …. Adoption by step-parent — subs (4) ….

[s 60F.15] [s 60F.17]

[s 60F.1] Introductory comments This section deals with the question which children fall within the term “child of a marriage”. Prior to the Family Law Reform Act 1995 (Cth), the same provision was s 60A. [s 60F.3] Relevance of definition This definition has limited practical importance. Parenthood, regardless of marital status, is the basis of obligations of child support under the child support legislation (see Vol 2) and also the basis of parental responsibilities under s 61C. Nor, since the reference of power from the states (except Western Australia) is the status of child of a marriage necessary for the exercise of jurisdiction to make parenting orders: see Div 12. It remains relevant to the application of the Family Law Act 1975 (Cth) in Western Australia. [s 60F.5] History Formerly, the definition of “child of a marriage” was very important in determining the extent of jurisdiction under the Act. However it has become much less important since 1988, when as a result of a reference of power from the states (except Western Australia) the constitutional basis for the jurisdiction over children is no longer primarily based on the grant of power to the Commonwealth to make laws about “marriage”: Constitution, s 51(xxi). The definition was formerly a key element in defining the scope of the Family Law Act 1975 (Cth) since the original legislation was passed. In 1983 the Act was amended to include a number of categories of children. In that form, it was considered in a number of cases by the High Court, and several provisions were held to be unconstitutional, as falling outside the “marriage” power, Constitution s 51(xxi). These cases are: In the Marriage of Cormick; Salmon (Respondent) (1984) 156 CLR 170; 56 ALR 245; 9 Fam LR 880; 59 ALJR 151; FLC 91–554; Re Cook and Maxwell JJ; Ex parte C (1985) 60 ALR 661; 10 Fam LR 99; FLC 91–619; Re F; Ex parte F (1986) 66 ALR 193; 10 Fam LR 940; FLC 91–739.

[s 60F.9] Child adopted since the marriage by the husband and/or wife — s 60F(1)(a) Constitutional validity There is no doubt that children adopted by the husband and wife since the marriage are validly included in the definition of “child of a marriage”: see V v V (1985) 10 Fam LR 151; FLC 91–616. The paragraph is probably also valid in the case of step-parent adoptions, even in jurisdictions (such as Western Australia and South Australia) where the adoption order is made in favour of the step-parent, since the result of such an order is effectively the same as a joint order. It is doubtful whether this paragraph is valid in so far as it relates to the case (no doubt rare) where a spouse, with the consent of the other spouse, adopts an unrelated child, since this would make the adopting spouse the child’s sole guardian under state law, and the other spouse’s consent would not appear to provide a sufficient nexus with the marriage: see Re Cook and Maxwell JJ; Ex parte C (1985) 60 ALR 661; 10 Fam LR 99; FLC 91–619. [s 60F.11] Child of the parties born before the marriage — s 60F(1)(b) This paragraph is valid: see Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529; [1962] ALR 673; (1962) 36 ALJR 104; Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90– 039. [s 60F.13] Artificially conceived child A child born as a result of an “artificial conception procedure” as defined in s 4 is included as a “child of a marriage”. [s 60F.14] Marriages dissolved, annulled, or terminated by death — s 60F(2) The definition extends to children of marriages that have been dissolved (ie the parties are divorced) or annulled (ie the marriage has been declared void) in Australia or elsewhere. It also extends to children of marriage which have been terminated by the death of a party. [page 383] [s 60F.15] Adoption of child by non-parents — subs (3) Where a child of a

marriage is adopted by a non-parent, or by two persons neither of whom is a parent, the child (as one would expect) ceases to be a child of the marriage. Where the adopters are married, as most are, the child becomes a child of the marriage of the adopting parents: see definitions of “child” and “parent”, in s 4. [s 60F.17] Adoption by step-parent — subs (4) Introductory comments The effect of subs (4) is that in what is commonly called a “step-parent adoption”, the child will remain a child of the parents’ marriage, and not become a member of the adopters’ marriage, unless the Family Court (or the Supreme Court of the Northern Territory or the Family Court of Western Australia) has granted leave under s 60G for the adoption proceedings to be commenced. On the significance of being a “child of the marriage”, see above. “Prescribed adopting parent” “ Prescribed adopting parent” is defined in s 4 to mean, in brief, a parent, or the spouse or de facto partner of a parent, or the parent and a spouse or de facto partner. For convenience, adoptions by a prescribed adopting parent will be referred to in this commentary as “stepparent adoptions”. Leave to apply for adoption Section 60G provides in short that the Family Court may grant leave for proceedings to be commenced (under State or Territory law) for the adoption of a child by a “prescribed adopting parent”. Effect of step-parent adoption where leave granted — subs (4)(a) If leave is granted under s 60G, upon the making of the adoption order the child ceases to be a child of the marriage (and, where the adopters are married) will become a child of the adopters’ marriage. Effect of step-parent adoption where leave not granted — subs (4)(b) If leave is not granted under s 60G, the child continues to be a child of the marriage notwithstanding the making of the adoption order; and does not become a child of the adopters’ marriage (note that s 60F(1)(a) is expressed to be subject to subs (3)).

____________________

[s 60G] Family Court may grant leave for adoption proceedings by prescribed adopting parent 60G (1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent. (2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 10, opn 1 July 2006; Act 115 of 2008 s 3 and Sch 3A[5], opn 21 Nov 2008] COMMENTARY ON SECTION 60G Introductory comments …. Significance of leave …. Exercise of discretion — subs (2) ….

[s 60G.1] [s 60G.3] [s 60G.5]

[s 60G.1] Introductory comments This section simply provides that the Family Court (or the Supreme Court of the Northern Territory or the Family Court of Western Australia) may grant [page 384] leave for proceedings to be commenced for what is commonly known as a “step-parent adoption”. Note the definition of “prescribed adopting parent” in

s 4, and see s 60G. [s 60G.3] Significance of leave The significance of such leave is as follows. First and least important in practice, without leave being granted, the adoption does not make the child a “child of the marriage” of the adopting parents: see s 60F. Second, the parental responsibility of the birth parents (or anyone else who had parental responsibility), whether arising from s 61C or a parenting order, does not end as a result of the making of the adoption order: s 61E. Third, if there was a parenting order in force at the time of the adoption order, it remains in force: s 65J. If leave is granted, the adoption makes the child a child of the adopting parents’ marriage, and ends existing parental responsibility, and ends any parenting order. For a discussion of the (pre-1995) provisions requiring leave for step-parent adoption, see O Jessep and R Chisholm, “Step Parent Adoptions and the Family Law Act”, Australian Journal of Family Law, Vol 6, 1992, p 179. [s 60G.5] Exercise of discretion — subs (2) Subsection (2) provides that the court “must consider whether granting leave would be in the child’s best interests, having regard to” the sections that spell out the effects of granting leave. It may be arguable that the failure to provide expressly that the child’s best interests must be regarded as the paramount consideration (compare, for example, s 60CA) indicates that some other interests or policies can be taken into account, but if so it is not at all clear what such other interests or policies Parliament had in mind. For example, it is clear that in considering whether to make an order for adoption (which is governed by the principle that the child’s welfare is the paramount consideration: Adoption of Children Act 1965 (NSW) s 17), the court will not take into account any policy of discouraging surrogacy arrangements: see W: Re Adoption (1998) 23 Fam LR 538. A similar approach would be no doubt be appropriate in considering an application under s 60G in such cases. As to the position under the pre-1996 law, see Fogwell v Ashton (1993) 17 Fam LR 94; FLC 92–429; In the Adoption of X (1993) 17 Fam LR 594.

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[s 60H] Children born as a result of artificial conception procedures 60H (1) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and (b) either: (i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or (ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent; then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act: (c) the child is the child of the woman and of the other intended parent; and (d) if a person other than the woman and the other intended parent provided genetic material — the child is not the child of that person. [subs (1) subst Act 115 of 2008 s 3 and Sch 3A[6], opn 21 Nov 2008]

(2) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and

[page 385] (b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman; then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act. (3) If: (a) a child is born to a woman as a result of the carrying out of an artificial conception procedure; and (b) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man; then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act. (4) [subs (4) rep Act 115 of 2008 s 3 and Sch 3A[7], opn 21 Nov 2008] (5) For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent. (6) In this section: this Act includes: (a) the standard Rules of Court; and (b) the related Federal Circuit Court Rules. [subs (6) insrt Act 194 of 1999 s 3 and Sch 11[46]; am Act 13 of 2013 s 3 and Sch 1 item 286, opn 12 Apr 2013] COMMENTARY ON SECTION 60H Children born to married woman as a result of artificial conception procedures — introductory comments ….

[s 60H.1]

Artificially conceived child born to woman while she is married is child of woman and her husband — s 60H(1) …. Child is child of woman who gives birth — s 60H(2) …. Father of artificially conceived child — s 60H(3) …. Application of subs (1) to de facto couples — s 60H(4) ….

[s 60H.3] [s 60H.5] [s 60H.7] [s 60H.9]

[s 60H.1] Children born to married woman as a result of artificial conception procedures — introductory comments Effect of section Section 60H deals with the status of children born as a result of artificial conception procedures. The broad purpose of the provision is to establish a parent–child relationship between the children and the woman who gave birth to them and her husband or de facto partner, even though another man might be the biological father, and indeed though another woman might be the biological mother. Children falling within subs (1) are children of the marriage of the woman and her husband: see s 60F(1) (c). The interpretation and application of the section was illustrated and explained (in unusual circumstances) in Re Michael (2009) 41 Fam LR 694; [2009] FamCA 691 (Watts J)(‘Sections 60H and 60HB of the FLA now provide an exhaustive definition as to who is a parent in the context of surrogacy arrangements’; and suggesting amendments to s 60H and 69U). In Aldridge v Keaton (2009) 42 Fam LR 369; [2009] FamCAFC 229; BC200951134 (Full Court, Bryant CJ, Boland and Crisford JJ, 22 December 2009) the Full Court said (obiter) that although the intention of the section was that regardless of the circumstances of their conception or birth, children the subject of proceedings under the Act ‘should have the same rights, protections and privileges under the Act to receive proper parenting from either a biological parent, or that biological parent’s partner (including a same-sex parent), as biological children [page 386]

born to men and women who have been legally married, living in a de facto relationships or who have never lived together,’ legislative amendment might be necessary ‘to clarify the non-biological person’s status as a parent’. See also Maurice v Barry (2010) 44 Fam LR 62; [2010] FamCA 687; BC201050761 (children born to de facto partners through artificial conception were children of the partners; Faulks DCJ expressing the view at [15] that although the drafting of s 60H ‘may fall short of ideal’, the ‘other intended parent’ should also be treated as a parent). History of section Section 60H is substantially the same as s 60B of the Act before the 1995 amendments. Old s 60B was itself inserted by the Family Law Amendment Act 1987 (Cth). The provisions were inserted following the reference of power by the states, and the consequent exercise by the Commonwealth of jurisdiction of children generally, rather than only children “of a marriage”. Constitutional validity — NSW, Vic, Qld, SA, Tas and the territories The validity of the section remains to be considered, but does not appear to be in doubt. To the extent that it deals with children who are not children of a marriage, it is based on Constitution s 51(xxvii) and the reference of power by all states except Western Australia. For completeness it may be noted that in relation to children of a marriage in the referring states, the provision may be based either on s 51(xxxvii) or upon s 51(xxi) (“marriage”). Thus, should the reference of power be held unconstitutional or be ended by state legislation, the provision would remain valid in its operation to the extent permitted by the “marriage” power. Constitutional validity in Western Australia For Western Australia (which has not referred power) s 60H is based on s 51(xxi) and is limited to children of a marriage. However, state legislation largely mirrors the substantive provisions of the Family Law Act 1975 (Cth). [s 60H.3] Artificially conceived child born to woman while she is married is child of woman and her husband — s 60H(1) A child born to a married woman is the child of the woman and her husband in the circumstances described in s 60H(1), even though the man may not be the biological father

and though the woman might not be the biological mother. The circumstances are as follows: “Artificial conception procedure” The child must be born as a result of the carrying out of an “artificial conception procedure”. This term is defined in s 60D to include artificial insemination and the implantation of an embryo in the body of a woman. Procedure while woman married It is submitted that in para (a) the words “while … man” relate to the procedure, not to the time of the birth. Thus the procedure must be carried out while the woman was married to a man: it is not sufficient that the woman was married when the child was born. Consent The procedure must be carried out with the parties’ consent (or where another law makes the child the child of the parties: see below). Consent is presumed, on the balance of probabilities: subs (5). Prescribed laws The prescribed laws are reproduced in State Legislation Service in the guide card STATUS OF CHILDREN. [s 60H.5] Child is child of woman who gives birth — s 60H(2) Introductory comment Subsection (2) provides that where a child is born to a woman as a result of an “artificial conception procedure” (as to which see above), and under a prescribed law of the Commonwealth or a state or territory the child is a child of that woman, then whether or not the child is biologically a child of that woman, the child is her child. The aim of the subsection [page 387] is to incorporate into the Family Law Act the effect of any prescribed Commonwealth, state or territory law, thereby avoiding any problems of inconsistency between the Family Law Act and the other law.

Prescribed laws The prescribed laws are reproduced in the State Legislation Service in the guide card STATUS OF CHILDREN. [s 60H.7] Father of artificially conceived child — s 60H(3) Who is a “parent”? Where children are born as a result of surrogacy arrangements and artificially assisted reproduction procedures, questions can arise about who is a “parent”. That term is used many times in the Family Law Act, but not expressly defined. In Re Patrick (2002) 28 Fam LR 579; FLC 93–096, Guest J considered an application for contact by a man, F, in circumstances where the child had been born by artificial insemination following an agreement among F, the mother (M) and her lesbian partner (C) that F would provide the genetic material. Guest J held that under s 60H(3) a child was to be regarded as the child of the biological father, and the biological father is to be regarded as a “parent” of the child, only if there was a specific state or territory law which expressly conferred that status on a sperm donor for the purposes of the Act. There were no such prescribed laws, and thus F fell outside the meaning of “parent” under the Act. Guest J urged legislative reform. He said that given F’s active role in Patrick’s conception and his ongoing efforts to build a relationship with his son, it was difficult to understand why he was excluded, for the purposes of the Act, from being properly known as a “parent” of Patrick, and only has jurisdictional status in the Family Court as “any other person” concerned with Patrick’s welfare. He also said that it was time for state laws to be enacted to make available to lesbian women and their known donors a well-regulated scheme with all the safeguards, medical and otherwise, available to heterosexual couples. Given the diversity of gay and lesbian families and the varying roles donors play in the lives of children conceived from their donated sperm, the legislature needed to reassess s 60H of the Act and to consider the ramifications of its application in cases such as this. He referred to an article by Danny Sandor, “Children born from Sperm Donation: Financial Support and other Responsibilities in the Context of Discrimination” (1997) 4 (1) Australian Journal of Human Rights, 175. In a carefully-reasoned decision, Re Mark (2003) 31 Fam LR 162; [2003]

FamCA 822, Brown J agreed with the desirability of considering law reform, but disagreed with the proposition that a biological father is to be regarded as a “parent” only if there is a specific state or territory law that expressly confers that status on a semen donor for the purpose of the Family Law Act. On the facts of Re Mark (surrogacy agreement in the USA; child born to a surrogate mother, using donated eggs and the sperm of Mr X; the child to be brought up as child of Mr X and his gay partner), Brown J held (obiter) that a man who had “provided his genetic material for the express purpose of fathering (begetting) a child he would parent” was a “parent” in the ordinary meaning of the word and thus a “parent” for the purpose of the Family Law Act: at [59]–[60]. Brown J said she did not share the view that for the purposes of the Family Law Act the section defined “parent”, or meant, in cases like Re Mark and Re Patrick, that a person is a parent only if there is a specific state or territory law that expressly confers such a status on him, and is prescribed for the purpose of s 60H: at [36]–[40]. Her Honour pointed out that the section does not use the word “parent”, but provides that in certain circumstances the child will “be his [or her] child”. To the extent that the section could be said to define “parent” for the purposes of the Act, it was not an exhaustive definition. Drawing on the analysis by Fogarty J in Re B and J (1996) 21 Fam LR 186; FLC 92-716, Brown J said that if Guest J’s analysis were correct, a birth and biological mother in the position of Patrick’s mother may not be his “parent” for Family Law Act purposes. Brown J said (correctly it is submitted — RC) that s 60H does not purport to give an exhaustive definition of “parent”, but instead enlarges rather than restricts the categories of people who may be regarded as parents. See also In the Marriage of Tobin (1999) 150 FLR 185; 24 Fam [page 388] LR 635; FLC 92-848; [1999] FamCA 446, discussed by Brown J at [50]– [54]. In Re J and M: Residence Application (2004) 32 Fam LR 668; [2004] FMCAfam 656, Walters FM expressed agreement with Brown J. See also Re Michael (2009) 41 Fam LR 694; [2009] FamCA 691 (Watts J).

[s 60H.9] Application of subs (1) to de facto couples — s 60H(4) This subsection applies the provisions of subs (1) to de facto couples as defined. For commentary on similar definitions of such relationships, see Australian Family Law State Legislation service, in the guide card DE FACTO AND DOMESTIC RELATIONSHIPS.

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[s 60HA]

Children of de facto partners

60HA (1) For the purposes of this Act, a child is the child of a person who has, or had, a de facto partner if: (a) the child is a child of the person and the person’s de facto partner; or (b) the child is adopted by the person and the person’s de facto partner or by either of them with the consent of the other; or (c) the child is, under subsection 60H(1) or section 60HB, a child of the person and the person’s de facto partner. This subsection has effect subject to subsection (2). (2) A child of current or former de facto partners ceases to be a child of those partners for the purposes of this Act if the child is adopted by a person who, before the adoption, is not a prescribed adopting parent. (3) The following provisions apply in relation to a child of current or former de facto partners who is adopted by a prescribed adopting parent: (a) if a court granted leave under section 60G for the adoption proceedings to be commenced — the child ceases to be a child of those partners for the purposes of this Act;

(b) in any other case—the child continues to be a child of those partners for the purposes of this Act. (4) In this section: this Act includes: (a) the standard Rules of Court; and (b) the related Federal Circuit Court Rules. [subs (4) am Act 13 of 2013 s 3 and Sch 1 item 287, opn 12 Apr 2013] [s 60HA insrt Act 115 of 2008 s 3 and Sch 3A[8], opn 21 Nov 2008]

[s 60HB] Children born under surrogacy arrangements 60HB (1) If a court has made an order under a prescribed law of a State or Territory to the effect that: (a) a child is the child of one or more persons; or (b) each of one or more persons is a parent of a child; then, for the purposes of this Act, the child is the child of each of those persons. (2) In this section: this Act includes: (a) the standard Rules of Court; and [page 389] (b) the related Federal Circuit Court Rules. [subs (2) am Act 13 of 2013 s 3 and Sch 1 item 288, opn 12 Apr 2013] [s 60HB insrt Act 115 of 2008 s 3 and Sch 3A[8], opn 21 Nov 2008]

Subdivision E — Family dispute resolution [subdiv E insrt Act 46 of 2006 s 3 and Sch 1 item 11, opn 1 July 2006]

[s 60I] Attending family dispute resolution before applying for Part VII order 60I (1) Object of this section The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for. (2) Phase 1 (from commencement to 30 June 2007) The dispute resolution provisions of the Family Law Rules 2004 impose the requirements for dispute resolution that must be complied with before an application is made to the Family Court of Australia for a parenting order. (3) By force of this subsection, the dispute resolution provisions of the Family Law Rules 2004 also apply to an application to a court (other than the Family Court of Australia) for a parenting order. Those provisions apply to the application with such modifications as are necessary. (4) Subsection (3) applies to an application for a parenting order if the application is made: (a) on or after the commencement of this section; and (b) before 1 July 2007. (5) Phase 2 (from 1 July 2007 to 30 June 2008) Subsections (7) to (12) apply to an application for a Part VII order in relation to a child if: (a) the application is made on or after 1 July 2007 and before 1 July 2008; and (b) none of the parties to the proceedings on the application has applied, before 1 July 2007, for a Part VII order in

relation to the child. (6) Phase 3 (from 1 July 2008) Subsections (7) to (12) apply to all applications for a Part VII order in relation to a child that are made on or after 1 July 2008. (7) Requirement to attempt to resolve dispute by family dispute resolution before applying for a parenting order Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order. (8) Certificate by family dispute resolution practitioner A family dispute resolution practitioner may give one of these kinds of certificates to a person: (a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend; [page 390] (aa) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because

the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution; (b) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues; (c) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues; (d) a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution. Note: When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).

(9) Exception Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

(a) the applicant is applying for the order: (i) to be made with the consent of all the parties to the proceedings; or (ii) in response to an application that another party to the proceedings has made for a Part VII order; or (b) the court is satisfied that there are reasonable grounds to believe that: (i) there has been abuse of the child by one of the parties to the proceedings; or (ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or (iii) there has been family violence by one of the parties to the proceedings; or (iv) there is a risk of family violence by one of the parties to the proceedings; or (c) all the following conditions are satisfied: (i) the application is made in relation to a particular issue; (ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made; (iii) the application is made in relation to a contravention of the order by a person; [page 391] (iv) the court is satisfied that there are reasonable

grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or (d) the application is made in circumstances of urgency; or (e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or (f) other circumstances specified in the regulations are satisfied. (10) Referral to family dispute resolution when exception applies If: (a) a person applies for a Part VII order; and (b) the person does not, before applying for the order, attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with; and (c) subsection (7) does not apply to the application because of subsection (9); the court must consider making an order that the person attend family dispute resolution with a family dispute resolution practitioner and the other party or parties to the proceedings in relation to that issue or those issues. (11) The validity of: (a) proceedings on an application for a Part VII order; or (b) any order made in those proceedings; is not affected by a failure to comply with subsection (7) in

relation to those proceedings. (12) In this section: dispute resolution provisions of the Family Law Rules 2004 means: (a) Rule 1.05 of those Rules; and (b) Part 2 of Schedule 1 to those Rules; to the extent to which they deal with dispute resolution.

COMMENTARY ON SECTION 60I Introductory comments …. Court must not hear Part VII application unless applicant files a certificate or an exception applies: subs (7) …. Five kinds of certificate: subs (8) …. Consequences of the type of certificate issued …. Exceptions: subs (9) …. Consent order, or responses: subs (9)(a) …. Reasonable grounds re child abuse or family violence: subs (9)(b) …. Certain applications involving contraventions: subs (9) (c) …. Applications made in urgent circumstances: subs (9)(d) …. One or more parties is unable to participate effectively: subs (9)(e) …. Other specified circumstances: subs (9)(e) ….

[s 60I.1] [s 60I.2] [s 60I.3] [s 60I.5] [s 60I.10] [s 60I.11] [s 60I.12] [s 60I.13] [s 60I.14] [s 60I.15] [s 60I.16]

[s 60I.1] Introductory comments Overview This section, together with the other provisions of Subdiv E, was inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006. The object of the section is “to ensure that all persons who have a dispute about [Pt VII matters] make a genuine effort to resolve that dispute by family dispute resolution before the Pt VII order is applied for”: subs (1). The [page 392] section provides, in substance, that, subject to various exceptions, the court must not hear an application under Pt VII unless the applicant files “a certificate given to the applicant by a family dispute resolution practitioner under subs (8)”. Such a certificate can be of five types, as will be seen. The

exceptions, in brief, are where the applicant is seeking consent orders, or is responding to another party’s application; where there are reasonable grounds to believe that there has been child abuse or family violence; where the matter involves contravention proceedings; where it is urgent; and where at least one of the parties “is unable to participate effectively in family dispute resolution”; or “other circumstances specified in the regulations are satisfied”: s 60I(9), s 60J. Progressive implementation The provisions were phased in: see subss (2)– (6). For applications filed during the one-year period between 1 July 2006 and 30 June 2007, the only change was that the dispute resolution provisions of the Family Law Rules 2004 applied (in both the Family Court and the Federal Magistrates Court). For applications filed between 1 July 2007 and 30 June 2008, s 60I (subss (7)–(12)) applied unless another party had applied for an order before 1 July 2007. Applications filed since 1 July 2008 are governed by (subss (7)–(12)) without that qualification. [s 60I.2] Court must not hear Part VII application unless applicant files a certificate or an exception applies: subs (7) Subsection (7) provides, in substance, that subject to the exceptions in subs (9), a court must not hear an application for a Pt VII order in relation to a child unless the applicant files with the application a certificate given to the applicant by a family dispute resolution practitioner under subs (8). “Family dispute resolution practitioner” is defined in s 10G. Failure to comply with subs (7), however, does not invalidate any court order made in the proceedings: subs (11). [s 60I.3] Five kinds of certificate: subs (8) Subsection (8) provides that a certificate can be of five kinds: in substance (using the lettering of the paragraphs), a certificate: (a) That the person did not attend family dispute resolution, but this was “due to the refusal, or the failure, of the other party or parties to the proceedings to attend”; (aa) That the person did not attend because the dispute resolution practitioner considered, having regard to the matters prescribed by

the regulations, that it would “not be appropriate to conduct the proposed family dispute resolution”; (b) That the person attended, and that “all attendees made a genuine effort to resolve the issue or issues”; (c) That the person attended, “but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues”. (d) That the person began attending, but that the practitioner “considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution”. See also the provisions relating to such certificates in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. [s 60I.5] Consequences of the type of certificate issued The note to subs (8) states that the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (referring to s 13C) and in determining whether to award costs against a party (referring to s 117). Neither of those sections, however, so provide. There is no legislative inhibition to the practitioner giving evidence of the reasons: s 10J(6) provides that the practitioner “may disclose information necessary for the practitioner to give a certificate under s 60I(8)”. But it seems questionable (RC) whether a court could properly take the type of certificate into account for the purpose of making findings about contested issues (eg whether a party made a genuine effort to resolve the dispute), since the certificate does not contain the reasons for the view taken by the dispute resolution practitioner (who would not normally be a witness). Thus although the legislation seems to contemplate that the type of certificate will be of some use to the court, it is not obvious how this could be achieved without procedural unfairness to whichever party is disadvantaged by any inference or finding the court might draw from the certificate. [page 393]

[s 60I.10] Exceptions: subs (9) Subsection (9) provides that subs (7) does not apply to an application in certain circumstances (and, therefore that in such circumstances the applicant does not need a certificate). There are six such situations. In brief: (a) The application is for a consent order, or is in response to another party’s application. (b) There are reasonable grounds to believe that there has been child abuse or family violence by a party, or a risk of either of these. (c) The application is made in relation to a contravention of a Pt VII order, and “there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order”. (d) Urgency; (e) One or more of the parties “is unable to participate effectively in family dispute resolution” (f) Other circumstances specified in the regulations. [s 60I.11] Consent order, or responses: subs (9)(a) In relation to applications for consent orders, the rationale for this paragraph is presumably that it is unreasonable to require a dispute resolution process. In relation to cases where the application is in response to another Pt VII application, the rationale is presumably that the requirements of s 60I would have applied to the previous application, and there is no point in imposing the same requirement when a party files a response. [s 60I.12] Reasonable grounds re child abuse or family violence: subs (9) (b) The rationale for this paragraph is presumably that in cases where there are allegations of child abuse or family violence it would be unreasonable to require the applicant to engage in a dispute resolution process before filing an application. The terms “family violence” and “abuse” are defined in s 4. Note also the application of s 60J in these cases. [s 60I.13] Certain applications involving contraventions: subs (9)(c) This

paragraph applies, in brief, to certain contravention applications where the court “is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order”. [s 60I.14] Applications made in urgent circumstances: subs (9)(d) An obvious example of such circumstances would be an urgent application for parenting orders where the applicant fears that the other party is about to remove the child from Australia. [s 60I.15] One or more parties is unable to participate effectively: subs (9)(e) The words in brackets indicate some of the circumstances in which this exception would apply. [s 60I.16] Other specified circumstances: subs (9)(e) No circumstances have been specified in the Regulations (at 24 March 2009). It would seem likely that any such specification of circumstances would be made in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

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[s 60J] Family dispute resolution not attended because of child abuse or family violence 60J (1) If: (a) subsections 60I(7) to (12) apply to an application for a Part VII order (see subsections 60I(5) and (6)); and (b) subsection 60I(7) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that: [page 394]

there has been abuse of the child by one of the parties to the proceedings; or (ii) there has been family violence by one of the parties to the proceedings; a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence. (2) Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that: (a) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or (b) there is a risk of family violence by one of the parties to the proceedings. (3) The validity of: (a) proceedings on an application for a Part VII order; or (b) any order made in those proceedings; is not affected by a failure to comply with subsection (1) in relation to those proceedings. (4) If: (a) the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and (b) subsection (2) does not apply; the principal executive officer of the court concerned must ensure that the applicant is referred to a family counsellor or family (i)

dispute resolution practitioner in order to obtain information about those matters. COMMENTARY ON SECTION 60J Introductory comments ….

[s 60J.1]

[s 60J.1] Introductory comments In brief, this section provides that where the court is satisfied that there are reasonable grounds to believe that there has been child abuse or family violence, it must not hear the application unless “the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence”: subs (1). If the applicant indicates in writing that he or she has not received the information, the executive officer of the court must have the applicant referred to a family counsellor or family dispute resolution practitioner to obtain such information: subs (3). By subs (2), however, the requirement in subs (1) does not apply if there are reasonable grounds to believe that there would be a risk of child abuse or family violence is there were to be a delay in applying for an order.

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[s 60K] Court to take prompt action in relation to allegations of child abuse or family violence 60K

[s 60K rep Act 189 of 2011 s 3 and Sch 1 item 23, opn 7 June

2012] COMMENTARY ON SECTION 60K Introduction …. When s 60K applies: subs (1) …. What s 60K requires: subss (2)–(5) ….

[s 60K.1] [s 60K.5] [s 60K.6] [page 395]

Obligation under the Family Law Rules to file notice in certain circumstances …. Failure to comply does not invalidate any order: subs (5) ….

[s 60K.9] [s 60K.10]

[s 60K.1] Introduction This section, in the circumstances when it applies, creates an obligation on the court to consider as soon as practicable what interim or procedural orders should be made, and to deal with issues raised by certain allegations, essentially allegations of abuse or family violence. [s 60K.5] When s 60K applies: subs (1) The circumstances in which s 60K applies are set out in subs (1). In brief, the circumstances are when: (i) an application is made to a court for a Pt VII order; and (ii) A document is filed in the proceedings that: alleges abuse or family violence, or a risk of either; and is of the kind prescribed by the Rules of Court for the purpose of s 60K. [s 60K.6] What s 60K requires: subss (2)–(5) Subsection (2) sets out what the court must do, and the later subsections specify when it must do those things, and certain other matters. The three things the court must do under subs (2) are, in brief: to consider what interim orders to make, relating to evidence and the protection of a child; to make such orders of that kind as it considers appropriate; and to deal with the issues raised by the allegations as expeditiously as possible. Subsection (3) specifies the time: the court must take the actions as soon as practicable after the document is filed, and if appropriate in the circumstances, within 8 weeks of the filing of the document. Subsections (3) and (4) require the court to consider the following things: whether to make an order under s 69ZW to obtain reports from state or territory agencies; and whether to make an order or grant an injunction under

s 68B. [s 60K.9] Obligation under the Family Law Rules to file notice in certain circumstances Section 60K operates only when a Notice of Child Abuse or Family Violence (Form 4) has been filed. The obligation to file such a notice is not to be found in the Act but is contained in the rules: Family Law Rules 2004, rr 2.04–2.04B. [s 60K.10] Failure to comply does not invalidate any order: subs (5) By this subsection, the validity of any order in the proceedings is not invalidated if the court fails to comply with the section.

____________________ DIVISION 2 — PARENTAL RESPONSIBILITY

[s 61A]

What this Division does

61A This Division deals with the concept of parental responsibility including, in particular: (a) what parental responsibility is; and (b) who has parental responsibility.

[s 61B]

Meaning of parental responsibility

61B In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. [page 396] COMMENTARY ON SECTION 61B Parental responsibility — meaning ….

[s 61B.1]

History of provision …. Guardianship created by order under old Act …. Guardianship created by former s 63E …. Impact of 1995 Act …. Parents lack authority to sanction non-therapeutic sterilisations and certain other medical interventions ….

[s 61B.3] [s 61B.5] [s 61B.7] [s 61B.10]

[s 61B.20]

[s 61B.1] Parental responsibility — meaning Section 61B defines “parental responsibility” which is the term introduced by the Family Law Amendment Act 1995 to refer to the duties, powers etc possessed by parents (unless modified by court orders). This term appears to be similar or identical to “guardianship” at common law, and equivalent to guardianship and custody under s 63E of the Act prior to the 1995 amendments. In B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92–755 the Full Court said: “9.24 This definition provides little guidance, relying as it does on the common law and relevant statutes to give it content. It would appear to at least cover guardianship and custody under the previous Pt VII and may be wider… “9.25 It omits any reference to rights. Whilst this omission is understandable, given the philosophy of the amendments, it is doubtful whether that achieves any practical effect other than to make it clear that there are no possessory rights to children, insofar as this could be said to have been the case prior to the amendments. “9.26 Read in conjunction with s 60B(2)(c) the emphasis is on the continuance of responsibility independently of the status of the parental relationship. Section 61D(2) provides that a parenting order does not take away or diminish any aspect of parental responsibility except to the extent expressly provided for in the order or necessary to give effect to the order.” See also the commentary to s 61C. [s 61B.3] History of provision Before 1983 the consequences of custody and guardianship were not specified by the Act. Under the general law the person who was the guardian of the child, be it sole or joint, had the right to make

decisions relating to the child’s long term welfare. This included, for example, the right to be involved in decisions relating to the child’s schooling, change of residence, serious operations, religious upbringing and the undertaking of tertiary education and career: see Capodici v Capodici (1967) 12 FLR 129 at 135; Taylor v Taylor (1969) 16 FLR 7 at 8; In the Marriage of Chandler (1981) 6 Fam LR 736; FLC 91–008; In the Marriage of McEnearney (1980) 7 Fam LN 5; FLC 90–866; In the Marriage of Newbery (1977) 2 Fam LR 11,652; FLC 90–205; In the Marriage of Lythow (1976) 1 Fam LN 3; FLC 90–007; In the Marriage of Craven (1976) 10 ALR 148; 1 Fam LR 11,276; 26 FLR 131; FLC 90–049; In the Marriage of Dyason (1976) 1 Fam LN 15; FLC 90–026. Amendments in 1983 added s 60A, which was repealed and re-enacted as s 63E in the Family Law Amendment Act 1987 (Cth). Thus immediately prior to the 1995 amendments, the Act provided: “63E(1) A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to the child, all powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than: (a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child. (2) A person who has or is granted custody of a child under this Act has: (a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.” [page 397] [s 61B.5] Guardianship created by order under old Act For the effect of old guardianship orders after 11 June 1996 see Sch 2, cl 2, and the commentary thereto. [s 61B.7] Guardianship created by former s 63E There is no transitional

provision relating to guardianship arising under old s 63E of the Act. Thus after 11 June 1996 where there is no order affecting the position, parents cease to be guardians and instead have “parental responsibility”. [s 61B.10] Impact of 1995 Act Earlier decisions may not be good law following the 1995 amending Act. For example, the early decision of In the Marriage of Newbery (1977) 2 Fam LR 11,652; FLC 90–205 held that the custodial parent has the right to decide which school a child attends. Whether this was ever good law on the point may be doubted: see In the Marriage of Bishop (1981) 6 Fam LR 882; FLC 91–016. However, since the 1995 amendments it is certainly not good law: Re G (Children’s Schooling) (2000) 26 Fam LR 143; FLC 93–025. [s 61B.20] Parents lack authority to sanction non-therapeutic sterilisations and certain other medical interventions The majority of the High Court held in Secretary, Department of Health and Community Services v JMB and SMB (1992) 106 ALR 385; 15 Fam LR 392; FLC 92–293 (HC) (Marion’s case), at Fam LR 414, that parents do not have the right to give consent to some medical procedures, in that case a proposed sterilisation of a female child with profound intellectual handicaps, involving the removal of a healthy organ. Parents can of course give effective consent to medical interventions necessary to deal with their children’s illnesses, but can authorise sterilisation, it seems, only “where sterilisation is an incidental result of surgery performed to cure a disease or correct some malfunction” (at Fam LR 412). In Re Alex (2004) 31 Fam LR 503; FLC 93–175, Nicholson CJ held that there was at least one other type of medical intervention that similarly required court authorisation, namely the administration of hormonal therapies that would commence a “sex change” process for a 13 year old child who was anatomically and legally a girl but had been diagnosed as having gender identity dysphoria. It remains to be seen whether other types of medical intervention will be held to fall outside parents’ ordinary responsibilities.

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[s 61C] Each parent has parental responsibility (subject to court orders) 61C (1) Each of the parents of a child who is not 18 has parental responsibility for the child. Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order. Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order. Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child. [subs (1) am Act 46 of 2006 s 3 and Sch 1 item 12, opn 1 July 2006]

(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying. (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section). Note: Section 111CS may affect the attribution of parental responsibility for a child. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 10, opn 1 Aug 2003]

[page 398] COMMENTARY ON SECTION 61C History and past interpretation of s 61C ….

[s 61C.1]

Parental responsibility — joint or several? …. Does parental responsibility under s 61C involve an obligation to consult, or make decisions jointly? …. Obligations created by shared parenting orders: s 65DAC distinguished …. Application to ex-nuptial children ….

[s 61C.5] [s 61C.6] [s 61C.10] [s 61C.15]

[s 61C.1] History and past interpretation of s 61C Sectiion 61C was inserted by the Family Law Reform Act 1995 (Cth). Previously, the equivalent section (inserted by Family Law Amendment Act 1987) had been s 63F, which had provided: 65F (1) Subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section), each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child. Section 61C was not amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). However the 2006 Act added the three notes to s 61C. It is submitted that those notes are not intended to change the law, but to assist readers of the 2006 Act by explaining the relationship between s 61C and certain other provisions of Pt VII. [s 61C.5] Parental responsibility — joint or several? This section, providing for “Parental responsibility”, was introduced by the 1995 amending Act. The new term effectively replaced the previous term “guardianship”. The section provides that each parent has parental responsibility. It does not provide that they have joint parental responsibility, or that they “share” parental responsibility. Thus the words of the section indicate that each parent can exercise the duties, powers etc separately, although no doubt in normal circumstances they will wish to exercise their responsibilities in a cooperative manner for the benefit of the children. They are encouraged to do so by the Act itself, eg s 60B. In all this, parental responsibility under the Act as amended by the Family

Law (Shared Parental Responsibility) Act 2006 is essentially the same as guardianship under the pre-1995 law. (For the earlier law, see In the Marriage of Harrison and Woollard (1995) 18 Fam LR 788 at 805; (1995) FLC 92-598 per Fogarty and Kay JJ; In the Marriage of Talbot (1993) 16 Fam LR 910; (1993) FLC 92-397.) The above view of parental responsibility was in substance confirmed in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 729–30; (1997) FLC 92–755 at 84,216–17, where the Full Court said: 9.27 An important issue is whether parents may exercise this responsibility independently or whether they must do so jointly … 9.29 In the absence of a specific issues order, we think it unlikely that the parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day-to-day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated. 9.30 As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation. [page 399] Since s 61C was not amended by the 2006 Act, and although other provisions added in 2006 emphasise the importance of shared parenting, it seems clear that the 2006 Act was not intended to change the legal position of parents under s 61C. The three new notes added to s 61C tend to confirm that no change was made to the effect of s 61C itself. This was the conclusion of

the Full Court in Goode and Goode [2006] Fam CA 1346: [37] … where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force. [s 61C.6] Does parental responsibility under s 61C involve an obligation to consult, or make decisions jointly? In In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324 at 338; (1997) FLC 92-778 (FC), the Full Court, following B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755, left open the question whether parents or others having parental responsibility under s 61C (in the absence of a court order) have a legal obligation to consult: Thus [in B and B] the Full Court has indicated that it would be desirable and in accordance with the intention of the legislation for parents to consult in relation to major decisions concerning their child. However whether this apparent duty to consult can be enforced by legal proceedings (presumably by injunction where the parental responsibility arises by virtue of the legislation, or by contravention proceedings where it arises by virtue of an order) was not discussed by the Full Court in B and B. It is not necessary for us in the context of this case to explore this question in its entirety. We need only concern ourselves with the position in relation to specific issues orders which confer parental responsibility jointly … However in Goode and Goode [2006] Fam CA 1346, (Bryant CJ, Finn and Boland JJ, 15 December 2006), the Full Court appeared to resolve the issue, the following passage effectively holding that there is no such legal obligation: [39] We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an

order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides. This conclusion is both good interpretation and good policy (RC). It means that the law does not seek to regulate the way parents choose to work together (or not) in making parenting decisions if neither of them brings a dispute about the parenting arrangements to the court. But if a court makes orders about parental responsibility, of course they will be bound by those orders; and by s 65DAC an order for shared parental responsibility will normally require the parties to make major decisions for the long term care of the children jointly, and to consult with each other: see the terms of s 65DAC, and the commentary thereto. [s 61C.10] Obligations created by shared parenting orders: s 65DAC distinguished Section 65DAC, added in 2006, specifies obligations to consult, but it applies only to situations when there is an order for shared parental responsibility, not to the shared parental responsibility that parents have, by virtue of being parents, under s 61C. See the commentary to s 65DAC. Definitions — “Parent”, “child” Definitions include adoptive children and parents, and stillborn children: see s 4. [page 400] [s 61C.15] Application to ex-nuptial children Except in Western Australia, s 61C applies to children generally, not only children of a marriage. It thus provides that the mother and father have parental responsibility in relation to children born outside marriage as well as to children of a marriage. For Western Australia, see State Legislation Service, in the guide card STATUS OF CHILDREN.

____________________

[s 61D] Parenting orders and parental responsibility 61D (1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child. (2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any): (a) expressly provided for in the order; or (b) necessary to give effect to the order. COMMENTARY ON SECTION 61D Effect of parenting orders on parental responsibility …. History of section …. Shared parenting ….

[s 61D.1] [s 61D.3] [s 61D.5]

[s 61D.1] Effect of parenting orders on parental responsibility The significance of s 61D is that parenting orders do not confer parental responsibility (subs (1)) or take away or diminish parental responsibility (subs (2)) except as provided by the parenting order. The practical significance of this is that residence orders and contact orders do not alter parental responsibilities. [s 61D.3] History of section This is an important change from the law prior to 11 June 1996, since old custody orders gave the custodial parent day-today responsibility for the child. Prior to 11 June 1996, the former s 63E(2) provided: “(2) A person who has or is granted custody of a child under this Act has: (a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the child.”

[s 61D.5] Shared parenting The question whether s 61D in combination with other provisions creates a presumption that children’s best interests will be promoted by orders leaving each parent with parental responsibilities is discussed in the commentary to s 60CC.

____________________

[s 61DA] Presumption of equal shared parental responsibility when making parenting orders 61DA (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in: [page 401] (a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence. (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate

in the circumstances for the presumption to be applied when making that order. (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. [s 61DA insrt Act 46 of 2006 s 3 and Sch 1 item 13, opn 1 July 2006] COMMENTARY ON SECTION 61DA Introduction …. What legal consequences does the presumption have? …. Court may consider the presumption inappropriate in interim proceedings: s 61DA(3) ….

[s 61DA.1] [s 61DA.10] [s 61DA.20]

[s 61DA.1] Introduction This section was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006. It forms part of a series of amendments whose effect is helpfully and authoritatively summarised by the Full Court in the passage set out above, immediately following the heading “Part VII: Children”: Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346. Note that the section may require the court to consider the issue of parental responsibility whenever the court is “making a parenting order in relation to a child”. It does not matter, for example, whether a party has applied for a parental responsibility order: the court must apply the presumption (unless it is rebutted or inapplicable, or inappropriate in interim proceedings under subs (3)) even though no party seeks an order for parental responsibility: Marvel v Marvel (2010) 240 FLR 367; 43 Fam LR 348; [2010] FamCAFC 101; BC201050543. Also, the presumption applies in interim as well as final proceedings, although in interim

proceedings the court may decline to apply it under subs (3): see below. In substance, s 61DA requires the following steps: 1. Is the court making a parenting order in relation to a child? If so, 2. are there reasonable grounds to believe that there has been child abuse, or family violence? If not, 3. (in interim proceedings) does the court consider that applying the presumption would not be appropriate in the circumstances? If not, 4. is the presumption rebutted by evidence that satisfies the court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility? If not, 5. the court must apply a presumption that it is in the child’s best interests of the child for the parents to have equal shared parental responsibility. The presumption applies only to parents, as was pointed out by Murphy J in Dunstan v Jarrod and Another (2009) 41 Fam LR 535; [2009] FamCA 480; BC200950341. See to similar effect Carlson v Bowden (2008) 40 Fam LR 327; [2008] FamCA 1064. The presumption applies even if the application involves third parties, and one parent is not a party to the proceedings: Dunstan v Jarrod and Another (2009) 41 Fam LR 535; [2009] FamCA 480; BC200950341 (presumption rebutted, however, in circumstances where the mother had given the child up for adoption). [s 61DA.10] What legal consequences does the presumption have? The question arises what the presumption, when it applies, actually requires. If no order is made, the situation is governed by s

61C, under which each parent has parental responsibility. Although it is true that neither parent has any greater parental responsibility than the other, s 61C does not provide that [page 402] parental responsibility is to be shared. In practice, there is a big difference between the situation under s 61C and the situation in which a court has made an order that parents have equal shared parental responsibility: in the latter case the parents will be under a legal obligation to consult, and to make joint decisions about major long term issues (see s 65DAC), and also the court, when considering making a parenting order, will be obliged to consider equal time, or substantial and significant time: see s 65DAA. See eg Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422; (2006) FLC 93–286; [2006] FamCA 1346 at [39]. It is submitted, therefore (RC), that when the presumption applies, and is not considered inappropriate in interim proceedings under subs (3), and is not rebutted under subs (4), it probably requires an order to be made for the parents to have equal shared parental responsibility, since that is the only way to achieve what s 61DA envisages, namely that the parents “have equal shared parental responsibility for the child”. The Full Court has considered the question and indicated tentatively that if the presumption applies an order for equal shared parental responsibility will ‘generally’ be made’: Marvel v Marvel (2010) 240 FLR 367; 43 Fam LR 348; [2010] FamCAFC 101; BC201050543, at [104]. [s 61DA.20] Court may consider the presumption inappropriate in interim proceedings: s 61DA(3) In Goode and

Goode [2006] Fam CA 1346, the Full Court explained the background and significance of this subsection. Having cited the relevant background documents, which include the key sentence, “This discretion is appropriate given the limited evidence that may be available for interim hearings”, the Full Court concluded: The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.

Goode’s case, above, illustrates a common situation in interim proceedings: allegations of violence that cannot be determined one way or the other in the necessarily brief interim proceedings. It seems that in such situations it might often be right for the court to decline to apply the presumption of equal shared parental responsibility. It is therefore important that if on a client’s case there are significant risk factors, practitioners must emphasise this to the judicial officer in the interim hearing, and ask him or her to exercise the discretion under s 61DA(3) not to apply a presumption in favour of equal parental responsibility. ____________________

[s 61DB] Application of presumption of equal shared parental responsibility after interim parenting order made 61DB If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

[s 61DB insrt Act 46 of 2006 s 3 and Sch 1 item 13, opn 1 July 2006] COMMENTARY ON SECTION 61DB Court must disregard interim allocation of parental responsibility …. Issues in the interpretation of s 61DB ….

[s 61DB.1] [s 61DB.5]

[s 61DB.1] Court must disregard interim allocation of parental responsibility This section provides that when the court considers making a final parenting order, and there has been an interim order, it “must disregard the allocation of parental responsibility made in the interim order”. This clearly means that the court should reconsider parental responsibility in the light of the evidence at the final hearing, rather than assuming that it is in the child’s interests to continue [page 403] the allocation in the interim order. It is important, therefore, for litigants to address the question of parental responsibility at the trial, even it is not a controversial issue, since the court must disregard the interim order. [s 61DB.5] Issues in the interpretation of s 61DB Requiring the court to reconsider parental responsibility in the light of the evidence at the final hearing is stating the obvious. Although the Act does this from time to time, perhaps for the intended benefit of unrepresented litigants, it may be that the section goes a little beyond this, and requires the court in effect to pretend that the interim order, so far as it related to parental responsibility, had not been made. If so, then at a trial where there was no evidence or

argument about the question, the court would presumably apply the presumption of equal shared parental responsibility, if it applied: see s 61DA. It will be interesting to see how literally this provision is read. Suppose an interim order is made by consent, to the effect that one parent has responsibility for decisions about, say, the child’s religious education, but otherwise parental responsibility is shared. At the trial, the evidence is that the parties have acted on that allocation of parental responsibility, to the apparent satisfaction of everybody and benefit to the child. If there is no other relevant evidence and no submissions at the trial, what is the court to do? On a literal reading of s 61DB, it must disregard the allocation of parental responsibility made in the interim order. Does it follow that, despite clear evidence that the interim allocation of parental responsibility is working to the child’s benefit, the court must nevertheless disregard it, and apply the presumption of equal shared responsibility? This seems an absurd consequence. Arguably the court could solve the problem by considering the parties’ conduct, but it may be difficult to make sense of this while averting the judicial eye from the interim consent order. A more satisfactory solution, arguably, would be not to read the section literally, but to treat it as meaning no more than this: that the court should not, at the trial, assume that the interim allocation of parental responsibility is necessarily in the child’s interests. This would solve our problem, because the court could say, in the example given, that it does not make that forbidden assumption; but having regard to the evidence that the interim order has in fact worked well, and that there are no submissions to the contrary, could find on the evidence that a continuation of the interim order would be in the child’s interests, and make a final order accordingly.

The background papers Where a provision is ambiguous, one seeks guidance in the background papers. The EM states: 135. New section 61DB provides that, when making a final parenting order, the court must disregard the allocation of parental responsibility established after an interim hearing. The purpose of this provision is to address concerns about the potential difficulty of displacing a status quo related to parental responsibility that may be established at an interim hearing. This implements recommendation 15 of the LACA Report. 136. The provision is not intended to prevent the court from taking into consideration any of the evidence on which the interim parenting orders were based. Under section 60CA the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order in relation to a child.

It seems, therefore that the purpose was to “address concerns about the potential difficulty of displacing a status quo related to parental responsibility”. This is a little puzzling, because although there is a well-known problem of a “status quo” arising from interim living arrangements for the child, it is less clear that there is any real problem about allocations of decision-making power (parental responsibility) made at the interim proceedings. Still, the reference to this perceived problem, and the words of para 136, seem to support a sensible rather than a literal reading of the section. [page 404] Before leaving the topic, reference needs to be made to the recommendation referred to. LACA recommendation No 15 was as follows: The Committee recommends that the presumption of equal shared

parental responsibility should generally be applied at an interim hearing although the court should retain discretion not to apply the presumption if it thought it to be inappropriate. The court should continue to have regard to all the circumstances that are in the best interests of the child when making both interim and final orders. This should be made explicit in the Exposure Draft.

The reasoning leading to this seems to be contained in the following paragraphs of the LACA report: 2.157. … The Explanatory Statement of the Exposure Draft provides that this is intended to address concerns that a person may obtain an unwarranted advantage in a final hearing by a finding made at an interim stage. 2.160. Section 61DB may have been inserted partially to address concerns that once a decision has been made about residence of the child, the length of time until a final hearing can mean that a status quo is established that is very difficult to refute. However a number of groups considered that the section fails to stop the establishment of a status quo.

Conclusions The inconclusive remarks in para 2.160 suggest some confusion about the nature of the “status quo” problem. There is, indeed, a well-recognised problem relating to the child’s living arrangements as determined at preliminary stages: those determinations may be based on inadequate evidence, and yet if there is a substantial delay before the final trial, the child is so settled that it may then be obvious that it would not be good to disrupt the situation, even where, the facts that emerged at the trial might show that a different arrangement, at the interlocutory stage, would have been preferable. However this problem does not normally arise in a serious form in relation to decision-making, as distinct from living arrangements, and, since parental responsibility relates to decision-making, this provision does not really address the problem. Addressing the problem is not a legislative one: the

law has always made it clear that the court must consider the child’s best interests as paramount. Addressing the problem effectively would require shortening the length of time before the final determination, and this seems inevitably to lead to questions about the adequacy of court resources. Returning to the interpretation of s 61DB, it is submitted, therefore that the LACA materials provide little assistance to the interpretation of this section, and in particular do not suggest a different interpretation from the one suggested above, namely that the court should take the section to mean only that at a final hearing they should not necessarily assume that the interim allocation of parental responsibility — which may have been made with limited or untested evidence — will necessarily be desirable as a final order. For practitioners, the main lesson from this discussion is that the safest course is to ensure that the question of parental responsibility is dealt with by evidence and submissions at the trial, even where there may be no real dispute. ____________________

[s 61E] Effect of adoption on parental responsibility 61E (1) This section applies if: (a) a child is adopted; and (b) immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order. (2) The person’s parental responsibility for the child ends on the

adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced. [page 405] COMMENTARY ON SECTION 61E Effect of section …. Step-parent adoptions without leave ….

[s 61E.1] [s 61E.3]

[s 61E.1] Effect of section The effect of this section is that with one exception (see s 61E.3), the parental responsibilities of any persons (normally the birth parents) in relation to a child cease upon the adoption of the child. [s 61E.3] Step-parent adoptions without leave The exception is where there is an adoption by a step-parent and leave is not obtained from the Family Court for the adoption proceedings to be commenced: see s 60G and commentary thereto. In this situation the adoption does not have the effect of ending the parental responsibility of the birth parents (or other persons who had parental responsibility as a result of court orders). ____________________

[s 61F] Application to Aboriginal or Torres Strait Islander children 61F In: (a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or

(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child; the court must have regard to any kinship obligations, and child-rearing practices, of the child’s Aboriginal or Torres Strait Islander culture. [s 61F insrt Act 46 of 2006 s 3 and Sch 1 item 14, opn 1 July 2006] COMMENTARY ON SECTION 61F Overview of section …. Meaning of “parental responsibility” in s 61F(b) ….

[s 61F.1] [s 61F.5]

[s 61F.1] Overview of section This section was inserted by the 2006 Act. It applies to proceedings from 1 July 2006, whether or not the proceedings were commenced before that date. The effect of the section is to require the court to have regard to relevant kinship obligations and child-rearing practices when applying the Act to an Aboriginal and Torres Strait Islander child, and when identifying persons who have exercised, or who may exercise, parental responsibility for such a child. The section may be regarded as intended to give effect to s 60B(2)(e), and s 60CC(3)(h) and (6). The Explanatory Memorandum (EM) states: 139. … The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.

The EM also notes that s 61F implements recommendation 1 of

the Family Law Council’s Report, “Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze” (December 2004). The Family Law Council’s discussion of the matter is of interest. The Pathways recommendation had been: (a) [that] section 61C acknowledges unique kinship obligations and child-rearing practices of indigenous culture. [page 406] The Family Law Council wrote: Council does not agree with the proposed amendment to s 61C given: (i) the difficulty with deciding just who has parental responsibility under the proposed amendment, and (ii) that it is not clear, even if it were possible to determine fairly easily who, other than the biological parent, had parental responsibility, whether that parental responsibility would include the whole bundle of parental responsibilities envisaged under the common law and reflected in the Family Law Act and other Acts. This conclusion was reached notwithstanding that Council was sympathetic to, and agreed in principle with the intention of the proposed amendment. In the end, Council simply could not satisfy itself that there was a practicable way of amending s 61C so as to avoid uncertainty and preclude unintended consequences. However, Council suggests that a new s 61F along similar lines to that envisaged by the Out of the Maze recommendation, might be inserted at

the end of Div 2 of Pt VII of the Family Law Act, without attracting the adverse consequences attaching to the proposal as it stands. While of undoubted symbolic importance, Council concluded that such an amendment would not of itself provide the functional recognition in the many spheres of government with which Aboriginal and Torres Strait Islander families must deal. Further investigation is required into how this functional recognition of kinship arrangements can be provided by the various arms and tiers of government.

The section was applied in Davis v Davis (2007) 38 Fam LR 671; [2007] FamCA 1149; BC200750229 (Young J) and discussed in some detail by the Full Court in Donnell v Dovey (2010) 237 FLR 53; (2010) 42 Fam LR 559; [2010] FamCAFC 15; BC201050115. Points that emerge from that decision include: The 2006 amendments were aimed at ensuring that cases involving indigenous children are no longer determined on the basis of automatic acceptance of “modern AngloEuropean notions of social and family organisation”: para [332]. The section ‘does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them’. The court should make findings about the obligations and practices and ‘explain why a decision has been made that either follows or departs from them’: para [184]. The section does not necessarily require the court to adjourn the proceedings so that relevant evidence can be obtained: this will be a matter for decision by the court. [187]-[188]. In the absence of direct expert evidence, the court may draw on common knowledge (Evidence Act 1995 (Cth) s

144), and ‘readily accessible public information of which it would be expected that a trial judge would inform himself or herself’: see B and R and the Separate Representative (1995) 19 Fam LR 594; (1995) FLC 92-636, discussed in Donnell v Dovey (2010) 237 FLR 53; (2010) 42 Fam LR 559; [2010] FamCAFC 15; BC201050115, especially at [207]-[230]. Examples identified by the Full Court included Stephen Ralph, “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12(2) AJFL 140, and the collection of materials in H McRae, G Nettheim, T Anothony, Indigenous Legal Materials: Commentary and Materials, 4th ed, Pyrmont, New South Wales, 2009. The court may also receive expert evidence contained in judicial decisions such as Re CP (1997) 21 Fam LR 486: see s 69ZX(3). [s 61F.5] Meaning of “parental responsibility” in s 61F(b) What does “parental responsibility” mean in s 61F? The term is defined in that Act as meaning “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (ss 4, s 61B, [page 407] s 61C). And the word ‘parent’ when used in the Act has been held to mean a biological or adoptive parent and does not include a person who merely acts in the role of a parent (‘in loco parentis’), even if that person is treated as a parent by the community with which the person identifies: Donnell v Dovey (2010) 237 FLR 53; (2010) 42 Fam LR 559; [2010] FamCAFC 15; BC201050115.

It is submitted, however, that defining the term in s 61F(b) in this was would render the section unworkable (and for that reason could not be correct). Suppose on the death of a mother, the child had gone into the household of a relative, for example the mother’s sister. Suppose it was relevant to the determination of the case whether the mother’s sister had in fact been the one to look after the child, and would do so in the future. Suppose there was evidence that in the relevant culture, the sister had obligations to care for the child, and that the community would expect her to do so, and would support her in doing so. The effect of s 61F(b) in that case would be that in identifying a person who has exercised the parenting role, and might do so in the future, the court must have regard to those kinship obligations and child-rearing practices. That would be an obvious application of the section; and it has nothing to do with the legal allocation of ‘parental responsibility’ under the Act. In short, it is submitted that in the context of s 61F ‘parental responsibility’ should not be understood to refer to the legal allocation of decision-making under s 61C, but to the past and future exercise of the task of parenting - about which, very sensibly, the court must consider any relevant kinship obligations and child-rearing practices. Although the issue was not explicitly considered in that case, this approach appears consistent with the discussion of s 61F in Donnell v Dovey (2010) 42 Fam LR 559, especially at paragraphs [89]-92] and [179]ff. ____________________ DIVISION 3 — REPORTS RELATING TO CHILDREN UNDER 18 [Div 3 am Act 46 of 2006 s 3 and Sch 4 item 50, opn 1 July 2006]

[s 62A]

What this Division does

62A This Division deals with the preparation of reports for use in proceedings relating to children who are under 18. [s 62A subst Act 46 of 2006 s 3 and Sch 4 item 51, opn 1 July 2006]

[s 62B] Court’s obligation to inform people to whom Part VII orders apply about family counselling, family dispute resolution and other family services 62B If a court makes an order in proceedings under this Part, the court must inform the parties to the proceedings about the family counselling services, family dispute resolution services and other courses, programs and services available to help the parties adjust to the consequences of that order. Note: Before informing the parties, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E). [s 62B subst Act 46 of 2006 s 3 and Sch 4 item 52, opn 1 July 2006]

[s 62C] Request for counselling — request made through a Family Court 62C

[s 62C rep Act 46 of 2006 s 3 and Sch 4 item 52, opn 1 July

2006]

[s 62CA] Request for counselling — request made through Federal Magistrates Court 62CA

[s 62CA rep Act 46 of 2006 s 3 and Sch 4 item 52, opn 1 July

2006]

[page 408]

[s 62D]

Request for counselling — where made

direct to a family and child counsellor 62D

[s 62D rep Act 46 of 2006 s 3 and Sch 4 item 52, opn 1 July

2006]

[s 62E] Court counselling facilities to be made available 62E

[s 62E rep Act 46 of 2006 s 3 and Sch 4 item 52, opn 1 July

2006]

[s 62F] Conferences with family and child counsellors or welfare officers 62F

[s 62F rep Act 46 of 2006 s 3 and Sch 4 item 52, opn 1 July

2006]

[s 62G]

Reports by family consultants

62G (1) This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant. (2) The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable. [subs (2) am Act 46 of 2006 s 3 and Sch 4 item 53, opn 1 July 2006]

(3) If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court. (3A) A family consultant who is directed to give the court a report on a matter under subsection (2) must: (a) ascertain the views of the child in relation to that matter;

and (b) include the views of the child on that matter in the report. Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE). [subs (3A) insrt Act 46 of 2006 s 3 and Sch 1 item 15, opn 1 July 2006]

(3B) Subsection (3A) does not apply if complying with that subsection would be inappropriate because of: (a) the child’s age or maturity; or (b) some other special circumstance. [subs (3B) insrt Act 46 of 2006 s 3 and Sch 1 item 15, opn 1 July 2006]

(4) The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child. [subs (4) subst Act 46 of 2006 s 3 and Sch 4 item 54, opn 1 July 2006]

(5) For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant). Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E). [subs (5) subst Act 46 of 2006 s 3 and Sch 4 item 54, opn 1 July 2006; am Act 189 of 2011 s 3 and Sch 2[15], opn 7 Dec 2011]

[page 409]

(6) If: (a) a person fails to comply with an order or direction under subsection (5); or (b) a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5); the family consultant must report the failure to the court. [subs (6) am Act 46 of 2006 s 3 and Sch 4 item 55, opn 1 July 2006; Act 189 of 2011 s 3 and Sch 2[16], opn 7 Dec 2011]

(7) On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate. (8) A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act. [s 62G am Act 46 of 2006 s 3 and Sch 4 item 53, opn 1 July 2006] COMMENTARY ON SECTION 62G Introductory comments …. History of section …. When reports may be ordered …. “Family consultant” …. Report admissible by virtue of Act: s 62G(8) …. General principles relating to family reports: In the Marriage of Hall …. Role of authors of family reports …. Restricting access to reports …. Authors of reports and independent children’s lawyer ….

[s 62G.1] [s 62G.3] [s 62G.5] [s 62G.6] [s 62G.8] [s 62G.10] [s 62G.12] [s 62G.15] [s 62G.17]

[s 62G.1] Introductory comments Family reports ordered under s 62G are an important part of the operation of the law. In practice

they are used mainly in parenting cases, although their use is not limited to these cases. In practice, family reports are often written on the basis of a series of interviews with the children and the relevant adults, such as parents, and the report writer will often also have access to affidavits filed in the proceedings. Sometimes the report is based on more limited material, such as a brief interview, and occasionally involves a home visit. Family reports typically include the history of the matter as related by the participants, observations on the interaction between the children and the adults, a report on the children’s wishes (see s 68G), and recommendations on what orders would be most likely to benefit the children. Sometimes the report does not make specific recommendations but identifies the options open to the court and the advantages and disadvantages thought to attach to each option. Family reports are normally ordered in the course of pre-trial procedures, and are normally released to the parties prior to the date for hearing. [s 62G.3] History of section The provision of family reports was a feature of the original Family Law Act 1975, although the section has been amended from time to time. The section was amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (2006 Act). Subsections (1) to (3) were unchanged, except that “family consultant” replaced the former term, “family and child counsellor or welfare officer”. Subsections (3A) and (3B), which were added in 2006, spell out the obligations of the family consultant to deal with children’s views. Subsections (4)–(8) are essentially unchanged. [s 62G.5] When reports may be ordered Reports may be ordered

when the welfare and development of child is relevant: s 62G(1). Reports may thus be ordered in a wide range of proceedings. It is necessary only that the welfare and development of a child is relevant; it does not have to be the paramount consideration: see commentary to ss 60CA and 60CC. For example, [page 410] a report could be ordered in proceedings for an injunction to remove a parent from the home, where the injunction might have an impact on a child. In practice however it would be unusual for reports to be ordered in such cases. A court can order the preparation of an expert’s report in proceedings involving children only where there are in fact such proceedings pending: see In the Marriage of Renshaw and Reschke (1997) 22 Fam LR 354; FLC 92–777. [s 62G.6] “Family consultant” These terms are defined in ss 4 and 11B. [s 62G.8] Report admissible by virtue of Act: s 62G(8) A report received under s 62G is admissible as a result of the section. Thus it cannot be excluded on the basis, for example, that it includes hearsay material: see In the Marriage of Curr (1978) 4 Fam LN 63; (1979) FLC 90–611. The Evidence Act 1995 (Cth) does not change this position: see s 8 of that Act. However the court has a discretion whether to receive the report. [s 62G.10] General principles relating to family reports: In the Marriage of Hall In In the Marriage of Hall (1979) 5 Fam LR 609

at 615; FLC 90–713 at 78,819, the Full Court set out the following “observations” of a general nature relating to family reports (some citations omitted): (a) There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities… (b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him. (c) While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor. (d) Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character than that which the counsellor has accepted.

(e) Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party. (f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the judge or whether it is not; the report will still serve the court well and assist the court’s investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor. (g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner [page 411] would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To crossexamine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual

hazards involved in cross-examining any witness but more particularly an expert. (h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation… (i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. [The Full Court quoted with approval passages from the case of In the Marriage of Harris (1977) 3 Fam LR 33; 29 FLR 289 at 289; FLC 90–276 at 76,474, per Fogarty J; and In the Marriage of M (1978) 4 Fam LN 16; 30 FLR 562n at 562; FLC 90–429 at 77,182 per Marshall SJ.] [s 62G.12] Role of authors of family reports The courts have emphasised that the authors of family reports have no privileged position and that they should give evidence in the ordinary way: see Re JRL; Ex parte CJL (1986) 161 CLR 342 at 348; 66 ALR 239; 10 Fam LR 917 at 920; FLC 91-738 at 75,736 where Gibbs CJ said: In the performance of this function the court counsellor becomes a potential witness — a court appointed witness who is perhaps in some respects analogous to an expert witness — but is not part of the court, and has no right to communicate with a judge in relation to a pending matter except through the medium of the report if it becomes evidence and by giving evidence if the counsellor is called as a witness.

See also In the Marriage of Ahmad (1979) 5 Fam LR 15; 34 FLR 501n; FLC 90-633. As is clear from Hall, above, authors of reports may be cross-examined. [s 62G.15] Restricting access to reports It is not clear whether it is open to the court to make a family report available to counsel but not to the parties, as was done in In the Marriage of Mulcahy (1978) 4 Fam LN 5; FLC 90–425. In Re JRL, above, Gibbs CJ left this point open. There is an obvious problem of potential injustice in taking such a course. On the other hand, a family report may contain particular information that could have a harmful effect on a party. There is no authoritative decision on the appropriate handling of such difficult situations. The discretion to admit evidence contained in family reports is unfettered and subject only to the weight which should be attached to such evidence. A report prepared under s 62G is directly admissible under s 62G(8) and this rule. [s 62G.17] Authors of reports and independent children’s lawyer There is no particular connection between authors of reports and independent children’s lawyers, although both are independent of the parties. The author of the report is not the witness of the children’s lawyer. There is no particular reason why the children’s lawyer should agree with the evidence of the author of a family report, or treat him or her any differently from other witnesses. It may be particularly important to have the author of a family report questioned by the independent children’s lawyer, particularly in cases where the parties are unrepresented. ____________________

[page 412]

[s 62H] 62H

Provision of certain documents [s 62H rep Act 46 of 2006 s 3 and Sch 4 item 56, opn 1 July

2006]

DIVISION 4 — PARENTING PLANS

[s 63A] 63A

What this Division does This Division explains what parenting plans are.

[s 63A am Act 138 of 2003 s 3 and Sch 1 item 2 opn 14 Jan 2004] COMMENTARY ON SECTION 63A Parenting plans compared to former child agreements ….

[s 63A.1]

[s 63A.1] Parenting plans compared to former child agreements The provisions relating to parenting plans are similar to those that provided for “child agreements” under the Act as it was before the Family Law Reform Act 1995 (Cth). There are two main differences. First, the provisions relating to parenting plans use the new concepts introduced by the Family Law Reform Act 1995 to replace guardianship, custody and access. The new concepts are parental responsibility and parenting orders, comprising residence, contact, child maintenance and specific issues orders. Second, whereas child agreements could be registered without any form of scrutiny or approval, parenting plans will only be registered if: (i) there is a statement to the effect that independent legal advice has been provided, or that the plan was developed after

consultation with a counsellor; and (ii) if the court determines, having regard to information provided with the plan, that it is appropriate to register the plan having regard to the best interests of the child. ____________________

[s 63B]

Parents encouraged to reach agreement

63B The parents of a child are encouraged: (a) to agree about matters concerning the child; and (b) to take responsibility for their parenting arrangements and for resolving parental conflict; and (c) to use the legal system as a last resort rather than a first resort; and (d) to minimise the possibility of present and future conflict by using or reaching an agreement; and (e) in reaching their agreement, to regard the best interests of the child as the paramount consideration. Note: Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent. [s 63B subst Act 138 of 2003 s 3 and Sch 1 item 3 opn 14 Jan 2004]

[s 63C] terms

Meaning of parenting plan and related

63C (1) A parenting plan is an agreement that: (a) is in writing; and (b) is or was made between the parents of a child; and

(ba) is signed by the parents of the child; and (bb) is dated; and [page 413] (c) deals with a matter or matters mentioned in subsection (2). [subs (1) am Act 46 of 2006 s 3 and Sch 1 item 16, opn 1 July 2006]

(1A) An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion. [subs (1A) insrt Act 46 of 2006 s 3 and Sch 1 item 16A, opn 1 July 2006]

(2) A parenting plan may deal with one or more of the following: (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; (e) the communication a child is to have with another person or other persons; (f) maintenance of a child; (g) the process to be used for resolving disputes about the terms or operation of the plan; (h) the process to be used for changing the plan to take

(i)

account of the changing needs or circumstances of the child or the parties to the plan; any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Note: Paragraph (f) — if the Child Support (Assessment) Act 1989 applies, provisions in a parenting plan dealing with the maintenance of a child (as distinct from child support under that Act) are unenforceable and of no effect unless the provisions in the plan are a child support agreement (see section 63CAA and subsection 63G(5) of this Act). [subs (2) subst Act 46 of 2006 s 3 and Sch 1 item 17, opn 1 July 2006]

(2A) The person referred to in subsection (2) may be, or the persons referred to in that subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child). [subs (2A) insrt Act 46 of 2006 s 3 and Sch 1 item 17, opn 1 July 2006]

(2B) Without limiting paragraph (2)(c), the plan may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child. [subs (2B) insrt Act 46 of 2006 s 3 and Sch 1 item 17, opn 1 July 2006]

(2C) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by: (a) letter; and (b) telephone, email or any other electronic means. [subs (2C) insrt Act 46 of 2006 s 3 and Sch 1 item 17, opn 1 July 2006]

(3) An agreement may be a parenting plan: (a) whether made before or after the commencement of this section; and (b) whether made inside or outside Australia; and

(c) whether other persons as well as a child’s parents are also parties; and (d) whether it deals with other matters as well as matters mentioned in subsection (2). Note: One of the other matters with which a parenting plan may deal is child support (see section 63CAA).

[page 414] (4) Provisions of a parenting plan that deal with matters other than the maintenance of a child are child welfare provisions. [subs (4) subst Act 46 of 2006 s 3 and Sch 8 item 55, opn 1 July 2006]

(5) Provisions of a parenting plan that deal with the matter mentioned in paragraph (2)(f) are child maintenance provisions. [subs (5) am Act 46 of 2006 s 3 and Sch 8 item 55, opn 1 July 2006]

(6) A registered parenting plan is a parenting plan: (a) that was registered in a court under section 63E as in force at any time before the commencement of the Family Law Amendment Act 2003; and (b) that continued to be registered immediately before the commencement of the Family Law Amendment Act 2003. [subs (6) insrt Act 138 of 2003 s 3 and Sch 1 item 4 opn 14 Jan 2004]

[s 63CAA] Parenting plans may include child support provisions 63CAA (1) If a parenting plan includes provisions of a kind referred to in subsection 84(1) of the Child Support (Assessment)

Act 1989, the provisions do not have effect for the purposes of this Act. (2) Subsection (1) does not affect the operation of the provisions for any other purpose. (3) Nothing in this Division is to be taken to prevent the same agreement being both a parenting plan under this Part and a child support agreement under Part 6 of the Child Support (Assessment) Act 1989. [s 63CAA insrt Act 34 of 1997 s 3 and Sch 7]

[s 63D] Parenting plan may be varied or revoked by further written agreement 63D A parenting plan, other than a plan to which section 63DB applies, may be varied or revoked by agreement in writing between the parties to the plan. [s 63D subst Act 138 of 2003 s 3 and Sch 1 item 5 opn 14 Jan 2004] COMMENTARY ON SECTION 63D Effect of section ….

[s 63D.1]

[s 63D.1] Effect of section The effect of this section is that if parties wish to vary a parenting plan they need to revoke the parenting plan and register a fresh one incorporating the new material. They cannot register an agreement purporting to vary the parenting plan. ____________________

[s 63DA] 63DA

Obligations of advisers (1A) The obligations of an adviser under this section

are in addition to the adviser’s obligations under section 60D. Note: Section 60D deals with an adviser’s obligations in relation to the best interests of the child. [subs (1A) insrt Act 189 of 2011 s 3 and Sch 1 item 24, opn 7 June 2012]

(1) If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must: [page 415] (a) inform them that they could consider entering into a parenting plan in relation to the child; and (b) inform them about where they can get further assistance to develop a parenting plan and the content of the plan. (2) If an adviser gives advice to people in connection with the making by those people of a parenting plan in relation to a child, the adviser must: (a) inform them that, if the child spending equal time with each of them is: (i) reasonably practicable; and (ii) in the best interests of the child; they could consider the option of an arrangement of that kind; and (b) inform them that, if the child spending equal time with each of them is not reasonably practicable or is not in the best interests of the child but the child spending substantial and significant time with each of them is: (i) reasonably practicable; and

(c) (d)

(e)

(f)

(ii) in the best interests of the child; they could consider the option of an arrangement of that kind; and [repealed] inform them of the matters that may be dealt with in a parenting plan in accordance with subsection 63C(2); and inform them that, if there is a parenting order in force in relation to the child, the order may (because of section 64D) include a provision that the order is subject to a parenting plan they enter into; and inform them about the desirability of including in the plan: (i) if they are to share parental responsibility for the child under the plan — provisions of the kind referred to in paragraph 63C(2)(d) (which deals with the form of consultations between the parties to the plan) as a way of avoiding future conflicts over, or misunderstandings about, the matters covered by that paragraph; and (ii) provisions of the kind referred to in paragraph 63C(2)(g) (which deals with the process for resolving disputes between the parties to the plan); and (iii) provisions of the kind referred to in paragraph 63C(2)(h) (which deals with the process for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan); and

explain to them, in language they are likely to readily (g) understand, the availability of programs to help people who experience difficulties in complying with a parenting plan; and (h) inform them that section 65DAB requires the court to have regard to the terms of the most recent parenting plan in relation to the child when making a parenting order in relation to the child if it is in the best interests of the child to do so. Note: Paragraphs (a) and (b) only require the adviser to inform the people that they could consider the option of the child spending equal time, or substantial and significant time, with each of them. The adviser may, but is not obliged to, advise them as to whether that option would be appropriate in their particular circumstances. [subs (2) am Act 189 of 2011 s 3 and Sch 1 item 25, opn 7 June 2012]

[page 416] (3) For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if: (a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and (b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and (ii) occasions and events that are of particular significance to the child; and

the time the child spends with the parent allows the child (c) to be involved in occasions and events that are of special significance to the parent. (4) Subsection (3) does not limit the other matters to which regard may be had in determining whether the time a child spends with a parent would be substantial and significant. (5) In this section: adviser means a person who is: (a) a legal practitioner; or (b) a family counsellor; or (c) a family dispute resolution practitioner; or (d) a family consultant. [s 63DA subst Act 46 of 2006 s 3 and Sch 1 item 18, opn 1 July 2006] COMMENTARY ON SECTION 63DA [s 63DA.1] This section flows from the “parenting compliance regime” introduced by the Family Law Amendment Act 2000 (Cth), and discussed in detail in the commentary to Div 13A. It is equivalent to stage 1 of that regime. The section obliges the listed professionals to provide the prescribed information as part of the advice or assistance they provide in making a parenting plan. A parenting plan is an “order … affecting children” for the purposes of Div 13A: s 70NB.

____________________

[s 63DB]

Registered parenting plans

63DB (1) Application of section This section applies to a registered parenting plan. (2) Saving of registered parenting plan A registered parenting

plan continues in force until revoked in accordance with section 63E, or set aside, varied or discharged as referred to in section 63H. (3) No variation of registered parenting plan A registered parenting plan cannot be varied. (4) Revocation of registered parenting plan Subject to subsection (5), a registered parenting plan may be revoked by agreement in writing between the parties to the plan. (5) Registration of revocation required An agreement revoking a registered parenting plan: (a) may, subject to the applicable Rules of Court, be registered, in a court having jurisdiction under this Part, under section 63E; and (b) does not have effect to revoke the plan until it is so registered. [s 63DB insrt Act 138 of 2003 s 3 and Sch 1 item 7 opn 14 Jan 2004]

[page 417]

[s 63E] Registration of a revocation of a registered parenting plan 63E (1) This section applies to a registered parenting plan. (2) To apply for registration of an agreement (revocation agreement) revoking a registered parenting plan: (a) an application for registration of the revocation agreement must be lodged in accordance with the applicable Rules of Court; and

(b) the application must be accompanied by: (i) a copy of the revocation agreement; and (ii) the information required by the applicable Rules of Court; and (iii) a statement, in relation to each party, that is to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement and that is signed by the practitioner who provided that advice. (3) The court may register the revocation agreement if it considers it appropriate to do so having regard to the best interests of the child to whom the agreement relates. In determining whether it is appropriate to register the revocation agreement, the court: (a) must have regard to the information accompanying the application for registration; and (b) may, but is not required to, have regard to all or any of the matters set out in subsections 60CC(2) and (3). [subs (3) am Act 46 of 2006 s 3 and Sch 1 item 19, opn 1 July 2006] [s 63E subst Act 138 of 2003 s 3 and Sch 1 item 8 opn 14 Jan 2004] COMMENTARY ON SECTION 63E Introduction …. Requirements for registration — subss (2) and (3) …. Child’s best interests …. Relevant matters ….

[s 63E.1] [s 63E.3] [s 63E.5] [s 63E.7]

[s 63E.1] Introduction This section provides for the registration of parenting plans. Parenting plans are defined in s 63C. The requirements for registration are set out in subss (2) and (3). The

consequences of registration are that the provisions of the parenting plan have effect as if they were parenting orders. [s 63E.3] Requirements for registration — subss (2) and (3) Legal advice The required statement must be that each party has been provided with independent legal advice (it would seem that the same lawyer cannot advise each party) as to the “meaning and effect of the plan”. It is not necessary for the lawyer to form or express a view about whether the plan will promote the child’s best interests. Consultation with counsellor One counsellor can consult and sign the statement, since there is no provision for “independent” counselling or advice similar to that relating to legal advice. It is not necessary for the counsellor to form or express a view about whether the plan will promote the child’s best interests. [s 63E.5] Child’s best interests Although the principle that the child’s best interests are to be the paramount considerations does not appear to apply expressly, the provisions seem virtually to amount to this: the court may register the plan “if it considers it appropriate to do so having regard [page 418] to the best interests of the child”; and note that the parents are encouraged to regard the best interests of the child as the paramount consideration: s 63B(b). [s 63E.7] Relevant matters The court must have regard to the

information accompanying the application for registration and may have regard to some or all of the matters in s 60CC (matters relevant to determining what is in the child’s best interests). The significance of this wording is to avoid the situation where registration is impossible because some items on the s 60CC list have not been expressly addressed. ____________________

[s 63F] Child welfare provisions of registered parenting plans 63F (1) Application of section This section applies to a registered parenting plan that contains child welfare provisions. [subs (1) subst Act 138 of 2003 s 3 and Sch 1 item 9 opn 14 Jan 2004]

(2) The court may, by order, vary the child welfare provisions in the plan if it considers the variation is required in the best interests of a child. (3) The child welfare provisions have effect, subject to subsections (5) and (6), as if they were provisions of a parenting order. Note: Provisions of this Act relevant to the child welfare provisions having effect as provided in this subsection include:

(a) Subdivisions C, D and E of Division 6 of this Part (dealing with obligations created by parenting orders (other than child maintenance orders)); and (b) Division 13A of this Part and Part XIII (dealing generally with enforcement of orders and sanctions for contravening orders); and (c) subsection 65D(2) (providing for discharge, variation, suspension and revival of parenting orders other than

child maintenance orders); and (d) other provisions of this Act (including subsection 64B(6)) that refer to parenting orders. [subs (3) subst Act 46 of 2006 s 3 and Sch 8 item 56, opn 1 July 2006]

(4) If provisions of the plan have effect under subsection (3) as a court order, a person who is a party to the plan is taken (for example, for the purposes of section 65Y) to be a party to the proceedings in which the order was made. (5) Subsection (3) does not apply to the plan (whenever registered) to the extent (if at all) that the plan purports to determine that the child concerned is to live with a person who is not a parent of the child. (6) Even though the plan is registered, the court, or another court having jurisdiction under this Part, must not enforce the child welfare provisions if it considers that to do so would be contrary to the best interests of a child. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (6) am Act 46 of 2006 s 3 and Sch 1 item 20, opn 1 July 2006] COMMENTARY ON SECTION 63F Effect of section …. Child welfare provisions ….

[s 63F.1] [s 63F.3]

[s 63F.1] Effect of section This section sets out the consequences of a parenting plan that is registered under the Act. The main consequence is that the “child welfare provisions” have effect as if they were parenting orders, and parties to the parenting plan are taken to be parties to the proceedings in which the parenting orders are deemed to have been made: subss (3), (4). However a parenting plan cannot effectively provide that the child should live with a

person other than a parent: see subs (5). [page 419] [s 63F.3] Child welfare provisions For definition, see s 63C(4). Child welfare provisions of a registered parenting plan may be varied by court order if the court considers the variation is required in the best interests of the child: subs (2). And they will not be enforced if to do so would be contrary to the welfare of a child: subs (6). ____________________

[s 63G] Child maintenance provisions of registered parenting plans — where not enforceable as maintenance agreements 63G (1) This section applies if: (a) a registered parenting plan contains child maintenance provisions; and (b) the plan is not a maintenance agreement or, if it is a maintenance agreement, the child concerned is not a child of the relevant marriage. [subs (1) subst Act 138 of 2003 s 3 and Sch 1 item 10 opn 14 Jan 2004]

(2) The child maintenance provisions have effect, subject to subsections (3), (4) and (5), as if they were a child maintenance order made by the court. Note: Provisions of this Act relevant to the child maintenance provisions having effect as a child maintenance order include:

Parts XIII and XIIIA (dealing generally with (a) enforcement of orders and sanctions for contravening orders); and (b) section 66S (providing for discharge, variation, suspension and revival of child maintenance orders); and (c) other provisions of this Act that refer to parenting orders, or to child maintenance orders. (3) Unless the plan provides otherwise, the child maintenance provisions (other than provisions for the periodic payment of maintenance) continue to operate in spite of the death of a party to the plan and operate in favour of, and are binding on, the legal personal representative of that party. (4) If the child maintenance provisions include provisions (the periodic provisions) for the periodic payment of maintenance: (a) the periodic provisions continue to operate, if the plan so provides, in spite of the death of a party to the plan who is liable to make the periodic payments, and are binding on the legal personal representative of that party; but (b) the periodic provisions do not continue to operate, in spite of anything in the plan, after the death of the person entitled to receive the periodic payments. (5) The child maintenance provisions have no effect, and are not enforceable in any way, at any time when an application could properly be made under the Child Support (Assessment) Act 1989 by one of the parties to the plan for administrative assessment of child support (within the meaning of that Act) for the child concerned. Note: This subsection does not affect the operation of provisions of a parenting plan referred to in section 63CAA (child support matters).

(6) Subsection (5) has effect whether or not an application for administrative assessment of child support for the child has in fact been made by a party to the plan.

[s 63H] Court’s powers to set aside, discharge, vary, suspend or revive registered parenting plans 63H

(1A) This section applies to a registered parenting plan.

[subs (1A) insrt Act 138 of 2003 s 3 and Sch 1 item 11 opn 14 Jan 2004]

(1) The court in which the plan was registered may set aside the plan, and its registration, if the court is satisfied: [page 420] (a) that the concurrence of a party was obtained by fraud, duress or undue influence; or (b) that the parties want the plan set aside; or (c) that it is in the best interests of a child to set aside the plan. [subs (1) am Act 138 of 2003 s 3 and Sch 1 item 12 opn 14 Jan 2004]

(2) In proceedings under subsection (1), to the extent that they are proceedings on the ground mentioned in paragraph (1)(c), the best interests of the child concerned are the paramount consideration. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 21, opn 1 July 2006]

(3) Other provisions of this Act under which provisions of the parenting plan may be set aside or otherwise affected are:

(a) subsection 63F(2) — under that subsection a court may vary child welfare provisions in the plan; and (b) subsection 65D(2) — under that subsection a court may make a parenting order that discharges, varies, suspends or revives provisions of the plan that have effect as if they were a parenting order (other than a child maintenance order); and (c) section 66S — under that section a court may discharge, vary, suspend or revive provisions of the plan that have effect as if they were a child maintenance order. (4) Except as permitted by subsection (1) or by a provision mentioned in subsection (3), a court must not set aside, discharge, vary, suspend or revive the whole or a part of the parenting plan. COMMENTARY ON SECTION 63H Setting aside parenting plan …. Fraud, duress or undue influence — subs (1)(a) …. Parties want the parenting plan set aside — subs (1)(b) …. Best interests of child — subss (1)(c) and (2) …. Other provisions for setting aside etc ….

[s 63H.1] [s 63H.3] [s 63H.5] [s 63H.7] [s 63H.9]

[s 63H.1] Setting aside parenting plan The court may set aside a parenting plan in three situations, namely if the court is satisfied that: (i) the concurrence of a party was obtained by fraud etc; (ii) the parties want it set aside; and (iii) it is in the best interests of the child to set it aside. In the third case, the child’s best interests are the paramount consideration. Note that these are independent: for example if it is in the best interests of the child to set aside the parenting plan, or if the parties want it to be set aside, it is not necessary to establish fraud etc.

[s 63H.3] Fraud, duress or undue influence — subs (1)(a) For discussion of authorities on these matters, see the commentary to s 79A. It would seem that where one of these invalidating matters is established, the court may set aside the parenting plan without making a finding that to do so would promote the child’s best interests. [s 63H.5] Parties want the parenting plan set aside — subs (1) (b) It would seem that where the parents want the parenting plan set aside, the court may set aside the parenting plan without making a finding that to do so would promote the child’s best interests. [page 421] [s 63H.7] Best interests of child — subss (1)(c) and (2) It would seem that the result of subss (1)(c) and (2) is that where the court is satisfied that it is in the best interests of the child to set aside the parenting plan, the court must set it aside. [s 63H.9] Other provisions for setting aside etc These are set out in subs (3). ____________________ DIVISION 5 — PARENTING ORDERS — WHAT THEY ARE

[s 64A] 64A

[s 64B]

What this Division does This Division explains what parenting orders are.

Meaning of parenting order and related

terms 64B (1) A parenting order is: (a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or (b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a). However, a declaration or order under Subdivision E of Division 12 is not a parenting order. [subs (1) am Act 189 of 2011 s 3 and Sch 2[17], opn 7 Dec 2011]

(2) A parenting order may deal with one or more of the following: (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility; (e) the communication a child is to have with another person or other persons; (f) maintenance of a child; (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: (i) a child to whom the order relates; or

(ii) the parties to the proceedings in which the order is made; (h) the process to be used for resolving disputes about the terms or operation of the order; (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child). Note: Paragraph (f) — a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies. [subs (2) subst Act 46 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child. [subs (3) subst Act 46 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

[page 422] (4) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by: (a) letter; and (b) telephone, email or any other electronic means. [subs (4) subst Act 46 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult

with a family dispute resolution practitioner to assist with: (a) resolving any dispute about the terms or operation of the order; or (b) reaching agreement about changes to be made to the order. [subs (4A) insrt Act 46 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order. [subs (5) am Act 46 of 2006 s 3 and Sch 1 item 23, opn 1 July 2006]

(6) For the purposes of this Act: (a) a parenting order that provides that a child is to live with a person is made in favour of that person; and (b) a parenting order that provides that a child is to spend time with a person is made in favour of that person; and (c) a parenting order that provides that a child is to have communication with a person is made in favour of that person; and (d) a parenting order that: (i) allocates parental responsibility for a child to a person; or (ii) provides that a person is to share parental responsibility for a child with another person; is made in favour of that person. [subs (6) subst Act 46 of 2006 s 3 and Sch 1 item 24, opn 1 July 2006]

(7) [subs (7) rep Act 46 of 2006 s 3 and Sch 1 item 24, opn 1 July 2006] (8) [subs (8) rep Act 46 of 2006 s 3 and Sch 1 item 24, opn 1 July 2006] (9) In this section:

this Act includes: (a) the standard Rules of Court; and (b) the related Federal Circuit Court Rules. [subs (9) insrt Act 194 of 1999 s 3 and Sch 11[52]; am Act 13 of 2013 s 3 and Sch 1 item 289, opn 12 Apr 2013] COMMENTARY ON SECTION 64B Overview …. Orders discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a): s 64B(1)(b) …. Related provisions of Act …. Legislative history …. Parenting orders not limited to parents: subs (2) (last sentence) …. No power to join unwilling third parties …. The persons with whom the child is to live: subs (2)(a) …. The time the child is to spend with other persons: subs (2)(b) …. The allocation of parental responsibility for a child: para (c), subs (3) ….

[s 64B.5]

[s 64B.6] [s 64B.10] [s 64B.15] [s 64B.20] [s 64B.25] [s 64B.30] [s 64B.35] [s 64B.40] [page 423]

Orders for shared parental responsibility create obligations to decide jointly, and to consult: s 65DA …. Orders for equal shared parental responsibility …. The form of consultations between people sharing parental responsibility: subs (2)(d) …. The communication a child is to have with other persons: subs (2)(e), subs (4) ….

[s 64B.45] [s 64B.50] [s 64B.55] [s 64B.60]

Maintenance of a child: subs (2)(f) …. Steps to be taken before applying for a variation of the parenting order: subs (2)(g), subs (4A) …. The process to be used for resolving disputes about the terms or operation of the order: subs (2)(h), subs (4A) …. Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child — subs (2)(i) …. Whether a parentage testing order is a “parenting order” …. A declaration of parentage under s 69VA is not a parenting order …. Financial aspects of orders that a child live with, spend time with, or communicate with a person …. Unborn child ….

[s 64B.65] [s 64B.70]

[s 64B.75]

[s 64B.80] [s 64B.85] [s 64B.90] [s 64B.95] [s 64B.100]

[s 64B.5] Overview In substance, s 64B provides that a parenting order is an order dealing with any of the matters listed in subs (2). The remaining subsections essentially spell out some aspects of subs (2). The power to make parenting orders is to be found in s 65D. [s 64B.6] Orders discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a): s 64B(1)(b) Section 64B(1)(b) includes in the definition of “parenting order” an order under Pt VII that discharges, varies, suspends or revives a parenting order. Although the legislative power to alter parenting order is therefore unrestricted, there are authorities to the effect that in order to re-open a “final” parenting order (as to which, see below) the applicant needs to show changed circumstances making it appropriate for the court to re-open the matter. This rule known as

the “Rule in Rice v Asplund”, is considered in the commentary to s 60CC, at [s 60CC.220]. “Final” and “interim” parenting orders It is common for parenting orders to be expressed as “final” on one hand or “interim” or “interlocutory” on the other. “Final” orders are orders made by consent or after a hearing and not expressed to be interim or interlocutory. Orders are typically said to be interim when made in interim proceedings and intended to regulate the situation until the final hearing, when the court will make “final” orders. However, it is possible for the court to set aside or vary a parenting order: s 64B(1)(b) (subject to the rule in Rice v Asplund, requiring proof of changed circumstances — as to which, see [s 60CC.220]. The authorities on the distinction between final and interlocutory orders say (approximately) that it depends on whether the order finally determines the rights of the parties. Does the court’s power to vary etc mean that parenting orders are never “final”? The answer seems to be yes: CDW v LVE (2015) 54 Fam LR 297; [2015] WASCA 247; BC201511944 (in which the authorities are discussed). The distinction between a final and an interim or interlocutory order is often relevant to rights of appeal. Typically, legislation requires leave for an appeal against an interlocutory order, but not against a final order. In the case of parenting orders, s 94AA requires leave to appeal against “a prescribed decree”, which is defined in reg 15A as “an interlocutory decree” (other than a decree in relation to a child welfare matter). Since a parenting order is necessarily in relation to a child [page 424]

welfare matter, it follows that s 94AA does not require leave to appeal again a parenting order (whether an interim or a “final” parenting order). The bottom line: Leave is never required to appeal against a parenting order. [s 64B.10] Related provisions of Act Other provisions of the Act create powers that may be related to, or overlap with, the power to make parenting orders. See in particular s 67ZC (orders relating to the welfare of children) and s 68B (injunctions), and the accompanying commentaries. [s 64B.15] Legislative history The power to make “parenting orders”, which was introduced by the Family Law Reform Act 1995 (Cth), replaced the power under the old Act to make orders dealing with guardianship, custody and access. Child maintenance orders are also included in parenting orders. The significance of the change from “custody” and “access” orders was explained by the Full Court in Re B and B; Family Law Reform Act 1995 (1997) 140 FLR 11; 21 Fam LR 676 at 731–2; (1997) FLC 92–755 at 84,218: 9.38 This section and the subsequent sections of Div 5 emphasise one of the fundamental differences between the amendments introduced by the Reform Act and the previous legislation. Under the latter, the court usually made a custody order in favour of one parent and an access order in favour of the other parent. The custody order carried with it not only residence but also powers in relation to the day-to-day care of the children. Now the structure of the Act is that the norm is residence and contact orders which deal only with the matters described above, leaving all other powers, authority and responsibilities in relation to children to be shared between the parents. If either parent desires to alter that position it is necessary for that person to apply for a specific issues order.

9.39 The aim of these provisions is twofold. Firstly, to underline the shared responsibilities of parents and to avoid, where it is unnecessary to do so, the apparent imbalance which was thought to arise from the custody/access regime. The changes are obviously far more than semantic. Residence is not custody by another name. It has a more constrained meaning, being limited to identifying the person or persons with whom a child is to live. In this it diverges from the English concept, in which authority to manage the child’s daily life is conferred by reason of a residence order, which the other parent, even when in possession of an order for parental responsibility, cannot restrict. 9.40 Secondly, it gives the court a wider range of orders which it may make so as to tailor its intervention to the requirements of the individual case.

Section 64B was amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). The main change was the removal of references to “residence”, “contact” and “specific issues”, although this involved no change of substance. There were also some minor changes, notably the inclusion of some additional matters that can be dealt with in parenting orders. [s 64B.20] Parenting orders not limited to parents: subs (2) (last sentence) Presumably to avoid the risk that people would think that “parenting orders” are limited to orders about parents, the last sentence of subs (2) elaborately explains that “person” means person, not parent. [s 64B.25] No power to join unwilling third parties The Full Court has held that there is no power under the Act (or by way of accrued jurisdiction) for the court to make an order that would impose obligations or responsibilities (other than financial obligations) on a person in relation to a child without that person’s

consent where that person does not already have parental responsibility for the child: Secretary, Department of Health and Human Services v Ray (2010) 247 FLR 455; 45 Fam LR 1; [2010] FamCAFC 258; BC201051264 at [79], [80]. In that case the court upheld an appeal against an order that purported to join the (unwilling) Secretary of the Tasmanian Department of Health and Human Services as a party to the proceedings. [page 425] [s 64B.30] The persons with whom the child is to live: subs (2) (a) This wording is unchanged from the wording introduced by the 1995 amendment, although no longer legislatively described as a “residence” order. In contrast with the pre-1995 orders for “custody”, an order under para (a), that a child should live with a particular person or persons, does not in any way affect parental responsibility. That is, it does not give the person with whom the child is to live any greater powers to make decisions about the child. This is confirmed by s 61DB. It is likely, however, that if doubt arises about the matter under parenting orders, the court is likely to favour an interpretation of orders and legislative provisions that would enable a person spending time with a child under an order, or living with a child, to make all necessary decisions about the day to day care of the child during contact: see In the Marriage of Cooke and Stehbens (1998) 148 FLR 52; 24 Fam LR 5; (1999) FLC 92-839; [1998] FamCA 154. [s 64B.35] The time the child is to spend with other persons: subs (2)(b) Before the 2006 amendments, para (b) referred to

“contact between a child and another person or other persons”. The former notion of “contact” included not only spending time with a person but communicating with a person one spoke, for example, or orders for “telephone contact”. Communication is now the subject of a separate provision, para (e). [s 64B.40] The allocation of parental responsibility for a child: para (c), subs (3) Paragraph (c) and subs (3), inserted by the 2006 Act, include in parenting orders “the allocation of parental responsibility for a child”, which of course includes — subs (3) — responsibility for making decisions about major long-term issues. Under this paragraph, the court could, for example order that one parent would have sole parental responsibility in relation to a particular matter, such as religious instruction, or that one parent would have sole parental responsibility generally. [s 64B.45] Orders for shared parental responsibility create obligations to decide jointly, and to consult: s 65DA By s 65DA, if under a parenting order two or more persons are to share parental responsibility for a child, and the exercise of that responsibility involves a decision about a “major long term issue” relating to the child, the order creates an obligation on these persons to make the decision jointly, and to consult. There appears to be no legal obligation to consult if there is no such order and each parent simply has parental responsibility as a result of s 61C. [s 64B.50] Orders for equal shared parental responsibility One of the orders that can be made is an order that the parents have equal shared parental responsibility. Such orders are common, partly because of the presumption in s 65DA that it is in the child’s best interests for the parents to have equal shared parental responsibility. Such orders have a special consequence, namely to

trigger an obligation in the court to consider making orders that the child spend equal time, or substantial and significant time, with each parent: see s 65DAA. (The obligations on parents to consult, and to make decisions jointly, attach to any orders for shared parental responsibility, not only to equal shared parental responsibility orders: see above, [s 64B.20].) In Pavli v Beffa [2013] FamCA 144 Watts J convincingly demonstrated that an order for equal shared parental responsibility “should not be made unless all decisions about all major long term issues are to be made jointly by parents”. If only some are to be made jointly, the preferable expres-sion to use is “shared parental responsibility” for those decisions: at [29]. To use “equal” for the shared decisions would be otiose and could lead to confusion [28.2]. The analysis explains an ambiguity in the decision of Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422; (2006) FLC 93286; [2006] FamCA 1346 at [39] and demonstrates the incorrectness of a number of decisions that suggest, or hold, that an order for equal shared parental responsibility is consistent with other orders giving one parent particular responsibility in a particular area, or giving one parent final responsibility. Those decisions (in which the point does not seem to have been argued) are Barone v Barone [2012] FamCAFC 108; BC201250457; Ernest v Newer [2011] FamCA 116; BC201150159. [page 426] [s 64B.55] The form of consultations between people sharing parental responsibility: subs (2)(d) This provision was added in 2006. Under other provisions added at the same time, there is an express obligation to consult about major long-term issues where

two or more people share parental responsibility under an order: see ss 65DAC, 65DAE. Paragraph (d) allows the court, when making parenting orders, to provide for the form of such consultations. Of course, this should not be read as precluding the court from making orders about the form of consultation by other people, should such an order be appropriate in the child’s interests: see the open-ended para (i). [s 64B.60] The communication a child is to have with other persons: subs (2)(e), subs (4) This provision was added in 2006. As noted above, it deals with an aspect of what was formerly known as “contact”, namely communication between the child and one or more other people. A common example is an order providing for regular telephone contact. Subsection (4) is unnecessary, but may have been thought useful as drawing attention to the range of possible forms of communication. The EM says of this provision (at [175]), that it is “drafted broadly and is intended to cover new technologies brought about by, for example, the internet, mobile phones and other electronic devices”. [s 64B.65] Maintenance of a child: subs (2)(f) The law relating to child maintenance is considered in the commentary to Pt VII Div 7. Orders for child maintenance, under Div 7, are included in the definition of “parenting orders”. As the note to subs (2) reminds us, child maintenance is not to be confused with child support under separate legislation that now covers the financial obligations of parents to their children in the vast majority of cases. Child support is dealt with under its own Guidecard in Vol 2 of this Service. Alone of the matters in the nine paragraphs of subs (2), orders under para (f) get their own name (not a surprising one): see subs (5). In this commentary, prior to the 2006 amendments, the following

observation was made about the drafting decision to include child maintenance as a “parenting order”: Awkwardly, s 64B includes child maintenance orders among “parenting orders”. The result is that many provisions dealing with residence, contact and specific issues, which have nothing to do with maintenance, apply only to what are called “parenting orders other than child maintenance orders” or “child welfare provisions” of parenting plans: see ss 65A, 65B, 63C(4). Perhaps in the future the legislature will consider reducing this confusing and unnecessary complexity of categories by removing child maintenance from the definition of “parenting orders” and dealing with that topic entirely within Div 7.

[s 64B.70] Steps to be taken before applying for a variation of the parenting order: subs (2)(g), subs (4A) These provisions were inserted in 2006. The EM says, of paras (g) and (h), that “the aim is to ensure orders are appropriately framed and flexible to reduce the need for people to go to court about the operation or variation of parenting orders”. Subsection (4A) effectively draws attention to the possibility of requiring the parties to consult with a “family dispute resolution practitioner” (defined in ss 4 and 10G), for example at a Family Relationships Centre. [s 64B.75] The process to be used for resolving disputes about the terms or operation of the order: subs (2)(h), subs (4A) These provisions were inserted in 2006. The EM says, of paras (g) and (h), that “the aim is to ensure orders are appropriately framed and flexible to reduce the need for people to go to court about the operation or variation of parenting orders”. Subsection (4A) effectively draws attention to the possibility of requiring the parties to consult with a “family dispute resolution practitioner” (defined in ss 4 and 10G), for example at a Family Relationships Centre. [s 64B.80] Any aspect of the care, welfare or development of the

child or any other aspect of parental responsibility for a child — subs (2)(i) Under this paragraph, the court could make [page 427] an order dealing with an aspect of parental responsibility. Thus it could order that the parents do what is necessary so that a child would have a particular name. An order giving one parent power to determine the child’s name would create a reallocation of parental responsibility under subs (2)(c), above. In a children’s matter, a Federal Magistrate ordered that the father should do all things necessary to enable the children to obtain British citizenship and to obtain British passports. On appeal, the father argued that the order went beyond the scope of a parenting order. Held, depending on the facts, the order may have been within jurisdiction; questions about citizenship do not necessarily lack the relevant nexus to a “matter” as required by the Constitution: RS v ALMC (2006) 200 FLR 213; 35 Fam LR 234; [2006] FamCA 388 (Coleman J). This decision includes a discussion of the limits of the power, referring in particular to Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; [2004] HCA 20; BC200402148. Orders authorising “therapeutic” medical intervention Orders that seek to define or clarify the limits of parental responsibility may be orders about “any other aspect of parental responsibility”: see Re Sean and Russell (Special Medical Procedures) (2010) 258 FLR 192; 44 Fam LR 210; [2010] FamCA 948 (Murphy J). In some circumstances it is within the parents’ parental responsibility

to authorise surgical and medical treatment that is therapeutic, although it would render the child infertile. However the court can make a parenting order sanctioning such procedures where, although strictly unnecessary, it is prudent to do so: Re Sean and Russell (Special Medical Procedures), above; Re Carla (Medical Procedure) (2016) 54 Fam LR 576; [2016] FamCA 7; BC201650006. (The authorities on court orders authorising medical intervention are mainly considered in the commentary to s 67ZC). [s 64B.85] Whether a parentage testing order is a “parenting order” It has been suggested that a s 69W parentage testing order is itself a “parenting order” under s 64B, but the better views is that it is not (RC): see Tryon v Clutterbuck (2007) 211 FLR 1; (2007) FLC 93-332; [2007] FamCA 580. Ames v Ames (2009) 42 Fam LR 95; [2009] FamCA 825; BC200950740; Brianna v Brianna (2010) 43 Fam LR 309; (2010) FLC ¶93-437; [2010] FamCAFC 97; BC201050480 (reviewed in R Chisholm, “Parentage: Some testing problems” (2010) 24 AJFL 242). See also the discussion in Ellison v Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602; BC201250476 at [78]–[80]. [s 64B.90] A declaration of parentage under s 69VA is not a parenting order It was held in Ellison v Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602; BC201250476 at [78]–[80], it is submitted correctly, that a declaration of parentage under s 69VA is not a parenting order. [s 64B.95] Financial aspects of orders that a child live with, spend time with, or communicate with a person It has been held that the former provisions relating to access included power to make orders or impose conditions which would involve economic

expenditure, such as orders that one party meet the costs of transporting a child for the purpose of access: Love v Henderson (1995) 125 FLR 129; 20 Fam LR 128 at 133; (1996) FLC 92-653 at 82,689. This decision may well be applicable to the scope of contact orders under this section relating to a child spending time with or communicating with a person. If so, then the mere fact that an order relating to contact has some financial consequence does not mean that it is necessarily to be regarded as an order for child maintenance or child support. [s 64B.100] Unborn child It has been held that a foetus is not a “child”: In the Marriage of F (1989) 96 FLR 118; 13 Fam LR 189; (1989) FLC 92-031. It is submitted that this is correct, and applies equally to s 64B. ____________________ [page 428]

[s 64C] Parenting orders may be made in favour of parents or other persons 64C A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

[s 64D] Parenting orders subject to later parenting plans 64D (1) Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:

(a) entered into subsequently by the child’s parents; and (b) agreed to, in writing, by any other person (other than the child) to whom the parenting order applies. (2) The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan). (3) Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following: (a) circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; (b) the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan. DIVISION 6 — PARENTING ORDERS OTHER THAN CHILD MAINTENANCE ORDERS

Subdivision A — Introductory [s 65A]

What this Division does

65A (1) This Division deals with: (a) applying for and making parenting orders, other than child maintenance orders (Subdivision B); and (b) the general obligations created by parenting orders, other than child maintenance orders (Subdivision C); and

dealing with people who have been arrested (Subdivision D); and (d) the obligations under parenting orders, other than child maintenance orders, relating to taking or sending children from Australia (Subdivision E). (c)

Note: Paragraph (a) — section 60I provides that people with disputes about matters that may be dealt with in a Part VII order (which includes a parenting order) should generally make use of family dispute resolution before applying for the order. [subs (1) am Act 46 of 2006 s 3 and Sch 1 items 26–27 and Sch 8 item 57, opn 1 July 2006]

(2) Measures designed to improve communication between separated parents and to educate parents about their respective responsibilities in relation to their children are contained in this Division (see section 65DA). Note: Division 13A provides for the compliance regime for dealing with contraventions, and alleged contraventions, of parenting orders. [subs (2) insrt Act 46 of 2006 s 3 and Sch 1 item 27, opn 1 July 2006]

[page 429]

[s 65AA] Child’s best interests paramount consideration in making a parenting order 65AA Section 60CA provides 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. [s 65AA subst Act 46 of 2006 s 3 and Sch 1 item 28, opn 1 July 2006]

COMMENTARY ON SECTION 65AA Parenting compliance provisions: where they are ….

[s 65AA.1]

[s 65AA.1] Parenting compliance provisions: where they are This section, and the provisions of Div 13A of Pt VII, were introduced by the 2000 Act. It has no effect in itself. It is a statement of where one can find stages 1, 2 and 3 of the “parenting compliance regime”, and it “sets out a statement of the policy in the three-tier approach to be taken to promote the exercise of parental responsibility”: explanatory memorandum. For an overview of the provisions relating to the parenting compliance regime, see Introduction to Div 13A. ____________________

[s 65B] Division does not apply to child maintenance orders 65B This Division does not apply to parenting orders to the extent that they consist of child maintenance orders. Child maintenance orders are dealt with in Division 7.

Subdivision B — Applying for and making parenting orders [s 65C] 65C for by: (a) (b) (ba)

Who may apply for a parenting order A parenting order in relation to a child may be applied either or both of the child’s parents; or the child; or a grandparent of the child; or

(c) any other person concerned with the care, welfare or development of the child. [s 65C am Act 143 of 2000 s 3 and Sch 3 item 45 opn 27 Dec 2000] COMMENTARY ON SECTION 65C Parenting orders — who may apply …. “Parenting order” does not include child maintenance order …. Applications by a parent – para (a) …. Applications by a child – para (b) …. Applications by a grandparent — para (ba) …. Applications by any other person concerned with the care etc of the child — para (c) ….

[s 65C.1] [s 65C.3] [s 65C.5] [s 65C.6] [s 65C.7] [s 65C.8]

[s 65C.1] Parenting orders — who may apply Section 65C says who can apply for parenting orders. Other sections deal with the question who can apply for other types of orders. [s 65C.3] “Parenting order” does not include child maintenance order The use of this term in Div 6, including s 65C, is given in s 64B, to refer to parenting orders other than child maintenance orders. [s 65C.5] Applications by a parent – para (a) The majority of parenting proceedings involve an application by a parent. As to the definition of parent, see the commentary to s 60H. [page 430] In relation to applications by parents, s 65C continues the law as it was before the 1995 amending Act.

[s 65C.6] Applications by a child – para (b) Applications by children for parenting orders are virtually unknown, presumably because there will normally be little point in making parenting orders in relation to children who have enough maturity and independence to seek orders themselves. In an unusual case, however, a 17 year old obtained an ex parte order under s 68B (and, perhaps, s 64B) restraining her parents and stepfather from removing her from Australia against her will: Kandal v Khyatt (2010) 43 Fam LR 344; [2010] FMCAfam 508; BC201003442. In relation to applications by parents, s 65C continues the law as it was before the 1995 amending Act. [s 65C.7] Applications by a grandparent — para (ba) Paragraph (ba) was added in the year 2000. It must have been inserted to remove any possible doubt, because grandparents could previously make applications under the equivalent of s 65(c): see [s 65C.7]. [65C.7]. Applications by grandparents are familiar. Examples include Church v Overton (2008) 40 Fam LR 357; [2008] FamCA 952 and Carlson v Bowden (2008) 40 Fam LR 327; [2008] FamCA 1064. For a detailed and helpful explanation of the position of grandparents under the Family Law Act 1975, see Church v Overton (2008) 40 Fam LR 357; [2008] FamCA 952 (Benjamin J). [s 65C.8] Applications by any other person concerned with the care etc of the child — para (c) This provision allows applications for parenting orders to be made by any other person “concerned with the care, welfare or development of the child”. An example is Kam v MJR (1998) 24 Fam LR 656; FLC 92–847, in which Burr J held that a woman who had been a friend and partner of the child’s mother was entitled to make an application, over the

objections of both the mother and the child’s father. The applicant had had previous contact with the child and had undertaken aspects of a carer’s role in relation to her. See also Re J and M: Residence Application (2004) 32 FamLR 668; [2004] FMCAfam 656 (Walters FM): Twins born to mother through assisted conception; sperm donor unidentifiable; mother and female partner, who lived together with the children, applied for orders giving them joint parental responsibility. Held: the partner could apply under s 65C; the orders would benefit the children and should be made. There has, however, been a difference of opinion about whether applicants under this provision need to have had prior involvement with the child. In Kam, Burr J thought not. He said that there may well be circumstances where a mere “interest in” or “concern about” a child will be sufficient to satisfy the threshold test in s 65C. He pointed out that s 65C creates a threshold test, to be determined on the individual facts and circumstances of each case. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child. Burr J’s comments are obiter dicta, because in that case the applicant had been involved in the care of the child. A contrary position was taken by Federal Magistrate Driver in R v M [2002] FMCA fam 279. In that case there were proceedings on foot between the parents of a child, but the father tragically committed suicide, after which Driver FM made a residence order in favour of the mother. A neighbour, who had been helping the deceased father as a McKenzie friend, then applied for parenting orders that would overturn the residence order. She had a passionate and genuine concern about the child’s welfare. Driver FM dismissed her application on the ground that she had no

standing under s 65C to apply for an order. She had not had prior involvement with the care welfare or development of the child, and, “being not otherwise concerned with the child’s care welfare or development”, thus had no standing to bring the application. The difficulty with this narrower interpretation is that it could arguably prevent people from applying for a parenting order in circumstances where it would be in the child’s interests to have the application determined by the court. In Kam v MJR, Burr J gave an example of an aunt who resided overseas (and thus had not had previous care of the child) and applied for a parenting order [page 431] after the death of a parent. A similar example, of a grandparent, was given in the previous commentary in this Service (although the specific case of a grandparent has now been addressed in para (ba)). The equivalent provision prior to the operation of the Family Law Reform Act 1995 was “any other person who has an interest in the welfare of the child”. Our commentary suggested that the change of wording from the previous provision might be an infelicitous phrase, not intended to have a different meaning. In R v M, however, in preferring the narrower reading, Driver FM disagreed with our previous commentary (and by implication with the dicta of Burr J). There is certainly support for his view in the literal meaning of the words in the paragraph. The legislature may wish to reconsider this matter, if only to resolve the inconsistency between the opinions expressed in Kam and R v M. On the policy issue, the challenge seems to be to resolve the tension between two objectives. One is to ensure that children’s

issues come before the court so that they can be resolved according to law. This objective is undermined if the threshold requirements prevent cases that deserve adjudication from coming to court. The other objective is to prevent the waste of public and private time and money that might be caused by hopeless applications. There are already mechanisms to achieve this: hopeless cases can be dismissed on a summary basis, and costs orders can be made. The policy argument in favour of the narrow interpretation of s 65C is presumably that these devices are inadequate, and that it is necessary to use the more draconian method of limiting access to the court. If there is thought to be merit in this view, however, there might be a solution that does not entail the risk of keeping legitimate issues about children out of the justice system. This could be to provide for the wider category of people to apply for parenting orders, but only with leave of the court. ____________________

[s 65D]

Court’s power to make parenting order

65D (1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper. Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 13, opn 1 Aug 2003] [subs (1) am Act 46 of 2006 s 3 and Sch 1 item 29, opn 1 Dec 2006]

(2) Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB

(parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 30, opn 1 July 2006]

(3) If the application for the parenting order was made as a result of the adjournment under paragraph 70NEB(1)(c) of proceedings under Subdivision E of Division 13A of Part VII: (a) the court must hear and determine the application as soon as practicable; and (b) if the court makes a parenting order on the application, the court may, if it thinks it is appropriate to do so, dismiss the proceedings under that Subdivision. Note: The applicant may apply to the Family Court or to the Federal Circuit Court of Australia for the application for the parenting order or for the proceedings under Subdivision E of Division 13A of Part VII, or both, to be transferred to the Federal Circuit Court of Australia or to the Family Court, as the case requires (see section 33B of this Act and section 39 of the Federal Circuit Court of Australia Act 1999). [subs (3) insrt Act 143 of 2000 s 3 and Sch 1 item 5A opn 27 Dec 2000; am Act 46 of 2006 s 3 and Sch 2 items 4–5, opn 1 July 2006; Act 13 of 2013 s 3 and Sch 1 item 290, Sch 2 item 2, opn 12 Apr 2013]

[page 432] COMMENTARY ON SECTION 65D Introduction …. Application made as a result of adjournment of compliance proceedings: subs (3) …. Parenting orders — definition …. Obligations under parenting orders generally ….

[s 65D.1] [s 65D.2] [s 65D.3] [s 65D.20]

Obligations arising under parenting orders that children live with or spend time with parents or others ….

[s 65D.25]

[s 65D.1] Introduction This section gives the court power to make “such parenting order as it thinks proper”. By subs (2), this includes power to discharge, vary, suspend or revive some or all of an earlier parenting order. Such orders are themselves parenting orders, and thus are governed by the principles relating to parenting orders, notably that the child’s best interests must be the paramount consideration (s 60CA) and the provisions about how to determine what is in the child’s best interests (notably s 60CC). As a result of amendments in 2006 under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), the general power is now qualified by reference to ss s 61DA and s 65DAB: for details see those sections and the commentary thereto. [s 65D.2] Application made as a result of adjournment of compliance proceedings: subs (3) The 2000 Act introduced a “parenting compliance regime”, which includes former provisions for penalties for breach of orders: see Div 13A. Where proceedings are brought under that Division, one of the options open to the court in some circumstances is to adjourn them to enable an application to be made to vary the relevant parenting orders: see s 70NEB(1)(c). In essence, the intention is that where proceedings for breach are taken in circumstances in which there is some problem with the orders themselves, that problem can be addressed. The significance of subs (3) is straightforward. First, the court should deal with the application as soon as practicable. Secondly, as one would expect, if the court does make a parenting order, for example by varying a previous parenting order, it can then dismiss the compliance proceedings.

[s 65D.3] Parenting orders — definition Parenting orders are defined in s 64B. See the commentary to that section. [s 65D.20] Obligations under parenting orders generally Parenting orders, of course, create legal obligations on those expressly bound by them to comply with the orders. In addition, there are provisions to the effect that other persons may not interfere with or prevent the operation of the orders: ss 65M, 65N, and 65P. Breach of parenting orders is dealt with under Div 13A of Pt VII, not by the provisions of Pt XIIIA. [s 65D.25] Obligations arising under parenting orders that children live with or spend time with parents or others It has been held that contact orders expressed in general terms can create enforceable obligations (on the residence parent): In the Marriage of Stavros (1984) 9 Fam LR 1025; FLC 91–562, followed in Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383; FLC 92–866 (FC). Although the terminology of “contact” was abolished by the 2006 amendments under the 2006 Act, the same principles would apply to an order that the child live with one parent and spend time with another. By contrast, however, there seems to be no authority on the obligations created for the person previously called the “contact” parent: that is, the person with whom the child has been ordered to spend time, or communicate. It is sometimes asserted or assumed that the order creates obligations only on the person with whom the child lives, requiring that person to make the child available to spend time with the other, but imposing no obligation on the other parent to have

[page 433] contact or spend time with the child. This position was succinctly put by Professor Dickey: “A contact order is an order which permits a person to have contact with a child” (Family Law 4th ed, p 436) (emphasis added)). For more detailed argument to this effect, see Anthony Dickey, “Mandatory parenting orders” (1998) 72 ALJ, discussing some remarks in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92–755 (Nicholson CJ, Fogarty and Lindenmayer JJ), paras 10.62 and 10.63. On the other hand, the contrary position has been argued: David Monaghan, “Can a contact parents contravene a contact order?” 73 ALJ 20-22. The answer may depend on the interpretation of the particular order. An order that expressly required a person to spend time with a child on particular occasions would be a contact order that created legal obligations on that person. However, most parenting orders are in terms that the child should spend time with (formerly “have contact with”) a person, at the times and in the ways specified. It is a question of interpretation whether such orders are intended to create obligations on both parties, or only on the residence parent. On one interpretation, the residence parent would be obliged to facilitate contact, and the contact parent to exercise it, in accordance with the order. On the other interpretation, the contact parent would be legally free to exercise contact or not, as he or she chose. Where the order is in such a form, it is not clear which interpretation is correct. The problem arises because such orders do not spell out in their own terms, as many other orders do, what obligations are created. In principle, of course, all parenting orders could be made in terms that do this, and some would say that they always should do so.

____________________

[s 65DAA] Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances 65DAA (1) Equal time Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must: (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents. Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable. [subs (1) am Act 147 of 2010 s 3 and Sch 2[1], opn 17 Dec 2010]

(2) Substantial and significant time Subject to subsection (6), if: (a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

the court does not make an order (or include a provision (b) in the order) for the child to spend equal time with each of the parents; the court must: (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and [page 434] (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents. Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration. Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable. [subs (2) am Act 147 of 2010 s 3 and Sch 2[1], opn 17 Dec 2010; Act 136 of 2012 s 3 and Sch 1 item 54, opn 22 Sep 2012]

(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: (a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent. (4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant. (5) Reasonable practicality In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to: (a) how far apart the parents live from each other; and (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant. Note: Paragraph (c) reference to future capacity — the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or

services. [subs (5) am Act 189 of 2011 s 3 and Sch 1 items 26 and 27, opn 7 June 2012]

(6) Consent orders If: (a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and (b) the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e). [subs (6) insrt Act 147 of 2010 s 3 and Sch 2[2], opn 17 Dec 2010]

[page 435] (7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order. Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order. [subs (7) insrt Act 147 of 2010 s 3 and Sch 2[2], opn 17 Dec 2010] [s 65DAA insrt Act 46 of 2006 s 3 and Sch 1 item 31, opn 1 July 2006]

COMMENTARY ON SECTION 65DAA Introduction …. Reasonable practicability an essential and separate requirement … The obligation to “consider” equal time, or substantial and significant time …. Interim proceedings and s 65DAA ….

[s 65DAA.1] [s 65DAA.5] [s 65DAA.10] [s 65DAA.30]

[s 65DAA.1] Introduction This lengthy section, inserted by the 2006 amending Act, applies only “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child”. In such circumstances, it guides the court in its determination of what is in the best interests of the child, those best interests being, by s 60CA, the “paramount consideration”. In other circumstances, that is where there is no order that the parents have equal shared parental responsibility, s 65DAA has no application, and the court will deal with the matter on ordinary principles, having regard, especially, to ss 60CA, 60CC, and 60B. Some passages in”: Goode v Goode (2006) 206 FLR 212; 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346 (especially paras 13, 44, 48, 82) may suggest that the presumption in s 61DA triggers s 65DAA, but it is clear that only an order does so, and the Full Court has said, in effect, that the passages in Goode should be read as if they referred to an order: Marvel v Marvel (2010) 240 FLR 367; 43 Fam LR 348; [2010] FamCAFC 101; BC201050543, at [88]–[90]. The guidance given by s 65DAA may be summarised as follows. By subs (1), the court must “consider whether the child spending equal time with each of the parents would be in the best interests of the child” and also “whether the child spending equal time with each of the parents is reasonably practicable”: paras (a) and (b).

The section then says, in effect, that if the answer to both questions is yes, the court must “consider making an order” for the child to spend equal time with each of the parents: para (c). Although the word “consider” is used in para (c), if the court is satisfied that an order for equal time is in the child’s best interests and also is reasonably practicable, it is hard to imagine circumstances in which the court would not make the order for equal time, since the child’s best interests are to be the paramount consideration: s 60CA. Evidently referring to the use of the word “consider” in subs (1)(c) — and subs (2)(c) — the Full Court has remarked that it “suggests a consideration tending to a result, or the need to consider positively the making of an order”: Goode and Goode [2006] Fam CA 1346 at [64]. In substance, therefore, the section says (RC) that the court should consider whether to make an order for equal time, and should do so if such an order would be in the best interests of the child, and reasonably practicable. Subsection (2) then says essentially the same things about “substantial and significant time”, in cases where the court finds that equal time is not in the child’s interests, or is not reasonably practicable. The rest of the section spells out ingredients of these provisions. Subsections (3) and (4) tell us what “substantial and significant time” involves, and subs (5) tells us what “reasonably practicable” involves. [s 65DAA.5] Reasonable practicability an essential and separate requirement In a short unanimous judgment, the High Court has emphasised that the reasonable practicability requirement in s 65DAA(1)(b) and (2)(b) is separate from the court’s assessment of what is in the best interests of the child: MRR v GR (2010) 263 ALR 368; 84 ALJR 220; [2010] HCA 4; BC201000969

(French CJ, Gummow, Hayne, Kiefel And Bell JJ). The Court also held that in [page 436] circumstances where the section applies, s 65DAA means that unless the court makes a finding that the arrangement is reasonably practicable, it has no power to make an order for a child to spend equal or substantial and significant time with both parents (see especially para 13 and 19). Although this is now the law, it is unfortunate (RC) that the Court apparently did not consider the difficulty of reconciling this interpretation with the wording of the section (which is not expressed to limit the court’s power, but only to require the court to ‘consider’ equal or near-equal arrangements in certain circumstances) or with the history and objectives of the 2006 amendments, which indicate a desire to encourage, rather than to limit, such orders. [s 65DAA.10] The obligation to “consider” equal time, or substantial and significant time The Full Court has emphasised that the 2006 amendments did not create a presumption in favour of children spending equal time, or substantial and significant time, with each parent: Goldrick v Goldrick [2007] FamCA 1260; BC200750345 (Finn, Warnick and May JJ), at [43]: … even in a case where it is possible in practicality to order that a child spend “equal time” or “substantial and significant time” with each parent, and there are no critical impediments such as risk of physical or psychological harm, nothing in Part VII mandates that orders in one or other of those terms, be made. The ultimate decision as to the orders that are in the best interests of a child remains discretionary, subject to genuine consideration having been given to the options of “equal time”

and/or “substantial and significant time” (as discussed in Goode at paragraph 64).

This is clearly correct (RC). The section simply requires the court to “consider” equal time, or substantial and significant time. “Consider” is an ordinary English word, and the Federal Court has quoted standard dictionary definition, such as the Oxford English Dictionary: “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”: Minister for Aboriginal and Torres Strait Island Affairs v Chapman (1995) 57 FCR 451; 89 LGERA 1; 133 ALR 226; BC9501957 (the Hindmarsh Island Bridge case). When s 65DAA applies, the court is obliged to “consider” equal time orders (and “substantial and significant” time orders where subs (2) applies). Thus the court has the obligation even in cases where such orders are not sought by any party, or where there is no evidence showing that such orders would benefit the child, and judges should indicate explicitly that they have done so. Nevertheless, even if the judge does not refer to the matter specifically, there are circumstances in which it can safely be inferred that court has considered the matters required by s 65DAA, as in a case where it had become accepted over the course of the litigation, in which both parties were represented, that neither party sought such orders: see SCVG v KLD [2014] FamCAFC 42, at [81] (Ainslie-Wallace, Ryan and Stevenson JJ). [s 65DAA.30] Interim proceedings and s 65DAA The application of s 65DAA to interim proceedings was considered in detail by the Full Court in Goode and Goode [2006] Fam CA 1346. In that case, the Full Court held, in substance, that the provisions inserted by the 2006 amending Act, including s 65DAA, required a significant departure from the principles in In the Marriage of C (1998) 22

Fam LR 776; FLC 92-801 (Cowling). The requirements of ss 60CC and 65DAA must be adhered to, both in final and interim proceedings. For a detailed discussion, see the commentary to s 60CC. ____________________

[s 65DAB] plans

Court to have regard to parenting

65DAB When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child. [s 65DAB insrt Act 46 of 2006 s 3 and Sch 1 item 31, opn 1 July 2006]

[page 437]

[s 65DAC] Effect of parenting order that provides for shared parental responsibility 65DAC (1) This section applies if, under a parenting order: (a) 2 or more persons are to share parental responsibility for a child; and (b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. (2) The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

(3) The order is taken to require each of those persons: (a) to consult the other person in relation to the decision to be made about that issue; and (b) to make a genuine effort to come to a joint decision about that issue. (4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly. [s 65DAC insrt Act 46 of 2006 s 3 and Sch 1 item 31, opn 1 July 2006] COMMENTARY ON SECTION 65DAC Introduction …. Section applies only to orders for shared parental responsibility …. Major long-term decisions …. Requirement to decide jointly: subs (2) …. Requirement to consult etc: subs (3) …. Other persons need to be concerned about parents’ compliance: subs (4) ….

[s 65DAC.1] [s 65DAC.5] [s 65DAC.10] [s 65DAC.15] [s 65DAC.20] [s 65DAC.25]

[s 65DAC.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). It specifies the obligations created by a parenting order for shared parental responsibility. In essence, the order requires the persons to make decisions about “major long-term issues” jointly (2); and also requires them to consult each other, and make a genuine effort to come to a joint decision (3). The persons will frequently be the child’s parents, but not necessarily: where the

order provides that other people have shared parental responsibility, s 65DAC will equally apply to them. The Explanatory Memorandum (EM) states that the section: … clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child’s life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long term issues is required for those parts of responsibility that are shared.

Prior to the 2006 amendments, the Full Court had held that an order that parents be “joint guardians” took effect as a specific issues order conferring on both parties jointly responsibility for the long term care, welfare and development of the children. It required the wife to consult with the husband in relation to matters such as education, religion and the naming of the children. Such a specific issues order for joint long term responsibility was capable of being the subject of a contravention application: In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC [page 438] 92–778 (FC). Although the specific terms of s 65DAC are new, in broad terms the provision seems consistent with the Full Court’s ruling, as implied by the first sentence of the EM, quoted above. [s 65DAC.5] Section applies only to orders for shared parental responsibility By s 61C, in the absence of any court order, parents share responsibility for their children. Section 65DAC, however, does not affect parents’ responsibilities in that situation. It applies

only where there is an order for shared parental responsibility. It therefore does not affect the question of whether anyone has an obligation to consult a person who has parental responsibility not under an order, but by virtue of s 61C: on this question, see the commentary to s 61C. [s 65DAC.10] Major long-term decisions As the note specifically states, s 65DAC creates obligations only in relation to “major longterm decisions”. See the definition of that term in s 4, and the commentary thereto. In relation to the note, the EM states: … The intention is to make clear that while a child is with a parent, that parent takes responsibility for the child. This is intended to reduce litigation about minor details.

The section requires a distinction to be drawn between major long term decisions and other decisions. The note addresses one problem in this regard. But the line may sometimes be difficult to draw, because most things that happen to children affect their development in various ways. If, for example, a residence parent puts the child on a vegetarian diet, views may differ about whether it is a “major long-term issue”: arguably it involves the child’s health; and, if it is associated with some religious belief, perhaps it also involves the child’s religion. The note to s 65DAE is consistent with the view that such a diet may or may not be a “major long-term issue”. [s 65DAC.15] Requirement to decide jointly: subs (2) While it is easy to see that the provision seeks to encourage joint decisions about major long-term issues, it is less clear whether any legally enforceable obligation is created by subs (2). If each parent holds a genuinely different view on some major long-term issue, and after their best efforts they cannot agree, it would seem plainly unjust for

either parent to be held to have contravened the order. It seems unlikely that the legislature would have intended to create an enforceable obligation on a person which the person cannot perform. Perhaps the sub-section is intended only to be educational or exhortatory. The EM does not suggest that any enforceable obligation was intended to be created by subs (2), but says that the provisions “encourage a cooperative approach to parenting and, it is hoped, less adversarial court proceedings”. [s 65DAC.20] Requirement to consult etc: subs (3) The provisions of subs (3) clearly create enforceable obligations. A person to whom the provision applies who fails to consult the other person in relation to the decision to be made about the major longterm issue, or fails to make a genuine effort to come to a joint decision about it, without reasonable excuse, would contravene the order. The EM states that the provision “will allow a party to seek to enforce a parenting order in circumstances where there has been no genuine attempt to consult.” [s 65DAC.25] Other persons need to be concerned about parents’ compliance: subs (4) Subsection (4) provides, in substance, that third parties may act on the authority of a parent and need not inquire whether the parent has complied with s 65DAC. The practical effect of subs (4) is that the section applies only between the persons having parental responsibility. If, for example, there is a shared parenting order relating to a child’s parents, and a medical practitioner gives medical attention to the child after one parent only has given consent, the medical practitioner is not required to show that the consent was made jointly with the other parent. The subsection does not specifically say that the third person

need not inquire whether the parent has complied with the section insofar as it requires consultation, but it was obviously intended to ensure that the third party would not have to worry about whether a parent giving authorisation had complied with s 65DAC. ____________________ [page 439]

[s 65DAE] No need to consult on issues that are not major long-term issues 65DAE (1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who: (a) has parental responsibility for the child; or (b) shares parental responsibility for the child with another person; about decisions that are made in relation to the child during that time on issues that are not major-long term issues. Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.

(2) Subsection (1) applies subject to any provision to the contrary made by a parenting order. [s 65DAE insrt Act 46 of 2006 s 3 and Sch 1 item 31, opn 1 July 2006] COMMENTARY ON SECTION 65DAE Introduction …. Court’s jurisdiction to determine issues not limited ….

[s 65DAE.1] [s 65DAE.5]

[s 65DAE.1] Introduction This section, added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), is probably intended to state something that is rather obvious. Person A has a child spending time with him under a parenting order. Person B has parental responsibility for the child. Person A does not need to consult Person B about decisions which are made during that period and which are not about major long-term issues. That is clear enough. Nevertheless, the section is rather confusing. The Explanatory Memorandum (EM) states: New section 65DAE provides a new rule that where a child is spending time with a person under a parenting order, there is no need to consult about decisions that are unrelated to the major long-term care, welfare and development issues. The note to the section highlights the fact that this would include issues such as what the child eats or wears on a particular day. This is intended to emphasise the types of decisions covered by the section and reduce levels of conflict and litigation about minor issues.

The first sentence is not accurate. The section does not state that “there is no need to consult” etc; it says that “the order is taken not to require the person to” consult etc. It is essentially a section about what certain orders are taken to mean, unless the court specifies otherwise: see subs (2). It seems to refer to an order that the child spend time with a person, and it deals with the consequences of such an order. If this is right, however, the section is a little confusing, because an order that a child spend time with a person does not seem to create any obligations on that person to consult anyone else. Thus the section does not, contrary to the EM, create a new rule at all. The section is also confusing because it seems to assume that where there is a court order that a child spend time with a person,

that person has a legal obligation to consult with the person who has parental responsibility about major long-term decisions. Of course, this might be regarded as a natural or moral obligation. But the only such legal obligation expressly imposed by the Act arises from a shared parental responsibility order, not from a mere order that a child spend time with a person. [page 440] [s 65DAE.5] Court’s jurisdiction to determine issues not limited Section 65DAE does not in any way limit the court’s jurisdiction to make parenting orders. It does not prevent a person bringing to court any issue relating to a child, whether or not the issue is a major long-term issue. This does not seem to have been understood by the author of the following puzzling passage from the EM: Section 65DAE will be contestable in court. A person may disagree with a decision that has been made by the person that the child is spending time with. For example, a parent who is spending time with the child feeds the child in a manner that is inconsistent with the child’s religious upbringing. Although what a child eats is not usually a major long term issue, a child’s religious upbringing is defined as a major long term issue in item 4.

____________________

[s 65DA]

Parenting orders

65DA (1) This section applies when a court makes a parenting order. (2) It is the duty of the court to include in the order particulars of:

(a) the obligations that the order creates; and (b) the consequences that may follow if a person contravenes the order. (3) If any of the persons to whom the order is directed is not represented by a legal practitioner, it is also the duty of the court to explain to the person, or to each of the persons: (a) the availability of programs to help people to understand their responsibilities under parenting orders; and (b) the availability and use of location and recovery orders to ensure that parenting orders are complied with. (4) The court may cause to be prepared, and given to persons to whom a parenting order is directed, a document setting out particulars of the matters mentioned in paragraphs (3)(a) and (b). (5) If a person to whom the order is directed is represented by a legal practitioner, the court may request the practitioner: (a) to assist in explaining to the person the matters mentioned in paragraphs (2)(a) and (b); and (b) to explain to the person the matters mentioned in paragraphs (3)(a) and (b). (6) If a request is made by the court to a legal practitioner under paragraph (5)(a) or (b), it is the duty of the practitioner to comply with the request. (7) Failure to comply with a requirement of, or with a request made under, this section does not affect the validity of a parenting order. (8) Any matter that is required by this section to be included in a parenting order or any explanation that is required by this section to be given to a person is to be expressed in language that is likely to be readily understood by the person to whom the order

is directed or the explanation is given. [s 65DA insrt Act 143 of 2000 s 3 and Sch 1 item 6 opn 27 Dec 2000; am Act 46 of 2006 s 3 and Sch 2 item 5, opn 1 July 2006] COMMENTARY ON SECTION 65DA Stage 1 of the parenting compliance regime …. Court to include particulars of obligations under orders, and consequences of contravention: subss (1) and (2) ….

[s 65DA.1]

[s 65DA.2] [page 441]

Information about availability of parenting programs and the availability and use of location and recovery orders …. Court’s duty to explain to unrepresented parties the availability of programs and location and recovery orders: subs (3) ….

[s 65DA.3]

[s 65DA.5]

[s 65DA.1] Stage 1 of the parenting compliance regime The Family Law Amendment Act 2000 introduced a new “parenting compliance regime”. This is described in more detail in the commentary to Div 13A. Stage 1 of that regime introduces “preventative measures, to improve communication between separated parents and educating parents about their respective responsibilities in relation to their children” (Explanatory Memorandum to the Family Law Amendment Bill 2000 (EM), p 1). This section implements Stage 1 by requiring the court to include more information in its orders about the obligations the order creates and the consequences of contravention. [s 65DA.2] Court to include particulars of obligations under

orders, and consequences of contravention: subss (1) and (2) It is the court’s duty, when making a parenting order, to include particulars of the obligations that the order creates, and the consequences that may follow if a person contravenes the order. These particulars must be included “in the order”. Unlike other matters dealt with in s 65DA, these particulars cannot be conveyed by way of a pamphlet; cf subs (4). The particulars are to be expressed in language that is “likely to be readily understood by the person to whom the order is directed: subs (8). Orders not invalidated by non-compliance with section Failure to comply with this duty does not invalidate the orders: subs (7). Particulars to be by way of “standard clauses” It does not seem to be envisaged that the court will make detailed particulars about the particular order, elaborating on what each party is required to do. While on the face of it that might be desirable, the difficulty is that in determining what the orders required, the parties would have to interpret not only the orders but also the explanation. If orders are properly drawn they should be clear on their face. The EM is consistent with this approach, stating that Stage 1 “makes provision for standard clauses in parenting orders setting out the obligations the order creates and the consequences of failing to observe its terms”: EM, “General Outline”. Court may request legal practitioner to explain obligations etc to client The court may “request” a legal practitioner to explain the obligations and the consequences referred to in subs (2) to the practitioner’s client, whereupon the practitioner has a duty to do so: subs (5). This curious use of language is presumably deliberate. Since the request is not expressed to be by way of order, non-

compliance would not seem to attract the contravention provisions of Pt XIIIA. Yet in some sense — ethically, perhaps — the legal practitioner has a “duty” to comply. [s 65DA.3] Information about availability of parenting programs and the availability and use of location and recovery orders The court must ensure that a person to whom an order is directed is informed of the availability of programs to help them understand their responsibilities under parenting orders, and of the availability and use of recovery orders for enforcement of parenting orders. Where that person is not legally represented, that duty rests on the court. If a party is represented, the court may request the practitioner to explain these matters, and to assist in explaining the obligations created by parenting orders and the consequences of non-compliance. Practitioners are obliged to comply with such requests. [s 65DA.5] Court’s duty to explain to unrepresented parties the availability of programs and location and recovery orders: subs (3) Quite separately from the obligation to include [page 442] particulars, the court has an obligation to explain to unrepresented parties the availability of programs to help people understand their responsibilities under parenting orders, and the availability and use of location and recovery orders. This duty can be performed by providing a pamphlet or other document: subs (4). As with the the “particulars” under subs (2), lawyers can be “requested” to explain these things to their clients

(subs (5)(b)), whereupon they have a duty to do so: subs (6). The explanations are also are to be expressed in language that is “likely to be readily understood” by the persons to whom they are given: subs (8). ____________________

[s 65E] Child’s best interests paramount consideration in making a parenting order 65E

[s 65E rep Act 46 of 2006 s 3 and Sch 1 item 32, opn 1 July

2006]

[s 65F] General requirements for counselling before parenting order made 65F

(1) [subs (1) rep Act 46 of 2006 s 3 and Sch 4 item 57, opn 1

July 2006]

(2) Subject to subsection (3), a court must not make a parenting order in relation to a child unless: (a) the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or (b) the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or (c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as

mentioned in paragraph (a). [subs (2) am Act 46 of 2006 s 3 and Sch 4 item 58, opn 1 July 2006]

(3) Subsection (2) does not apply to the making of a parenting order if: (a) it is made with the consent of all the parties to the proceedings; or (b) it is an order until further order. (4) [subs (4) rep Act 113 of 2015 s 3 and Sch 3 item 2, opn 18 Aug 2015] COMMENTARY ON SECTION 65F Introduction ….

[s 65F.1]

[s 65F.1] Introduction This section provides, in substance, that the court should not make a parenting order in contested proceedings unless the parties have attended family counselling (defined in ss 4 and 10B). There is an exception, namely circumstances of urgency or other special circumstances such as violence (see subs (2)) or where it is not practicable: subs (3). Parenting order is defined to include enforcement and contravention proceedings: subs (4). The section does not apply to consent orders: subs (3). Sharp readers will notice the odd fact that the section begins with subs (2). But the printing is accurate: the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act) repealed subs (1) and inadvertently failed to renumber the remaining subsections. ____________________ [page 443]

[s 65G] Special conditions for making parenting order about whom a child lives with or the allocation of parental responsibility by consent in favour of non-parent 65G (1) This section applies if: (a) a court proposes to make a parenting order that deals with whom a child is to live with; and (b) under the order, the child would not live with a parent, grandparent or other relative of the child; and (c) the court proposes to make that order with the consent of all the parties to the proceedings. [subs (1) subst Act 46 of 2006 s 3 and Sch 8 item 58, opn 1 July 2006]

(1A) This section also applies if: (a) a court proposes to make a parenting order that deals with the allocation of parental responsibility for a child; and (b) under the order, no parent, grandparent or other relative of the child would be allocated parental responsibility for the child; and (c) the court proposes to make that order with the consent of all the parties to the proceedings. [subs (1A) insrt Act 46 of 2006 s 3 and Sch 8 item 58, opn 1 July 2006]

(2) The court must not make the proposed order unless: (a) the parties to the proceedings have attended a conference with a family consultant to discuss the matter to be determined by the proposed order; or (b) the court is satisfied that there are circumstances that make it appropriate to make the proposed order even

though the conditions in paragraph (a) are not satisfied. [subs (2) am Act 46 of 2006 s 3 and Sch 1[33], opn 1 July 2006] [s 65G am Act 46 of 2006 s 3 and Sch 8 item 58, opn 1 July 2006] COMMENTARY ON SECTION 65G Residence etc orders by consent in favour of nonparents: history and purpose of section …. Requirements for making the consent orders: subss (2) and (3) ….

[s 65G.1] [s 65G.5]

[s 65G.1] Residence etc orders by consent in favour of nonparents: history and purpose of section Before the 1995 amendments, the Act provided, in substance, that the court could not make a consent order for custody or guardianship in favour of a non-parent unless the parties had discussed the matter with a counsellor and the court had a report from the counsellor. Section 65G continues this in substance, the provision now operating on consent orders that provide for the non-parent to have residence or parental responsibility (whether long term or day to day). Why does the law require a report in such cases? It may reflect a general concern about the welfare of children whose parents in effect transfer their responsibilities to others. The assumption seems to be that the court should look carefully at such arrangements before giving them legal effect. It may be thought important for the court to ensure that there is no ulterior reason for such an arrangement. One particular problem is that such arrangements might be seen as circumventing the requirements of adoption. Under state and territory adoption laws, there are detailed rules about eligibility to adopt, and various requirements must be met. Parenting orders are different from adoption. However, if a child is effectively

transferred to other persons by way of consent parenting orders, a “status quo” might be created. Then, if the other persons seek to adopt at a later [page 444] time, having had the care of the child, it might be difficult to resist the application, to which, under the adoption legislation, the principle of the paramountcy of the child’s welfare applies. The result could be that arrangements that would not have been approved by the adoption authorities would have led to an adoption as a fait accomplis. It makes sense for the section to deal only with consent orders. In such applications, the court has limited opportunity to consider the merits of the orders. In contested cases, there will normally be evidence and argument that would enable the court to reach a more informed view about what the child’s interests would require. [s 65G.5] Requirements for making the consent orders: subss (2) and (3) The section applies, in brief, where the court is asked to make consent orders that provide that a child should live with a non-parent, or that a non-parent should have parental responsibility. In such cases, the court must not make the order unless it is satisfied that the parties have attended a conference with a counsellor or welfare officer to discuss the matter, and has considered a report by that person. However, where the conditions are not met the court may make the order if satisfied that there are circumstances that make it appropriate to do so. ____________________

[s 65H] Children who are 18 or over or who have married or entered de facto relationships 65H (1) A parenting order must not be made in relation to a child who: (a) is 18 or over; or (b) is or has been married; or (c) is in a de facto relationship. (2) A parenting order in relation to a child stops being in force if the child turns 18, marries or enters into a de facto relationship. (3) A court having jurisdiction under this Part may make a declaration to the effect that the child is in, or has entered into, a de facto relationship. (4) A declaration under subsection (3) has effect for the purposes of this Act but does not have effect for any other purpose (including, for example, other laws of the Commonwealth or laws of the States and Territories). COMMENTARY ON SECTION 65H Parenting orders cease when child 18, married, or de facto partner.

[s 65H.1]

[s 65H.1] Parenting orders cease when child 18, married, or de facto partner As one would expect, parenting orders cease when the child turns 18, and no parenting order can be made in relation to a child who is 18. (States and territories have laws that make provision for adults who cannot look after their own affairs.) Further, the existence of a marriage or a de facto relationship is seen as making the continued application of Pt VII inappropriate even though the child might not have reached 18.

“De facto relationship” is defined in s 4. Sensibly (because there can be doubt), there is provision for a declaration as to this: subs (4). ____________________

[s 65J]

Effect of adoption on parenting order

65J (1) This section applies if: (a) a child is adopted; and (b) immediately before the adoption, a parenting order was in force in relation to the child. [page 445] (2) The parenting order stops being in force on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced. COMMENTARY ON SECTION 65J Introductory comments ….

[s 65J.1]

[s 65J.1] Introductory comments The significance of this provision is considered in the commentary to s 60G. ____________________

[s 65K] What happens when parenting order that deals with whom a child lives with does not

make provision in relation to death of parent with whom child lives 65K (1) This section applies if: (a) a parenting order is in force that provides that a child is to live with one of the child’s parents; and (b) that parent dies; and (c) the parenting order does not provide for what is to happen on that parent’s death. [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 59, opn 1 July 2006]

(2) The surviving parent cannot require the child to live with him or her. (3) The surviving parent, or another person (subject to section 65C), may apply for a parenting order that deals with the person or persons with whom the child is to live. [subs (3) subst Act 46 of 2006 s 3 and Sch 8 item 60, opn 1 July 2006]

(4) In an application under subsection (3) by a person who does not, at the time of the application, have any parental responsibility for the child, any person who, at that time, has any parental responsibility for the child is entitled to be a party to the proceedings. [s 65K am Act 46 of 2006 s 3 and Sch 8 item 59, opn 1 July 2006] COMMENTARY ON SECTION 65K Death of person having residence etc order: history and purpose of s 65K ….

[s 65K.1]

[s 65K.1] Death of person having residence etc order: history and purpose of s 65K Formerly, parents initially had guardianship, and joint custody. If a court made an order that one parent have

sole custody, that order would cease to have effect on the death of the custodial parent. The result would be that the other parent would have the sole right to custody. This was thought to be unsatisfactory. After all, the court that made the order for sole custody to the parent who later died may have done so because it thought that the other parent, now the surviving parent, was not fit to have custody. The legislative solution was to provide that in such circumstances, the surviving parent did not become entitled to custody on the death of the custodial parent. In the absence of any other order, therefore, on the custodial parent’s death no person was entitled to custody. Anyone who wanted custody of the child had to apply for it. Since the 1995 amendments, custody has disappeared. Section 65K, however, applies the same approach to residence. Assume a residence order has been made in favour of M, and M dies; no other order has been made. What is the position? F “cannot require” the child to live with him. This clearly means that if, for example, relatives on the deceased mother’s side want the child to live with them, F cannot claim as of right that the [page 446] child live with him. There is, in fact, no existing rule about the child’s residence. However, F would appear to retain parental responsibilities under s 61C. It is not entirely clear to what extent the section intrudes on these responsibilities. In practice, there would be an uncertain or ambiguous situation until any dispute were resolved. Normally, someone would bring an application and interim orders would be made dealing with the presenting issues based, of course, on the child’s best interests: s 65E.

Obviously, F can apply for a residence order, as can anyone else: this is provided in s 65C. If a person who does not have parental responsibility, for example the deceased mother’s relatives makes an application, F, the person who does have parental responsibilities, is entitled to be a party (again, as would be the case under ordinary principles). Two minor points. First, all this applies only if the original residence order did not provide for what is to happen on the death of the residence parent. This is a relatively minor qualification since it is rare for residence orders to make provision dealing with the situation arising from the death of a residence parent. Secondly, the section operates peculiarly if the original order was, say, that child child live with the father at particular times and with the mother at all other times. On the death of the father, the mother ceases to have the benefit of the residence order. ____________________

[s 65L] Family consultants may be required to supervise or assist compliance with parenting orders 65L (1) If a court makes a parenting order in relation to a child, the court may also, subject to subsection (2), make either or both of the following orders: (a) an order requiring compliance with the parenting order, as far as practicable, to be supervised by a family consultant; (b) an order requiring a family consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with,

and the carrying out of, the parenting order. [subs (1) am Act 46 of 2006 s 3 and Sch 4 items 59–60, opn 1 July 2006]

(2) In deciding whether to make a particular order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 34, opn 1 July 2006] [s 65L am act 46 of 2006 s 3 and Sch 4 item 59, opn 1 July 2006]

[s 65LA] Court may order attendance at a postseparation parenting program 65LA (1) In proceedings for a parenting order, the court may make an order directing a party to the proceedings to attend a post-separation parenting program. Note: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the party’s needs (see section 11E). [subs (1) subst Act 46 of 2006 s 3 and Sch 4 item 61, opn 1 July 2006]

(2) In deciding whether to make a particular order under subsection (1), a court must regard the best interests of the child as the paramount consideration. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 35, opn 1 July 2006]

[page 447]

(3) In this section: post-separation parenting program or program [def rep Act 46 of 2006 s 3 and Sch 4 item 62, opn 1 July 2006]

post-separation parenting program provider or provider [def rep Act 46 of 2006 s 3 and Sch 4 item 63, opn 1 July 2006]

proceedings for a parenting order includes: (a) proceedings for the enforcement of a parenting order; and (b) any other proceedings in which a contravention of a parenting order is alleged. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 2, opn 3 Aug 2005] [s 65LA insrt Act 138 of 2003 s 3 and Sch 4 item 1 opn 14 Jan 2004]

[s 65LB] Conditions for providers of postseparation parenting programs 65LB

(1) An organisation meets the conditions in this section

if: (a) it is a recipient organisation (see subsection (2)); or (b) there is a recipient organisation in relation to the organisation (see subsection (3)). (2) An organisation is a recipient organisation for the purposes of paragraph (1)(a) if it receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order to provide services that include post-separation parenting programs. (3) An organisation is a recipient organisation in relation to another organisation for the purposes of paragraph (1)(b) if: (a) both:

the other organisation is a member of the organisation; and (ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisation’s members may provide services that include post-separation parenting programs; or (b) both: (i) the organisation acts on behalf of a group of organisations that includes the other organisation; and (ii) the organisation receives, or has been approved to receive, funding under a program or a part of a program designated by the Minister under subsection (4) in order that the organisations on whose behalf it acts may provide services that include post-separation parenting programs. (4) The Minister may, in writing, designate for the purposes of this section: (a) a program; or (b) part of a program; administered by or on behalf of the Commonwealth Government under which money appropriated by the Parliament is provided to organisations for the purposes of making post-separation parenting programs available. (5) An instrument under this section is not a legislative (i)

instrument. [s 65LB insrt Act 46 of 2006 s 3 and Sch 4 item 64, opn 1 July 2006]

[page 448]

Subdivision C — General obligations created by certain parenting orders [Subdiv C am Act 46 of 2006 s 3 and Sch 8 item 61, opn 1 July 2006]

[s 65M] General obligations created by parenting order that deals with whom a child lives with 65M (1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with. [subs (1) subst Act 46 of 2006 s 3 and Sch 8 item 62, opn 1 July 2006]

(2) A person must not, contrary to the order: (a) remove the child from the care of a person; or (b) refuse or fail to deliver or return the child to a person; or (c) interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order. [s 65M am Act 46 of 2006 s 3 and Sch 8 item 62, opn 1 July 2006] COMMENTARY ON SECTION 65M Introductory comments …. Obligations not to remove child etc: paras (a) and (b) ….

[s 65M.1] [s 65M.5]

Responsibilities under residence order: para (c) ….

[s 65M.10]

[s 65M.1] Introductory comments This section, and the following two sections, deal with “general” obligations created respectively by parenting orders, that is, residence (s 65M), contact (s 65N) and specific issues orders: s 65P. They create obligations on persons generally, as distinct from persons expressly bound by the orders or parties to the proceedings in which the orders were made. This is presumably the force of the words “general obligations”. These sections do not specifically deal with the obligations that orders create for the persons who are parties to the proceedings in which they are made. Proceedings for breach of the obligations created by s 65M are dealt with pursuant to Pt VII Div 31A. [s 65M.5] Obligations not to remove child etc: paras (a) and (b) Under s 65M, a residence order would create obligations on persons in general not to act in three specific ways contrary to the order. The first two specific ways are: remove the child from the care of the person who has the residence order; and refuse or fail to deliver or return the child to that person. The third specific way is interfere with the exercise of the person’s powers etc under the order: as to this, see [s 65M.10]. [s 65M.10] Responsibilities under residence order: para (c) The interpretation of para (c) poses a problem. A residence order does not of itself give the person who has it any powers, duties or responsibilities relating to the child. Those matters are the subject of specific issues orders. This indeed is the critical distinction between a residence order and a custody order before the 1995 amendments. Paragraph (c) appears to overlook this, and to assume that a residence order does more than the Act says it does, which is

to deal with the matter of the person with whom the child is to live: s 64B. It would seem, therefore, that para (c) has no operation, unless a residence order is treated as implicitly granting some powers, duties or responsibilities, an interpretation which would seem to be contrary to the whole plan of the 1995 amendments. Obligations not to interfere with powers under specific issues orders are created by s 65P. ____________________ [page 449]

[s 65N] General obligations created by parenting order that deals with whom a child spends time with 65N (1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with. (2) A person must not: (a) hinder or prevent a person and the child from spending time together in accordance with the order; or (b) interfere with a person and the child benefiting from spending time with each other under the order. [s 65N subst Act 46 of 2006 s 3 and Sch 8 item 63, opn 1 July 2006] COMMENTARY ON SECTION 65N Persons not to prevent or hinder contact under contact orders ….

[s 65N.1]

[s 65N.1] Persons not to prevent or hinder contact under contact orders This section applies to persons generally, and provides in substance that nobody should hinder or prevent a person and a child from having contact pursuant to a contact order, or interfere with such contact. Proceedings for breach of the obligations created by s 65N are dealt with pursuant to Pt VII Div 31A. ____________________

[s 65NA] General obligations created by parenting order that deals with whom a child communicates with 65NA (1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with. (2) A person must not: (a) hinder or prevent a person and the child from communicating with each other in accordance with the order; or (b) interfere with the communication that a person and the child are supposed to have with each other under the order. [s 65NA insrt Act 46 of 2006 s 3 and Sch 8 item 63, opn 1 July 2006]

[s 65P] General obligations created by parenting order that allocates parental responsibility 65P (1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order

allocates parental responsibility for the child to a person (the carer). (2) A person must not hinder the carer in, or prevent the carer from, discharging that responsibility. [s 65P subst Act 46 of 2006 s 3 and Sch 8 item 63, opn 1 July 2006] COMMENTARY ON SECTION 65P Persons not to hinder or prevent discharge of responsibility under specific issues order …. History of enforcement of guardianship orders …. Application to orders on particular matters ….

[s 65P.1] [s 65P.5] [s 65P.7]

[s 65P.1] Persons not to hinder or prevent discharge of responsibility under specific issues order This section applies when a specific issues order confers responsibility on a person for [page 450] the long-term or day-to-day care welfare and development of a child. It provides that other persons must not hinder that person in discharging that responsibility, or prevent the person from doing so. Proceedings for breach of the obligations created by s 65P are dealt with pursuant to Pt VII Div 31A. [s 65P.5] History of enforcement of guardianship orders Before the 1995 amendments, there were express provisions prohibiting people from interfering with the exercise of rights under orders for child custody and access, but not guardianship: ss 70(1) and (3) and 112AB(2) of the Act prior to the 1995 amendments. Thus

guardianship orders were not enforceable in the way custody and access orders were. However, this was changed by the 1995 amendments. Section 112AB(2)(c) (since repealed) and s 65P meant that a person could not hinder a person from discharging his or her responsibility for the long-term or day-to-day care, welfare or development of a child, and that doing so constituted a contravention of the Act. Thus since 11 June 1996 hindering a person from discharging his or her responsibilities could be the subject of contravention proceedings: see In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC 92-778 (FC). This remains the position under s 65N. [s 65P.7] Application to orders on particular matters Specific issues orders may be directed to particular matters, for example questions of schooling. Are such orders covered by s 65P? On a literal reading, it might be thought that the section deals only with orders expressed to confer responsibility on a person for the longterm or day-to-day care welfare and development of a child. However, the better view is that the section also covers specific issues orders dealing with particular aspects of long-term or day-today care etc of the child. There seems no reason why the legislature would have wished to provide for the general form of the orders and not for orders dealing with particular matters. ____________________

[s 65Q] Court may issue warrant for arrest of alleged offender 65Q (1) This section applies if: (a) a parenting order provides that: (i) a child is to live with a person; or

(ii) a child is to spend time with a person; or (iii) a child is to communicate with a person; and (b) a court having jurisdiction under this Part is satisfied, on application by the person referred to in paragraph (1)(a), that there are reasonable grounds for believing that a person (the alleged offender) has contravened section 65M, section 65N or 65NA in relation to the order; and (c) there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and (d) the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Division 13A for the alleged contravention. [subs (1) am Act 143 of 2000 s 3 and Sch 1 item 6A opn 27 Dec 2000; Act 46 of 2006 s 3 and Sch 8 item 64, opn 1 July 2006]

(2) The court may issue a warrant authorising a person to whom it is addressed to arrest the alleged offender. (3) A warrant stops being in force: (a) if a date not later than 6 months after the issue of the warrant is specified in the warrant as the date when it stops being in force — on that date; or (b) otherwise — 6 months after the issue of the warrant. [page 451]

Subdivision D — Dealing with people who have been arrested

[s 65R]

Situation to which Subdivision applies

65R This Subdivision applies if a person: (a) is arrested under a warrant issued under subsection 65Q(2); or (b) is arrested without warrant under a recovery order. [subs (1) am Act 46 of 2006 s 3 and Sch 9 item 56, opn 1 July 2006]

(2) [subs (2) rep Act 46 of 2006 s 3 and Sch 9 item 57, opn 1 July 2006]

[s 65S] court

Arrested person to be brought before a

65S (1) The arresting person must: (a) ensure that the alleged offender is brought before a court having jurisdiction under this Part before the end of the holding period applicable under subsection (4); and (b) take all reasonable steps to ensure that, before the alleged offender is brought before a court, the person who applied for the warrant or recovery order is aware: (i) that the alleged offender has been arrested; and (ii) of the court before which the alleged offender is to be brought. (2) The alleged offender must not be released before the end of the holding period except under an order of a court having jurisdiction under this Part. (3) This section does not authorise the holding in custody of the alleged offender after the end of the holding period. (4) The holding period is: (a) if a Saturday, Sunday or public holiday starts within 24

hours after the arrest of the alleged offender — the longer of the following periods: (i) the period starting with the arrest and ending 48 hours later; (ii) the period starting with the arrest and ending at the end of the next day after the day of the arrest that is not a Saturday, Sunday or public holiday; or (b) in any other case — the period starting with the arrest and ending 24 hours later.

[s 65T] Obligation of court — where application before it to deal with contravention 65T (1) This section applies if: (a) the alleged offender is brought before a court under section 65S; and (b) there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention. [subs (1) am Act 138 of 2003 s 3 and Sch 4 item 2 opn 27 Dec 2000]

(2) The court must, without delay, proceed to hear and determine the application.

[s 65U] Obligation of court — where no application before it, but application before another court, to deal with contravention 65U (1) This section applies if: (a) the alleged offender is brought before a court under section 65S; and

[page 452] (b) there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and (c) the court is aware that there is an application before another court for the alleged offender to be dealt with under Division 13A for the alleged contravention. [subs (1) am Act 143 of 2000 s 3 and Sch 1 item 6B opn 27 Dec 2000]

(2) The court must, without delay: (a) order that the alleged offender is to be released from custody on his or her entering into a recognizance (with or without surety or security) that he or she will attend before the other court on a date, at a time and at a place specified by the court; or (b) order the arresting person to arrange for the alleged offender to be brought before the other court on such date and at such time as the court specifies, being a date and time such that the alleged offender is to be brought before the other court as soon as practicable, and in any event not more than 72 hours, after the order is made. (3) If a court makes an order under paragraph (2)(b) for the alleged offender to be brought before another court: (a) subject to paragraph (c), the alleged offender may be kept in custody until he or she is brought before the other court; and (b) if the alleged offender is brought before the other court as required by the order, the other court must, without delay, proceed to hear and determine the application

mentioned in paragraph (1)(c); and (c) if the alleged offender is not brought before the other court as required by the order, he or she must be released without delay.

[s 65V] Obligation of court — where no application before any court to deal with contravention 65V (1) This section applies if: (a) the alleged offender is brought before a court under section 65S; and (b) there is no application, or no longer any application, before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and (c) so far as the court is aware, there is no application, or no longer any application, before any other court for the alleged offender to be dealt with under Division 13A for the alleged contravention. [subs (1) am Act 143 of 2000 s 3 and Sch 1 item 6B opn 27 Dec 2000]

(2) The court must, without delay, order the release of the alleged offender.

[s 65W] Applications heard as required by subsection 65T(2) or paragraph 65U(3)(b) 65W (1) If a court hearing an application as required by subsection 65T(2) or paragraph 65U(3)(b) adjourns the hearing, the court must: (a) order the alleged offender to be kept in such custody as the court considers appropriate during the adjournment; or [page 453] (b) order that the alleged offender is to be released from custody, either on his or her entering into a recognizance (with or without surety or security) that he or she will attend before the court on the resumption of the hearing or otherwise. (2) This section does not authorise the holding in custody of the alleged offender during an adjournment of proceedings that: (a) is expressed to be for a period of more than 24 hours; or (b) continues for more than 24 hours.

Subdivision E — Obligations under parenting orders relating to taking or sending children from Australia [s 65X] 65X

Interpretation (1) In this Subdivision:

parenting order to which this Subdivision applies means a parenting order to the extent to which it provides, or would provide, that: (a) a child is to live with a person; or (b) a child is to spend time with a person; or (c) a child is to communicate with a person; or (d) a person is to have parental responsibility for a child. [subs (1) subst Act 46 od 2006 s 3 and Sch 8 item 65, opn 1 July 2006]

(2) For the purposes of this Subdivision, if an appeal against a decision of a court in proceedings has been instituted and is pending, the proceedings are taken to be pending and sections 65Z and 65ZB (rather than sections 65Y and 65ZA) apply.

[s 65Y] Obligations if certain parenting orders have been made 65Y (1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2). Penalty: Imprisonment for 3 years. Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1). [Note insrt Act 24 of 2001 s 3 and Sch 27 item 3 opn 24 May 2001] [subs (1) am Act 24 of 2001 s 3 and Sch 27 item 2 opn 24 May 2001; Act 46 of 2006 s 3 and Sch 8 item 66, opn 1 July 2006]

(2) Subsection (1) does not prohibit taking or sending the child

from Australia to a place outside Australia if: (a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or (b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1). Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). [Note insrt Act 24 of 2001 s 3 and Sch 27 item 5 opn 24 May 2001] [subs (2) am Act 24 of 2001 s 3 and Sch 27 item 4 opn 24 May 2001; Act 46 of 2006 s 3 and Sch 8 items 67–68, opn 1 July 2006]

[page 454]

[s 65Z] Obligations if proceedings for the making of certain parenting orders are pending 65Z (1) If proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending, a person who is a party to the proceedings, or who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as mentioned in subsection (2). Penalty: Imprisonment for 3 years. Note: The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1).

[Note insrt Act 24 of 2001 s 3 and Sch 27 item 7 opn 24 May 2001] [subs (1) am Act 24 of 2001 s 3 and Sch 27 item 6 opn 24 May 2001; Act 46 of 2006 s 3 and Sch 8 item 69, opn 1 July 2006]

(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if; (a) it is done with the consent in writing (authenticated as prescribed) of each other party to the Part VII proceedings; or (b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). [Note insrt Act 24 of 2001 s 3 and Sch 27 item 9 opn 24 May 2001] [subs (2) am Act 24 of 2001 s 3 and Sch 27 item 8 opn 24 May 2001] [s 65Z am Act 46 of 2006 s 3 and Sch 8 item 69, opn 1 July 2006]

[s 65ZA] Obligations of owners etc of aircraft and vessels if certain parenting orders made 65ZA (1) This section applies if: (a) a parenting order to which this Subdivision applies is in force; and (b) a person in whose favour the order was made has served on the captain, owner or charterer of an aircraft or vessel a statutory declaration made by the person not earlier than 7 days before the date of service that: (i) relates to the order; and (ii) complies with subsection (4). [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 70–71, opn 1 July 2006]

(2) The person on whom the declaration is served must not permit the child identified in the declaration to leave a port or place in Australia in the aircraft or vessel for a destination outside Australia except as permitted by subsection (3). Penalty: 60 penalty units. [subs (2) am Act 24 of 2001 s 3 and Sch 27 item 10 opn 24 May 2001]

(2A) Subsection (2) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code). [subs (2A) insrt Act 24 of 2001 s 3 and Sch 27 item 11 opn 24 May 2001]

[page 455] (3) Subsection (2) does not prohibit permitting the child to leave Australia in the aircraft or vessel if: (a) the child leaves in the company, or with the consent in writing (authenticated as prescribed), of the person who made the statutory declaration; or (b) the child leaves in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). [Note insrt Act 24 of 2001 s 3 and Sch 27 item 12 opn 24 May 2001; am Act 46 of 2006 s 3 and Sch 8 item 72, opn 1 July 2006]

(4) The statutory declaration must contain:

(a) full particulars of the order, including: (i) the full name and the date of birth of the child to whom the order relates; and (ii) the full names of the parties to the proceedings in which the order was made; and (iii) the terms of the order; and (b) such other matters (if any) as are prescribed. [s 65ZA am Act 46 of 2006 s 3 and Sch 8 item 70, opn 1 July 2006; Act 46 of 2006 s 3 and Sch 8 item 72, opn 1 July 2006]

[s 65ZB] Obligations of owners etc of aircraft and vessels if proceedings for the making of certain parenting orders are pending 65ZB (1) This section applies if: (a) proceedings (the Part VII proceedings) for the making of a parenting order to which this Subdivision applies are pending; and (b) a party to the proceedings has served on the captain, owner or charterer of a vessel a statutory declaration made by the party not earlier than 7 days before the date of service that: (i) relates to the proceedings; and (ii) complies with subsection (4). [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 73, opn 1 July 2006]

(2) The person on whom the declaration is served must not permit the child identified in the declaration to leave a port or place in Australia in the aircraft or vessel for a destination outside Australia except as permitted by subsection (3).

Penalty: 60 penalty units. [subs (2) am Act 24 of 2001 s 3 and Sch 27 item 13 opn 24 May 2001]

(2A) Subsection (2) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code). [subs (2A) insrt Act 24 of 2001 s 3 and Sch 27 item 14 opn 24 May 2001]

(3) Subsection (2) does not prohibit permitting the child to leave Australia in the aircraft or vessel if: (a) the child leaves in the company, or with the consent in writing (authenticated as prescribed), of the party who made the statutory declaration; or [page 456] (b) the child leaves in accordance with an order of a court made, under this Part or under a law of a State or Territory, after the institution of the Part VII proceedings. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code). [subs (3) am Act 113 of 2015 s 3 and Sch 3 item 3, opn 18 Aug 2015] [Note insrt Act 24 of 2001 s 3 and Sch 27 item 15 opn 24 May 2001; am Act 113 of 2015 s 3 and Sch 3 item 3, opn 18 Aug 2015]

(4) The statutory declaration must contain: (a) full particulars of the Part VII proceedings, including: (i) the full name and the date of birth of the child to whom the proceedings relate; and

(ii) the full names of the parties to the proceedings; and (iii) the name of the court, the nature of the proceedings and the date of institution of the proceedings; and (iv) if an appeal has been instituted in the proceedings — the name of the court in which the appeal was instituted and the date on which it was instituted; and (b) a statement that the Part VII proceedings are pending at the date of the declaration; and (c) such other matters (if any) as are prescribed. [s 65ZB am Act 46 of 2006 s 3 and Sch 8 item 73, opn 1 July 2006]

[s 65ZC] General provisions applicable to sections 65ZA and 65ZB 65ZC (1) A declaration under section 65ZA or 65ZB may be served on the owner or charterer of an aircraft or vessel, or on the agent of the owner of an aircraft or vessel, by sending the declaration by registered post addressed to the owner, charterer or agent at the principal place of business of the owner, charterer or agent. (2) The captain, owner or charterer of an aircraft or vessel, or the agent of the owner of an aircraft or vessel, is not liable in any civil or criminal proceedings in respect of anything done in good faith for the purpose of complying with section 65ZA or 65ZB. (3) If an act or omission by a person that constitutes an offence against subsection 65ZA(2) or 65ZB(2) is also an offence against any other law, the person may be prosecuted and convicted under that other law, but nothing in this subsection makes a person liable to be punished twice in respect of the same act or omission.

[s 65ZD] State or Territory laws stopping children leaving Australia not affected 65ZD Nothing in this Subdivision prevents or restricts the operation of any law of a State or Territory under which: (a) action may be taken to prevent a child from leaving Australia or being taken or sent outside Australia; or (b) a person may be punished in respect of the taking or sending of a child outside Australia. [page 457] DIVISION 7 — CHILD MAINTENANCE ORDERS

Subdivision A — What this Division does [s 66A]

What this Division does

66A This Division: (a) contains statements of objects and principles relevant to the making of child maintenance orders (Subdivision B); and (b) deals with the relationship between this Division and the Child Support (Assessment) Act 1989 (Subdivision C); and (c) deals with applying for and making child maintenance orders (Subdivision D); and (d) deals with other aspects of courts’ powers in relation to child maintenance orders (Subdivision E); and

deals with varying the maintenance of certain children (Subdivision EA); and (e) deals with when child maintenance orders stop being in force (Subdivision F); and (f) deals with the recovery of amounts paid under maintenance orders (Subdivision G). (da)

[s 66A am Act 143 of 2000 s 3 and Sch 3 item 46 opn 27 Dec 2000; Act 189 of 2011 s 3 and Sch 2[18], opn 7 Dec 2011]

Subdivision B — Objects and principles [s 66B]

Objects

66B (1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents. (2) Particular objects of this Division include ensuring: (a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and (b) that parents share equitably in the support of their children. COMMENTARY ON SECTION 66B Introductory comments ….

[s 66B.1]

[s 66B.1] Introductory comments An equivalent to this section was first inserted by the Family Law Amendment Act 1987 (Cth). It sets out the objects of Div 7. The principal object of Div 7, is to ensure that children receive a proper level of financial support from

their parents; ‘particular objects’ are set out in subs (2). ____________________

[s 66C] Principles — parents have primary duty to maintain 66C (1) The parents of a child have, subject to this Division, the primary duty to maintain the child. (2) Without limiting the generality of subsection (1), the duty of a parent to maintain a child: [page 458] (a) is not of lower priority than the duty of the parent to maintain any other child or another person; and (b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support: (i) himself or herself; or (ii) any other child or another person that the parent has a duty to maintain; and (c) is not affected by: (i) the duty of any other person to maintain the child; or (ii) any entitlement of the child or another person to an income tested pension, allowance or benefit. COMMENTARY ON SECTION 66C

PRELIMINARY Introductory comment …. PRIORITY OF DUTY TO MAINTAIN CHILDREN Introductory comment — s 66C(2) …. Other child or person …. Commitments of parent — s 66C(2)(b) …. Duty of person other than parent — s 66C(2)(c)(i) …. Entitlement to pension — s 66C(2)(c)(ii) ….

[s 66C.1]

[s 66C.3] [s 66C.5] [s 66C.7] [s 66C.9] [s 66C.11]

PRELIMINARY [s 66C.1] Introductory comment This section deals with the duty of parents. It provides that parents have the primary duty to maintain children. The section is equivalent to the former s 66B which was inserted by the Family Law Amendment Act 1987. It resembles the former s 73 repealed by the Family Law Amendment Act 1987 in so far as it states a duty on parents to maintain their children. In relation to the repealed s 73, see In the Marriage of Mills (1976) 1 Fam LR 11,592; FLC 90–079; In the Marriage of Debs (1978) 4 Fam LN 48; 34 FLR 1. Section 66C, however, differs from the repealed s 73 in two ways. First, it applies not only to children of a marriage but to all children. Thus it imposes a duty to maintain ex-nuptial children. Second, it provides that the duty is primary. The implications of this term are made clearer by subs (2) and certain other provisions: see ss 66J(3)(b), 66K(4), 66D(1) and (2), 66M and 66N. In general, it seems that the word is intended to indicate that where a parent is able to support a child, he or she should do so, and the parents’ liability should not be avoided by: unreasonable expenditure for the parents’ own benefit (see s 66C(2)(b)(i)); the parents’ moral obligations (“commitments”) towards

other people (see s 66C(2)(b)); the fact that another person may have a duty to maintain the child (see s 66C(c)(i)); or the social security entitlements of the child (see s 66C(2)(c) (ii)). Pre-1988 For a useful discussion of the position at common law of the obligation of a parent to support his or her child, and the history of legislative intervention in Australia, see In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971 at 973–4; FLC 91–716 (FC). PRIORITY OF DUTY TO MAINTAIN CHILDREN [s 66C.3] Introductory comment — s 66C(2) This section amplifies the nature and extent of the duty which is specified in s 66C(1). The provision, however, distinguishes between a duty and a commitment. It is submitted that duty here refers to a legally enforceable duty, while [page 459] commitment may have a wider meaning, probably including voluntary arrangements giving rise to what might reasonably be seen as a moral or ethical duty. [s 66C.5] Other child or person Section 66C(2)(a) provides that the duty is not of lower priority than the duty of the parent to maintain any other child or any other person. Such other child may be a child of a spouse by second marriage (in which case the duty would arise only in the circumstances set out by ss 66D(1) and (2), 66M and 66N). Such other person may be a spouse by second

marriage, a former spouse or, if an order has been made under the De Facto Relationships Act 1984 (NSW), a former de facto spouse. Pre-1988 Prior to the 1987 Amendment Act a number of cases had considered the approach to be taken in maintenance proceedings where a party has a commitment to such a child or person and whether there are priorities to be considered. See McOmish v McOmish [1968] VR 524; Nelson v Nelson [1965] NSWR 793; Roberts v Roberts [1970] P 1; In the Marriage of Van Dongen (1976) 1 Fam LR 11,290; FLC 90–071; In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124; In the Marriage of Holmes (1976) 2 Fam LN 14; FLC 90–129; In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714; In the Marriage of Ostrofski (1979) 5 Fam LR 685; FLC 90–730; In the Marriage of Baber (1980) 6 Fam LR 796; FLC 90–901; In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806; In the Marriage of Burke (1981) 7 Fam LR 121; FLC 91–055. One view was that the needs of a child of a first marriage must take priority over the children of a second marriage or de facto spouse. It was argued that the court should not take into account a moral obligation which was inconsistent with s 43. Ultimately the Full Court, In the Marriage of Axtell (1982) 7 Fam LR 931; FLC 91–208, affirmed what was said in Soblusky’s case, namely, that the court must consider in a realistic way the fact that a party has assumed a responsibility to support another person, and the weight to be given to that fact depends upon the circumstances of each case. The Full Court said (at Fam LR 938) that it is unrealistic to ignore the fact that a party may need to make some contribution to the support of persons sharing his or her household and the issue is not determined by assigning priorities to one obligation or responsibility over another. Post-1988 As “duty” in s 66C refers to legal duty, if a husband is

involved in a de facto relationship with a woman who has children of her own, the husband’s duty is to maintain his own children and this duty prevails over any moral commitment he has to support his de facto spouse or her children. If the husband remarries, he will only have a legal duty to maintain his step-children in the circumstances set out by ss 66D(1) and (2), 66M and 66N. Even if he does have such a duty it is not to be given a higher priority than the duty to maintain his own children. Similarly, the duty to maintain his own children by a second marriage and any duty to his second spouse is not to be given higher priority than the duty to support the children of his first marriage. It is submitted (RC, SO’R) that this section is a departure from the approach in Axtell and Soblusky. The duty of a parent is to his or her children and it prevails over any moral commitments that the person may have towards other persons: See In the Marriage of Hagedorn (1988) 12 Fam LR 569; FLC 91–965; In the Marriage of Ryan (1988) 12 Fam LR 529; FLC 91–970; In the Marriage of Hartcher and Vick (1991) 15 Fam LR 149; FLC 92–262 (FC). [s 66C.7] Commitments of parent — s 66C(2)(b) This section provides that the duty of parents is to take priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself, or any other person or child, that the parent has a duty to maintain. Section 66K requires the court, in determining the contribution that should be made by a party, to take into account, amongst other matters, the financial circumstances of a party and his or her commitments. See In the Marriage of Hagedorn (1988) 12 Fam LR 569; FLC 91–965; In the Marriage of Ryan (1988) 12 Fam LR 529; FLC 91–970. Needs of parent Prior to the 1987 Amendment Act, the issue arose as to what expenditure it was reasonable to allow a parent when

calculating the amount of his or her income available for the purposes of child maintenance. This issue has now been resolved to allow only what could be called “basic needs”: see s 66K(1)(c)(i). [page 460] [s 66C.9] Duty of person other than parent — s 66C(2)(c)(i) This section provides that the duty of parents is not affected by the duty of any other person to maintain the child. “Other person” obviously includes the other natural parent. It would also include a step-parent if an order had been made under s 66M that the stepparent contributes to the maintenance of the child: see s 66D. Stepparent is defined in s 60D. Compare s 75(2)(e): see In the Marriage of Axtell (1982) 7 Fam LR 931 at 938; FLC 91–208. [s 66C.11] Entitlement to pension — s 66C(2)(c)(ii) This section provides that the duty of a parent is not affected by any entitlement that the child or any other person may have for an income-tested pension, allowance or benefit. The child may be handicapped and in receipt of a pension or benefit. The receipt of such pension or benefit does not reduce the obligation of the parent. This provision is consistent with the thrust of Pt VII as to the relevance of any entitlement to a pension. It is consistent with other provisions of Div 7 which are designed to reduce public expenditure. In effect, where the parents are capable of paying maintenance the child should be supported by them rather than by social security: see ss 66J(3)(b)(ii) and 66K(4). ____________________

[s 66D] Principles — when step-parents have a duty to maintain 66D (1) The step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the stepparent to have that duty. (2) Any duty of a step-parent to maintain a step-child: (a) is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and (b) does not derogate from the primary duty of the parents to maintain the child.

Subdivision C — Relationship with Child Support (Assessment) Act [s 66E] Child maintenance order not to be made etc if application for administrative assessment of child support could be made 66E (1) A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa. (2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another

person). (3) This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A. [subs (3) insrt Act 143 of 2000 s 3 and Sch 3 item 47 opn 27 Dec 2000] COMMENTARY ON SECTION 66E Introductory comments …. Scope of section — not applicable to registered overseas maintenance orders ….

[s 66E.1] [s 66E.2]

[page 461] [s 66E.1] Introductory comments This section is equivalent to the former s 66BA which was inserted in 1989 to preserve the operation of the Child Support (Assessment) Act 1989. Its effect is to prevent the court from making, reviving, or varying child maintenance orders under Pt VII where the Child Support (Assessment) Act 1989 applies. On child support, see generally guide card CHILD SUPPORT in Volume 2. [s 66E.2] Scope of section — not applicable to registered overseas maintenance orders The Full Court has held that as a result of ss 60D(1), 64B, 66G, 69B, 69H and 69J, this section is limited to maintenance orders made by the court under Pt VII of the Act and does not extend to overseas maintenance orders registered under Pt XIII. Accordingly, s 66E does not prohibit the variation of such an order, and there is no inconsistency between s 66E and the relevant regulations: In the Marriage of Isdale and Dore (1997) 22 Fam LR 560; (1998) FLC 92–798.

____________________

Subdivision D — Applying for and making child maintenance orders [s 66F] order

Who may apply for a child maintenance

66F (1) Unless subsection (2) applies, a child maintenance order in relation to a child may be applied for by: (a) either or both of the child’s parents; or (b) the child; or (ba) a grandparent of the child; or (c) any other person concerned with the care, welfare or development of the child. [subs (1) am Act 143 of 2000 s 3 and Sch 3 item 48 opn 27 Dec 2000]

(2) A child maintenance order in relation to a child who is under the guardianship, or in the care (however described), of a person under a child welfare law may only be applied for by: (a) the child; or (b) a parent of the child who has the daily care of the child; or (c) a relative of the child who has the daily care of the child; or (d) a child welfare officer of the relevant State or Territory.

[s 66G] Court’s power to make child maintenance order

66G In proceedings for a child maintenance order, the court may, subject to this Division and to section 111AA, make such child maintenance order as it thinks proper. [s 66G am Act 82 of 2007 s 3 and Sch 2[103], opn 19 July 2007] COMMENTARY ON SECTION 66G Introductory comment ….

[s 66G.1]

[s 66G.1] Introductory comment This section is equivalent to the former s 66F which was inserted in the Act by the Family Law Amendment Act 1987. It is in similar terms to s 74, prior to the 1987 amendments, in so far as that section related to child maintenance. Section 111AA relates to an applicant for maintenance who is resident in New Zealand. ____________________ [page 462]

[s 66H] Approach to be taken in proceedings for child maintenance order 66H In proceedings for the making of a child maintenance order in relation to a child, the court must: (a) consider the financial support necessary for the maintenance of the child (this is expanded on in section 66J); and (b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should

be made by a party, or by parties, to the proceedings (this is expanded on in section 66K). COMMENTARY ON SECTION 66H Introductory comment …. Summary of approach …. Matters to be taken into account …. First step …. Second step ….

[s 66H.1] [s 66H.3] [s 66H.5] [s 66H.7] [s 66H.9]

[s 66H.1] Introductory comment This section is equivalent to the former s 66C which was inserted in the Act by the Family Law Amendment Act 1987. It sets out the approach that a court is required to follow when dealing with an application for child maintenance. [s 66H.3] Summary of approach The court is required to firstly consider the financial support that is necessary for the maintenance of a child and then determine the contribution towards the child’s financial support that should be made by a party. The exercise involves basically two steps, namely, financial support and then financial contribution. In the Attorney-General’s explanatory memorandum to the Family Law Amendment Act 1987, this sequential approach was said to be in accordance with the decision of the Full Court in In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971; FLC 91–716. The Full Court said (at Fam LR 976) that the determination of child maintenance should be approached by considering the following issues: (a) the financial needs of the particular child; (b) the extent to which the child has financial resources to meet those needs; and (c) a comparison of what can be described as the financial

circumstances of the parties to meet the needs of the child. [s 66H.5] Matters to be taken into account It is submitted that this section specifies the approach to be taken by a court when determining an application for child maintenance. [s 66H.7] First step In considering the financial support necessary for a child, the court is required to take into account the matters referred to in s 66J. [s 66H.9] Second step In considering the contribution that should be made towards the support of a child, the court is required to take into account the matters referred to in s 66K. ____________________

[s 66J] Matters to be taken into account in considering financial support necessary for maintenance of child 66J (1) In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters: (a) the matters mentioned in section 66B; and (b) the proper needs of the child (this is expanded on in subsection (2)); and [page 463]

the income, earning capacity, property and financial (c) resources of the child (this is expanded on in subsection (3)). (2) In taking into account the proper needs of the child the court: (a) must have regard to: (i) the age of the child; and (ii) the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and (iii) any special needs of the child; and (b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children. (3) In taking into account the income, earning capacity, property and financial resources of the child, the court must: (a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and (b) disregard: (i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and (ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit. (4) Subsections (2) and (3) do not limit, by implication, the

matters to which the court may have regard in taking into account the matters referred to in subsection (1). COMMENTARY ON SECTION 66J Introductory comments …. Relevant matters — s 66J(1) …. Introductory comment …. Effect of section …. NEEDS OF CHILD Introductory comment — s 66J(1)(b) …. Other relevant matters in considering needs — s 66J(2) …. What are needs? …. Age of child — s 66J(2)(a)(i) …. Manner of education or training — s 66J(2)(a)(ii) …. School fees — pre-1988 cases …. Special needs — s 66J(2)(a)(iii) …. Published research — section 66J(2)(b) …. Other matters …. FINANCIAL CIRCUMSTANCES OF CHILD Introductory comment — s 66J(1)(c) …. Matters taken into account — s 66J(3) …. Matters to be disregarded — s 66J(3)(b) …. Other matters ….

[s 66J.1] [s 66J.5] [s 66J.7] [s 66J.9]

[s 66J.11] [s 66J.13] [s 66J.15] [s 66J.17] [s 66J.19] [s 66J.21] [s 66J.23] [s 66J.25] [s 66J.27]

[s 66J.29] [s 66J.31] [s 66J.33] [s 66J.35]

[s 66J.1] Introductory comments This section is equivalent to the former s 66D which was inserted in the Act by the Family Law Amendment Act 1987. It specifies the matters which the [page 464]

court shall take into account in child maintenance proceedings when considering the financial support that is necessary for the maintenance of a child. It deals with the first step in the determination of an application for child maintenance: see [s 66H.3]. [s 66J.5] Relevant matters — s 66J(1) This section provides that the matters which the court shall take into account are: the objects of Div 7 (s 66B); the proper needs of the child (s 66J(1)(b)); and the income, earning capacity, property and financial resources of the child (s 66J(1)(c)). [s 66J.7] Introductory comment The court, in considering the financial support that is necessary for the maintenance of a child, is required to take into account the objects specified in s 66B. [s 66J.9] Effect of section It is submitted that it is difficult to see how the requirements of this provision are to be translated, in practical terms, when determining the needs or financial support necessary for a child. It is true that the overall effect of Div 7 is to avoid, so far as possible, resort to the public purse. However, this does not alleviate the difficulty in understanding the inclusion of this provision. It may mean that the court, having applied more specific guidelines, then considers how far the result embodies the policy or objects expressed in s 66B. NEEDS OF CHILD [s 66J.11] Introductory comment — s 66J(1)(b) This, it is submitted, is the basal provision in relation to child maintenance. The court, in considering the financial support necessary for the

maintenance of a child, must consider and determine what are the proper needs of the child. In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971 at 976; FLC 91–716, the Full Court said that the essential first step is to ascertain in financial terms the needs of the child in question. [s 66J.13] Other relevant matters in considering needs — s 66J(2) This section provides that in considering the proper needs of the child, the court must have regard to the following matters: the age of the child (s 66J(2)(a)(i)); the manner in which the child is being and his or her parents expected the child to be educated (s 66J(2)(a)(ii)); and any special needs of the child (s 66J(2)(a)(iii)). [s 66J.15] What are needs? The Act, although it refers to needs, does not assist, except perhaps in the requirement to take into account relevant findings of published research, in determining what are the needs of a child. The Act simply requires the court to consider the financial needs of a child and sets out certain matters which the court shall take into account in considering the proper needs of a child. Standard of needs It is submitted that the concept of need is not limited to “bare necessities’”, but is determined by reference to the previous standard of living enjoyed by the child: see In the Marriage of Crapp (1978) 4 Fam LR 213; FLC 90–460; In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90– 435; In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971; FLC 91–716. Accumulation of capital There is no basis for arguing that

children should be compensated for the suffering involved in the break-up of the family by having an asset set aside for them and built up by the parents to the ultimate advantage of the children: see In the Marriage of Koch (1977) 3 Fam LN 66; FLC 90–312; In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872. [page 465] [s 66J.17] Age of child — s 66J(2)(a)(i) This section requires the court, in considering the proper needs of the child, to have regard to the age of the child. Section 75(2)(a) requires the court, in considering spousal maintenance, to have regard to the age of the parties. [s 66J.19] Manner of education or training — s 66J(2)(a)(ii) This section requires the court in considering the proper needs of the child to have regard to the manner in which the child is being, and in which the parents expected the child to be, educated or trained. It simply repeats the effect of the repealed s 76(1)(e). Effect of section It allows the court to take into account the standard of living which the child enjoyed in regard to education and training. It also allows the court to take into account preseparation expectations of the parents in fixing the post-separation standard of educational maintenance for a child. It is submitted that the court is also required to take into account the standard of living of the parties and any special needs of the child when determining such educational maintenance: see In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435; In the Marriage of H (1981) 7 Fam LR 451; FLC 91–083; In the Marriage of Tingley (1984) 10 Fam LR 707; FLC 91–588; In the Marriage of Mee and

Ferguson (1986) 10 Fam LR 971; FLC 91–716. [s 66J.21] School fees — pre-1988 cases In relation to an order sought for the payment of school fees by a party who has not been consulted upon about a particular school or a particular type of education such as a private school education, the cases have revealed a difference of approach. In the Marriage of Mercer (1976) 1 Fam LR 11,179 at 11,183; FLC 90–033 at 75,131, Watson J said that if a party elects, without a court order, to send a child to a school of his or her choice as opposed to the choice of the other party, then he or she cannot claim against the other party the cost of such schooling. In the Marriage of Skinner (1977) FLC 90–237 at 76,297, Emery J referred to what he called a principle which had long been applied by the courts that a custodial parent never had the right to force on the non-custodial party, school fees for a school which the non-custodial party did not approve of. Emery J appeared to adopt the view of Watson J Mercer’s case. Emery J did, however, say that that consideration was no more than another factor to be taken into account and that if a parent was wealthy it may be reasonable to expect this parent to pay the fees, however, such parent could not be forced into penury. In the Marriage of Paradine (1981) 7 Fam LR 125; FLC 91–056, Simpson J at Fam LR 126 disagreed with Watson J in Mercer s case and said that there was no general rule that a party should not be obliged to contribute to the cost of school fees because he or she had not consented to the child attending a particular school, and that each case must be decided in the light of its own facts and circumstances. Gun J said at Fam LR 129 that generally speaking a party should not be obliged to contribute towards the cost of school fees unless he or she has consented to the child attending that school, however, the issue should be dealt with having regard to all the circumstances of the case. Gun J also said there may be cases

where it would be appropriate to compel a party to contribute towards private school fees, even though such party had not been consulted or had not consented, if there is evidence that the child would derive a benefit from attending a private school as opposed to a public school. In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971 at 981; FLC 91–716, the Full Court expressly disapproved of the view of Emery J in Skinner’s case regarding the obligation of a wealthy party, and said that the mere fact that the non-custodian can afford to pay the fees is not itself a reason for imposing the liability. The Full Court in Mee’s case agreed with the more general formulation by Gun J. In Mee’s case the Full Court said at 981 that where the non-custodian has not agreed to the child attending a particular school, he or she is not liable to contribute to the cost of such education, unless there are reasons relating to the child’s welfare which dictate attendance at that school. Attendance at a school It is submitted that the court will also consider the period of time that a child has been attending a particular school or type of school: see In the Marriage of Tingley (1984) 10 Fam LR 707; FLC 91–588; In the Marriage of Mee and Ferguson, above. [page 466] Other publications F Bates, “Maintenance and Private School Fees”, Australian Journal of Family Law, vol 2, 1987, p 125. [s 66J.23] Special needs — s 66J(2)(a)(iii) This section requires the court in considering the proper needs of the child to take into account any special needs of the child. There was no such provision in the repealed s 76. The Act does not define what type

of need is covered by the phrase “special needs”. It is submitted that there was no reason for the insertion of this provision because, in relation to the establishment of the needs of a child, it does not matter whether such needs are of any kind, ie special or ordinary. The court is required to take into account and properly consider the needs of the child, whether such needs be “special” or otherwise. In In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971; FLC 91–716, the Full Court referred to the necessity for evidence of general and specific needs of a child. It is submitted that special need may mean something different from specific need. [s 66J.25] Published research — section 66J(2)(b) This section also provides that the court is required, in taking into account the proper needs of a child, to have regard to, if the court considers it appropriate, any relevant findings of published research in relation to the maintenance of children. What published research? Reference may be had either to the Lovering Tables or the different calculations used by Lee: see Coon and Cox (1993) 17 Fam LR 692 at 695; (1994) FLC 92–464, where Nicholson CJ preferred the Lee scale, saying: “This is an approach which I consider realistically takes into account the many and varied and often hidden and neglected costs of maintaining children by custodial parents. It is, I think, a more comprehensive approach than the calculations which go to comprise the Lovering Scale which has several important and acknowledged omissions. For example, housing, medical and dental expenses, transport and school uniforms: see McDonald “The Costs of Children, A Review of the Methods and Results”, Family Matters, No 27, 1990, pp 18–22.” This decision was followed by the Full Court In the Marriage of Streets (1994) 18 Fam LR 275; FLC 92–509, where the Full Court said that it now

regarded the Lee scales as a more accurate guide to the cost of children. The Lee and Lovering Tables are set out in Vol 2 in the guide card PRACTICE AND PRECEDENTS at [7500]. Necessity for proof of needs One of the difficulties experienced in relation to claims for child maintenance has been the task of ascertaining the needs of the child. In In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971 at 976; FLC 91–716, the Full Court said that although it seems to be assumed that by inference or intuition courts are able to form a view of the needs of a child, it requires actual evidence to be called on this issue. In In the Marriage of Paradine (1981) 7 Fam LR 125; FLC 91–056, Simpson J said that in the absence of evidence of even the most general nature giving some estimate of the needs of the child, it is not open to the court to extrapolate the expenses of a child from a statement of financial circumstances. Gun J said (at Fam LR 130) that he did not consider that the absence of specific evidence as to the amount required to maintain a child was necessarily fatal, and that it is not obligatory in every case for the court to calculate with mathematical precision the amount required to support a child. In Mee’s case there was before the court precise evidence, both specific and general, of the needs of the child. In the Marriage of Redman (1987) 11 Fam LR 411; FLC 91–805; the Full Court suggested that the extent of the evidence required of the needs of the child will depend on the type of maintenance order sought, ie an urgent, interim or final order. Evidence of need It was suggested by the Full Court in Mee’s case that the publication by the Institute of Family Studies, The Cost of Children in Australia, would provide a useful guide to ascertaining the cost of maintaining children, provided it was admitted into

evidence. It is submitted that the use of such a publication is doubtful. It avoids the very issue that the Full Court was at pains to point out, namely the necessity to call evidence of the needs of the child in [page 467] question. It is submitted that this provision appears to make such material admissible, notwithstanding that it might otherwise have been inadmissible on the basis that it could be categorised as “market survey” evidence. However, the provision does not overcome the requirement that the court should determine the needs of the child in question. Other publications S O’Ryan, “Maintenance Proceedings, Type of Hearing”, Australian Journal of Family Law, vol 2, 1988, p 171. [s 66J.27] Other matters Section 66J(4) makes it clear that the court, in considering the proper needs of the child, is not prevented from having regard to other matters FINANCIAL CIRCUMSTANCES OF CHILD [s 66J.29] Introductory comment — s 66J(1)(c) This section requires the court, in considering the financial support necessary for the maintenance of a child, to take into account the income, earning capacity, property and financial resources of the child. The repealed s 76(1)(c) required the court to take into account the income, earning capacity, property and other financial resources of the child: see also s 75(2)(b). If a child has adequate funds at his or her disposal, then it may be proper that the child be expected to

contribute to his or her own maintenance: see In Van Dongen (1976) 1 Fam LR 11,290; FLC Marriage of W (1980) 6 Fam LR 538; FLC Marriage of Mee and Ferguson (1986) 10 Fam FLC 91-716.

the Marriage of 90–071; In the 90–872; In the LR 971 at 976;

[s 66J.31] Matters taken into account — s 66J(3) This provision sets out matters which the court shall have regard to and which it shall disregard when considering the financial circumstances of the child. Capacity to earn income Section 66J(3)(a) provides that the court shall have regard to the capacity of the child to earn or derive income. The position prior to April 1988, was that the court was required to consider the earnings of the child: see In the Marriage of Mercer (1976) 1 Fam LR 11,179 at 11,183; FLC 90–033; In the Marriage of Piper (1977) 3 Fam LN 17; 30 FLR 536. The court may refuse to make an order if the child is earning sufficient income to satisfy his or her needs: see In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714. Pocket money In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971 at 976–7; FLC 91–716, the Full Court said that in ordinary circumstances, it would be unreasonable to expect that pocket money and other small sources of income derived from paper rounds and casual work after school and the like be taken into account in diminishing the financial responsibility of the parents. Assets of child The court is required to have regard to the property and financial resources of the child. Section 66J(3)(a) provides that the court shall have regard to any assets of, under the control of, or

held for the benefit of, the child that do not produce income but are capable of producing income. The Act does not define the word “assets”, however, it is submitted that it clearly means property or financial resources. If such assets produce income then this income is relevant under s 66J(3)(a). If such assets do not produce income then the court has to ascertain whether or not such assets are capable of producing income. However, it should not be assumed that the child has to exhaust all capital to qualify for maintenance: see Cosgrove v Cosgrove (No 2) (1996) 20 Fam LR 761; FLC 92– 701. Trust funds It has been held that if a child has financial resources available from a trust, then such a resource is relevant: see In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872; In the Marriage of Stacy (1977) 3 Fam LN 70; FLC 90–324. It has also been held that it may be important to consider the origin and purpose of the fund: see In the Marriage of Koch (1977) 3 Fam LN 66; FLC 90–312. [page 468] [s 66J.33] Matters to be disregarded — s 66J(3)(b) This provision sets out matters which the court shall disregard when considering the financial circumstances of the child. The repealed s 76 did not specify matters which the court was required to disregard. This provision, like others in Div 7, applies to applications for maintenance of adult children: see Smith v Wickstein (1996) 21 Fam LR 118; FLC 92–714. Financial circumstances of another person Section 66J(3)(b)(i) requires the court to disregard the financial circumstances of any

other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them. In the Attorney-General’s memorandum it is stated that the purpose of this provision is to ensure that, save in special circumstances, the financial support necessary for the maintenance of a child is to be considered without regard to the financial circumstances of any other person, including either parent of the child: see also s 66C(2) (c)(i). Entitlement to pension Section 66J(3)(b)(ii) requires the court to disregard any entitlement of the child or any other person to a pension: see also s 66C(2)(c)(ii). This provision is consistent with one of the primary purposes of the Family Law Amendment Act 1987. [s 66J.35] Other matters Section 66J(4) makes it clear that the court in considering the financial circumstances of the child, is not limited to the matters set out in s 66J(3). ____________________

[s 66K] Matters to be taken into account in determining contribution that should be made by party etc 66K (1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters: (a) the matters mentioned in sections 66B, 66C and 66D; and

(b) the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and (c) the commitments of the party, or each of those parties, that are necessary to enable the party to support: (i) himself or herself; or (ii) any other child or another person that the person has a duty to maintain; and (d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and (e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person. (2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income. (3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care. [page 469]

(4) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard: (a) any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and (b) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them. (5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance: (a) by way of lump sum payment; or (b) by way of transfer or settlement of property; or (c) in any other way. (6) Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1). COMMENTARY ON SECTION 66K PRELIMINARY Introductory comment …. Second step ….

[s 66K.1] [s 66K.3]

RELEVANT MATTERS Introductory comment …. FINANCIAL CIRCUMSTANCES OF PARENT Introductory comment …. Capacity to earn income …. Assets capable of producing income …. COMMITMENTS OF PARTY Introductory comment …. Personal commitment — s 66K(1)(c)(i) …. Commitments to person to whom duty to support — s 66K(1)(c)(ii) ….

[s 66K.5]

[s 66K.7] [s 66K.9] [s 66K.11]

[s 66K.13] [s 66K.15] [s 66K.17]

COSTS INCURRED BY PERSON WITH WHOM THE CHILD LIVES Introductory comment …. Earning capacity of person with whom the child lives ….

[s 66K.19] [s 66K.21]

SPECIAL CIRCUMSTANCES Introductory comment ….

[s 66K.23]

MATTERS TO BE DISREGARDED Introductory comment …. Pension entitlement …. Person who is not a party ….

[s 66K.25] [s 66K.27] [s 66K.29]

TYPE OF ORDER Introductory comment ….

[s 66K.31] [page 470]

Lump sum orders …. Secured orders ….

[s 66K.33] [s 66K.35]

PRELIMINARY [s 66K.1] Introductory comment This section is equivalent to the former s 66E inserted in the Act by the Family Law Amendment Act 1987. It sets out the matters which the court shall take into account when considering the contribution which should be made by a party towards the financial support of a child. [s 66K.3] Second step It is submitted that it deals with what is specified as being the second step in the determination of an application for child maintenance: see [s 66H.3]. RELEVANT MATTERS [s 66K.5] Introductory comment This section sets out the matters which the court shall take into account, namely: the objects of Div 7 (s 66B); the duty of parents (s 66C); the financial circumstances of the parent (s 66K(1)(b)); the commitments of the parent (s 66K(1)(c)); the costs of the person with whom the child lives (s 66K(1) (d)); and special circumstances (s 66K(1)(e)). FINANCIAL CIRCUMSTANCES OF PARENT [s 66K.7] Introductory comment Section 66K(1)(b) requires the court to take into account the income, earning capacity, property and financial resources of the party in question. This provision is similar to s 75(2)(b). The repealed s 73 required the court to compare the respective financial resources of each of the parties: see In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971

at 977; FLC 91–716. The court was (and it is submitted still is) required to make an assessment of the overall financial position of the party liable to contribute and determine the ability of such party to contribute. Court may have regard to Child Support formula In cases decided prior to the commencement of the Family Law Reform Act 1995 (Cth), it has been held that in child maintenance proceedings, at least where the issue is the capacity of the “non-custodial parent” to make an equitable contribution to the costs of the children, it is reasonable for the court to have regard to the formula under the Child Support legislation: Beck v Sliwka (1992) 15 Fam LR 520; FLC 92–296; In the Marriage of Streets (1994) 18 Fam LR 275; FLC 92–509. This will not always be appropriate, however: see for example In the Marriage of Stratton (1993) 16 Fam LR 551; FLC 92–374. [s 66K.9] Capacity to earn income Section 66K(2) provides that in taking into account the financial circumstances of a party, the court shall have regard to the capacity of the party to earn and derive income. This provision would allow the court to look not only at actual income derived by a party, but also the capacity of a party to earn or derive income of a greater sum than the party may actually be receiving. It is concerned more with potential capacity than actual capacity. This approach is consistent with the approach taken in spousal maintenance proceedings, although it is now spelt out in the Act in relation to child maintenance proceedings: see [s 75.22]. See also In the Marriage of Stojanovic (1990) 13 Fam LR 849; FLC 92–134 where the husband’s capacity to seek work, his failure to actively seek employment, and his strong financial resources, relative to those of the wife who had custody of the children, were held to justify an order for maintenance against the

husband even though he was unemployed. [page 471] [s 66K.11] Assets capable of producing income Section 66K(2) also provides that in taking into account the financial circumstances of a party, the court shall have regard to any assets of the party that do not produce, but are capable of producing income. This approach is also consistent with the approach taken in maintenance proceedings prior to the Family Law Amendment Act 1987, although it is now spelt out in the Act in relation to child maintenance proceedings: see In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91–334 (Gee J); [s 75.9]. COMMITMENTS OF PARTY [s 66K.13] Introductory comment Section 66K(1)(b) requires the court to take into account the commitments of the party in question that are necessary to enable the party to support himself or herself, or any other child, or another person that the party has a duty to maintain. It is similar to s 75(2)(d) which was also introduced in the Act by the 1987 Amendment Act in relation to spousal maintenance: see also the repealed s 75(2)(d) and (e). Although the court shall take such commitments into account when determining the financial contribution that should be made to the support of a child, the duty to the child remains and such commitments shall not take any priority over the obligation to the child: see [s 66C.3] and [s 66C.7 ]. Actual expenditures It is common for evidence to be given of parties’ actual regular expenditures. While this is frequently

important evidence, the Full Court has said that in cases where one party is in receipt of a pension and the other has a modest income, a detailed examination of the actual expenditure of each party “is rarely either necessary or helpful because, on any view, the real needs of the household will exceed the available income”: Beck v Sliwka (1992) 15 Fam LR 520; FLC 92–296; In the Marriage of Streets (1994) 18 Fam LR 275 at 280; FLC 92–509. [s 66K.15] Personal commitment — s 66K(1)(c)(i) Prior to the 1987 Amendment Act, a matter which was often the source of some difficulty to assess was the extent to which the expenditure of a party was to be deducted from his or her income before the maintenance contribution or available income was ascertained. In In the Marriage of Mee and Ferguson (1986) 10 Fam LR 971; FLC 91–716, the Full Court said that there were three possible approaches: (a) to deduct only unavoidable commitments such as taxation, medibank levy, compulsory superannuation and the like; (b) to deduct all but clearly unreasonable expenses; and (c) to deduct only necessary living expenses in addition to those in (a), above. The Full Court said (at Fam LR 978) that in the absence of any legislative direction the court should adopt the approach in (c), that is, in determining the financial capacity of a party to pay, there was to be deducted from his or her income unavoidable or compulsory expenses together with necessary living expenses. It is submitted that this provision may be in accordance with the approach set out in Mee and Ferguson, above, unless some different emphasis is to be given to the word “commitments”. It is submitted that this provision now only allows the deduction of what may be called

“basic needs”. This would allow the deduction of the cost of reasonable transport, food and clothing, and other like expenses necessary for the continued reasonable existence of a party: see Mee and Ferguson, above at 10 Fam LR 989; In the Marriage of Hagedorn (1988) 12 Fam LR 569; FLC 91–965; In the Marriage of Ryan (1988) 12 Fam LR 529; FLC 91–970. [s 66K.17] Commitments to person to whom duty to support — s 66K(1)(c)(ii) The court shall take into account the commitments that are necessary to support any other child or another person that the parent has a duty to maintain. Such commitments shall not however take priority over the obligation to the child whose maintenance is under consideration. Duty to maintain The other child or person must be someone to whom the parent owes a legal duty. It would include a second spouse, a child of a second marriage, an adopted child or a [page 472] step-child in respect of whom the parent was obliged to pay maintenance: see ss 66D, 66M and 66N. A moral duty alone is insufficient: see In the Marriage of Hartcher and Vick (1991) 15 Fam LR 149; FLC 92–262 (FC). COSTS INCURRED BY PERSON WITH WHOM THE CHILD LIVES [s 66K.19] Introductory comment Section 66K(1)(d) requires the court to take into account the direct and indirect costs incurred by the person with whom the child lives in providing care for the

child. [s 66K.21] Earning capacity of person with whom the child lives In considering this issue, the court is required by s 66K(3) to have regard to the income and earning capacity forgone by the person with whom the child lives in providing care for the child. Direct and indirect costs may therefore include income lost. SPECIAL CIRCUMSTANCES [s 66K.23] Introductory comment Section 66K(1)(e) requires the court to take into account any special circumstances which if not considered might cause hardship. It is similar to s 75(2)(o), although it provides for “special circumstances”. MATTERS TO BE DISREGARDED [s 66K.25] Introductory comment Section 66K(4) sets out matters which the court shall disregard in determining the financial contribution which should be made by a party. [s 66K.27] Pension entitlement Section 66K(4)(a) provides that the court shall disregard the entitlement of the child or of the person with whom the child lives to an income-tested pension, allowance or benefit. See also s 75(2), (3) (spousal maintenance). [s 66K.29] Person who is not a party Section 66K(4)(b) provides that the court shall disregard the financial circumstances of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless there are special circumstances which make it appropriate for the court to have regard to such financial circumstances.

Step-parent A step-parent does not have such a duty, subject to s 66DA. TYPE OF ORDER [s 66K.31] Introductory comment Section 66K(5) requires the court, in determining the contribution that should be made by a party, to consider the capacity of the party to provide maintenance by way of periodic payment before considering that party’s capacity to provide maintenance by way of a lump sum payment or property settlement or by some other method. [s 66K.33] Lump sum orders On lump sum orders generally, see In the Marriage of Collins (1992) 16 Fam LR 261; (1993) FLC 92– 343; In the Marriage of Smith (1994) 18 Fam LR 133 at 142–4; FLC 92–494. While chronic non-payment might in some circumstances be an appropriate basis for ordering a lump sum, s 66K(5) makes it clear that the usual and preferable order is for periodical payments and that the court is not to consider other methods of payments unless it has first considered the capacity of a party to make periodic payments. [s 66K.35] Secured orders It has been held that in undefended proceedings, where it is considered appropriate to make an order that the payment should be secured on certain property, “the absent party [should] be given a reasonable amount of time to meet the obligation for the [page 473] payment of monies under the order prior to the orders which are

designed to secure and/or enforce the payment of those monies, taking effect”. See In the Marriage of Smith (1994) 18 Fam LR 133 at 144; FLC 92–494 (FC). ____________________

[s 66L]

Children who are 18 or over

66L (1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary: (a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child. The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18. [subs (1) am Act 143 of 2000 s 3 and Sch 3 item 49 opn 27 Dec 2000]

(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary: (a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child. (3) A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then. COMMENTARY ON SECTION 66L PRELIMINARY Adult child maintenance: s 66L …. Termination of order — s 66L(3) …. Applicability of other provisions in Div 7 to “adult

[s 66L.1] [s 66L.3]

children” …. Step parents ….

[s 66L.5] [s 66L.6]

MAINTENANCE NECESSARY The meaning of “necessary” in s 66L …. Education — satisfactory progress relevant …. CIRCUMSTANCES OF CHILD Ability of child …. Financial resources of child …. Attitude of child and relationship to respondent parent …. EDUCATION Necessary to complete education ….

[s 66L.9] [s 66L.10]

[s 66L.11] [s 66L.13] [s 66L.15]

[s 66L.17]

PRELIMINARY [s 66L.1] Adult child maintenance: s 66L As Smithers J pointed out in In the Marriage of H (1981) 7 Fam LR 451; (1981) FLC 91083 at 463, the basic pattern of the legislation is to provide a duty on the part of each parent to contribute to the cost of maintaining children under the age of 18 years but to reverse this prima facie approach for children over the age of eighteen. Accordingly, s 66L sets limits to the award of maintenance in relation to a “child” who is over eighteen. By subs (3), a child maintenance order stops being in force when the child turns 18 unless the order is expressed to continue in force after then. Substantive limitations are contained in subs (1) and (2): such an order must not be made unless the court is “satisfied that the provision of the maintenance is necessary: (a) to enable the child to [page 474]

complete his or her education; or (b) because of a mental or physical disability of the child”. This limitation also applies to orders made when the child is 17 and the order is to take effect after the age of 18: see s 66L(2). No additional limits to be imposed by courts The authorities indicate that the courts will not create limits to the award of adult child maintenance beyond those imposed by s 66L. In particular: No temporal limitation The Full Court pointed out in Everett v Everett (2014) 52 Fam LR 1; [2014] FamCAFC 152; BC201451381 at [56], that s 66L does not provide for a temporal limitation to be imposed on an order for adult child maintenance, but plainly, the court needs to be satisfied that the maintenance ordered is necessary to enable the child to complete his or her education, or because of a mental or physical disability of the child. Second course of higher education not excluded In Everett, above, the Full Court also said at [60] that there is nothing to preclude a court from making a maintenance order for either a then positively identified, or alternatively only merely possible, second course of higher education, although the court “would still need to be satisfied that the provision of the maintenance is necessary to enable the child to complete that education”. Child need not have a disability at a particular time, or be “dependent” In Re AM (Adult Child Maintenance) (2006) 198 FLR 221; 35 Fam LR 319; (2006) FLC 93-262; [2006] FamCA 351, Carmody J held that liability does not depend on the disability having arisen at a particular time, such as during childhood, or on the child being “dependent”.

[s 66L.3] Termination of order — s 66L(3) This provides that an order for the maintenance of a child ceases to be in force on the day when the child reaches 18 years, unless the order is expressed to continue in force beyond that day. [s 66L.5] Applicability of other provisions in Div 7 to “adult children” The Full Court has held that the provisions of the then Div 6, stating the matters relevant to child maintenance, apply to applications brought under s 66L: Smith v Wickstein (1996) 21 Fam LR 118; FLC 92–714. The Full Court preferred the interpretation (of the equivalent provisions prior to the 1995 Act) adopted in In the Marriage of Carpenter (1994) 18 Fam LR 542 at 549; (1995) FLC 92–583 to the interpretation suggested in In the Marriage of Tynan (1992) 16 Fam LR 621; (1993) FLC 92–385. Thus, for example, the Full Court in Smith disregarded any Austudy entitlement of the adult child in respect of whom maintenance was sought: see s 66J(3)(b) [s 66L.6] Step parents Maintenance can also be ordered for an adult child against step-parents: see s 66M and commentary thereto. MAINTENANCE NECESSARY [s 66L.9] The meaning of “necessary” in s 66L Both s 66L(1) and (2) require that the court must be satisfied that the provision of maintenance is “necessary”. This word was also used in previous versions of the section. The meaning of “necessary” in this context is well settled by authority, notably In the Marriage of Tuck (1979) 7 Fam LR 492; (1981) FLC 91-021, and has been re-stated in Everett v Everett (2014) 52 Fam LR 1; [2014] FamCAFC 152; BC201451381, in

which the Full Court held that “the central focus of the inquiry” is whether the maintenance is necessary to enable the child to complete his or her education; and that “necessary” does not mean “absolutely essential” but rather that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors. [page 475] [s 66L.10] Education — satisfactory progress relevant In Everett v Everett, above at [63], the Full Court said that minimum workloads and satisfactory progress might ordinarily be considered as matters requiring attention in adult child maintenance orders intended to enable a child to complete their education. CIRCUMSTANCES OF CHILD [s 66L.11] Ability of child If the child has the ability to support himself or herself, the court will not normally make an order: see In the Marriage of Gamble (1978) 4 Fam LN 28; FLC 90–452; In the Marriage of Mercer (1976) 1 Fam LR 11,179; FLC 90–033; In the Marriage of H (1981) 7 Fam LR 451 at 464; FLC 91–083. [s 66L.13] Financial resources of child The court will have regard to the child’s income and earning capacity, for example, from holiday employment: see In the Marriage of Mercer (1976) 1 Fam LR 11,179; FLC 90–033. [s 66L.15] Attitude of child and relationship to respondent parent It has been a vexed question over the years, under different

versions of the legislation, whether the relationships between the child and the respondent is relevant to the assessment of adult child maintenance, and if so how. The Full Court (May, Strickland and Tree JJ) addressed this issue in Everett v Everett (2014) 52 Fam LR 1; [2014] FamCAFC 152; BC201451381. After reviewing the authorities, the Full Court stated the law as follows at [47]–[48]: We consider that the following propositions can be drawn from an analysis of the cases and the present legislation: (a) it is not a necessary element, before adult child maintenance can be ordered, that there be a warm relationship between the parent and the child; and (b) there should not be a practice in adult child maintenance applications of conducting a detailed examination of the relationship between the child and the Respondent; however (c) it cannot be said that the attitude or behaviour of the child to the respondent could, to use the language of s 66K(1)(e), never be a special circumstance which, if not taken into account in the particular case, would result in an injustice or undue hardship to any person. However so stated, it is apparent that the task confronting a parent, who wishes to rely upon the filial relationship in determining what contribution should be made by them to the maintenance of the child, is a particularly difficult one. They would need to show that, if the filial relationship is not taken into account, it would result in an injustice or undue hardship to either them or someone else.

On the facts of that case, the child had spent little time with the respondent (her father), and communicated poorly with him. The Full Court held that those facts could not “constitute a special circumstance which, if not taken into account in this case, would result in an injustice or undue hardship to the father or someone else.”

Earlier authorities on this topic include: In the Marriage of Mercer (1976) 9 ALR 237; 1 Fam LR 11,179; (1976) FLC 90-033; In the Marriage of Oliver (1977) 4 Fam LR 252; (1977) FLC 90227; In the Marriage of Gamble (1978) 32 FLR 198; 4 Fam LN N28; In the Marriage of H (1981) 7 Fam LR 451; (1981) FLC 91083; In the Marriage of Henderson (1989) 13 Fam LR 40; (1989) FLC 92-011; Cosgrove v Cosgrove (1995) 134 FLR 374; 20 Fam LR 751; (1996) FLC 92-700, and on appeal at (1996) 20 Fam LR 761; (1996) FLC 92-701. EDUCATION [s 66L.17] Necessary to complete education The repealed s 76(3) referred to maintenance necessary “to enable the child to complete his education (including vocational training or [page 476] apprenticeship)”. Although the words in parentheses are not repeated in s 66L, vocational training and apprenticeship are included in the definition of “education” in s 60D. In the Marriage of Oliver (1977) 4 Fam LR 252; FLC 90–227, Asche J said that children over the age of 18 years are normally expected to find their own resources to continue their education unless it can be shown that those resources just cannot be found, and in that case, they may seek the financial assistance of one or both of their parents. Completion of one course of study and commencement of another will not, as a matter of law, preclude an adult from obtaining a maintenance order but it may make it difficult for the adult child to do so: In the Marriage of Henderson (1989) 13 Fam LR 40; FLC 92–011. Continuing maintenance to aid tertiary

education is, in appropriate circumstances, considered proper: see C v C (1962) 4 FLR 461 at 465. There is, however, no general presumption as to the desirability of tertiary education: see Osborne v Osborne [1972] 1 NSWLR 469 at 477; In the Marriage of Tuck (1979) 7 Fam LR 492; (1981) FLC 91–021. Evidence of course undertaken It should be established what course the child is to undertake and that the child is eligible for admission to a course: see Osborne v Osborne, above. Ability of child The child’s likelihood of success in completing the course, may be a relevant factor. In In the Marriage of H (1981) 7 Fam LR 451 at 463; FLC 91–083, Smithers J said that the words “to enable” presuppose at the least some sort of a reasonable probability of success in the course of education undertaken. ____________________

[s 66M] When step-parents have a duty to maintain 66M (1) As stated in section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section. [subs (1) subst Act 34 of 1997 s 3 and Sch 7]

(2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child. (3) In making an order under subsection (2), the court must have regard to these (and no other) matters: (a) the matters referred to in sections 60F, 66B and 66C;

(b) (c) (d) (e)

and the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and the relationship that has existed between the step-parent and the child; and the arrangements that have existed for the maintenance of the child; and any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

[subs(3) am Act 144 of 2008 s 3 and Sch 2[52B], opn 10 Dec 2008] COMMENTARY ON SECTION 66M Adult child maintenance can be ordered against stepparent ….

[s 66M.1]

[s 66M.1] Adult child maintenance can be ordered against stepparent An applicant, when aged 18, filed an application for child maintenance against his step-parent. The step-father argued that there was no power to make such an order. Responding to a stated case, the Full Court held that there was such a power: Keltie v Keltie (2002) 29 Fam LR 114; FLC 93–106 (FC). It analysed the legislation in some detail, and held that the terms “child” and “children” in Div 7 of Pt VII of the Act refer to a relationship rather than to an age, following In the Marriage of Carpenter (1994) 18 Fam LR 542; (1995) FLC 92–583 (Chisholm J); Smith v St James; Smith v Wickstein (1996) 21 Fam LR 118; FLC 92–714 (FC). ____________________

[page 477]

[s 66N] Determining financial contribution of step-parent 66N In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child, the court must take into account: (a) the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and (b) the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.

Subdivision E — Other aspects of courts’ powers [s 66P]

General powers of court

66P (1) In proceedings for a child maintenance order, a court may do all or any of the following: (a) order payment of a lump sum, whether in one amount or by instalments; (b) order payment of a weekly, monthly, yearly or other periodic amount; (c) order that a specified transfer or settlement of property be made by way of maintenance for a child; (d) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies; (e) order that any necessary instrument be executed, and that such documents of title be produced and such other

things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order; (f) order that payment be made to a specified person or public authority or into court; (g) make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order; (h) make an order imposing terms and conditions; (i) make an order by consent; (j) make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (i)) that it considers appropriate; (k) make an order under this Division at any time. (2) The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Division, in relation to the maintenance of a child does not prevent a court from making a subsequent order in relation to the maintenance of the child. (3) The applicable Rules of Court may make provision with respect to the making of orders under this Division (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them. [subs (3) am Act 194 of 1999 s 3 and Sch 11[53]] COMMENTARY ON SECTION 66P Introductory comment …. Transfer of property by way of child maintenance: s 66P(1)(c) ….

[s 66P.1] [s 66P.2]

ENFORCEMENT Enforcement: s 66P(3) ….

[s 66P.3]

[page 478] [s 66P.1] Introductory comment This section largely repeats, for the purposes of child maintenance proceedings, the general powers of the court which are specified in s 80 (Pt VIII). See [s 80.1] and s 67D (child bearing expenses). Range of powers The section sets out the range of powers that the court may exercise in proceedings for child maintenance. [s 66P.2] Transfer of property by way of child maintenance: s 66P(1)(c) Section 66P(1)(c) provides that the court may order the transfer or settlement of property by way of maintenance of a child. There is no similar provision in s 67D(2). However, it is similar to s 80(1)(ba) in respect of spousal maintenance. Section 66P(2) makes it clear that such an order in child maintenance proceedings does not extinguish the rights for child maintenance. ENFORCEMENT [s 66P.3] Enforcement: s 66P(3) Section 66P(3) is similar to ss 80(3) and 67D(3). It provides for the making of Rules of Court to facilitate the collection and enforcement of child maintenance orders. See Family Law Rules 2004, Chapters 20 and 21. ____________________

[s 66Q]

Urgent child maintenance orders

66Q If, in proceedings for a child maintenance order in relation to a child: (a) the court considers that the child is in immediate need of financial assistance; but (b) it is not practicable in the circumstances to determine immediately what order (if any) should be made; the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate. COMMENTARY ON SECTION 66Q Introductory comment ….

[s 66Q.1]

[s 66Q.1] Introductory comment Section 66Q is similar to s 77 (which relates to urgent spous maintenance) and presumably the case law under that sec-tion will be relevant to the interpretation and application of s 66Q. ____________________

[s 66R] Specification in orders of payments etc for child maintenance purposes 66R (1) If: (a) a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a child, is made by consent or varies an earlier order) that has the effect of requiring: (i) payment of a lump sum, whether in one amount or

by installments; or (ii) the transfer or settlement of property; and (b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a child or children; the court must: (c) express the order to be an order to which this section applies; and (d) specify: [page 479] (i)

the child or children for whose maintenance provision is made by the payment, transfer or settlement; and (ii) the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the child or each child, as the case may be. (2) If: (a) a court makes an order of a kind referred to in paragraph (1)(a); and (b) the order: (i) is not expressed to be an order to which this section applies; or (ii) is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d);

any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, is to be taken not to make provision for the maintenance of a child. COMMENTARY ON SECTION 66R Introductory comment …. Orders to which section 66R applies …. Lump sum payment, or transfer or settlement of property …. Application where entitlement reduced to offset child maintenance …. Application of section — s 66R(1)(c) …. Portion attributable to maintenance — s 66R(1)(d) …. Failure to comply ….

[s 66R.1] [s 66R.5] [s 66R.6] [s 66R.7] [s 66R.10] [s 66R.11] [s 66R.20]

[s 66R.1] Introductory comment The section applies to child maintenance orders which have the effect of requiring a lump sum payment, or the transfer or settlement of property. The court is required to express those orders as ones to which the section applies, and to specify what portion of the payment or property is attributable to the provision of child maintenance. This section is equivalent to the former s 66L which was inserted in the Act by the Family Law Amendment Act 1987 (Cth). It is similar to s 77A (spousal maintenance) and s 87A (maintenance agreements). It has the same “primary purpose” as ss 77A and 87A as stated in the Attorney-General’s explanatory memorandum to the 1987 Bill, namely “to enable the income-testing for social security purposes of maintenance received other than by way of periodic sums”. See also commentary to s 77A. [s 66R.5] Orders to which section 66R applies The section

applies to any order which satisfies two criteria. First, the order must have the effect of requiring payment of a lump sum or the transfer or settlement of property. Secondly, the purpose of one of the purposes of the payment, transfer or settlement must be to “make provision for the maintenance of a child or children”. [s 66R.6] Lump sum payment, or transfer or settlement of property The section applies where order has the effect of requiring payment of a lump sum or the transfer or settlement of property. On the meaning of these terms, see commentary to ss 79, 80. Lump sum The lump sum payment may be by installments. The section does not apply however to an order for periodical payments of maintenance. Maintenance or property proceedings The section applies whether or not the order is made in spousal maintenance proceedings: thus it could apply to an order made in s 79 proceedings. Consent orders and variations It applies to consent orders, and to orders which vary earlier orders. [page 480] [s 66R.7] Application where entitlement reduced to offset child maintenance Section applies The section is capable of applying to situations where entitlement to a lump sum payment or property transfer is

reduced or eliminated to offset child maintenance. See In the Marriage of Habib (1988) 12 Fam LR 127; FLC 91–931 (a case decided under the former s 66L), where Kay J said that unless the section could be interpreted to include the reduction of an entitlement to a lump sum transfer of property or settlement of property, “in a significant number of cases the very purpose to which the section has been aimed will not be met”. Example 1 H has custody of the children. The parties settle property proceedings on the basis that H should pay W $16,000. They also agree that W should pay H $9000 for child maintenance. If orders were made in those terms, s 66R would clearly apply to the order for payment of $9000. If the consent orders require H too pay to W $16,000 less $9000, ie $7000, the result is the same. Section 66R applies. The court should in its orders state this, and also state that the portion of the payment attributable to the provision of maintenance for the children is $9000. See In the Marriage of Habib, above, decided under the former s 66L. Example 2 Assume however that the amount of child maintenance in Example 1 was also $16,000. The court’s order would be to dismiss the s 79 application. Even here, however, s 66R would apply, since it refers to orders that have the “effect of requiring” payment and thus includes a notional payment or calculation which involves a set off: see In the Marriage of Habib, above at 12 Fam LR 130, decided under the former s 66L. [s 66R.10] Application of section — s 66R(1)(c) Where the court makes an order to which the section applies, it must express the order to be one to which the section applies. As to failure to comply, see below.

[s 66R.11] Portion attributable to maintenance — s 66R(1)(d) Where the court makes an order to which the section applies, it must also specify the portion of the payment or the value of the portion of the property, attributable to the provision of maintenance. As to failure to comply, see below. [s 66R.20] Failure to comply Section 66R(2) deals with the effect of a failure to comply with the conditions set out in s 66R(1). If the conditions ‘are not complied with in respect of an order to which s 66R(1) applies, then any payment or transfer under the order will be taken not to make provision for the maintenance of the child. ____________________

[s 66S]

Modification of child maintenance orders

66S (1) This section applies if: (a) there is in force an order (the first order), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section): (i) made by a court; or (ii) registered in a court; and (b) a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order. [subs (1) am Act 194 of 1999 s 3 and Sch 11[54]; Act 143 of 2000 s 3 and Sch 3 item 50 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 7 item 17 opn 14 Jan 2004]

[page 481] (1A) With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order: (a) discharging the first order; or (b) suspending its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or (c) if the operation of the order has been suspended under paragraph (b) or (2)(b) — reviving its operation wholly or in part; or (d) varying the order: (i) so as to increase or decrease any amount ordered to be paid by the order; or (ii) in any other way. [subs (1A) insrt Act 143 of 2000 s 3 and Sch 3 item 51 opn 27 Dec 2000; am Act 82 of 2007 s 3 and Sch 2[104], opn 19 July 2007]

(1B) However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child’s parents to maintain the child. Note: For the duty of a parent to maintain a child, see section 66C. [subs (1B) insrt Act 143 of 2000 s 3 and Sch 3 item 51 opn 27 Dec 2000]

(2) In any other case, the court may, by order: (a) discharge the first order if there is just cause for so doing; or (b) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a

future event; or (c) if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or (d) subject to subsection (3), vary the order: (i) so as to increase or decrease any amount ordered to be paid by the order; or (ii) in any other way. [subs (2) am Act 143 of 2000 s 3 and Sch 3 items 52, 53 opn 27 Dec 2000]

(3) The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied: (a) that, since the order was made or last varied: (i) the circumstances of the child have changed so as to justify the variation; or (ii) the circumstances of the person liable to make payments under the order have changed so as to justify the variation; or (iii) the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or (iv) in the case of an order that operates in favour of, or is binding on, a legal personal representative — the circumstances of the estate are such as to justify the variation; or (b) that, since the order was made or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (4) and (5)); or

if the order was made by consent — that the amount (c) ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); or [page 482] (d) that material facts were withheld from the court that made the order or from a court that varied the order, or material evidence previously given before such a court was false. (4) In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician. (5) The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or last varied having regard to a change in the cost of living. (6) In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made. (7) An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate. (8) If an order (the subsequent order) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order

may be recovered in a court having jurisdiction under this Part. (9) If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part. (10) For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable). (11) The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect. COMMENTARY ON SECTION 66S Introductory comments …. Modification …. Discharge of order — s 66S(2)(a) …. Suspend its operation — s 66S(2)(b) …. Revival of suspended order — s 66S(2)(c) …. Variation of orders; requirements — s 66S(3) …. Change in circumstances of the child s 66S(3)(a)(i) …. Change in circumstances of person liable to pay — s 66S(3)(a)(ii) …. Change in circumstances of the estate — s 66S(3)(a)(iv) …. Cost of living — s 66S(3)(b) …. Inadequacy of amount — s 66S(3)(c) …. Proper or adequate …. Misleading or false evidence — s 66S(3)(d) …. Consumer price index — s 66S(4) …. 12 months rule — s 66S(5) …. Order decreasing amount payable or discharging an order may be retrospective — s 66S(7) …. Recovery of overpayment after reduction — s 66S(8) …. Recovery of overpayment after discharge — s 66S(9)

[s 66S.1] [s 66S.3] [s 66S.5] [s 66S.7] [s 66S.9] [s 66S.11] [s 66S.15] [s 66S.17] [s 66S.19] [s 66S.25] [s 66S.35] [s 66S.37] [s 66S.45] [s 66S.55] [s 66S.60] [s 66S.75] [s 66S.80]

…. Recovery of arrears after discharge — s 66S(11) ….

[s 66S.85] [s 66S.90] [page 483]

OTHER RELEVANT PROVISIONS Provisions of ss 66B-66K, 66M and 66N — s 66S(10) ….

[s 66S.115]

[s 66S.1] Introductory comments Substantially similar to the former s 66N inserted in the Act by the Family Law Amendment Act 1987 this section empowers a court to vary, suspend or discharge a child maintenance order made either under Commonwealth law or under the law of a referring state or territory, provided that the order is registered. It is similar to s 83 which, since the 1987 Amendment Act, only applies to spousal maintenance orders. Date of hearing not date of consent orders It has been held by the Full Court that the proper interpretation of s 66S(2)(a) and (3) (c) is that the appropriate time at which to determine the criteria under the subsections is the time of the hearing, not the time of the consent orders. See In the Marriage of Kelly (1996) 20 Fam LR 502 at 510; FLC 92–680, following In the Marriage of Carpenter (1994) 18 Fam LR 542; (1995) FLC 92–583. (These decisions were on the equivalent pre-1996 provisions of what was then s 66N.) [s 66S.3] Modification See the commentary to s 83: [s 83.4]. [s 66S.5] Discharge of order — s 66S(2)(a) See the commentary to s 83(1)(c). See [s 83.5].

[s 66S.7] Suspend its operation — s 66S(2)(b) See the commentary to s 83(1)(d). See [s 83.8]. [s 66S.9] Revival of suspended order — s 66S(2)(c) See the commentary to s 83(1)(e). See [s 83.9]. [s 66S.11] Variation of orders; requirements — s 66S(3) Introductory comments The court’s power to vary amounts ordered to be paid, contained in s 66S(2)(d), is subject to subs (3). That subsection sets out various requirements that must be met before the court can vary the order. It corresponds very closely to s 83(2) and much of the commentary to that subsection will be of assistance to s 66S(3): see [s 83.10]. If the conditions in subs (3) are satisfied, the court may then consider whether to vary the order. The requirements of the section must be established even in undefended proceedings: see In the Marriage of Smith (1994) 18 Fam LR 133 at 140–2; FLC 92–494. Orders other than by consent Where the order in question is not made by consent, the applicant must satisfy either para (a), (b) or (d). These requirements fall into two main categories. Change in circumstances The first category is that since the order was made or last varied certain things have happened which justify the court in varying the order. These things may be summarised as being: a change in the circumstances of the child, or of the person liable to make payments, or the person entitled to receive payments — para (a)(i), (ii) and (iii); a change in the cost of living — para (b); where the order operates in favour of or is binding on a

legal personal representative, the circumstances of the estate — para (a)(iv). As to the cost of living, see subs (4) (regard may be had to the CPI) and subs (5) (at least 12 months). Withholding of facts and false evidence The second category is that material facts were withheld from the court that made or varied the order or material evidence previously given before such a court was false. [page 484] The court is to have regard to ss 66B–66K, 66M and 66N: see subs (10). Orders made by consent — subs (3)(c) Subsection (3)(c) requires the court to be satisfied in the case of consent orders “that the amount ordered to be paid is not proper or adequate”. In In the Marriage of Carpenter (1994) 18 Fam LR 542; (1995) FLC 92– 583 (under the former s 66N) a number of questions of interpretation were raised and the court held as follows: The applicant bears the onus of enabling the court to be satisfied that the amount ordered to be paid is not proper or adequate. The question whether the amount is “not proper or adequate” is to be determined as at the date of the hearing, not as at the date of the making of the orders which are sought to be varied. The word “proper” refers only to the matters mentioned in other provisions of the division, notably ss 66A to 66E and

s 66G (now see ss 66B–66K, 66M and 66N). It is not necessary for the applicant to satisfy the court as to para (a) or (b) in addition to para (c). [s 66S.15] Change in circumstances of the child -- s 66S(3)(a)(i) This provision is similar to s 83(2)(a)(i). [s 66S.17] Change in circumstances of person liable to pay — s 66S(3)(a)(ii) This provision is similar to s 83(2)(a)(ii). [s 66S.19] Change in circumstances of the estate —s 66S(3)(a) (iv) This provision is similar to s 83(2)(a)(iii). [s 66S.25] Cost of living — s 66S(3)(b) This provision is similar to s 83(2)(b). [s 66S.35] Inadequacy of amount — s 66S(3)(c) This provision is similar to s 83(2)(ba) which was inserted in the Act in 1988. See [s 83.16]. [s 66S.37] Proper or adequate Section 66S(6), provides that in satisfying itself that the order is not proper or adequate, the court must have regard to any payments or transfers of property previously made to, or for the benefit of, the child by the person against whom the order was made. It is similar to s 83(5A). [s 66S.45] Misleading or false evidence — s 66S(3)(d) This provision is similar to s 83(2)(c). [s 66S.55] Consumer price index — s 66S(4) This provision is similar to s 83(4). [s 66S.60] 12 months rule — s 66S(5) This provision is similar to

s 83(5). [s 66S.75] Order decreasing amount payable or discharging an order may be retrospective — s 66S(7) This provision is similar to s 83(6). [s 66S.80] Recovery of overpayment after reduction — s 66S(8) This provision is similar to s 83(6A). [s 66S.85] Recovery of overpayment after discharge — s 66S(9) This provision is similar to s 83(6B). [s 66S.90] Recovery of arrears after discharge — s 66S(11) This provision is similar to s 83(8). [page 485] OTHER RELEVANT PROVISIONS [s 66S.115] Provisions of ss 66B–66K, 66M and 66N — s 66S(10) This provision is similar to s 83(7) which requires the court in proceedings under s 83 to have regard to ss 72 and 75. See [s 83.25]. ____________________

Subdivision EA — Varying the maintenance of certain children [Subdiv EA insrt Act 143 of 2000 s 3 and Sch 3 item 54 opn 27 Dec 2000]

[s 66SA] children

Varying the maintenance of certain

66SA (1) This section applies to persons who: (a) are parties to an agreement (the original agreement) dealing with the maintenance of a child; or (b) are entitled to receive, or required to pay, maintenance in respect of a child under a court order; and cannot properly make an application under the Child Support (Assessment) Act 1989 for the other person to be assessed in respect of the costs of the child. (2) The persons may, by registering a written agreement in a court having jurisdiction under this Part, vary or revoke the original agreement or order to the extent that it deals with maintenance of the child. (3) However, the registered agreement is of no effect to the extent that it allows any entitlement of a child or another person to an income tested pension, allowance or benefit to affect the duty of that child’s parents to maintain the child. Note: For the duty of a parent to maintain a child, see section 66C.

(4) If the original agreement or order is varied under subsection (2), it: (a) continues to operate despite the death of a party to the agreement or of a person entitled to receive, or required to pay, maintenance under the order; and (b) operates in favour of, and is binding on, the legal representative of that party or person; unless the agreement or order provides otherwise. (5) However, despite anything in the agreement or order, it does

not continue to operate, to the extent that it requires the periodic payment of maintenance, after the death of the person entitled to receive those payments. (6) This section applies despite anything in Division 4.

Subdivision F — When child maintenance orders stop being in force [s 66T]

Effect of child turning 18

66T As stated in subsection 66L(3), a child maintenance order in relation to a child stops being in force when the child turns 18, unless the order is expressed to continue in force after then.

[s 66U] Effect of death of child, person liable to pay or person entitled to receive 66U (1) A child maintenance order in relation to a child stops being in force on the death of the child. [page 486] (2) A child maintenance order in relation to a child stops being in force on the death of the person liable to make payments under the order. (3) Subsection (2) does not apply to an order made before the commencement of section 38 of the Family Law Amendment Act 1983 if the order was expressed to continue in force throughout the life of the person for whose benefit the order was made or for

a period that had not expired at the death of the person liable to make payments under the order and, in that case, the order is binding on the legal personal representative of the deceased person. (4) A child maintenance order in relation to a child stops being in force on the death of the person entitled to receive payments under the order. (5) Subsection (4) does not apply to an order if: (a) the order is expressed to continue in force after the death of the person first entitled to receive payments under the order; and (b) the order specifies the person who is to receive the payments after that death. COMMENTARY ON SECTION 66U Relevant circumstances ….

[s 66U.1]

[s 66U.1] Relevant circumstances The circumstances in which a child maintenance order ceases are: the death of the child (s 66U(1)); the death of the person liable to pay (s 66U(2)); and the death of the person entitled to receive payments (subject to subs (5)). Pre-November 1983 order Section 66U(3) provides that in certain circumstances, an order made before 25 November 1983 may continue beyond the death of the person liable to pay. ____________________

[s 66V]

Effect of adoption, marriage or entering

into a de facto relationship 66V (1) A child maintenance order in relation to a child stops being in force if the child is adopted, marries or enters into a de facto relationship. (2) If a child to whom a child maintenance order applies dies, is adopted, marries or enters into a de facto relationship, the person entitled to receive payments under the order must, without delay, inform the person liable to make payments under the order. (3) Any amounts paid under a child maintenance order in relation to a period after the child dies, is adopted, marries or enters into a de facto relationship may be recovered in a court having jurisdiction under this Part. (4) A court having jurisdiction under this Part may make a declaration to the effect that a child is in, or has entered into, a de facto relationship. (5) A declaration under subsection (4) has effect for the purposes of this Act but does not have effect for any other purpose (including, for example, other laws of the Commonwealth or laws of the States and Territories). COMMENTARY ON SECTION 66V Introductory comment ….

[s 66V.1]

[s 66V.1] Introductory comment An order ceases to be in force on the adoption or marriage of the child or when the child enters a de facto relationship. [page 487]

Notice to person liable to pay Section 66V(2) imposes a responsibility on the person entitled to receive the maintenance to inform the person liable to pay of the death, adoption or marriage of the child or the child’s entering a de facto relationship. ____________________

[s 66VA] Children who are 18 or over: change of circumstances *66VA (1) A child maintenance order made under section 66L: (a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child; stops being in force if the child ceases that education or ceases to have that disability. (2) The person to whom the maintenance is payable must, as soon as practicable, inform the person required to pay it of that change in circumstances. (3) Any amounts of maintenance paid under the child maintenance order after it stops being in force may be recovered in a court having jurisdiction under this Part. [s 66VA insrt Act 143 of 2000 s 3 and Sch 3 item 55 opn 27 Dec 2000]

[s 66W]

Recovery of arrears

†66W (1) Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force. (2) If arrears are due under such an order when the order ceases to be in force, the court may, by order, retrospectively:

(a) discharge the order if there is just cause for doing so; or (b) vary the order so as to increase or decrease the arrears to be paid under the order if the court is satisfied that: (i) the circumstances of the person liable to pay the arrears are such as to justify the variation; or (ii) the circumstances of the person entitled to receive the arrears are such as to justify the variation; or (iii) in the case of an order that operated in favour of, or that was binding on, a legal personal representative — the circumstances of the estate are such as to justify the variation. [s 66W subst Act 143 of 2000 s 3 and Sch 3 item 56A opn 27 Dec 2000] *Editor’s Note: The Family Law Amendment Act 2000 No 143 of 2000 provides in Sch 3 item 56 as follows: “Application of amendment 56 The amendment made by item 55 applies to child maintenance orders made after the commencement of that item.” †Editor’s Note: The Family Law Amendment Act 2000 No 143 of 2000 provides in s 3 and Sch 3 item 56B as follows: “Application of amendment 56B Section 66W of the Family Law Act 1975, as amended by item 56A, applies to arrears that are outstanding on or after the commencement of that item.”

[page 488] COMMENTARY ON SECTION 66W [s 66W.1] The section was briefly discussed in Roche v Glenn (2002) 30 Fam LR 68 (FC). When a child maintenance order has ceased to be in force, it is nevertheless possible to vary it

retrospectively or discharge it. ____________________

Subdivision G — Recovery of amounts paid under maintenance orders [s 66X] Recovery of amounts paid, and property transferred or settled, under maintenance orders 66X (1) This section applies if: (a) a court has at any time purported to make an order (the purported order) of a kind referred to in paragraph 66P(1)(a), (b) or (c) requiring a person (the maintenance provider) to pay an amount, or to transfer or settle property, by way of maintenance for a child; and (b) the maintenance provider has: (i) paid another person an amount or amounts; or (ii) transferred or settled property; in compliance, or partial compliance, with the purported order; and (c) a court has determined that the maintenance provider is not a parent or step-parent of the child. (2) If the maintenance provider applies to a court having jurisdiction under this Part for an order under this subsection, the court must make such order as it considers just and equitable in the circumstances, for: (a) if the purported order was of a kind referred to in paragraph 66P(1)(a) or (b)—the repayment to the

maintenance provider, by the person to whom the amount or amounts referred to in subparagraph (1)(b)(i) of this section were paid, of an amount up to, or equal to, that amount or the sum of those amounts; or (b) if the purported order was of the kind referred to in paragraph 66P(1)(c)—the return to the maintenance provider of: (i) the property referred to in subparagraph (1)(b)(ii) of this section; or (ii) an amount up to, or equal to, the value of that property. The court may only order the repayment of an amount that is less than the amount, or the sum of the amounts, referred to in subparagraph (1)(b)(i) of this section, or the return of an amount that is less than the value of the property referred to in subparagraph (1)(b)(ii) of this section, in exceptional circumstances. (3) If the purported order was of the kind referred to in paragraph 66P(1)(c) and the court that made the order did so: (a) in part by way of providing maintenance for the child; and (b) in part for some other purpose; the reference in paragraph (2)(b) to the property, or the value of the property, referred to in subparagraph (1)(b)(ii) is taken to be a reference to that property, or the value of that property, only to the extent to which that property was transferred or settled by way of providing maintenance for the child. (4) Without limiting paragraph (2)(b), the orders that the court may make under that paragraph include the following:

(a) an order that a specified payment be made; [page 489] (b) an order that a specified transfer or settlement of property be made; (c) an order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order. (5) An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable. [s 66X insrt Act 98 of 2005 s 2 and Sch 1, cl 136, opn 3 Aug 2005]

DIVISION 8 — OTHER MATTERS RELATING TO CHILDREN

Subdivision A — What this Division does [s 67A]

What this Division does

67A This Division deals with: (a) the liability of a father to contribute towards child bearing expenses if he is not married to the child’s mother (Subdivision B); and (b) orders for the location and recovery of children

(Subdivision C); and (c) the reporting of allegations of child abuse and family violence (Subdivision D); and (d) other orders about children (Subdivision E). [s 67A am Act 189 of 2011 s 3 and Sch 1 item 28, opn 7 June 2012]

Subdivision B — Father’s liability to contribute towards child bearing expenses if not married to mother [s 67B] Father liable to contribute towards maintenance and expenses of mother 67B The father of a child who is not married to the child’s mother is, subject to this Division, liable to make a proper contribution towards: (a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child; and (b) the mother’s reasonable medical expenses in relation to the pregnancy and birth; and (c) if the mother dies and the death is as a result of the pregnancy or birth, the reasonable expenses of the mother’s funeral; and (d) if the child is stillborn, or dies and the death is related to the birth, the reasonable expenses of the child’s funeral.

[s 67C] Matters to be taken into account in proceedings under Subdivision

67C (1) In proceedings under this Subdivision in relation to the birth of a child, the court must, in determining the contribution that should be made by the father of the child, take into account the following matters only: [page 490] (a) the income, earning capacity, property and financial resources of the mother and the father of the child; (b) commitments of each of those persons that are necessary to enable the person to support: (i) himself or herself; or (ii) any other child or another person that the person has a duty to maintain; (c) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person. (2) In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income. (3) In taking into account the income, earning capacity, property and financial resources of the mother, the court must disregard any entitlement of the mother to an income tested pension, allowance or benefit. (4) Subsections (2) and (3) do not limit the matters to which the

court may have regard in taking into account matters referred to in subsection (1).

[s 67D] Powers of court in proceedings under Subdivision 67D (1) In proceedings under this Subdivision in relation to the birth of a child, the court may make such order as it thinks proper. (2) In exercising its powers under this Subdivision, a court may do all or any of the following: (a) order payment of a lump sum, whether in one amount or by instalments; (b) order payment of a weekly, monthly or other periodic amount; (c) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies; (d) order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order; (e) order that payment be made to a specified person or public authority or into court; (f) make a permanent order, an order pending the disposal of proceedings, an order for a fixed period or an order until further order; (g) make an order imposing terms and conditions; (h) make an order by consent;

make any other order (whether or not of the same nature (i) as those referred to in paragraphs (a) to (h)) that it considers appropriate; (j) make an order under this Subdivision at any time (whether before or after the birth of the relevant child). (3) The applicable Rules of Court may make provision with respect to the making of orders under this Subdivision (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of amounts payable under them. [subs (3) am Act 194 of 1999 s 3 and Sch 11[55]]

[page 491]

[s 67E]

Urgent orders

67E If, in proceedings under this Subdivision in relation to the birth of a child: (a) the court is of the opinion that the applicant is in immediate need of financial assistance; but (b) it is not practicable in the circumstances to determine immediately what order (if any) should be made (whether because the applicant has not yet given birth to the child or otherwise); the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate.

[s 67F] 67F

Who may institute proceedings Proceedings under this Subdivision in relation to the

birth of a child may be instituted by the mother or by the mother’s legal personal representative.

[s 67G]

Time limit for institution of proceedings

67G (1) Proceedings under this Subdivision in relation to the birth of a child may be instituted: (a) at any time during the pregnancy of the mother; or (b) after the birth of the child, but not later than 12 months after the birth except by leave of the court. (2) The court must not grant leave under paragraph (1)(b) unless it is satisfied that refusal to grant leave would cause hardship to the applicant, the child or another person.

Subdivision C — Location and recovery of children [s 67H] 67H

Interpretation [s 67H rep Act 46 of 2006 s 3 and Sch 9 item 58, opn 1 July

2006]

[s 67J] Meaning of location order and Commonwealth information order 67J (1) A location order is an order made by a court requiring: (a) a person to provide the Registry Manager of the court with information that the person has or obtains about the child’s location; or (b) the Secretary of a Department, or an appropriate authority of a Commonwealth instrumentality, to provide the Registry Manager of the court with

information about the child’s location that is contained in or comes into the records of the Department or instrumentality. [subs (1) am Act 138 of 2003 s 3 and Sch 3 item 20 opn 14 Jan 2004]

(2) A Commonwealth information order is a location order described in paragraph (1)(b).

[s 67K]

Who may apply for a location order

67K (1) A location order in relation to a child may be applied for by: (a) a person with whom the child is to live under a parenting order; or (b) a person with whom the child is to spend time under a parenting order; or (c) a person with whom the child is to communicate under a parenting order; or [page 492] (caa)a person who has parental responsibility for the child under a parenting order; or (ca) a grandparent of the child; or (d) any other person concerned with the care, welfare or development of the child. [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 74, opn 1 July 2006]

(2) For the purposes of the Child Protection Convention, a person (including the Commonwealth central authority) may apply to a court for a location order.

[subs (2) insrt Act 69 of 2002 s 3 and Sch 1 item 14, opn 1 Aug 2003]

(3) In subsection (2): Child Protection Convention has the same meaning as in section 111CA. Commonwealth central authority has the same meaning as in section 111CA. [subs (3) insrt Act 69 of 2002 s 3 and Sch 1 item 14, opn 1 Aug 2003] [s 67K am Act 143 of 2000 s 3 and Sch 3 item 57 opn 27 Dec 2000]

[s 67L] Child’s best interests paramount consideration in making a location order 67L In deciding whether to make a location order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [s 67L am Act 46 of 2006 s 3 and Sch 1 item 36, opn 1 July 2006]

[s 67M] Provisions about location orders, other than Commonwealth information orders 67M (1) This section applies to location orders other than Commonwealth information orders. (2) Subject to section 67L, a court having jurisdiction under this Part or section 111CX, or exercising jurisdiction in proceedings arising under regulations made for the purposes of Part XIIIAA, may make a location order if it is satisfied that the person to whom the order applies is likely to have information about the child’s location. [subs (2) am Act 143 of 2000 s 3 and Sch 3 item 58 opn 27 Dec 2000; Act

69 of 2002 s 3 and Sch 1 item 15, opn 1 Aug 2003]

(3) If the person to whom a location order applies holds an office or position in, or in relation to, a Department or a Commonwealth instrumentality, the order does not apply to information that the person has or obtains because of holding that office or position. (4) A location order stays in force for 12 months or such longer period as the court considers appropriate. (5) While a location order is in force, the person to whom it applies must provide the information sought by the order as soon as practicable, or as soon as practicable after the person obtains it. (6) The person to whom a location order applies must comply with the order in spite of anything in any other law.

[s 67N] Provisions about Commonwealth information orders 67N (1) This section applies to Commonwealth information orders. (2) Subject to section 67L, a court having jurisdiction under this Part or section 111CX, or exercising jurisdiction in proceedings arising under regulations made [page 493] for the purposes of Part XIIIAA, may make a Commonwealth information order if it is satisfied that information about the child’s location is likely to be contained in, or to come into, the records of the Department or Commonwealth instrumentality

concerned. [subs (2) am Act 143 of 2000 s 3 and Sch 3 item 59 opn 27 Dec 2000; Act 69 of 2002 s 3 and Sch 1 item 16, opn 1 Aug 2003]

(3) A court must not make a Commonwealth information order unless: (a) a copy of the application for the order has been served in accordance with the applicable Rules of Court on the person to whom the order will apply (being the Secretary of the Department concerned or an appropriate authority of the Commonwealth instrumentality concerned); and (b) if that Department or Commonwealth instrumentality is prescribed for the purposes of this paragraph — either: (i) the period of 7 days after service of that copy of the application has expired; or (ii) the court considers that there are special circumstances because of which the order should be made before the end of that period of 7 days. [subs (3) am Act 194 of 1999 s 3 and Sch 11[56]]

(4) If an application for a Commonwealth information order relates to more than one Department or Commonwealth instrumentality, the court must not make the order in relation to more than one of them unless the court considers it should do so because of exceptional circumstances. (5) A court may state that a Commonwealth information order only applies to records of a particular kind if the court considers that: (a) the information sought by the order is only likely to be contained in records of that kind; and

to apply the order to all records of the Department or (b) Commonwealth instrumentality concerned would place an unreasonable burden on its resources. (6) A Commonwealth information order stays in force for 12 months. (7) While a Commonwealth information order is in force, the person to whom the order applies must, subject to subsection (9), provide the information sought by the order as soon as practicable, or as soon as practicable after it comes into the records of the Department or Commonwealth instrumentality concerned. (8) If the person (the official) to whom a Commonwealth information order applies provides another person (in accordance with the order) with information sought by the order, the official must, at the same time, provide the other person with any information about actual or threatened violence to the child concerned, to a parent of the child, or to another person with whom the child lives, that is in the records of the Department or Commonwealth instrumentality concerned. (9) A Commonwealth information order does not require the records of the Department or Commonwealth instrumentality concerned to be searched for the information sought by the order more often than once every 3 months unless specifically so ordered by the court. (10) The person to whom a Commonwealth information order applies must comply with the order in spite of anything in any other law. [page 494]

[s 67P] Information provided under location order not to be disclosed except to limited persons 67P (1) Information provided to the Registry Manager of a court under a location order (including a Commonwealth information order) must not be disclosed by the Registry Manager, or by any other person who obtains the information (whether directly or indirectly and whether under this section or otherwise) because of the provision of the information to the Registry Manager, except to: (a) the Registry Manager of another court; or (b) an officer of the court, or of another court, for the purpose of that officer’s responsibilities or duties; or (c) a process-server engaged by, or by an officer of, the court or another court; or (d) with the leave of the court that made the location order: (i) the legal adviser of the applicant for the order; or (ii) a process-server engaged by that legal adviser; or (e) if a recovery order that consists of or includes an authorisation or direction described in paragraph 67Q(b) or (c) is in force — a person to whom the authorisation or direction is addressed; or (f) with the leave of the court that made the location order: (i) the Commonwealth central authority; or (ii) a central authority or a competent authority of a Convention country. Penalty: 120 penalty units. Note: For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914.

[subs (1) am Act 24 of 2001 s 3 and Sch 27 item 16 opn 24 May 2001; Act 69 of 2002 s 3 and Sch 1 item 17 opn 1 Aug 2003; Act 138 of 2003 s 3 and Sch 3 item 21 opn 14 Jan 2004] [subs (1)]

(2) Nothing in paragraphs (1)(a) to (e) authorises the disclosure of information to the applicant for the location order. (3) In paragraph (1)(f): central authority has the same meaning as in section 111CA. Commonwealth central authority has the same meaning as in section 111CA. competent authority has the same meaning as in section 111CA. Convention country has the same meaning as in section 111CA. [subs (3) insrt Act 69 of 2002 s 3 and Sch 1 item 18, opn 1 Aug 2003]

[s 67Q]

Meaning of recovery order

67Q A recovery order is an order made by a court doing all or any of the following: (a) requiring the return of a child to: (i) a parent of the child; or (ii) a person with whom the child is to live under a parenting order; or (iii) a person with whom the child is to spend time under a parenting order; or (iv) a person with whom the child is to communicate under a parenting order; or

a person who has parental responsibility for the (v) child; [page 495] (b) authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, for the purpose of finding a child; (c) authorising or directing a person or persons, with such assistance as he or she requires or they require, and if necessary by force, to recover a child; (d) authorising or directing a person to whom a child is returned, or who recovers a child, to deliver the child to: (i) a parent of the child; or (ii) a person described in subparagraph (a)(ii), (iii), (iv) or (v); or (iii) some other person on behalf of a person described in subparagraph (i) or (ii); (iv) [repealed] (e) giving directions about the day-to-day care of a child until the child is returned or delivered to another person; (f) prohibiting a person from again removing or taking possession of a child; (g) authorising or directing a person to arrest, without warrant, a person who again removes or takes possession of a child.

Note 1: Section 122AA authorises the use of reasonable force in making an arrest, and Subdivision D of Division 6 deals with what is to happen to a person arrested without warrant under a recovery order. [Note 1 subst Act 143 of 2000 s 3 and Sch 3 item 62 opn 27 Dec 2000] Note 2: If a recovery order authorises a person to recover a child, the person is authorised to recover the child on each occasion that it is necessary to do so while the order remains in force: see subsection 67W(3). [Note 2 insrt Act 143 of 2000 s 3 and Sch 3 item 62 opn 27 Dec 2000] [s 67Q am Act 143 of 2000 s 3 and Sch 3 item 60 opn 27 Dec 2000; Act 46 of 2006 s 3 and Sch 8 items 75–76, opn 1 July 2006]

[s 67R] people

How recovery orders authorise or direct

67R (1) An authorisation or direction described in paragraph 67Q(b), (c) or (d) may be addressed to: (a) a named person; or (b) every person from time to time holding or acting in a specified office of the Commonwealth or of a State or Territory. (2) Without limiting the generality of subsection (1), an authorisation or direction described in paragraph 67Q(b), (c) or (d) may be addressed to: (a) a named person who holds an appointment as a child recovery officer under subsection (3); or (b) every person from time to time holding or acting in an office of child recovery officer. (3) The Attorney-General may appoint persons to be child recovery officers for the purposes of this Subdivision. (4) An appointment under subsection (3) may be of:

(a) a named person only; or (b) every person from time to time holding or acting in a specified office of the Commonwealth or of a State or Territory. [page 496]

[s 67S] How recovery orders to stop and search etc name or describe vehicles, places etc 67S An authorisation or direction described in paragraph 67Q(b) may be expressed to apply to: (a) a vehicle, vessel, aircraft, premises or place named or described either specifically or in general terms; or (b) any vehicle, vessel, aircraft, premises or place in which there is, at any time, reasonable cause to believe that the child concerned may be found.

[s 67T]

Who may apply for a recovery order

67T A recovery order in relation to a child may be applied for by: (a) a person with whom the child is to live under a parenting order; or (b) a person with whom the child is to spend time under a parenting order; or (c) a person with whom the child is to communicate under a parenting order; or (caa)a person who has parental responsibility for the child

under a parenting order; or (ca) a grandparent of the child; or (d) any other person concerned with the care, welfare or development of the child. [s 67T am Act 143 of 2000 s 3 and Sch 3 item 63 opn 27 Dec 2000; Act 46 of 2006 s 3 and Sch 8 item 77, opn 1 July 2006]

[s 67U]

Court’s power to make recovery order

67U In proceedings for a recovery order, the court may, subject to section 67V, make such recovery order as it thinks proper. COMMENTARY ON SECTION 67U Introductory comments …. Section 67U not limited to children of a marriage ….

[s 67U.1] [s 67U.2]

[s 67U.1] Introductory comments This section gives the courts power to make “such recovery order as it thinks proper”. The term recovery order is defined in s 67Q, and ss 67R, 67S, 67T and 67V deal with aspects of the power to make recovery orders. [s 67U.2] Section 67U not limited to children of a marriage An argument that the power is limited to children of a marriage was rejected in Gray v Williams (2008) 39 Fam LR 313; 217 FLR 1; [2008] FMCAfam 282; BC200802146 where, in a valuable analysis, Reithmuller FM explained that s 69ZH defines the extent to which the Act has exercised the constitutional marriage power: it does not purport to limit the scope of provisions which draw on other sources of power, for example the reference of power by the states to the Commonwealth — s 51(xxxvi). Thus it does not limit the jurisdiction to make a recovery order under s 67U in relation to

a child whose parents were never married. For a more detailed discussion see commentary to s 69ZH. ____________________

[s 67V] Child’s best interests paramount consideration in making a recovery order 67V In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration. [page 497] Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [s 67V am Act 46 of 2006 s 3 and Sch 1 item 37, opn 1 July 2006]

[s 67W] force

How long recovery order remains in

67W (1) A recovery order remains in force for the period specified in the order or 12 months, whichever is the shorter period. [subs (1) subst Act 138 of 2003 s 3 and Sch 7 item 16 opn 14 Jan 2004]

(2) [subs (1) rep Act 138 of 2003 s 3 and Sch 7 item 16 opn 14 Jan 2004] (3) To avoid doubt, unless a recovery order specifically provides to the contrary, each term of the order continues to have effect until the end of the period for which it remains in force regardless of whether anything has previously been done in accordance with the order.

[subs (3) insrt Act 143 of 2000 s 3 and Sch 3 item 64 opn 27 Dec 2000]

[s 67X] Persons not to prevent or hinder taking of action under recovery order 67X (1) This section applies to a recovery order that authorises or directs a person or persons to take action as described in paragraph 67Q(b), (c) or (d). (2) A person must not prevent or hinder the taking of the action by the person or persons authorised or directed to take the action. (3) If a court having jurisdiction under this Part is satisfied that a person has intentionally, and without reasonable excuse, contravened subsection (2), the court may: (a) order the person to pay a fine not exceeding 10 penalty units; or (b) order the person to enter into a recognizance (with or without surety or security) on conditions specified by the court; or (c) order the person to be imprisoned until he or she enters into a recognizance (with or without surety or security) on conditions specified by the court, or until the person has been imprisoned for 3 months, whichever happens first. Note: For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 64 opn 27 Dec 2000] [subs (3) am Act 143 of 2000 s 3 and Sch 3 item 64A opn 27 Dec 2000]

(4) A court that makes an order under subsection (3) may make such other orders as it considers necessary to ensure the person does not again contravene subsection (2).

[s 67Y] return

Obligation to notify persons of child’s

67Y (1) This section applies if: (a) a recovery order that consists of or includes provisions described in paragraph 67Q(a), (b), (c) or (d) is in force in relation to a child; and (b) the child returns, or is returned, to the person who applied for the order. (2) The person must, as soon as practicable after the child’s return, give notice of the child’s return to: (a) the Registry Manager of the court that issued the recovery order; and (b) if a location order in relation to the child is in force and was applied for by the person — the person to whom the location order applies. [subs (2) am Act 138 of 2003 s 3 and Sch 3 item 22 opn 14 Jan 2004]

[page 498]

Subdivision D — Allegations of child abuse and family violence [Subdiv D heading subst Act 189 of 2011 s 3 and Sch 1 item 29, opn 7 June 2012]

[s 67Z] Where interested person makes allegation of child abuse 67Z

(1) This section applies if an interested person in

proceedings under this Act alleges that a child to whom the proceedings relate has been abused or is at risk of being abused. [subs (1) am Act 189 of 2011 s 3 and Sch 1 item 30, opn 7 June 2012]

(2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse. [subs (2) am Act 189 of 2011 s 3 and Sch 1 item 31, opn 7 June 2012]

(3) If a notice under subsection (2) is filed in a court, the Registry Manager must, as soon as practicable, notify a prescribed child welfare authority. [subs (3) am Act 138 of 2003 s 3 and Sch 3 item 23 opn 14 Jan 2004]

(4) In this section: interested person in proceedings under this Act, means: (a) a party to the proceedings; or (b) an independent children’s lawyer who represents the interests of a child in the proceedings; or (c) any other person prescribed by the regulations for the purposes of this paragraph. [def insrt Act 189 of 2011 s 3 and Sch 1 item 32, opn 7 June 2012]

prescribed form means the form prescribed by the applicable Rules of Court. Registrar [def rep Act 138 of 2003 s 3 and Sch 3 item 24 opn 14 Jan 2004]

Registry Manager means: (a) in relation to the Family Court — the Registry Manager of the Registry of the Court; and (b) in relation to the Family Court of Western Australia

— the Principal Registrar, a Registrar or a Deputy Registrar, of the court; and (c) in relation to any other court — the principal officer of that court. [def insrt Act 138 of 2003 s 3 and Sch 3 item 25 opn 14 Jan 2004] [subs (4) am Act 194 of 1999 s 3 and Sch 11[58]] COMMENTARY ON SECTION 67Z Introductory comments …. Application of section ….

[s 67Z.1] [s 67Z.3]

[s 67Z.1] Introductory comments Section 67Z requires a party who makes an allegation of child abuse to file in court a notice in the prescribed form and serve a copy of the notice on the person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse. The registrar must then notify the appropriate child welfare authority. [s 67Z.3] Application of section Application to proceedings under Pt VII The section applies to any proceeding under the Act which can be said to “relate to” a child. This clearly includes any parenting orders under s 67ZC. [page 499] It would also apply to proceedings for an injunction (s 68B) or other proceedings under Pt VII that could be described as being in relation to a child. Application in other areas The section would not apply, for

example, to proceedings for property adjustment (even when the court was considering an order that would benefit the children) or spousal maintenance: such proceedings would not “relate” to the child. It is arguable whether the section would apply to child maintenance proceedings under Pt VII of the Family Law Act. It would not apply in proceedings under Pt VII of the Child Support Assessment Act 1989 because it applies only to proceedings under the Family Law Act. The question whether the section applies in such areas is unlikely to be of great practical importance, since allegations of child abuse would rarely be made in these proceedings. “Abuse” The term is defined in s 4. Impact of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 The application of s 67Z was expanded by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (the 2011 family violence amendments), which added paras (c) and (d) to the definition of “abuse” in s 4: see the commentary to that section. In brief, those paragraphs include causing a child to suffer serious psychological harm eg from exposure to family violence, and “serious neglect” of a child. Especially if litigants consider it safer to file the notice in cases of doubt, there will be a considerable increase in the numbers of notices filed, and a corresponding increase in notifications to Child Protection. Many of them will presumably involve circumstances that fall short of the fairly high threshold that the state child protection laws require for Child Protection intervention. Allegation of abuse The section applies “where a party alleges” abuse. This would include allegations made in the pleadings and allegations raised for the first time in court.

It is a difficult question whether the section applies where an allegation of abuse is made to a member of the court personnel, especially to a counsellor in a conference. It could be argued that “allege” refers to an allegation that forms part of the proceedings or is for the purpose of the proceedings, and does not apply to an allegation that might be made in private, or made to a court staff member. On the other hand, it could be argued that this limitation should not be read into the provision, which should apply to any such allegation made in any context by a party. An allegation made to, or in the presence of, a staff member may well lead to the member notifying the authorities: s 67ZA. Perhaps this section provides further support for the narrow view, the argument being that s 67ZA was the method intended by the legislature to deal with disclosures to court staff. Registrar to notify child welfare authority — s 67Z(3) The registrar is to notify the child welfare authority “as soon as practicable”. ____________________

[s 67ZA] Where member of the Court personnel, family counsellor, family dispute resolution practitioner or arbitrator suspects child abuse etc 67ZA (1) This section applies to a person in the course of performing duties or functions, or exercising powers, as: (a) the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; or (b) the Registrar or a Deputy Registrar of the Family Court of Western Australia; or

(c) a Registrar of the Federal Circuit Court of Australia; or [page 500] (d) (e) (f) (g) (h)

a family consultant; or a family counsellor; or a family dispute resolution practitioner; or an arbitrator; or a lawyer independently representing a child’s interests.

[subs (1) subst Act 46 of 2006 s 3 and Sch 4 item 65, opn 1 July 2006; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) If the person has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion. (3) If the person has reasonable grounds for suspecting that a child: (a) has been ill treated, or is at risk of being ill treated; or (b) has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child; the person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion. Note: The obligation under subsection (2) to notify a prescribed child welfare authority of a suspicion that a child has been abused or is at risk of being abused must be complied with, regardless of whether this subsection also applies to the same situation. [subs (3) am Act 189 of 2011 s 3 and Sch 1 item 33, opn 7 June 2012]

(4) The person need not notify a prescribed child welfare authority of his or her suspicion that a child has been abused, or is at risk of being abused, if the person knows that the authority has previously been notified about the abuse or risk under subsection (2) or subsection 67Z(3), but the person may notify the authority of his or her suspicion. (5) If notice under this section is given orally, written notice confirming the oral notice is to be given to the prescribed child welfare authority as soon as practicable after the oral notice. (6) If the person notifies a prescribed child welfare authority under this section or subsection 67Z(3), the person may make such disclosures of other information as the person reasonably believes are necessary to enable the authority to properly manage the matter the subject of the notification. [s 67ZA am Act 46 of 2006 s 3 and Sch 4 item 65, opn 1 July 2006] COMMENTARY ON SECTION 67ZA Introductory comments …. Court staff required to notify welfare authority ….

[s 67ZA.1] [s 67ZA.3]

[s 67ZA.1] Introductory comments Section 67ZA contains a set of provisions requiring or encouraging members of the court staff, including counsellors, mediators and registrars, to notify the appropriate child welfare authorities of suspected cases of child abuse. Such notification is required in certain cases: “abuse” (subs (2)). It is permitted in a wider category of cases: “ill-treated”, exposed to psychological harm (subs (3)). [s 67ZA.3] Court staff required to notify welfare authority A member of the court personnel who has in the course of his or her work reasonable grounds for suspecting that a child has been abused or is at risk of being abused, is required by s 67ZA(2) to notify a prescribed child welfare authority. Where the member knows that the authority has already been notified about the abuse or risk, further notification is optional: subs (4).

[page 501] “Abuse” The term is defined in s 4. It includes assaults (whether or not sexual) which are offences under the law, and child sexual abuse. Prescribed child welfare authority The term refers to the child welfare authority in the relevant state or territory: see the definition in s 4. What needs to be done The notification must be made “as soon as practicable”. It may be in writing or oral (eg a telephone call). Where it is given orally, it must be confirmed in writing as soon as practicable: see subs (5). It must include a statement of the staff member’s suspicion and the basis for it. It is submitted that a very brief notification will suffice: it is the task of the welfare authority, not the member, to investigate the matter. For example, a notification from a counsellor might say: “I suspected that X (child’s name and age) had been abused when in a s 62F conference Mrs A said that Mr A had thrown the baby against a wall”. Welfare authority already aware of case The staff member is not obliged to make the notification where he or she knows that the welfare authority has already been notified: subs (4). But the member may notify the authority of his or her suspicion, and may make such disclosures of further information as the member reasonably believes are necessary to enable the authority to properly manage the matter: subs (6). Protection for notifier The obligation prevails over any obligation of confidentiality, and the notifier is protected against legal liability: see s 67ZB. State laws State child welfare laws include provisions protecting persons who notify the authorities of suspected child abuse, and in some cases create obligations on certain people to notify. See State Legislation Service, under guide card CHILD WELFARE. The relationship between these laws and Subdiv D of Div 8 is not specified by the Act. It is probable that at least in relation to notifications by court staff arising from work in cases under Pt VII, these provisions should be considered to have “covered the field” for the purpose of s 109 of the Constitution (under which Commonwealth laws

prevail to the extent that they are inconsistent with state laws). The state provisions would remain applicable to other people. For example, a party or a witness who in good faith notified the welfare authority of suspected child abuse may well be protected by state laws against actions for defamation or other proceedings.

____________________

[s 67ZB] No liability for notification under section 67Z or 67ZA 67ZB (1) A person: (a) must give notice under subsection 67Z(3) or 67ZA(2); or (b) may give notice under subsection 67ZA(3) or (4); or (c) may disclose other information under subsection 67ZA(6); in spite of any obligation of confidentiality imposed on the person by this Act, another Act, another law or anything else (including a contract or professional ethics). (2) A person is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of a notification under subsection 67Z(3) or 67ZA(2). (3) A person is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of a notification under subsection 67ZA(3) or (4), or a disclosure under subsection 67ZA(6), if the notification or disclosure is made in good faith. (4) Evidence of a notification under subsection 67Z(3) or subsection 67ZA(2), (3) or (4), or a disclosure under subsection 67ZA(6), is not admissible in any court except where that evidence is given by the person who made the notification or disclosure. [page 502] (5) In this section:

court means a court (whether or not exercising jurisdiction under this Act) and includes a tribunal or other body concerned with professional ethics. COMMENTARY TO SECTION 67ZB Admissibility of evidence — s 67ZB(4) ….

[s 67ZB.10]

[s 67ZB.10] Admissibility of evidence — s 67ZB(4) The Full Court has held that subsection (4) does not render admissible that which is otherwise the subject of a prohibition as to its admissibility. It merely has the effect of ensuring that if the evidence is otherwise admissible, it can only be given by the maker of the notification and not via second-hand or hearsay evidence: Re W and W: Abuse allegations; Expert evidence (2001) 28 Fam LR 45; FLC 93–085.

____________________

[s 67ZBA] Where interested person makes allegation of family violence 67ZBA (1) This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that: (a) there has been family violence by one of the parties to the proceedings; or (b) there is a risk of family violence by one of the parties to the proceedings. (2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b). (3) If the alleged family violence (or risk of family violence) is

abuse of a child (or a risk of abuse of a child): (a) the interested person making the allegation must either file and serve a notice under subsection (2) of this section or under subsection 67Z(2) (but does not have to file and serve a notice under both those subsections); and (b) if the notice is filed under subsection (2) of this section, the Registry Manager must deal with the notice as if it had been filed under subsection 67Z(2). Note: If an allegation of abuse of a child (or a risk of abuse of a child) relates to a person who is not a party to the proceedings, the notice must be filed in the court and served on the person in accordance with subsection 67Z(2).

(4) In this section: interested person in proceedings for an order under this Part in relation to a child, means: (a) a party to the proceedings; or (b) an independent children’s lawyer who represents the interests of the child in the proceedings; or (c) any other person prescribed by the regulations for the purposes of this paragraph. prescribed form means the form prescribed by the applicable Rules of Court. Registry Manager has the same meaning as in section 67Z. [s 67ZBA insrt Act 189 of 2011 s 3 and Sch 1 item 34, opn 7 June 2012] COMMENTARY TO SECTION 67ZBA Overview …. No need to file notices under this section as well as s 76Z: subs (3) ….

[s 67ZBA.1] [s 67ZBA.5]

[page 503] [s 67ZBA.1] Overview Section 67ZBA, inserted into the Act as part of the 2011 family violence amendments, provides, in substance, that in a children’s matter where a litigant alleges that there has been family violence, the litigant must file a notice under the section or under s 67Z. [s 67ZBA.5] No need to file notices under this section as well as s 76Z: subs (3) Section 67ZBA deals with family violence. Section 67Z is similar in that it requires a notice to be filed when there is an allegation of “child abuse”. In that case, however, the court must then notify the state or territory child protection authorities: see s 67Z(3). Family violence and child abuse can however co-exist; family violence can in some circumstances also constitute child abuse: see the definition of “abuse” in s 4 and of “family violence” in s 4AB. Subsection (3)(a) says that where family violence is also child abuse, there is no obligation to file a notice under both ss 67Z and 67ZBA(3); and subs (3)(b) says that if a notice has been filed under s 67ZBA, that notice must be sent to the child protection authorities.

____________________

[s 67ZBB] Court to take prompt action in relation to allegations of child abuse or family violence 67ZBB (1) This section applies if: (a) a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and (b) the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that: (i) there has been abuse of the child by one of the

parties to the proceedings; or (ii) there would be a risk of abuse of the child if there were to be a delay in the proceedings; or (iii) there has been family violence by one of the parties to the proceedings; or (iv) there is a risk of family violence by one of the parties to the proceedings. (2) The court must: (a) consider what interim or procedural orders (if any) should be made: (i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and (ii) to protect the child or any of the parties to the proceedings; and (b) make such orders of that kind as the court considers appropriate; and (c) deal with the issues raised by the allegation as expeditiously as possible. (3) The court must take the action required by paragraphs (2)(a) and (b): (a) as soon as practicable after the notice is filed; and (b) if it is appropriate having regard to the circumstances of the case — within 8 weeks after the notice is filed. (4) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain documents or information from State and Territory agencies in relation to the allegation. (5) Without limiting subparagraph (2)(a)(ii), the court must

consider whether orders should be made, or an injunction granted, under section 68B. (6) A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order. [s 67ZBB insrt Act 189 of 2011 s 3 and Sch 1 item 34, opn 7 June 2012]

[page 504]

Subdivision E — Other orders about children [s 67ZC]

Orders relating to welfare of children

67ZC (1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children. Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 19, opn 1 Aug 2003]

(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 38, opn 1 July 2006] COMMENTARY TO SECTION 67ZC Introduction …. Scope and background of section ….

[s 67ZC.1] [s 67ZC.3]

Legislative history of provision …. Jurisdiction under s 67ZC limited by other provisions and by constitution: B v MIMIA …. No jurisdiction to release children from immigration detention …. No jurisdiction to join unwilling third party …. Court authorisation of “special medical procedures” in certain circumstances (the jurisdiction in Marion’s case) …. Order to attend psychiatrist …. Foetus not a “child” ….

[s 67ZC.5] [s 67ZC.10] [s 67ZC.20] [s 67ZC.21]

[s 67ZC.25] [s 67ZC.30] [s 67ZC.35]

[s 67ZC.1] Introduction This section appears to give to courts administering the Act a wide jurisdiction to make orders relating to the “welfare” of children. However, as explained in the commentary below, the High Court held in 2004 that the extent of jurisdiction is much more limited than would appear from s 67ZC read alone, because it must be read together with other provisions. In deciding whether to make an order under this section, a court must regard the best interests of the child as the paramount consideration: subs (2). This is the same principle that applies to the making of parenting orders. See generally ss 65AA, 60CC, and the commentary thereto. [s 67ZC.3] Scope and background of section At least most, and arguably all of the matters relating to children that previously fell within s 64 under the pre-1996 law now fall within the court’s power to make parenting orders under Div 6 (as to which, see the commentary to the sections in that Div). In practice, virtually all cases relating to the care of children — residence, contact and other matters relating to parental responsibility — are brought as applications for parenting orders. Consequently, it was always a difficult question what other jurisdiction, if any, was created by s 67ZC. One answer seemed to be that the section was intended to replicate the old “parens patriae” or “welfare” jurisdiction of the Supreme Courts, originally exercised by the Court of Chancery in England. That jurisdiction had always been characterised as very wide, and it was generally thought that s 67ZC

was intended to create jurisdiction in matters — if there were any — that would formerly have been within that parens patriae jurisdiction, but fell outside the jurisdiction to make parenting orders under what is now Div 6 (and its equivalents in earlier versions of the Act). [page 505] However there did not seem to be many situations that fell outside Div 6 parenting orders and yet might fall within s 67ZC, and thus in practice there seemed little need for this “extra” jurisdiction, as very few proceedings were actually brought based on this section. The two notable exceptions were Marion’s case, involving the authorisation of non-therapeutic sterilisation of a severely handicapped female child, and MIMIA v B, involving an application to release children from immigration detention. Both these cases went to the High Court, and both are discussed in the following commentary. In a decision delivered before the High Court ruling, Re Alex (2004) 31 Fam LR 503; FLC 93–175, Nicholson CJ granted approval for the administration of hormonal therapies that would commence a “sex change” process for a 13 year old child who was anatomically and legally a girl but had been diagnosed as having gender identity dysphoria. At that time, sitting as a trial judge, the Chief Justice was bound by the ruling of the Full Court in MIMIA v B (see the commentary to s 67ZC), and, indeed, there was no challenge to the court’s jurisdiction. In the light of the High Court’s subsequent ruling, and having regard to the fact that the application was brought by a government department that was legally Alex’s guardian, the question whether the Family Court now has jurisdiction in the circumstances such as those in Re Alex is (RC) a matter of some difficulty, turning on an analysis of the High Court’s decisions in MIMIA v B and Marion’s case. [s 67ZC.5] Legislative history of provision The original Family Law Act 1975 included provisions dealing with guardianship, custody and access, and these were relocated and amended from time to time. Amendments to the Family Law Act in 1983 added power to make orders relating to the “welfare” of the child: s 4, definition of “matrimonial cause”, paras (cf), (cg)

and (ch). These amendments were probably intended to make it clear that the Family Court could adjudicate on such matters as medical treatment for children of a marriage (see K v Minister for Youth and Community Services [1982] 1 NSWLR 311; (1982) 8 Fam LR 756; Re D (A Minor) [1976] 2 WLR 279; 1 All ER 326), and the Watson Committee Report (Family Law Council, 1982). Amendments in 1987 re-arranged the provisions, but did not remove this jurisdiction: Secretary, Department of Health and Community Services v JMB and SMB (1992) 106 ALR 385; 15 Fam LR 392; FLC 92–293 (HC) (Marion’s case), at Fam LR 414. More detailed amendments resulted from the Family Law Reform Act 1995. For a detailed review of the legislative history, see Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; FLC 93–174 (HC) (MIMIA v B). [s 67ZC.10] Jurisdiction under s 67ZC limited by other provisions and by constitution: B v MIMIA In Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; FLC 93–174 (HC) (MIMIA v B) the High Court held unanimously that there is no jurisdiction under the Family Law Act to order that children be released from immigration detention, reversing the Full Court’s decision in B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181; FLC 93–141; [2003] FamCA 451 (FC) (Nicholson CJ, Ellis and O’Ryan JJ). Kirby J based the decision on the Migration Act 1958 (Cth), whose provisions left no room for doubt that the legislature did not intend the Family Court to have such jurisdiction. However the other six justices based their decision on a lack of jurisdiction under the Family Law Act: thus the Family Court would not have had jurisdiction even if the children had been unlawfully detained (as Nicholson CJ and O’Ryan had suggested they might be, and as was subsequently held by another Full Court (see below). There are three relevant judgments: two joint judgments, respectively by Gleeson CJ and McHugh J and by Gummow, Hayne and Heydon JJ, and a separate judgment by Callinan J. All reached the same conclusion, that the Family Court had no jurisdiction. All six justices held that there was no jurisdiction under the Family Law Act to order the children’s release, essentially because the Family Court was limited to making orders that had to

do with parents’ responsibilities. [page 506] The reasons for this conclusion were expressed in different ways in the different judgments. However despite the wide words of s 67ZC, the six justices concluded that jurisdiction under the Act is much more limited than those words suggest, and that the operation of the section is essentially limited to matters relating to the responsibilities of parents to children. As it was put by Gummow, Hayne and Heydon JJ, s 67ZH confined the operation of s 67ZC “to the parental responsibilities of the parties to a marriage for a child of the marriage”: at [74]. It would seem that the jurisdiction does not generally extend to orders directed against third parties. Gleeson CJ and McHugh J said: Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes — expressly or inferentially — any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties — for example, ss 65M, 65N and 65P — that Part is concerned with the relationship between parents and children and parents’ duties in respect of their children. It is submitted, however, that there may arguably be circumstances in which orders against third parties have the necessary relationship to parental responsibilities, such as, perhaps, orders against third parties in support of parents’ responsibilities (RC). What was the basis for this narrow reading? The simplest strand of reasoning was that it was compelled by the provisions of Div 12 of Pt VII, particularly s 69ZH(2) and (3). This was the firm conclusion of the joint judgment by Gummow, Hayne and Heydon JJ: at [105]. However, Gleeson CJ and McHugh J did not find it necessary to determine whether that result flowed from s 69ZH. They held that even if s 67ZC were not restricted by s

69ZH, the same limited interpretation flowed from “the terms of Pt VII, read as a whole, and the constitutional imperatives of Ch III”: at [50]. The last phrase refers back to a fairly detailed account of the meaning of “matter” in Ch III of the Constitution. Callinan J reached the same conclusion, also on the basis of his interpretation of the Act, though he expressed it in a somewhat more general way: at [208]–[225]. For a more detailed account of the decision, see R Chisholm, “Immigration and the Family Court: the High Court speaks” (2004) 18 AJFL 193. [s 67ZC.20] No jurisdiction to release children from immigration detention As noted above, in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; FLC 93–174 (HC) (MIMIA v B) the High Court held unanimously that there is no jurisdiction under the Family Law Act to order that children be released from immigration detention. This decision appears to have brought to a close a brief period in which the Family Court dealt with applications on behalf of children and family members in immigration detention. The period began with a decision of the Full Court (Nicholson CJ, Ellis and O’Ryan JJ, Ellis partly disagreeing) upholding an appeal against the dismissal of an application to release children in immigration, affirming the court’s jurisdiction, and ordering a new trial: B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181; FLC 93–141; [2003] FamCA 451 (FC). (As a result, after a further appeal, the children were ordered to be released on an interim basis.) The High Court’s decision was an appeal from this original decision of the Full Court, affirming the court’s jurisdiction — mainly under s 67ZC — and ordering a rehearing. In the period before the High Court handed down its judgment upholding the appeal, there were a number of other decisions by the Family Court, being interlocutory decisions in which, of course, the judges were bound by the Full Court’s decision. The decisions include B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 621 (Kay, Coleman and Collier JJ), 25 August 2003 (the Full Court decision ordering the release of the children); KN v SD (2003) 30 Fam LR 394; FLC 93-148 (Nicholson CJ, Ellis and O’Ryan JJ)

[page 507] (refusing an application to release a parent in detention, on the basis that it would benefit a child, who was not in detention); R v MIMIA (Sy 4075/2003, 7 August 2003, Rose J, following KN v SD); HR and DR and the Minister for Immigration and Multicultural and Indigenous Affairs (2003) 31 Fam LR 123; FLC 93-156; AI and AA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 943 (25 September 2003), the latter two decisions distinguishing the Full Court’s decision in B v MIMIA and refusing the applications. The earlier decisions are discussed in R Chisholm, “The Immigration Cases” (2003) 16 AJFL 219, and the High Court decision MIMIA v B in R Chisholm, “Immigration and the Family Court: the High Court speaks” (2004) 18 AJFL 193. Summary of present position The High Court’s reasoning on jurisdictional issues is considered below. In relation to children in immigration detention, it is submitted that the position resulting from the High Court’s decision is as follows. First, there is no jurisdiction under the Family Law Act to order the release of children from immigration detention, even if that detention is for some reason unlawful. Secondly, it is also fairly clear that there is no jurisdiction to make orders that would interfere with the exercise by the Minister or other authorities of their powers under the Migration Act. Thirdly, it is arguable that there might be some jurisdiction to make orders that relate to children in detention if the orders also relate to parental responsibilities and if they do not interfere with the exercise of powers under the Migration Act. [s 67ZC.21] No jurisdiction to join unwilling third party The Full Court has held that there is no power under s 67ZC or elsewhere in the Act (or by way of accrued jurisdiction) for the court to make an order that would impose obligations or responsibilities (other than financial obligations) on a person in relation to a child without that person’s consent where that person does not already have parental responsibility for the child: Secretary, Department of Health and Human Services v Ray (2010) 247 FLR 455; 45 Fam LR 1; [2010] FamCAFC 258; BC201051264 at [79]–[80]. In that case the court

upheld an appeal against an order that purported to join the (unwilling) Secretary of the Tasmanian Department of Health and Human Services as a party to the proceedings. [s 67ZC.25] Court authorisation of “special medical procedures” in certain circumstances (the jurisdiction in Marion’s case) Introduction In normal circumstances parents (or others with parental responsibility) can authorise medical treatment for their children. However in Marion’s case (below) the High Court held that parents do not have authority to authorise certain types of medical interventions. The category of interventions requiring the court’s approval is not closed, or certain, but it is certainly narrow. It includes cases involving the non-therapeutic sterilisation of severely intellectually handicapped children (as in Marion’s case itself), and some procedures related to transsexualism — see the cases mentioned below. Even very serious medical intervention can be authorised by parents Note however that the court’s approval is not required for “therapeutic” treatment, even where the condition or the proposed serious medical intervention is very serious: see Re Sean and Russell (Special Medical Procedures) (2010) 258 FLR 192; 44 Fam LR 210; [2010] FamCA 948 (Murphy J); Re Baby D (No 2) (2011) 258 FLR 290; 45 Fam LR 313; [2011] FamCA 176; BC201150126 (Young J); Re Carla (Medical Procedure) (2016) 54 Fam LR 576; [2016] FamCA 7; BC201650006. Parenting order may be made though court’s approval not required In cases involving very grave medical issues, parents may seek parenting orders clarifying their power to authorise the medical intervention, and in appropriate cases, even though the cases is not a “special medical procedure” requiring the court’s authorisation, such orders may constitute “parenting orders”: see Re Sean and Russell (Special Medical Procedures) (2010) 258 FLR 192; 44 Fam LR 210; [2010] [page 508]

FamCA 948 (Murphy J); Re Baby D (No 2) (2011) 258 FLR 290; 45 Fam LR 313; [2011] FamCA 176; BC201150126 (Young J); Re Carla (Medical Procedure) (2016) 54 Fam LR 576; [2016] FamCA 7; BC201650006. [s 67ZC.30] Order to attend psychiatrist The Family Court has the power to order a party to attend a psychiatrist and undergo treatment as a condition of contact or residence, but there is no such power, under s 65D(1), 67ZC, 68B or 114, to make a non-conditional order: L v T (1999) 25 Fam LR 590; FLC 92-875 (FC). [s 67ZC.35] Foetus not a “child” It has been held that a foetus is not a “child”: Marriage of F (1989) 13 Fam LR 189; FLC 92-031. It is submitted that this is correct, and applies equally to s 67ZC. It follows that orders cannot be made under s 67ZC relating to unborn children.

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[s 67ZD]

Orders for delivery of travel documents

67ZD If a court having jurisdiction under this Part considers that there is a possibility or threat that a child may be removed from Australia, it may order that the following documents be ordered up to the court on such conditions as the court considers appropriate: (a) any Australian travel document (within the meaning of the Australian Passports Act 2005) that has been issued to the child or any other person concerned; (b) any passport or other travel document that has been issued to the child or any other person concerned by or on behalf of the government of a foreign country. [s 67ZD subst Act 122 of 2015 s 3 and Sch 1 item 100, opn 8 Oct 2015]

DIVISION 9 — INJUNCTIONS

[s 68A]

What this Division does

68A This Division deals with proceedings for injunctions in relation to children.

[s 68B]

Injunctions

68B (1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including: (a) an injunction for the personal protection of the child; or (b) an injunction for the personal protection of: (i) a parent of the child; or (ii) a person with whom the child is to live under a parenting order; or (iii) a person with whom the child is to spend time under a parenting order; or (iv) a person with whom the child is to communicate under a parenting order; or (v) a person who has parental responsibility for the child; or (c) an injunction restraining a person from entering or remaining in: (i) a place of residence, employment or education of the child; or (ii) a specified area that contains a place of a kind referred to in subparagraph (i); or

[page 509] (d) an injunction restraining a person from entering or remaining in: (i) a place of residence, employment or education of a person referred to in paragraph (b); or (ii) a specified area that contains a place of a kind referred to in subparagraph (i). [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 78, opn 1 July 2006]

(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so. (3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate. COMMENTARY TO SECTION 68B Introductory comments …. History …. No power under s 68B to restrain party from bringing proceedings …. Scope …. Despite the wide terms of s 68B, jurisdiction under s 68B may be limited to matters relating to parental responsibilities …. Relation between subss (1) and (2) …. Exercise of discretion: principles ….

[s 68B.1] [s 68B.3] [s 68.4] [s 68B.5]

[s 68B.6] [s 68B.7] [s 68B.9]

[s 68B.1] Introductory comments This section creates a power to grant

injunctions and make orders in relation to children. Under subs (1), the court can make orders or grant injunctions, on application, in a wide range of matters, including those specified in paras (a) to (d), if it is appropriate for the welfare of the child. A similarly wide power exists under subs (2), although that subsection applies only where the court is exercising jurisdiction under the Act (eg, but not necessarily, in parenting proceedings). There are no fixed rules or guidelines governing the making of such orders: the power is discretionary. Injunctions can be granted on terms: subs (3). As to the nature of injunctions and other general matters, see the commentary to s 114. There appear to be few decisions on s 68B, and it seems likely that this reflects the lack of difficulty in applying the section, rather than its lack of use. In an interesting exception, a 17 year old obtained an ex parte order under s 68B (and, perhaps, s 64B) restraining her parents and stepfather from removing her from Australia against her will: Kandal v Khyatt (2010) 43 Fam LR 344; [2010] FMCAfam 508; BC201003442. [s 68B.3] History The predecessor to s 68B, the former s 70C, was introduced into the Act by the Family Law Amendment Act 1987 (Cth). With inconsequential changes in wording, it was re-enacted in the 1995 amendments as s 68B. Previously, the Act had contained only one provision for the making of such orders, namely s 114. That section applied to children’s matters and other matters. That section remains, but the injunctive power specifically relating to children is now set out in s 68B. Although s 114 is not limited to exclude its use in relation to children, in children’s cases where s 68B is available, it would ordinarily be appropriate to turn to it rather than s 114. [s 68.4] No power under s 68B to restrain party from bringing proceedings The Full Court has held that s 68B cannot be used to restrain the institution of proceedings in relation to a child otherwise than with the leave of the court. The right of a citizen to unimpeded access to the courts is a fundamental common law right and if it is to be modified, the legislative intention need to be unambiguously clear: Bennett and Bennett [2001] FamCA 462, citing Re Boaler [1915] 1 KB 21, Coco v R (1994) 179 CLR 427; 120 ALR 415. Such power is provided for in particular circumstances in

s 118. [page 510] [s 68B.5] Scope Subsection (1) contains a general part and some specific parts. The opening words are very general, and that the material in paras (a) to (d) do not in any way impose a limit on the wide power to make such order or grant such injunction as it considers appropriate for the welfare of the child. There would be power under subs (1), for example, to restrain a parent or other person from taking the child to a psychiatrist, or to political meetings, without the consent of the other parent or court order, though such orders might not easily fall within any of the paragraphs. Subsection (2) is in very wide and expressed in general terms. There are however limits to the scope of s 68B, especially where the order sought would limit a person’s freedom of movement: see the discussion in White v Green (No 2) (2009) 41 Fam LR 185, paragraphs [114]-[137] (Cronin J). Order to attend psychiatrist The Family Court has the power to order a party to attend a psychiatrist and undergo treatment as a condition of contact or residence, but there is no such power, under s 65D(1), s 67ZC, s 68B or s 114, to make a non-conditional order: L v T (1999) 154 FLR 211; 25 Fam LR 590; FLC 92–875; [1999] FamCA 1699. Interlocutory application relating to child maintenance It has been suggested that where interlocutory applications relate to pending proceedings for child maintenance, the relevant power may be in s 114(3) rather than s 68B: Jukes v Doyle (2005) 32 Fam LR 617; [2005] FamCA 39 (Coleman J). [s 68B.6] Despite the wide terms of s 68B, jurisdiction under s 68B may be limited to matters relating to parental responsibilities The scope of s 68B, however, must now be treated as limited, after the High Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; FLC 93-174 (HC) (MIMIA v B). In that case the High Court held unanimously that there is no jurisdiction under the Family Law Act to order that children be released from immigration

detention, reversing the Full Court’s decision in B and B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181; FLC 93–141; [2003] FamCA 451 (Nicholson CJ, Ellis and O’Ryan JJ, Ellis J dissenting in part). Although the main focus was on s 67ZC, reliance had also been placed on s 68B, and the High Court’s reasoning — that the wide words of s 67ZC must be read down having regard to other provisions in the Act — applies equally to s 68B. In brief, it seems that the jurisdiction under s 68B, like the jurisdiction under s 67ZC, is limited “to the parental responsibilities of the parties to a marriage for a child of the marriage”, although it may perhaps (RC) authorise orders against third parties in some circumstances, for example in order to support parental responsibilities. See however the discussions in White v Green (No 2) (2009) 41 Fam LR 185 (Cronin J) and Grey v Williams (2008) 39 Fam LR 313; 217 FLR 1; [2008] FMCAfam 282; BC200802146 (Reithmuller FM). For more detail, see the commentary to s 67ZC. An illustration of the limited operation of s 68B as a result of the High Court’s decision in MIMIA v B may be seen from a line of English cases discussed in Monticelli v McTiernan (1995) 19 Fam LR 108; FLC 92–617 at Fam LR 138 (Chisholm J). In one of those cases, there was an application on behalf of a child to restrain the publication of a book or newspaper article, where it was submitted that the publication was contrary to the welfare of the child. The English courts consistently exercised jurisdiction in such cases, although balancing the interests of the child with competing interests, such as the interests of other people in freedom of speech. It would seem, however, that despite the wide words of s 68B, since MIMIA v B such an application could not be brought under the Family Law Act unless it could be seen as relating to parental responsibilities. The full implications of the High Court’s decision, however, remain to be determined. [s 68B.7] Relation between subss (1) and (2) The structure of s 68B resembles that of s 114. Section 68B(1), like s 114(1), is a separate power: it is open to a person to apply for an order or injunction under s 68B(1) even where there are no other proceedings on foot. Section 68B(2) provides for injunctions where other proceedings (eg parenting proceedings) are on foot: such injunctions can be thought of as ancillary to those proceedings.

[page 511] An example of the use of s 68B(1) would be where parents sought an injunction restraining another person from coming within a certain distance of a child’s residence, there being no other proceedings. An example of the use of s 68B(2) would be an injunction preventing a person from removing a child from the jurisdiction where parenting proceedings had been instituted. As with s 114, there is a large potential overlap between the two subsections. Thus it would seem that in the second example the injunction could be sought under subs (1) or (2). However in the first example, subs (2) would not be available because there are no other proceedings on foot. There may also be considerable overlap between parenting orders and injunctions under s 68B. For example, an order restraining a parent from allowing a child to have contact with a particular person could arguably be made as a parenting order or as an order under s 68B(1). In Monticelli v McTiernan (1995) 19 Fam LR 108; FLC 92–617, dealing with the former s 70C, Nicholson CJ and Fogarty J said at Fam LR 110; FLC 82,175: “The power to grant an injunction under subs (1) is the power to grant “such injunction as it considers appropriate for the welfare of the child …”, whereas in subs (2) the power is to grant the injunction in “any case in which it appears to the court to be just or convenient to do so”. Hence the suggestion that the principles to be applied in a case of this sort depend upon whether the proceedings are under subss (1) or (2). Where the proceedings relate to the welfare of a child we doubt the utility of such fine distinctions.” The existence of such overlaps will normally cause no difficulty: the orders on question can be made, whether the power comes from one provision or the other. However to the extent that different principles apply, it might be important to identify the precise basis of the orders made or sought. Fortunately, it seems that in practice such difficulties do not often arise. [s 68B.9] Exercise of discretion: principles Subsections (1) and (2) Despite the difference in wording of subss (1) and

(2), it would seem that there is little or no difference between the two subsections in terms of the principles relevant to the exercise of discretion. See Monticelli v McTiernan (1995) 19 Fam LR 108; FLC 92–617. The following commentary proceeds on that assumption. What principles apply in determining applications under s 68B? As is usual with the power to grant injunctions, which may cover a wide variety of matters, no specific rules or guidelines are stated in the Act. It is clearly a discretionary power. Obviously, however, the best interests of the child concerned is an important matter. How important? The answer seems to be as follows. First, because of the opening words, the court can make or order or grant an injunction only if it considers it appropriate for the welfare of the child. In practice, this seems to mean that the court must consider that the order or injunction would be likely to benefit the child. It would not be possible to make an order under s 68B relating to a child for the benefit of some other person, even, it would seem, a sibling. Benefiting the child is thus a necessary condition for making an order or injunction under s 68B. Secondly, it does not follow that benefiting the child is a sufficient condition for making an order or injunction under s 68B. As a result of the 1995 amendments, the paramount consideration principle now has a narrower operation, applying on to those matters to which it is expressly stated to apply, as in s 60CA, which applies it to parenting orders. It does not apply to s 68B, although of course the best interests of the child would ordinarily be a matter of great and often overwhelming important in the exercise of discretion under s 68B. This conclusion follows, it is submitted, from the reasoning of the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442, and other authorities. For details, see the discussion in the commentary to s 60CA. This may well represent a change in the law. In Monticelli v McTiernan (1995) 19 Fam LR 108; FLC 92-617, a decision which pre-dated the 1995 amendments, a majority of the Full Court (Nicholson CJ and Fogarty J; Chisholm J partly dissenting on the topic) held that the paramountcy principle applied to injunctions.

[page 512] To summarise: under s 68B(1) it is necessary that the order or injunction be appropriate for the welfare of the child. However the child’s interests need not be treated as the paramount consideration. While in many cases they might be of great, even overwhelming importance, it is open to the court to take into account other interests, against which the child’s interests may not necessarily prevail. Subs (2): “just or convenient” In Jukes v Doyle (2005) 32 Fam LR 617; [2005] FamCA 39 (Coleman J), following In the Marriage of Waugh (1999) 27 Fam LR 63; (2000) FLC 93-052; [2000] FamCA 1183, said that although the wording of s 68B(2), like s 114(3), might suggest that “just” and “convenient” provide alternative bases for the granting of injunctive relief, the weight of authority suggested otherwise.

____________________

[s 68C]

Powers of arrest

68C (1) If: (a) an injunction is in force under section 68B for the personal protection of a person (the protected person); and (b) a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by: (i) causing, or threatening to cause, bodily harm to the protected person; or (ii) harassing, molesting or stalking that person; the police officer may arrest the respondent without warrant. Note: Section 122AA authorises the use of reasonable force in making an

arrest. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 67 opn 27 Dec 2000] [subs (1) am Act 143 of 2000 s 3 and Sch 3 item 66 opn 27 Dec 2000]

(2) For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person. (3) Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if: (a) the person had been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and (b) the person on whose application the injunction was granted under section 68B were the person on whose application the injunction under section 114 had been granted. DIVISION 10 — INDEPENDENT REPRESENTATION OF CHILD’S INTERESTS [Div 10 subst Act 46 of 2006 s 3 and Sch 5 item 5, opn 1 July 2006] Editor’s Note: Act 46 of 2006, in the history note above, repealed the whole of Division 10 ss 68D — 68M and substituted the sections below. On how a court determines what is in a child’s best interest, refer to s 60CC and commentary.

[s 68L] Court order for independent representation of child’s interests 68L (1) This section applies to proceedings under this Act in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration.

[page 513] (2) If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court: (a) may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and (b) may make such other orders as it considers necessary to secure that independent representation of the child’s interests. (3) However, if the proceedings arise under regulations made for the purposes of section 111B, the court: (a) may order that the child’s interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances that justify doing so; and (b) must specify those circumstances in making the order. Note: Section 111B is about the Convention on the Civil Aspects of International Child Abduction.

(4) A court may make an order for the independent representation of the child’s interests in the proceedings by a lawyer: (a) on its own initiative; or (b) on the application of: (i) the child; or (ii) an organisation concerned with the welfare of children; or (iii) any other person.

(5) Without limiting paragraph (2)(b), the court may make an order under that paragraph for the purpose of allowing the lawyer who is to represent the child’s interests to find out what the child’s views are on the matters to which the proceedings relate. Note: A person cannot require a child to express his or her views in relation to any matter, see section 60CE.

(6) Subsection (5) does not apply if complying with that subsection would be inappropriate because of: (a) the child’s age or maturity; or (b) some other special circumstance. COMMENTARY ON SECTION 68L PRELIMINARY Order for independent representation of child’s interests …. Relationship of appointments under s 68L with to other forms of child representation …. ISSUES RELATING TO APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER Introductory comments …. Circumstances in which appointment may be made …. Appointment may be made for young children …. Who may seek order: subs (4) …. When appointment may be made …. Order for independent children’s lawyer to discover child’s views: subss (5) and (6) …. Limited appointments possible? …. Child Abduction proceedings: appointments only in exceptional circumstances: subs (3) ….

[s 68L.1] [s 68L.5]

[s 68L.20] [s 68L.25] [s 68L.28] [s 68L.30] [s 68L.33] [s 68L.40] [s 68L.42] [s 68L.45] [page 514]

No appointment under s 68L for children not before the court …. No appointment under s 68L for children under child welfare authority …. Circumstances in which independent children’s lawyer likely to be appointed: the Re K guidelines …. Whether Convention on the Rights of the Child requires appointment in all cases …. OTHER MATTERS RELATING TO INDEPENDENT CHILDREN’S LAWYERS Introductory comments …. Independent children’s lawyers have power to make applications and to appeal …. Funding — normal arrangements …. Orders for funding independent children’s lawyer? …. Removal of independent children’s lawyer …. Costs orders for and against independent children’s lawyers ….

[s 68L.48] [s 68L.50] [s 68L.53] [s 68L.55]

[s 68L.60] [s 68L.64] [s 68L.68] [s 68L.70] [s 68L.75] [s 68L.80]

PRELIMINARY [s 68L.1] Order for independent representation of child’s interests Significance of s 68L Section 68L provides for the appointment of an independent children’s lawyer. It is of great practical importance, since appointments of independent children’s lawyers are made frequently in parenting proceedings. This commentary deals mainly with the appointment and powers of independent children’s lawyers. Their role is now prescribed in s 68LA. History of section Prior to the operation of the Family Law Reform Act 1995, the appointment of a child’s representative was governed by s 65. Broadly speaking the sections were similar, and the previous case law on old s 65 applied to the new s 68L. The section was then amended by the Family Law Amendment (Shared

Parental Responsibility) Act 2006 (2006 Act). That Act changed the title of the person appointed, introduced the idea that the independent children’s lawyer represented the child’s interests rather than the child, and added subss (5) and (6). The 2006 Act also introduced s 68LA, below, setting out the role of the independent children’s lawyer. According to the Expanatory Memorandum (EM) to the 2006 Act, the general purpose of the amendments to the Act relating to the independent children’s lawyer was as follows: The amendments in Schedule 5 implement a number of the recommendations made by the Family Law Council in its report, Pathways for Children: A review of children’s representation in family law, which examines the role and basis of appointment of independent children’s lawyers. The amendments aim to clarify and strengthen the role of the independent children’s lawyer for children, parties and lawyers acting in the role. Changing terminology — “separate representative”, then “child’s representative”, now “independent children’s lawyer” Under the original Family Law Act 1975, s 65 had provided for orders that the child be separately represented, and the person so appointed was generally known as the “separate representative”. The 1995 amending Act referred to the person as the “child’s representative” (eg in s 68M). The 2006 Act changed the name of the person to the “independent children’s lawyer”, and set out the role: see s 68LA. Representation of child’s interests by a lawyer Previously, the section had provided for the court to order “that the child is to be separately represented” (emphasis added). The 2006 Act amended s 68L so that it provided for an order “for the independent representation of the child’s interests in the proceedings by a lawyer”. [page 515] This changed the position in two ways. Firstly, the representative now has

to be a lawyer: previously there was no such legal restriction — although in practice the representatives were in fact lawyers (generally provided through the legal aid bodies). Secondly, the provision now specifies that the lawyer is to represent the child’s interests. This change is explained as follows by the EM: Subsection 68L(2) states that a lawyer should represent a child’s ‘interests’, rather than represent the child. In its Report, the [Family Law Council] recommended that child representatives should act as independent advocates for the best interests of the child, rather than act on the instructions of the child. The Council considered that the feature of assisting the court while simultaneously allowing the child’s voice to be heard is best fulfilled in this way. The Government considers that this is appropriate given the legislative requirement for the court to make decisions that are in the best interests of the child. Section 68L constitutionally valid The High Court has dismissed a challenge to the validity of s 68L(3): RCB v Forrest (2012) 48 Fam LR 236; 292 ALR 617; [2012] HCA 47; BC201208416. [s 68L.5] Relationship of appointments under s 68L with to other forms of child representation Children as parties Separate representation is the most common but not the only way of providing representation for children. Children may themselves be parties to parenting proceedings: see s 69C(2)(b), and Family Law Rules 2004, Pt 6.3. This is very uncommon, however. Where a child is a party, an independent children’s lawyer would normally not be appointed: see Re K (1994) 17 Fam LR 537; FLC 92–461. Case guardian (formerly “next friend”) The Family Law Rules 2004 substituted the term “case guardian” for the traditional term, used in the previous rules, “next friend”. The rules make provision for the appointment of a case guardian where one of the participants in the proceedings is a child or a person under a disability. See Family Law Rules 2004, Pt 6.3, and the commentary thereto. On the role of the case guardian, see White v Green (No 2) (2009) 41 Fam LR 185.

ISSUES RELATING TO APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER [s 68L.20] Introductory comments Under this heading we consider first the legal requirements for the appointment of an independent children’s lawyer, and then the circumstances in which the court is likely to make an appointment. Although the case law precedes the amendments made by the 2006 Act, it is submitted that it remains generally applicable. [s 68L.25] Circumstances in which appointment may be made The section allows for the appointment “in proceedings in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration”. Various provisions of the 2006 Act specify whether the child’s best interests are to be regarded as paramount or relevant: see the commentary to s 60CA. In general, where children are involved and the court is exercising a discretionary power, the children’s interests will at least be a relevant matter, and thus there appears to be, in principle, wide scope for appointments in proceedings under the Act relating to children in one way or another. History The range of matters in which an independent children’s lawyer can be appointed has expanded over time. Originally it applied only in custody, guardianship, maintenance or access proceedings. In 1983 it was expanded to apply to all proceedings in which the child’s welfare was relevant, which, apart from changed terminology, has remained the position. [page 516] Examples of theoretically wide scope for appointments Section 79 allows property orders to be made for the benefit of children. It may be that s 68L authorises the appointment of an independent children’s lawyer, for example, in proceedings under s 79 in which there is a real issue about children’s interests, as where children are the beneficiaries of a trust which is attacked in the proceedings, or hold an interest in shares in a family company. It may also be possible to appoint an independent children’s lawyer, for example, in proceedings for an injunction relating to the use or occupation of the home,

where the child’s best interests are a relevant consideration. In practice, however, appointments of children’s lawyers do not appear to be common in proceedings other than those relating to parenting and similar proceedings, and there is a lack of authority on the circumstances in which appointments should be made in other sorts of proceedings. A practical question, too, is whether such appointments would be supported by legal aid funding. [s 68L.28] Appointment may be made for young children Section 68L is not expressed to operate only when children are old enough to state their views. It is clear that the independent children’s lawyer is not limited to acting on “instructions” from the child, and a court may, in appropriate circumstances, appoint a representative for a six months old child: see, for example, In the Marriage of Demetriou (1976) 27 FLR 93. [s 68L.30] Who may seek order: subs (4) The order may be sought by: (i) the child; (ii) an organisation concerned with the welfare of children; or (iii) any other person. It may also be made by the court of its own motion. [s 68L.33] When appointment may be made The order may be applied for and made at any stage in the proceedings. In practice, such orders are often made by registrars well before the trial, in the course of case management. As to whether the appointment may be made for a limited purpose, see [s 68L.42]. [s 68L.40] Order for independent children’s lawyer to discover child’s views: subss (5) and (6) The effect of subs (5) is to specify one of the “other orders” that can be made under para (2)(b), namely an order “for the purpose of allowing the lawyer who is to represent the child’s interests to find out what the child’s views are on the matters to which the proceedings relate”. It does not limit the scope of orders than can be made under para (2)(b). The EM says that the purpose is “to clarify that the independent children’s lawyer can seek the views of the child, despite the requirement that the independent children’s lawyer come to their own conclusion on the available material about what is in the best interests of the child”. This suggests that subs (5) was thought desirable lest anyone might mistakenly think that there were some inconsistency between the independent children’s lawyer ensuring

that the child’s views are put before the court, and yet making submissions (based on the independent children’s lawyer’s own view about what is best for the child) contrary to the child’s views. The position is, of course, that the independent children’s lawyer should place the child’s views before the court, even if the lawyer’s submissions are that implementing those views would not be in the child’s best interests. As the note emphasises, the independent children’s lawyer cannot require a child to express his or her views: s 60CE. Subsection (6) is inaptly phrased. Subsection (5) does not itself impose duties on the independent children’s lawyer; it specifies one of the orders that the court can make. Thus it is confusing for subs (6) to speak of “complying with that subsection”. The point must surely relate to whether compliance by the independent children’s lawyer with the order would be inappropriate for the reasons in paras (a) or (b). Further, it makes no sense to say that subs (5) does not apply. Taken literally, that would mean that in those circumstances the court does not have power to make an order under subs (5). But this would be problematical, because subs (5) does not restrict the range of orders that can be made under subs (2)(b). It is submitted that subs (6) stumbles in stating what is so obvious that it need not have been said at all, namely that the court would not make an order that the independent children’s lawyer should find out the child’s views if the court knew that this would be inappropriate because of the child’s age or other circumstances. [page 517] The unfortunate wording of subs (6) should not be allowed to obscure the overall position under s 68L, which, it is submitted, is as follows: In ordinary circumstances if the court simply makes an order under s 68L for the appointment, the lawyer would naturally explore what the child’s views are; as the EM states (in relation to the note) “except for exceptional circumstances, it is expected that independent children’s lawyers will have contact with children to discuss their views”. Obviously, the independent children’s lawyer would not persist in finding out the child’s views if it became apparent that it was

inappropriate to do so; and if controversies or difficulties arose about the matter the independent children’s lawyer could seek further orders from the court. The children’s lawyer will always take into account the principle that children cannot be required to express their views: s 60CE. If the court considers that there is some reason to make an order to the effect that the lawyer should find out the child’s views, (as, perhaps, where a party has objected to the lawyer speaking with the child), it can do so. Conversely, if the evidence before the court at the time indicates that there is a particular reason why the independent children’s lawyer should not find out the child’s views, and there is a need to deal with the matter by order, the court might make an order to the effect that the independent children’s lawyer should not do so, or, perhaps, should do so only in a particular way. Before leaving this topic reference should be made to another paragraph of the EM: 64. In accordance with subsection 68L(6), subsection 68L(5) will not apply where complying with that subsection would be inappropriate because of the child’s age or maturity or some other special circumstance. For example, although the child may have firm views on which parent the child would like to live with, the child may have special needs that are best served by living with the other parent. The second sentence is unhelpful. The fact that sometimes children’s needs will not be served by giving effect to their views is irrelevant to the topic of subss (5) and (6), namely discovering what views they have. Worse, the sentence seems to imply that the independent children’s lawyer should not discover or tell the court about a child’s views in circumstances where, in the lawyer’s view, implementing those views will not promote the child’s interests. That is clearly wrong, as noted earlier: the lawyer should ensure that the child’s views are made known to the court even where the lawyer proposes to submit that the court should not make orders in accordance with those views: see s 68LA(5)(b).

[s 68L.42] Limited appointments possible? The question has arisen whether the court can make an appointment that is limited or restricted in some way. In In the Marriage of F and R (No 2) (1992) 15 Fam LR 662; FLC 92–314 Fogarty J said that the court could “mark out, or limit, the ambit of that representation”. In In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92–191, (Bennett) however, the Full Court said that the section “permits the appointment of a separate representative simpliciter, and the only additional orders which it empowers the court to make are, such as it considers necessary for the purpose of securing such representation”. In Re K (1994) 17 Fam LR 537; FLC 92–461 the Full Court left the point open. It is submitted that the point may not be of great practical significance, since the court would appear to have wide powers to give directions to the independent children’s lawyer in exercise of its general power over the proceedings; such a general power is emphasised by the trend of recent decisions emphasising the special non-adversary nature of children’s cases: see the commentary to s 60CC. It is submitted, however that in any case the view of Fogarty J is to be preferred, and that the court can, in appropriate circumstances, make orders limiting the role of the independent children’s lawyer. Such an interpretation does not do violence to the language of the section and may have practical advantages for the parties and the public, limiting the independent children’s lawyer to a role that is appropriate in the particular circumstances of the case. This is consistent with the actual decision in Bennett, above, in so far as it criticised the timing and nature of the appointment in that particular case. [page 518] [s 68L.45] Child Abduction proceedings: appointments only in exceptional circumstances: subs (3) By subs (3), appointments of independent representation may be made in proceedings under the child abduction regulations (ie the regulations implementing the Convention on the Civil Aspects of International Child Abduction: see s 111B) only if the court considers there are exceptional circumstances that justify doing so. The subsection embodies the views of Kirby J, rather than the majority, in De L v

Director-General, NSW Dept of Community Services (No 2) (1997) 190 CLR 207; 21 Fam LR 432; 71 ALJR 588; BC9701054. The EM explains the provision as follows: 59. Under the Hague Convention, generally a country is required to send a child abducted to its jurisdiction, back to the country of habitual residence of the child prior to the abduction from that country. There should be no need, therefore, to inquire into the best interests of the child in Australia. That would be a matter for the country of habitual residence of the child. With respect to the author of that passage, while the restriction in subs (3) may have some basis in conserving resources or ensuring that proceedings under the Regulations are dealt with promptly, implementation of the Regulations often requires the court to inquire into the situation and best interests of the child, even though those best interests are not the “paramount consideration” (RC). To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, routinely or normally encountered: State Central Authority v Best (No 2) (2012) 48 Fam LR 357; [2012] FamCA 511; BC201250416 at [56], [58], [60] per Bennett J. That decision contains a detailed and valuable discussion of the significance of the independent children’s lawyer in State Central Authority v Best (No 2) (2012) 48 Fam LR 357; [2012] FamCA 511; BC201250416. Her Honour pointed out that appointment of an independent children’s lawyer is entirely consistent with Art 12 of the United Nations Convention on the Rights of the Child, to which Australia is a party, and has said that the requirement of “exceptional circumstances” is inconsistent with “our international obligations and our own processes”. Referring to the approach in Re D (a child) (Abduction: Rights of Custody) [2007] 1 AC 619; [2006] All ER (D) 218 (Nov); [2007] 1 All ER 783; [2006] UKHL 51, her Honour said that the “exceptional circumstances” requirement operates to restrict the independent representation of the interests of children who have already been subjected to the disruption and dislocation of being removed or retained across international borders by one parent acting unilaterally and who now face an immediate or at least speedy removal from this country (usually) contrary to

the wishes of the parent in whose care they have been exclusively since the allegedly wrongful removal or retention: at [59]. Judge Bennett said that the independent children’s lawyer’s functions in a Hague abduction matter will vary, but would routinely include facilitating discussions between the parents; making arrangements for mediation; and ensuring that collateral issues such as preconditions to any return are properly thought through by the parties (and the parents) before the trial and are capable of being implemented for the child as beneficially as the circumstances of the proceeding permits: at [64]. Where the Central Authority is the applicant, the “left behind parent” is once-removed from the process, and an independent children’s lawyer is well placed to drive a timely mediation where one might not otherwise occur: at [93]. [s 68L.48] No appointment under s 68L for children not before the court It has been held that there is no power to order representation for children who are not the subject of proceedings, such as other children living in a relevant household: see F v M1 and M2 (1994) 18 Fam LR 221; FLC 92–493. Kay J also indicated there that if contrary to his view there is such a power, it should be exercised only in very rare circumstances. [s 68L.50] No appointment under s 68L for children under child welfare authority It has been held that old s 60H (now s 69ZK) prevents the court from appointing an independent children’s lawyer for a child who is the subject of child welfare orders under state and territory laws: see F v M1 and M2 (1994) 18 Fam LR 221; FLC 92–493, in which Kay J cited Birmingham [page 519] City Council v H (A Minor) [1994] 2 AC 212; [1994] 1 All ER 12 (HL: the welfare of the child before the court is paramount, and not the interests of the mother, who was also a minor). [s 68L.53] Circumstances in which independent children’s lawyer likely to be appointed: the Re K guidelines

The nature of the guidelines In Re K (1994) 17 Fam LR 537; FLC 92–461 at 80,773 the Full Court issued guidelines as to the circumstances in which an independent children’s lawyer should normally be appointed. Although these guidelines are not intended to be strictly binding; a departure from them may require the judge to satisfy the departure by explaining the reasons for it. The Full Court stressed that the guidelines are not exhaustive; there may well be other circumstances calling for the appointment of the independent children’s lawyer and, no doubt, there may be some cases falling within the guidelines which, in the special circumstances of the case, do not require an independent children’s lawyer to be appointed. The Guidelines The guidelines issued by the Full Court are contained in the following quotation from the judgment (which does not include comments by the Full Court on each category): (i) Cases involve allegations of child abuse, whether physical, sexual or psychological … (ii) Cases where there is apparently intractable conflict between the parties … (iii) Cases where the child is apparently alienated from one or both parents … (iv) Where there are real issues of cultural or religious difference affecting the child … (v) Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare … (vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare … (vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children …

(viii) (ix)

(x)

(xi) (xii) (xiii)

Any case in which, on the material filed by the parents, neither seems a suitable custodian … Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent … Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child … Cases where it is proposed to separate siblings … Custody cases where none of the parties are legally represented … Applications in the court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties …

Family reports relevant The Full Court in Re K (1994) 17 Fam LR 537; FLC 92–461 also referred to the relevance of a family report, the availability of which will often be relevant to the court’s assessment of the desirability of appointing an independent children’s lawyer, since the need for an independent children’s lawyer will normally be greater if the court does not have the advantage of a family report. [s 68L.55] Whether Convention on the Rights of the Child requires appointment in all cases The Full Court in Re K (1994) 17 Fam LR 537; FLC 92–461 referred to but did not decide [page 520] the question whether the Convention on the Rights of the Child (Convention) requires the appointment of an independent children’s lawyer in every case,

and if so whether it has been sufficiently incorporated into Australian law to achieve that purpose: see the discussion in In the Marriage of Murray and Tam; Director, Family Services (ACT) (intervener) (1993) 16 Fam LR 982; FLC 92–416. It is submitted that even if the Convention were considered to impose such an obligation on Australia as a matter of international law, it is difficult to see how Australian law could be interpreted as requiring the appointment of a children’s lawyer in every parenting case, or indeed in any category of case, since the express provisions of s 68L make it quite clear that it is a matter for the court’s discretion whether to make the appointment in any particular case, and the validity of s 68L does not seem to be in doubt. OTHER MATTERS RELATING TO INDEPENDENT CHILDREN’S LAWYERS [s 68L.60] Introductory comments The role of the independent children’s lawyer is considered in the commentary to s 68LA. This commentary to s 68L deals with a number of issues that have arisen about the powers of the independent children’s lawyer and related matters. [s 68L.64] Independent children’s lawyers have power to make applications and to appeal Subject to any possible limitations in the order appointing the independent children’s lawyer (as to which see above), the independent children’s lawyer has ample powers to make applications, and appeal: Separate Representative v JHE and GAW (1993) 16 Fam LR 485; FLC 92–376 (per Nicholson CJ and Fogarty J at 495, Strauss J at 514–5), which, in holding that an independent children’s lawyer could appeal, upheld In the Marriage of F and R (No 2) (1992) 15 Fam LR 662; FLC 92–314 and overruled In the Marriage of Urquhart (1981) 8 Fam LR 152; FLC 91–206. Psychological examination of child The independent children’s lawyer may apply for a court order that the child be made available by the person having the child’s care for the purpose of psychiatric or psychological examination and the preparation of a report to the court: see s 68M. As to other rules relating to examinations of children and aspects of evidence in children’s cases, see the commentary to s 60CC.

[s 68L.68] Funding — normal arrangements In practice, independent children’s lawyers are funded through the legal aid system. Normally, when making the order, the court requests that arrangements be made by the relevant legal aid commission: see Family Law Rules 2004 r 8.02. The independent children’s lawyer is normally employed by or funded through the legal aid commission. The independent children’s lawyer may brief counsel, and often does. [s 68L.70] Orders for funding independent children’s lawyer? Decisions of the Family Court had considered whether s 68L could be used to secure funding from legal aid bodies for the provision of children’s representatives. See In the Marriage of Heard and De Laine (1996) 20 Fam LR 315; FLC 92– 675; In the Marriage of S (1980) 5 Fam LR 831; (1980) FLC 90–820 (Nicholson CJ). However the question was resolved by the High Court in 1998 by a unanimous holding that there was no jurisdiction to make an order that Victoria Legal Aid should provide funds for future costs of an independent children’s lawyer: Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; 155 ALR 251; 23 Fam LR 1; FLC 92–812; [1998] HCA 44; BC9802630. All members of the High Court bench held that the order could not be made under s 68L (a majority also held it could not be made under s 117: see the commentary to that section). Kirby J held (at Fam LR 17) that: … s 68L contemplates that the Family Court may make orders to give effect to the important objective of securing separate representation of a child. But in my view, those powers fall short of the making of orders as to costs or having implications for costs. [page 521] Hayne J (with whom Gaudron J agreed) similarly held (at Fam LR 29) that while s 68L is broadly expressed, the Act must be read as a whole, and s 68L(2) “does not provide, by implication, power to do something which is provided for expressly in other provisions of the Act”. Callinan J (with whom Gummow agreed) said at Fam LR 36: Section 68L cannot be taken literally. If it were, the Family Court would

have an unparalleled power to conscript a person, an urgency or a corporation to represent separately a child, and to make all such ancillary orders, presumably as to funding that representation, as might be necessary to secure that end. [s 68L.75] Removal of independent children’s lawyer Power to order removal It is clear that the court has power to remove an independent children’s lawyer, or make orders to that effect, for example by making an injunction preventing the person from continuing to act. See for example the comment of Strauss J in Separate Representative v JHE and GAW (1993) 16 Fam LR 485; FLC 92–376; T v L (2000) 27 Fam LR 40; FLC 93–056; [2000] FamCA 351. There would seem to be ample powers for such orders by virtue of the court’s inherent jurisdiction to control its proceedings; and there is also the power to grant injunctions relating to children: s 68B; and the power to appoint might imply a power to discharge. Whether to remove child representative For examples of reported cases in which (unsuccessful) attempts were made to remove the independent children’s lawyer, see In the Marriage of Pagliarella (1993) 16 Fam LR 688; FLC 93-400; In the Marriage of Bennett (No 2) (1991) 17 Fam LR 561; FLC 92–463. In the latter case Rourke J considered whether the independent children’s lawyer had acted contrary to the children’s interests, or incompetently, or demonstrated a lack of professional objectivity. In T v L (2000) 27 Fam LR 40; FLC 93–056; [2000] FamCA 351, a child representative was removed where he was a partner in a firm, and a former judge was a “special consultant” to the firm; the former judge had made an adverse finding against a father in earlier proceedings. Chisholm J held that in all the circumstances, although no actual bias or misconduct had been shown, the child representative should be removed. [s 68L.80] Costs orders for and against independent children’s lawyers See the commentary to s 117.

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[s 68LA]

Role of independent children’s lawyer

68LA (1) When section applies This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act. (2) General nature of role of independent children’s lawyer The independent children’s lawyer must: (a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and (b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child. (3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action. (4) The independent children’s lawyer: (a) is not the child’s legal representative; and (b) is not obliged to act on the child’s instructions in relation to the proceedings. [page 522] (5) Specific duties of independent children’s lawyer The independent children’s lawyer must: (a) act impartially in dealings with the parties to the proceedings; and

ensure that any views expressed by the child in relation (b) to the matters to which the proceedings relate are fully put before the court; and (c) if a report or other document that relates to the child is to be used in the proceedings: (i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and (ii) ensure that those matters are properly drawn to the court’s attention; and (d) endeavour to minimise the trauma to the child associated with the proceedings; and (e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child. (6) Disclosure of information Subject to subsection (7), the independent children’s lawyer: (a) is not under an obligation to disclose to the court; and (b) cannot be required to disclose to the court; any information that the child communicates to the independent children’s lawyer. [subs (6) am Act 189 of 2011 s 3 and Sch 2[19], opn 7 Dec 2011]

(7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child. (8) Subsection (7) applies even if the disclosure is made against

the wishes of the child. COMMENTARY ON SECTION 68LA INTRODUCTION General …. Purpose of the amendments in 2006 …. Pre-2006 authorities on the role of independent children’s lawyer …. References …. GENERAL NATURE OF INDEPENDENT CHILDREN’S LAWYER’S ROLE Introduction …. Independent children’s lawyer to form and act on independent view of child’s best interests: subss (2) and (4) …. Obligation to make a submission to take a particular course of action: subs (3) …. SPECIFIC DUTIES OF INDEPENDENT CHILDREN’S LAWYER Introduction …. Duty to act impartially: para (a) …. Duty to ensure child’s views are put before the court: para (b) …. Duty to draw court’s attention to significant matters in reports: para (c) ….

[s 68LA.1] [s 68LA.2] [s 68LA.5] [s 68LA.8]

[s 68LA.10]

[s 68LA.12] [s 68LA.15]

[s 68LA.20] [s 68LA.23] [s 68LA.25] [s 68LA.30] [page 523]

Duty to endeavour to minimise trauma of proceedings for the child …. Duty to facilitate an agreed resolution that is in the child’s best interests ….

[s 68LA.35] [s 68LA.40]

DISCLOSURE OF INFORMATION BY INDEPENDENT CHILDREN’S LAWYER Introduction …. No obligation on independent children’s lawyer to disclose: subs (6) …. Lawyer may disclose where he or she considers it to be in child’s interests: subss (7) and (8) ….

[s 68LA.50] [s 68LA.55] [s 68LA.58]

INTRODUCTION [s 68LA.1] General This section was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (2006 Act). It sets out the role of the independent children’s lawyer. It needs to be read with s 68L, which provides for the appointment of the independent children’s lawyer. There had previously been no legislative statement of the role of the child’s representative (as the independent children’s lawyer was then titled). However since the 1975 Act came into force, much consideration had been given to the role of the independent children’s lawyer, and there was a considerable body of literature on the topic, judicial statements and other publications. The issues about the nature of the role had largely been resolved by the time of the enactment of s 68LA in 2006, and that section generally reflects the legal rulings on the role at that time (for more detail, see below, [s 68LA.10] ff). [s 68LA.2] Purpose of the amendments in 2006 The Explanatory Memorandum (EM) relating to the 2006 Act states: The amendments aim to strengthen the role of the child representative by providing further guidance to lawyers acting in the role. Along with the Guidelines for child representatives: Practice directions and guidelines (the Guidelines), released by the Family Court of Australia, the amendments also aim to provide clarity and understanding to those parties participating in proceedings where a child representative is involved … In accordance with the recommendation of the Council, the intention of

such a provision is to clarify that the independent children’s lawyer should act as an independent advocate for the best interests of the child, rather than act on the instructions of the child. The Government considers that this is appropriate, given the legislative requirement for a court to make a decision in the best interests of the child … The Council considered the basic elements of the role of the child representative as set down by the Full Court of the Family Court in the case of P and P (1995) 19 Fam LR 1; FLC 92-615 (P and P) should be incorporated into the Act. This provision acknowledges that an important part of the role of the independent children’s lawyer is the function played outside of the courtroom. The independent children’s lawyer may be working with all the parties to the proceedings to find creative solutions to the issues in dispute. It is appropriate that the independent children’s lawyer has flexibility to sensitively manage the views of children and presentation of evidence. In the circumstances of a particular case, it may be most appropriate for the independent children’s lawyers to work with court mediators and experts to get evidence about the best arrangements for the child before the court, rather than inform the court directly of the views of the child. In other cases, particularly those involving older children, it may be more appropriate for the child to present his or her views directly to the court. [page 524] It is important to note that according to s 60CE, a person cannot require a child to express his or her views in relation to any matter. [s 68LA.5] Pre-2006 authorities on the role of independent children’s lawyer General The role of the independent children’s lawyer (pre-2006) was authoritatively described by the Full Court in In the Marriage of Bennett (1990) 14 Fam LR 397 at 404; FLC 92–191 (in which the earlier authorities

are cited). The Full Court said, at Fam LR 405: … it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other that the children (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must, of necessity, form a view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of counsel assisting a royal commission in the sense that his or her duty is to act impartially but, if thought appropriate, to make a submission suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative … Whilst we consider it appropriate for the separate representative at trial to inform the court by proper means, for example, a court counsellor or other expert’s report, as to the wishes of a child we do not consider that the separate representative is bound to make submissions on the instructions of a child as to its wishes or otherwise. Nevertheless, the separate representative would be bound to inform the court of such wishes. What is clear is that the separate representative should act in an independent and unfettered way in the best interests of the child. Child’s lawyer not to make report In the 1970s the question arose whether the independent children’s lawyer (then known as the child representative) should prepare a report for the court, following the model of the Official Solicitor in England. The answer, now well settled, was no: see In the Marriage of Lyons and Boseley (1978) 4 Fam LN 17; FLC 90–423; In the Marriage of E (No 2) (1979) 5 Fam LR 244; 36 FLR 12; FLC 90–645. It was and of course remains appropriate for the independent children’s lawyer to arrange for the preparation and presentation of reports by appropriate experts. [s 68LA.8] References Issues relating to the representation have been much discussed in family law publications. Discussions can be found in standard

family law texts and in periodical articles. Specialist publications include: Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, “Seen and Heard: Priority for Children in the Legal Process” (1997) ALRC 84; Family Court of Australia, “Representing the Child’s Interests in the Family Court of Australia” (September 1996); and a number of papers and reports of the Family Law Council: “Representation of Children in Family Law Proceeding” (1989); “Involving and Representing Children in Family Law” (1996); and “Pathways for Children: A review of Children’s Representation” (August 2004). The background papers indicate that the 2006 Act drew heavily on the last mentioned Report, which contains a considerable bibliography and discussion of the issues. The EM explains that the change reflects the views of the Family Law Council in its 2004 Report, and that it would: … help children and parents understand the neutrality and independence of the role. The Council considered that the term “child representative” creates confusion, particularly for children who may expect that the child’s representative will act on the child’s instructions. [page 525] The term “independent children’s lawyer” was preferred to the term “independent lawyer” suggested by the Family Law Council, because the Government considered it “more descriptive” and considered that it would be useful “in identifying that the independent children’s lawyer is associated with the child and not the other parties involved in the proceedings. GENERAL NATURE OF INDEPENDENT CHILDREN’S LAWYER’S ROLE [s 68LA.10] Introduction The general nature of the independent children’s lawyer’s role is set out in subss (2), (3) and (4). The EM states, in relation to subs (3): The intention of [subs (3)] is to provide guidance to the independent

children’s lawyer in situations where what they consider to be in the best interests of the child differs from the views expressed by the child. For example, where a child wants to live with the mother, the independent children’s lawyer may consider that the child should reside with the father due to the mother’s illness or incapacity. … subsection 68LA(4) provides further confirmation that an independent children’s lawyer is not the legal representative of the child and is not obliged to act on the child’s instructions in relation to the proceedings. The intention of this provision is to provide absolute clarity on the precise role and obligations of the independent children’s lawyer. [s 68LA.12] Independent children’s lawyer to form and act on independent view of child’s best interests: subss (2) and (4) These two subsections, read together, indicate that the lawyer is required to form and act on an independent view of what is in the child’s best interests (rather than having any duty to obey a child’s “instructions” or follow a child’s wishes). This is essential to the role, and is continually emphasised in the Act and the background documents. It does not follow, of course, that the lawyer will disregard the child’s views, since these may have great importance. Not only might they be a valuable indication of what might be best for the child, but it may be important for the child to know that his or her wishes have been carefully considered by the lawyer. “based on the evidence available …” The obvious intention of this phrase is to encourage the lawyer to focus on the circumstances of the particular case, and not approach the case on the basis of pre-conceived ideas or by applying a one-size-fits-all approach. The word “evidence” should not be taken too literally - it is obvious that the lawyer will take into account all the information and insights available, not merely what might be legally admissible evidence. “act in relation to the proceedings” The wording indicates that this phrase is not limited to the question what final submissions the lawyer makes on behalf of the child. The duty extends to all aspects of the proceedings. Thus

the lawyer’s decisions about all steps to take in the proceedings should be based on what the lawyer believes, in the light of the information available, will be best for the child. For example, in a case of suspected abuse, in considering whether further medical examinations or interviews might be undertaken, the lawyer will focus not only on whether they will produce information that is useful to the court, but also on whether such steps might be distressing or disadvantageous to the child. [s 68LA.15] Obligation to make a submission to take a particular course of action: subs (3) This subsection makes it clear that in some circumstances the independent children’s lawyer has a duty to do more than simply identify the options available to the court, and leave it to the judge to choose between them. It also makes it clear that although the final decision is that of the judicial officer presiding, there should be no inhibition in the lawyer making submissions about what orders should be made. [page 526] The duty arises only where the lawyer is “satisfied that the adoption of a particular course of action is in the best interests of the child”. Thus if the lawyer is uncertain which of a number of courses will be best for the child, the lawyer — as one would expect — is not obliged to make a positive submission in support of any particular course of action. SPECIFIC DUTIES OF INDEPENDENT CHILDREN’S LAWYER [s 68LA.20] Introduction Specific duties of the lawyer are set out in subs (5). [s 68LA.23] Duty to act impartially: para (a) In this context, “impartially” probably refers primarily to the parties: the lawyer must not act in a way that is partial, or biased, in favour of any party to the proceedings. The word probably also has a wider meaning, to the effect that the lawyer must be impartial in relation to other persons (eg other family members), and, perhaps other interests or groups (eg the lawyer should not favour a particular

religion, or favour a particular lifestyle or view). This provision echoes authorities prior to the addition of s 68LA which emphasised the need for children’s lawyers to be impartial. See, eg In the Marriage of Pagliarella (1993) 16 Fam LR 688; FLC 93-400; In the Marriage of Bennett (No 2) (1991) 17 Fam LR 561; FLC 92–463; T v L (2000) 27 Fam LR 40; FLC 93–056; [2000] FamCA 351. It is of course not uncommon for a child representative to make submissions that coincide largely or wholly with those of one or other party. However, it is an essential part of the role that the children’s lawyer remain impartial. Thus it would be wrong for the lawyer to present the case for one party, even where that party is unrepresented. The Full Court has said, “We do not agree that it is part of the child representative’s duty to investigate and present the case for one of the parties. Indeed to have done so in the present case would have compromised the child representative’s neutrality”: T v S (2001) 28 Fam LR 342; FLC 93–086; [2001] FamCA 1147; BC200108427 at [194] (FC). See also T v L (2000) 27 Fam LR 40; FLC 93–056; [2000] FamCA 351. It is also important that the independent children’s lawyer avoid behaving in ways that might inadvertently give the impression of partisanship, eg sitting closer to one party than another, or engaging in frequent whispered discussions with one party’s lawyer (especially where the other party is unrepresented). [s 68LA.25] Duty to ensure child’s views are put before the court: para (b) By para (b), the lawyer must “ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court”. The important point here is that the child’s views should always be put before the court whether or not the lawyer considers that it would be in the child’s best interests that orders should be made consistent with the child’s views. The force of the word “fully” is probably that the lawyer should not seek to qualify or weaken the force of any views expressed by the child with which the lawyer does not agree. The duty does not require the lawyer personally to give direct evidence of what the child has said: indeed, it is generally important that the lawyer does not become a witness. The duty is to ensure that the child’s views are put

before the court in some form or other, for example by way of an expert report or a Family Report. There is no contradiction between this obligation and the important principle that children cannot be required to express views: s 60CE. The duty under para (b) does not require or entitle the lawyer to attempt to force a child to express their views. Difficulties may arise if a child expresses views but asks the lawyer to keep them confidential. Handling such situations requires care and skill. It is submitted that para (b) should not be read as necessarily requiring the lawyer to put before the court views that the child expresses but asks to be kept confidential. In considering difficult situations of this kind, careful consideration should be given to the general duty under subs (2)(b). [page 527] [s 68LA.30] Duty to draw court’s attention to significant matters in reports: para (c) This is an obvious duty: to analyse reports and ensure that the most significant matters are drawn to the court’s attention. [s 68LA.35] Duty to endeavour to minimise trauma of proceedings for the child This duty requires the lawyer to keep in mind the likely impact of court proceedings on the child, so as to be able to minimise any trauma as far as possible. [s 68LA.40] Duty to facilitate an agreed resolution that is in the child’s best interests It comes as no surprise that the lawyer should facilitate agreed resolutions of matters. Attention should be given, however, to the wording of this duty, and in particular the words “to the extent to which doing so is in the best interests of the child”. Not every agreed solution may be in the child’s best interests. See eg T v N (2003) 31 Fam LR 257; FLC 93-172; [2003] FamCA 1129 (Moore J) (refusal to make consent orders that would have exposed child to risk of violence). DISCLOSURE OF INFORMATION BY INDEPENDENT CHILDREN’S

LAWYER [s 68LA.50] Introduction Subsections (6) to (8) deal with this topic. The thinking behind these provisions is that because the independent children’s lawyer is not the child’s legal representative, legal professional privilege may not apply, and it is therefore necessary to deal legislatively with issues of disclosure and confidentiality arising from the role. The EM summarises the purpose and effect of these provisions as follows: The intention of these provisions is to clarify the confidential relationship between the independent children’s lawyer and the child and to enable a professional relationship to be established between them. Client legal privilege cannot operate for an independent children’s lawyer who is acting in a best interests capacity, as the independent children’s lawyer has an overriding duty to the court to present all relevant evidence and make submissions in the child’s best interests. This provision will protect an independent children’s lawyer from being required by any party or court to disclose information communicated to the independent children’s lawyer by the child. [s 68LA.55] No obligation on independent children’s lawyer to disclose: subs (6) Subsection (6) states the principle that the independent children’s lawyer is not obliged, and cannot be required, to disclose to the court any information that the child communicates to him or her. [s 68LA.58] Lawyer may disclose where he or she considers it to be in child’s interests: subss (7) and (8) Although the independent children’s lawyer cannot be required to disclose information communicated by the child, he or she may elect to do so if he or she considers the disclosure to be in the best interests of the child: subs (7). This is the case even if such disclosure is against the wishes of the child: subs (8).

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[s 68M] Order that child be made available for examination 68M (1) This section applies if an independent children’s lawyer is appointed to independently represent a child’s interests in relation to proceedings under this Act. (2) The court may, on application by the independent children’s lawyer, order a person mentioned in subsection (3) to make the child available, as specified in the order, for an examination to be made for the purpose of preparing a report about the child for use by the independent children’s lawyer in connection with the proceedings. (3) The order may be directed to: (a) a parent of the child; or [page 528] (b) a person with whom the child is to live under a parenting order; or (c) a person with whom the child is to spend time under a parenting order; or (d) a person with whom the child is to communicate under a parenting order; or (e) a person who has parental responsibility for the child. DIVISION 11 — FAMILY VIOLENCE [Div 11 subst Act 46 of 2006 s 3 and Sch 6 item 1, opn 1 July 2006]

[s 68N]

Purposes of this Division

68N The purposes of this Division are: (a) to resolve inconsistencies between: (i) family violence orders; and (ii) certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and (aa) to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and (b) to achieve the objects and principles in section 60B. [s 68N am Act 189 of 2011 s 3 and Sch 1 item 35, opn 7 June 2012]

[s 68P] Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order 68P (1) This section applies if: (a) a court: (i) makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or (ii) makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or (iii) grants an injunction under section 68B or 114 that

expressly or impliedly requires or authorises a person to spend time with a child; and (b) the order made or injunction granted is inconsistent with an existing family violence order. (2) The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child: (a) specify in the order or injunction that it is inconsistent with an existing family violence order; and (b) give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and (c) explain (or arrange for someone else to explain) the order or injunction to: (i) the applicant and respondent in the proceedings for the order or injunction; and [page 529] (ii) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and (iii) the person protected by the family violence order (if that person is not the applicant or respondent); and (d) include (or arrange to be included) in the explanation, in language those persons are likely to readily understand: (i) the purpose of the order or injunction; and

(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and (iii) the consequences that may follow if a person fails to comply with the order or injunction; and (iv) the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and (v) the circumstances in which a person may apply for variation or revocation of the order or injunction. (3) As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to: (a) the applicant and respondent in the proceedings for the order or injunction; and (b) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and (c) the person protected by the family violence order (if that person is not the applicant or respondent); and (d) the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and (e) the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and (f) a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.

(4) Failure to comply with this section does not affect the validity of the order or injunction.

[s 68Q] Relationship of order or injunction made under this Act with existing inconsistent family violence order 68Q (1) To the extent to which: (a) an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and (b) the order or injunction is inconsistent with an existing family violence order; the family violence order is invalid. (2) An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by: (a) the applicant or respondent in the proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or [page 530] (b) the person against whom the family violence order is directed (if that person is not the applicant or respondent); or (c) the person protected by the family violence order (if that person is not the applicant or respondent). (3) The court must hear and determine the application and make

such declarations as it considers appropriate.

[s 68R] Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act 68R (1) Power In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend: (a) a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or (b) a recovery order (as defined in section 67Q) or any other order under this Act, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or (c) an injunction granted under section 68B or 114, to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child; or (d) to the extent to which it expressly or impliedly requires or authorises a person to spend time with a child: (i) an undertaking given to, and accepted by, a court exercising jurisdiction under this Act; or (ii) a registered parenting plan within the meaning of subsection 63C(6); or (iii) a recognisance entered into under an order under this Act.

(2) The court may do so: (a) on its own initiative; or (b) on application by any person. (3) Limits on power The court must not do so unless: (a) it also makes or varies a family violence order in the proceedings (whether or not by interim order); and (b) if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c) — the court has before it material that was not before the court that made that order or injunction. (4) The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order. (5) Relevant considerations In exercising its power under subsection (1), the court must: (a) have regard to the purposes of this Division (stated in section 68N); and (b) have regard to whether spending time with both parents is in the best interests of the child concerned; and [page 531] (c) if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order — be satisfied that it is

appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction. Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests. [subs (5) am Act 113 of 2015 s 3 and Sch 3 item 4, opn 18 Aug 2015]

(6) Registration of revival, variation, discharge or suspension of orders and other arrangements The regulations may require a copy of the court’s decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.

[s 68S] Application of Act and Rules when exercising section 68R power 68S (1) The following provisions do not apply to a court exercising the power under section 68R: (a) section 65C (who may apply for a parenting order); (b) subsection 65F(2) (parenting order not to be made unless parties attend family counselling); (c) section 60CG (court to consider risk of family violence); (d) section 69N (requirement to transfer certain proceedings); (e) any provisions (for example, section 60CA) that would otherwise make the best interests of the child the paramount consideration; Note: Even though the best interests of the child are not paramount, they must still be taken into account under paragraph 68R(5)(b).

(f) any provisions of this Act or the applicable Rules of Court specified in the regulations. (2) If a court is exercising the power under section 68R in proceedings to make an interim family violence order or an interim variation of a family violence order: (a) the court has a discretion about whether to apply paragraph 60CC(3)(a) (about taking into account a child’s views etc); and (b) any provisions of this Act or the applicable Rules of Court specified in the regulations do not apply. (3) A court exercising the power under section 68R may, as it thinks appropriate, dispense with any otherwise applicable Rules

of Court.

[s 68T] Special provisions relating to proceedings to make an interim (or interim variation of) family violence order 68T (1) If, in proceedings to make an interim family violence order or an interim variation of a family violence order, the court revives, varies or suspends an order, injunction or arrangement under section 68R, that revival, variation or suspension ceases to have effect at the earlier of: (a) the time the interim order stops being in force; and (b) the end of the period of 21 days starting when the interim order was made. (2) No appeal lies in relation to the revival, variation or suspension. [page 532] DIVISION 12 — PROCEEDINGS AND JURISDICTION

Subdivision A — What this Division does [s 69A]

What this Division does

69A This Division deals with: (a) the institution of proceedings and (Subdivision B); and (b) jurisdiction of courts (Subdivision C); and

procedure

(c) presumptions of parentage (Subdivision D); and (d) parentage evidence (Subdivision E); and (e) the places and people to which this Part extends and applies (Subdivision F).

Subdivision B — Institution of proceedings and procedure [s 69B] Certain proceedings to be instituted only under this Part 69B (1) Proceedings that may be instituted under this Part must not, after the commencement of this section, be instituted otherwise than under this Part. (2) Subsection (1) does not apply in relation to the institution of proceedings under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988. [subs (2) am Act 146 of 2006 s 3 and Sch 3 Pt 1 item 75, opn 1 Jan 2007] COMMENTARY TO SECTION 69B Introductory comments ….

[s 69B.1]

[s 69B.1] Introductory comments In substance, this section makes jurisdiction under Pt VII exclusive: if you can bring an application under Pt VII, you must do so. It is not an option to bring it under some other law. This is important, because there are still state and territory laws that provide for guardianship, custody and access proceedings: see State Legislation Volume. These have been largely rendered inoperative under s 109 of the Constitution as a result of this section, in combination with the other provisions of Pt VII that provide for the exercise of jurisdiction in relation to children.

____________________

[s 69C]

Who may institute proceedings

69C (1) Sections 65C, 66F, 67F, 67K and 67T are express provisions dealing with who may institute particular kinds of proceedings in relation to children. [subs (1) am Act 136 of 2012 s 3 and Sch 1 item 53, opn 22 Sep 2012]

(2) Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by: (a) either or both of the child’s parents; or (b) the child; or (c) a grandparent of the child; or (d) any other person concerned with the care, welfare or development of the child.

[s 69D] Institution of maintenance proceedings by authorised authority or person 69D (1) The regulations may make provision with respect to authorising: (a) a specified authority of the Commonwealth or of a State or Territory; or [page 533] (b) the person from time to time holding or acting in a specified office established under a law of the Commonwealth or of a State or Territory; to institute and conduct, on behalf of a child, in the authority’s or person’s discretion, proceedings with respect to the maintenance

of the child. (2) Proceedings instituted on behalf of a child under regulations covered by subsection (1) are taken, for the purposes of section 69C and the provisions referred to in it, to have been instituted by the child.

[s 69E] Child or parent to be present in Australia etc 69E (1) Proceedings may be instituted under this Act in relation to a child only if: (a) the child is present in Australia on the relevant day (as defined in subsection (2)); or (b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or (c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or (d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or (e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings. (2) In this section: relevant day, in relation to proceedings, means: (a) if the application instituting the proceedings is filed in a court — the day on which the application is filed; or

in any other case — the day on which the application (b) instituting the proceedings is made. Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 20, opn 1 Aug 2003] COMMENTARY ON SECTION 69E Introductory comments …. Meaning of Australian citizen, ordinarily resident, and present ….

[s 69E.1] [s 69E.3]

[s 69E.1] Introductory comments Connection with Australia Section 69E sets out the connection with Australia that is required of either the child, or a parent, or a party to the proceedings, in order for jurisdiction to be exercised. It also provides that jurisdiction may be exercised if such exercise is in accordance with a treaty etc. The effect of the various alternatives is that jurisdiction may be exercised in many cases where the connection with Australia is very slight. Exercise of jurisdiction a different question Section 69E deals with the circumstances in which courts are entitled to exercise jurisdiction. It is clear that there may be situations in which the court, though having jurisdiction, declines to exercise it. Certain connections between child and Australia sufficient It is sufficient if, on the day on which the application instituting the proceedings is filed or made (subs (2)), the child is: (a) present in Australia; or [page 534] (b) an Australian citizen; or

(c) ordinarily resident in Australia. In such cases the court may exercise jurisdiction, regardless of whether the parent, or other parties to the proceedings, have any connection with Australia. Certain connections between parent and Australia sufficient It is sufficient if a parent of the child is, on the day on which the application instituting the proceedings is filed or made (subs (2)): (a) an Australian citizen; or (b) ordinarily resident in Australia; or (c) present in Australia. In such cases the court may exercise jurisdiction, regardless of whether the child, or other parties to the proceedings, have any connection with Australia. Certain connections between a party and Australia sufficient It is sufficient if a party to the proceedings is, on the day on which the application instituting the proceedings is filed or made (subs (2)): (a) an Australian citizen; or (b) ordinarily resident in Australia; or (c) present in Australia. In such cases the court may exercise jurisdiction, regardless of whether the child, or any parent, has any connection with Australia. [s 69E.3] Meaning of Australian citizen, ordinarily resident, and present For commentary on these terms, see s 39. Treaty obligations It is also sufficient, even if none of the above connections with Australia exists, that it would be in accordance with a treaty or arrangement between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction: subs (1)(e).

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[s 69F]

Applicant may be in contempt

69F A court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court having jurisdiction under this Act. COMMENTARY TO SECTION 69F Introductory comment …. Exercise of discretion ….

[s 69F.1] [s 69F.3]

[s 69F.1] Introductory comment Section 69F provides that the court may hear proceedings in relation to a child notwithstanding that the applicant has failed to comply with an order of the court. It is thus a matter for the court’s discretion whether, in such a situation, to hear the proceedings or, for example, adjourn them to enable any proceedings for sanctions or contempt (Pt XIIIA) to be completed. [s 69F.3] Exercise of discretion It is obvious that in exercising discretion under s 69F the court should have regard to the child’s best interests. It is less clear whether the child’s best interests must be regarded as the paramount consideration: see the commentary to s 60CA. When the court has before it both proceedings for contempt or sanctions and also application for parenting orders, for example contact, one possible approach is that the court will first determine liability in the former proceedings, and then hear evidence about both the parenting application and penalty; and then make determinations as to penalty and the parenting issue. The advantage [page 535] of this approach is that the court can deal in one proceeding with matters that may be closely related but, by taking liability first, can deal with it with appropriate safeguards, particularly in relation to admissible evidence and

onus and standard of proof.

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Subdivision C — Jurisdiction of courts [s 69G]

Interpretation

69G In this Subdivision: matters arising under this Part includes proceedings under Division 9 or section 68S.

[s 69H] Jurisdiction of Family Court, State Family Courts, Northern Territory Supreme Court and Federal Circuit Court 69H [heading am Act 194 of 1999 s 3 and Sch 11[62]] (1) Jurisdiction is conferred on the Family Court in relation to matters arising under this Part. (2) Each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Part. (3) Subject to section 69K, jurisdiction is conferred on the Supreme Court of the Northern Territory in relation to matters arising under this Part. (4) Jurisdiction is conferred on the Federal Circuit Court of Australia in relation to matters arising under this Part (other than proceedings for leave under section 60G). [subs (4) insrt Act 194 of 1999 s 3 and Sch 11[62]; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013] [s 69H am Act 13 of 2013 s 3 and Sch 1 item 291, opn 12 Apr 2013]

[s 69J] Jurisdiction of courts of summary jurisdiction 69J (1) Subject to subsection (5), each court of summary jurisdiction of each State is invested with federal jurisdiction in relation to matters arising under this Part (other than proceedings for leave under section 60G). Note: Under section 39A of the Judiciary Act 1903, the jurisdiction conferred by this subsection on a State court of summary jurisdiction may only be exercised by certain judicial officers of the court. [subs (1) am Act 46 of 2006 s 3 and Sch 10 item 2, opn 22 May 2006]

(2) Subject to subsection (5) and section 69K, jurisdiction is conferred on each court of summary jurisdiction of each Territory in relation to matters arising under this Part (other than proceedings for leave under section 60G). (3) The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory. (4) Without limiting the generality of subsection (3), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following: (a) proceedings of specified classes; (b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory; [page 536]

(c) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way. [subs (4) am Act 22 of 2006 s 3 and Sch 1 items 15–17, opn 1 July 2006]

(5) A court of summary jurisdiction must not hear and determine proceedings under this Part otherwise than in accordance with any Proclamation in force under subsection (3). (6) The Governor-General may, by Proclamation, declare that a Proclamation under subsection (3) is revoked on and from a specified day. (7) If, under subsection (6), the Governor-General declares that a Proclamation under subsection (3) is revoked: (a) this Part (including subsection (3)) has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on the jurisdiction of courts before the specified day is not affected.

[s 69K] Territory court does not have jurisdiction unless a party is ordinarily resident in the Territory 69K A court of a Territory must not hear or determine proceedings under this Part unless at least one of the parties to the proceedings is ordinarily resident in the Territory when the proceedings are instituted or are transferred to the court.

[s 69L] Jurisdiction in relation to transferred matters under other Commonwealth laws 69L

If proceedings in relation to a matter arising under a law

of the Commonwealth are transferred under this Act to a court that has jurisdiction conferred on or invested in it by this Division, the jurisdiction so conferred on or invested in the court includes jurisdiction in relation to that matter.

[s 69M] Jurisdiction is additional to other jurisdiction 69M The jurisdiction conferred on or invested in a court by this Division is in addition to any jurisdiction conferred on or invested in the court apart from this Division.

[s 69MA] Transfer of proceedings from the Federal Magistrates Court — residence orders 69MA

[s 69MA rep Act 143 of 2000 s 3 and Sch 3 item 68A opn 27

Dec 2000]

[s 69N] Transfer of proceedings from courts of summary jurisdiction in certain cases 69N (1) This section applies if: (a) proceedings for a parenting order (other than a child maintenance order) are instituted in or transferred to a court of summary jurisdiction (other than the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia); and [page 537] (b) the respondent, in answer to the application by which the

proceedings were instituted, seeks an order different from that sought in the application. [subs (1) am Act 34 of 1997 s 3 and Sch 7; Act 22 of 2006 s 3 and Sch 1 item 18, opn 1 July 2006; Act 186 of 2012 s 3 and Sch 4 item 11, opn 12 Dec 2012]

(2) The court must, before going on to hear and determine the proceedings, inform the parties that, unless each of them consents to the court hearing and determining the proceedings, the court is required to transfer the proceedings to: (a) the Family Court; or (b) a Family Court of a State; or (c) the Supreme Court of the Northern Territory; or (d) the Federal Circuit Court of Australia. [subs (2) subst Act 98 of 2005 s 2 and Sch 1, cl 32, opn 3 Aug 2005; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(3) If the parties do not consent to the court hearing and determining the proceedings, the court must transfer the proceedings to: (a) the Family Court; or (b) a Family Court of a State; or (c) the Supreme Court of the Northern Territory; or (d) the Federal Circuit Court of Australia. [subs (3) subst Act 98 of 2005 s 2 and Sch 1, cl 32, opn 3 Aug 2005; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(4) Before transferring the proceedings, the court may make such orders (including an order under subsection 13C(1)) as it considers necessary pending the disposal of the proceedings by the court to which they are transferred. [subs (4) am Act 189 of 2011 s 3 and Sch 2[20], opn 7 Dec 2011]

(5) If the parties consent to the court hearing and determining the proceedings: (a) a party is not entitled, without leave of the court, subsequently to object to the proceedings being heard and determined by the court; but (b) the court may, on its own initiative, transfer the proceedings to: (i) the Family Court; or (ii) a Family Court of a State; or (iii) the Supreme Court of the Northern Territory; or (iv) the Federal Circuit Court of Australia. [subs (5) am Act 98 of 2005 s 2 and Sch 1, cl 33, opn 3 Aug 2005; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(6) If the court subsequently gives leave to a party to object to the proceedings being heard and determined by the court, the court must transfer the proceedings to: (a) the Family Court; or (b) a Family Court of a State; or (c) the Supreme Court of the Northern Territory; or (d) the Federal Circuit Court of Australia. [subs (6) am Act 98 of 2005 s 2 and Sch 1, cl 34, opn 3 Aug 2005; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(7) A court to which proceedings are transferred must deal with the proceedings as if they had been instituted in the court. (8) Failure by a court of summary jurisdiction to comply with this section in relation to proceedings does not invalidate any order made by the court in the proceedings. (9) Subsection (8) does not affect the duty of a court of

summary jurisdiction to comply with this section. [page 538] COMMENTARY ON SECTION 69N Transfer of proceedings from courts of summary jurisdiction ….

[s 69N.1]

[s 69N.1] Transfer of proceedings from courts of summary jurisdiction Introductory comment This section provides for the transfer of contested proceedings for a parenting order from courts of summary jurisdiction to superior courts in certain circumstances, essentially where the parties do not consent to the lower court dealing with the matter, or where the lower court wishes the matter to be transferred. The policy is that the lower courts exercise jurisdiction by consent, and only where they feel competent to deal with the matter. There is a somewhat similar provision dealing with matrimonial causes: s 46. Application of section The section applies only to proceedings for a parenting order as distinct from proceedings in relation to a child, or proceedings under Pt VII. Thus it does not apply to application for injunctions under s 68B: in these matters courts of summary jurisdiction may exercise jurisdiction without consent. It only applies to contested proceedings: see subs (1)(b). Consent of parties The lower court is required, before it hears the proceedings, to inform the parties that it is required to transfer the proceedings unless they consent (subs (2)); if they do not consent, it must transfer the proceedings: subs (3). It is only the parties whose consent is required: neither the child’s consent nor the consent of a person representing the child is strictly required, although opposition by a child or a child’s representative might well be a reason for the lower court to elect under subs (5)(b) to transfer the proceedings.

Orders before transfer Before transferring proceedings, the court of summary jurisdiction may make such orders as it considers necessary pending their disposal by the higher court: subs (3). For example, it may order counselling under s 62F(1) and (2). Leave required for withdrawal of consent Once consent has been given, a party cannot without leave object to the lower court proceeding to hear and determine the matter: subs (5)(a). If such leave is given, the proceedings must be transferred: subs (6). Proceedings following transfer The court to which the proceedings have been transferred shall proceed as if they were commenced in that court: subs (7). Non-compliance with section While the court of summary jurisdiction has a duty to comply with the section, failure to do so does not invalidate any order it makes in the proceedings: subss (8) and (9).

____________________

Subdivision D — Presumptions of parentage [s 69P] Presumptions of parentage arising from marriage 69P (1) If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband. (2) If: (a) at a particular time: (i) a marriage to which a woman is a party is ended by death; or (ii) a purported marriage to which a woman is a party is annulled; and

(b) a child is born to the woman within 44 weeks after that time; the child is presumed to be a child of the woman and the husband or purported husband. [page 539] (3) If: (a) the parties to a marriage separated at any time; and (b) after the separation, they resumed cohabitation on one occasion; and (c) within 3 months after the resumption of cohabitation, they separated again and lived separately and apart; and (d) a child is born to the woman within 44 weeks after the end of the cohabitation, but after the divorce of the parties; the child is presumed to be a child of the woman and the husband. [subs (3) am Act 98 of 2005 s 2 and Sch 1, cl 80, opn 3 Aug 2005] COMMENTARY ON SECTION 69P Introductory comments …. Presumption applicable after divorce, where resumption of cohabitation: section 69P(3) ….

[s 69P.1] [s 69P.3]

[s 69P.1] Introductory comments This section creates a presumption that a child born to a woman during a marriage (subs (1)) or born within 44 weeks after the termination of the marriage by death or annulment (subs (2)) is a child of the woman and her husband. [s 69P.3] Presumption applicable after divorce, where resumption of

cohabitation: section 69P(3) Introductory comment Section 69P(3) extends the presumption to a situation where a child is born more than 44 weeks after a divorce, but within 44 weeks of a period of cohabitation of the parties. The presumption thus arises where (i) the parties separate, and resume cohabitation on one occasion; (ii) within three months after resuming cohabitation, they again separate and live separately and apart; (iii) the marriage is dissolved; and (iv) a child is born to the woman within 44 weeks of the end of the period of cohabitation. Link with divorce provisions Section 69P(3) is clearly intended to deal with the situation contemplated by s 50, by which a period of resumed cohabitation does not break the period of separation that establishes the ground of dissolution. It is submitted that the key terms of s 69P, such as “separated”, and “resumed cohabitation” should in general bear the same meanings that they have in the context of dissolution of marriage. See generally commentary to ss 48–50. Note also the definition of “party to a marriage” in s 4(2). Example W and H separate on 1 January in Year One; resume cohabitation between 1 July and 1 August; divorce 2 February in Year Two. W has a child on 15 March in Year Two. The child is presumed to be a child of the woman and her husband. Child of a marriage This term is defined in s 60F. Note also the effect of s 60H, relating to children artificially conceived.

____________________

[s 69Q] Presumption of paternity arising from cohabitation

69Q If: (a) a child is born to a woman; and (b) at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she was not married; the child is presumed to be a child of the man. [page 540] COMMENTARY ON SECTION 69Q Introductory comments …. “cohabitation” ….

[s 69Q.1] [s 69Q.3]

[s 69Q.1] Introductory comments This section provides that a child born to a woman who cohabited with a man to whom she was not married is presumed, in certain circumstances, to be the child of that man. The circumstances are that the woman cohabited with the man at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth. A finding that the parties had “unprotected sexual relations” could not substitute for cohabitation. Section 69Q of the Act is clearly intended to apply to circumstances where parties are living together and a child is born to the woman: Vakros v Letsos (2012) 260 FLR 66; 47 Fam LR 172; [2012] FamCAFC 40; BC201250128. [s 69Q.3] “cohabitation” It is submitted that this term has the same meaning that it has in the context of divorce: see commentary to ss 48–50. Note however that the presumption under this section does not apply to the cohabitation between parties to a marriage.

____________________

[s 69R] Presumption of parentage arising from registration of birth 69R If a person’s name is entered as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, the person is presumed to be a parent of the child. COMMENTARY ON SECTION 69R Introductory comments …. Australian laws …. Prescribed overseas jurisdiction ….

[s 69R.1] [s 69R.3] [s 69R.5]

[s 69R.1] Introductory comments This section creates a presumption of parentage resulting from the registration of a person’s name as a parent of a child in a register of births or parentage information kept under a law of the Commonwealth, a state, a territory, or a prescribed overseas jurisdiction. [s 69R.3] Australian laws Australian laws providing for registration of births and parentage information are as follows: Births, Deaths and Marriages Registration Act 1995 (NSW) Registration of Births, Deaths and Marriages Act 1959 (Vic) Registration of Births, Deaths and Marriages Act 1962 (Qld) Registration of Births, Deaths and Marriages Act 1961 (WA) Births, Deaths and Marriages Registration Act 1966 (SA) Registration of Births and Deaths Act 1895 (Tas) Registration of Births, Deaths and Marriages Act 1963 (NT) Registration of Births, Deaths and Marriages Act 1963 (ACT) [s 69R.5] Prescribed overseas jurisdiction No overseas jurisdictions have been prescribed for the purposes of this section.

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[s 69S] Presumptions of parentage arising from findings of courts 69S (1) If: (a) during the lifetime of a particular person, a prescribed court (other than a court of a prescribed overseas jurisdiction) has: [page 541] (i)

found expressly that the person is a parent of a particular child; or (ii) made a finding that it could not have made unless the person was a parent of a particular child; and (b) the finding has not been altered, set aside or reversed; the person is conclusively presumed to be a parent of the child. [subs (1) am Act 82 of 2007 s 3 and Sch 2[105], opn 19 July 2007]

(1A) If: (a) during the lifetime of a particular person, a court of a reciprocating jurisdiction within the meaning of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the regulations has: (i) found expressly that the person is a parent of a particular child; or (ii) made a finding that it could not have made unless the person was a parent of a particular child; and (b) the finding has not been altered, set aside or reversed; the person is presumed to be a parent of the child.

[subs (1A) insrt Act 82 of 2007 s 3 and Sch 2[106], opn 19 July 2007]

(2) If: (a) after the death of a particular person, a prescribed court has: (i) found expressly that the person was a parent of a particular child; or (ii) made a finding that it could not have made unless the person was a parent of a particular child; and (b) the finding has not been altered, set aside or reversed; the person is presumed to have been a parent of the child. (3) In this section: prescribed court means a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction. COMMENTARY ON SECTION 69S Introductory comments …. Prescribed overseas jurisdiction ….

[s 69S.1] [s 69S.3]

[s 69S.1] Introductory comments Section 69S creates a presumption of parentage arising from an express or implied finding by an Australian court, or a court of a prescribed overseas jurisdiction, that a particular person is or was the parent of a particular child. [s 69S.3] Prescribed overseas jurisdiction No overseas jurisdictions have been prescribed for the purposes of this section.

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[s 69T] Presumption of paternity arising from acknowledgments 69T

If:

(a) under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, a man has executed an instrument acknowledging that he is the father of a specified child; and (b) the instrument has not been annulled or otherwise set aside; the man is presumed to be the father of the child. [page 542] COMMENTARY ON SECTION 69T Introductory comments …. Australian laws …. Prescribed overseas jurisdiction ….

[s 69T.1] [s 69T.3] [s 69T.5]

[s 69T.1] Introductory comments This section creates a presumption of paternity arising from the execution by a man of a paternity acknowledgment under the law of the Commonwealth, a state, a territory, or a prescribed overseas jurisdiction. The presumption applies only when the instrument has not been annulled or set aside. [s 69T.3] Australian laws Australian laws providing for paternity acknowledgments are as follows: Children (Equality of Status) Act 1976 (NSW) s 11 Status of Children Act 1974 (Vic) s 8 Status of Children Act 1978 (Qld) s 8 Family Relationships Act 1975 (SA) s 7 Status of Children Act 1974 (Tas) s 8 Status of Children Act 1978 (NT) s 9 [s 69T.5] Prescribed overseas jurisdiction No overseas jurisdictions have

been prescribed for the purposes of this section.

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[s 69U]

Rebuttal of presumptions etc

69U (1) A presumption arising under this Subdivision is rebuttable by proof on a balance of probabilities. (2) Where: (a) 2 or more presumptions arising under this Subdivision are relevant in any proceedings; and (b) those presumptions, or some of those presumptions, conflict with each other and are not rebutted in the proceedings; the presumption that appears to the court to be the more or most likely to be correct prevails. (3) This section does not apply to a presumption arising under subsection 69S(1). COMMENTARY ON SECTION 69U Introductory comments ….

[s 69U.1]

[s 69U.1] Introductory comments Section 69U deals with the status of the presumptions created by the previous sections in Div 12. The presumptions are rebuttable on the balance of probabilities: subs (1). Where multiple presumptions apply and conflict with each other, and are not rebutted, the presumption that “appears to the court to be the more or most likely to be correct” is the one that prevails.

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Subdivision E — Parentage evidence

[s 69V]

Evidence of parentage

69V If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question. [page 543] COMMENTARY ON SECTION 69V Introductory comments …. Parentage must be ‘a question in issue in proceedings under this Act’ …. Historical background …. Child support - parentage orders may be made …. State and territory laws ….

[s 69V.1] [s 69V.2] [s 69V.5] [s 69V.8] [s 69V.10]

[s 69V.1] Introductory comments Section 69V provides that where the parentage of a child is in issue in proceedings under the Act, the court may make an order requiring any person to give material evidence. The section is of particular importance because it allows the court to require a person to give such evidence: it is not merely about the admissibility of evidence led by parties. Sections 69W–69ZD sset out in detail certain orders the court can make, without limiting s 69V. [s 69V.2] Parentage must be ‘a question in issue in proceedings under this Act’ Section 69V applies only if the parentage of a child is ‘a question in issue in proceedings under this Act’. This issue has been the subject of considerable case law, mainly in connection with ordering what are now called ‘parenting testing procedures’ (blood tests and DNA tests): see s 69W and the commentary thereto. [s 69V.5] Historical background Previous evidentiary restrictions At common law, a number of rules existed

which had the effect of making it difficult to prove that a child was illegitimate. In particular, neither the husband nor the wife was competent to give evidence of what was rather coyly called “non-access” during the marriage if to do so would lead to the conclusion that a child born to a married woman was illegitimate: see Russell v Russell [1924] AC 687; 40 TLR 713 Any such restrictive rules are removed by s 69V. Common law presumptions relating to parentage have similarly been displaced by Subdiv D of Div 12. See also M and H (1993) 121 FLR 41; 17 Fam LR 416; (1994) FLC 92–453, affirming the jurisdiction of the Family Court to make a determination of paternity relating to an ex-nuptial child (in the context of child maintenance proceedings). Blood testing At common law, there was no inherent power in courts to require an adult to undergo a blood test. There was power to order a child to have a blood test in certain circumstances. Courts could draw inferences, however, from a person’s unreasonable refusal to have a blood test, or for a child to have a blood test. See generally on these matters S v McC; W v W [1972] AC 24; [1970] 3 All ER 107; McCulloch v McCulloch (1983) 1 SR(WA) 424; 9 Fam LR 214; In the Marriage of J and P (1985) 80 FLR 126; 10 Fam LR 490; Dickey, Family Law, 5th ed, Ch 14. [s 69V.8] Child support - parentage orders may be made Although s 69V relates only to “proceedings under this Act”, s 100 of the Child Support Assessment Act 1989 provides that the Family Law Act applies to proceedings under the CSAA as if the proceedings were proceedings under Pt VII of the Family Law Act. As a result, s 69V and the other relevant provisions enable the court to make parentage orders in relation to child support proceedings. [s 69V.10] State and territory laws State and territory laws on the status of children include provisions relating to evidence of paternity, especially blood tests. The relevant provisions are set out in the Australian Family Law State Legislation Service volume 1, behind the guide card STATUS OF CHILDREN. In relation to proceedings under the Family Law Act, these laws have been displaced by Subdiv E of Div 12. They still apply in other

contexts, for example in relation to issues arising under state and territory laws.

____________________ [page 544]

[s 69VA]

Declarations of parentage

69VA As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth. [s 69VA insrt Act 143 of 2000 s 3 and Sch 3 item 69 opn 27 Dec 2000]

[s 69W] Orders for carrying out of parentage testing procedures 69W (1) If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child. (2) A court may make a parentage testing order: (a) on its own initiative; or (b) on the application of: (i) a party to the proceedings; or (ii) an independent children’s lawyer representing the

child’s interests under an order made under section 68L. [subs (2) am Act 46 of 2006 s 3 and Sch 5 item 6, opn 1 July 2006]

(3) A parentage testing order may be made in relation to: (a) the child; or (b) a person known to be the mother of the child; or (c) any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child. (4) A parentage testing order may be made subject to terms and conditions. (5) This section does not affect the generality of section 69V. COMMENTARY FOR S 69W Introduction …. Whether s 69 orders are ‘parenting orders’ under s 64B …. Parentage testing order …. Parentage of a child must be ‘an issue in question’ …. Parentage must be in doubt …. Principles relating to the exercise of discretion …. Refusal to comply with a parentage testing order not penalised …. Inferences may be drawn from refusal to comply with a parentage testing order ….

[s 69W.1] [s 69W.2] [s 69W.3] [s 69W.5] [s 69W.6] [s 69W.10] [s 69W.11] [s 69W.12]

[s 69W.1] Introduction Section 69W provides that if the parentage of a child is an issue in proceedings under the Act, the court may make a parentage testing order (in practice, an order for blood or DNA testing). The order can be made on the court’s initiative or on application: see subs (2). It can be

made in relation to the child and other persons, and can be subject to terms and conditions: see sub-ss (3) and (4). See also s 69V and the commentary thereto. Section 69X provides for additional orders associated with parentage testing orders. Reports of information obtained by parenting testing procedures are admissible in proceedings under the Act: see s 69ZC. The principles and authorities are well reviewed in Ames v Ames (2009) 42 Fam LR 95; [2009] [page 545] FamCA 825; BC200950740(Dawe J) and Brianna v Brianna (2010) 43 Fam LR 309; [2010] FamCAFC 97; BC201050480 (Bryant CJ, Finn and Thackray JJ). [s 69W.2] Whether s 69 orders are ‘parenting orders’ under s 64B In Ames v Ames (2009) 42 Fam LR 95; [2009] FamCA 825; BC200950740, following dicta by Coleman J in Tryon v Clutterbuck (2007) FLC 93-332; [2007] FamCA 580, Dawe J held (in circumstances where the child’s parentage was relevant only to the determination of property proceedings between the parties) that an order for parentage testing under s 69W is a ‘parenting order’ within the meaning of s 64B(2)(i), since it deals with an aspect of the welfare of the child. Thus s 60CA (the ‘paramount consideration’) and s 60CC applied to the making of a parentage testing order. The Full Court however has cast some doubt on this, while reserving its position: Brianna v Brianna (2010) 43 Fam LR 309; [2010] FamCAFC 97; BC201050480 (Bryant CJ, Finn and Thackray JJ; discussed in Chisholm, ‘Parentage: some testing problems’ (2010) 24 AJFL 242 (submitting that s 69W orders are not parenting orders). [s 69W.3] Parentage testing order This term is in effect defined in sub-s (1) as an order requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child. “Parentage testing procedure” is defined by s 4 and Reg 21C of the Family Law Regulations 1984, essentially as blood tests and DNA tests.

[s 69W.5] Parentage of a child must be ‘an issue in question’ As to the opening words (‘If the parentage of a child is a question in issue in proceedings under this Act), the Court has consistently held that parentage testing orders should not be made lightly, and certainly not just because a party requests that such an order be made: Cousins v Harper (2007) 38 Fam LR 461; [2007] FamCA 1135 (Coleman J). For example, in Duroux v Martin (1993) 116 FLR 141; 17 Fam LR 130; (1993) FLC 92-432, the Full Court said (at Fam LR 134) that the Court ‘must first be satisfied that the parentage of a child is in issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue.’ See to the same effect: McK v K (2001) FLC 93-089; [2001] FamCA 990; In the Marriage of Lee and Tse (2005) 33 Fam LR 167 (FC); [2005] FamCA 77. [s 69W.6] Parentage must be in doubt There is also authority that a parentage testing order should not be made unless there is ‘evidence which places the parentage of a child in doubt’, or, on another formulation, that the applicant must have ‘an honest, bona fide and reasonable belief as to the doubt’: see In the Marriage of Lee and Tse (2005) 33 Fam LR 167 (FC); [2005] FamCA 77, citing Duroux v Martin, above, and OP v HM (2002) 168 FLR 465; 29 Fam LR 251; (2002) FLC 98-017; [2002] FamCA 454. See also In the Marriage of F & R (1992) 107, FLR 74; 15 Fam LR 533 at 538; (1992) FLC 92-300 at 79,274 and the discussion in Cousins v Harper (2007) 38 Fam LR 461 [2007] FamCA 1135 (Coleman J, pointing to the ‘consistency between the provisions of s 69W, and the history of the exercise of powers to grant purely declaratory relief’). [s 69W.10] Principles relating to the exercise of discretion Since the amendments of 1995, the ‘paramount consideration’ principle does not apply in a general way, but is expressed to apply to particular matters, such as making parenting orders (s 64B). See above, [s 69W.2], as to whether a s 69W order is itself a parenting order. If it is a parenting order, it is governed by the paramount consideration principle and the other relevant provisions, notably ss 60CA, 60CC, and 60B. If it is not a parenting order, the paramount

consideration principle does not apply, and the discretion is at large, although it must be exercised judicially: see Brianna v Brianna (2010) 43 Fam LR 309; [2010] FamCAFC 97; BC201050480, per Bryant CJ, at paragraphs [20], [30]. (Under the earlier legislation, the paramount consideration principle did apply when the application for a parentage testing order was made in connection with what we now call parenting proceedings: see OP v HM (2002) 29 Fam LR 251; (2002) FLC 98-017; [2002] FamCA 454 at 136; and the discussion in Brianna, above. [page 546] Even if in determining such applications the child’s best interests is no longer required to be treated as the paramount consideration, it obviously continues to be a very important factor in the discretionary decision whether to make such an order. Indeed, it is difficult to find a recent decision in which any competing interest has been considered. Generally speaking, earlier authorities remain relevant as guides to the factors that the court will consider relevant to the exercise of discretion. Child’s interest in truth of parentage In determining how the discretion should be exercised, the Full Court’s decision in Brianna, above, indicates that great weight will normally be given to the child’s interest in knowing the truth about his or her parentage (‘for some decades now the courts in this country and in England have recognised the interest which all children have in knowing their true parentage’: see paragraphs 176-181). However in each case an evaluation must be made in the light of the particular facts, and it has been suggested that some earlier decisions, such as Re C and V (1983) 50 ALR 441; 9 Fam LR 31; (1983) FLC 91-333 and W v G (No 1) (2004) 35 Fam LR 417; (2005) FLC 93-247; [2004] FamCA 427, may still be useful: see Chisholm, ‘Parentage: some testing problems’ (2010) 24 AJFL 242. [s 69W.11] Refusal to comply with a parentage testing order not penalised By s 69Y, a person over 18 who contravenes a parentage testing order ‘is not liable to any penalty’. Although s 112AD does not specifically exclude proceedings for contravention of parentage testing orders, it is clear

that it should be read subject to s 69Y, which would, therefore prevent the court from imposing a penalty. In relation to testing of a child under 18, s 69Z provides that the procedure must not be carried out without the consent of a parent, guardian, or persons who has responsibility for the child’s longterm or day to day care welfare and development under a parenting order. [s 69W.12] Inferences may be drawn from refusal to comply with a parentage testing order Although there is no penalty for non-compliance with a parentage testing order (above), the court can draw such inferences as appear just in the circumstances, from the refusal of the adult to comply with the order or fail to give consent for the child to be tested, as the case may be: s 69Y(2), s 69Z(3). As to the drawing of inferences, see G v H (1994) 181 CLR 387; 124 ALR 353; 68 ALJR 860; 18 Fam LR 180; Re C (No 2) (1992) 106 FLR 82; 15 Fam LR 355; FLC 92-284.

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[s 69X] orders

Orders associated with parentage testing

69X (1) If a court makes a parentage testing order, it may also make orders under subsection (2) or (4). (2) The court may make such orders as it considers necessary or desirable: (a) to enable the parentage testing procedure to be carried out; or (b) to make the parentage testing procedure more effective or reliable. (3) Some examples of the kinds of orders the court may make under subsection (2) are as follows: (a) an order requiring a person to submit to a medical procedure;

(b) an order requiring a person to provide a bodily sample; (c) an order requiring a person to provide information relevant to the person’s medical or family history. (4) The court may make such orders as it considers just in relation to costs incurred in relation to: (a) the carrying out of the parentage testing procedure or other orders made by the court in relation to the parentage testing procedure; or (b) the preparation of reports relating to the information obtained as a result of carrying out the parentage testing procedure. [page 547]

[s 69XA] Matters related particularly to parentage testing for purposes of an international agreement or arrangement 69XA (1) The Secretary may commence or continue proceedings under section 69W if it is necessary or convenient to do so for the purposes of an international agreement or arrangement. (2) Despite section 69X, a court must order that the costs of any parentage testing procedure ordered in proceedings mentioned in subsection (1) are payable by a party to those proceedings who: (a) contested the making of a maintenance assessment or court order for child support on the ground of not being the parent of the child; or

contested the enforcement of an overseas maintenance (b) order, agreement or assessment on the ground of not being the parent of the child. (3) If a parentage testing procedure that is ordered by a court in proceedings mentioned in subsection (1) establishes that a party contesting parentage in those proceedings was not a parent of the child, the court may order that the costs of the procedure are payable by the Secretary. (4) A report in relation to information obtained as a result of a parentage testing procedure, received by the Secretary from an administrative or judicial authority in a reciprocating jurisdiction within the meaning of section 110 or a jurisdiction mentioned in Schedule 4 or 4A to the regulations, may be received in evidence in any proceedings under this Act. [s 69XA insrt Act 82 of 2007 s 3 and Sch 2[107], opn 19 July 2007]

[s 69Y]

Orders directed to persons 18 or over

69Y (1) If a person who is 18 or over contravenes a parentage testing order or an order under section 69X, the person is not liable to any penalty in relation to the contravention. (2) The court may draw such inferences from the contravention as appear just in the circumstances. COMMENTARY ON SECTION 69Y Introduction …. “Contravention” …. Drawing inferences ….

[s 69Y.1] [s 69Y.3] [s 69Y.5]

[s 69Y.1] Introduction By s 69Y a person cannot be punished for contravening a parentage testing order, but the court can draw such inferences as appear just.

[s 69Y.3] “Contravention” The term “contravention” is not defined for the purpose of s 69Y, although it is defined in connection with Div 13A. In that Division, in relation to a person bound by an order, it means the person “intentionally failed to comply with the order”, or “made no reasonable attempt” to do so: s 70NAC. Section 69Y is in Div 12, not Div 13A, so s 70NAC does not apply to it. But there seems no reason to think that the word has a different meaning in s 69Y. Intentionally failing to comply with an order, or making no reasonable attempt to comply, reflects the ordinary meaning of the word. The Macquarie Dictionary gives: “to come or be in conflict with; go or act counter to; oppose”; and “to violate, infringe, or transgress”. Section 69Y requires the court to make a finding on the evidence about whether the person has contravened the order. There is no need for contravention proceedings to have been taken: [page 548] Div 13A is irrelevant. This seems to be the point made at [95] of Vakros v Letsos (2012) 260 FLR 66; 47 Fam LR 172; [2012] FamCAFC 40; BC201250128 (FC), where the court said “it is not necessary that there be a hearing or even a positive finding of contravention”. The Full Court could not have meant that the court can apply s 69Y without making a finding that there was a contravention. Obviously, a person unaware of an order, or incapable of complying, would not “contravene” it. What if a person refuses to comply for some reason such as a religious objection? The correct analysis would appear to be that the person has indeed contravened the order, and s 69Y would apply. But the reason for doing so would be among the matters the court would consider in deciding what inferences would be just in the circumstances. In Vakros, above, the Full Court also discussed Tryon v Clutterbuck (No 2) (2009) 42 Fam LR 118; (2009) FLC ¶93-412; [2009] FamCAFC 176; BC200950837 in connection with s 69Y. In Tryon, the Full Court appeared to treat the definition in s 70NAC as applicable to the meaning of

“contravention” in s 69Y (see at [93]), but may have meant only that s 70NAC echoed the meaning of the word in s 69Y. The court concluded that the Federal Magistrate who had referred to “failure to carry out an order”, rather than “contravention”, could have equally used the term “contravention” to express her conclusion: so there was no error. [s 69Y.5] Drawing inferences In the leading case G v H (1994) 181 CLR 387; 124 ALR 353; 18 Fam LR 180; BC9404649, at Fam LR 190–191, the High Court considered what inferences could be drawn under what is now s 69Y. Deane, Dawson and Gaudron JJ indicated that what inferences can be drawn will depend on the circumstances of the particular case and must be consistent with the evidence and the findings. Generally, “there will be an inference as to the state of mind of the person who has contravened the order … and another as to the question whether he or she is the parent of the child concerned”. The inferences “are not confined to inferences that can or should be drawn as a matter of strict legal reasoning”; other inferences may be drawn from the evidence. But they must be consistent with the other evidence, not merely “surmise”. Examples of the application of s 69Y include Vakros, and Tryon, cited above.

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[s 69Z]

Orders directed to children under 18

69Z (1) This section applies if a parentage testing order, or an order under section 69X, requires a medical procedure or other act to be carried out in relation to a child who is under 18. (2) The procedure or act must not be carried out in relation to the child under the order without the consent of: (a) a parent of the child; or (b) a guardian of the child; or (c) a person who, under a parenting order, has responsibility

for the child’s long-term or day-to-day care, welfare and development. [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 79, opn 1 July 2006]

(3) The court may draw such inferences from a failure or refusal to consent as mentioned in subsection (2) as appear just in the circumstances.

[s 69ZA]

No liability if parent etc consents

69ZA (1) A person who carries out, or who assists in the carrying out of, a medical procedure or other act in relation to a child under a parentage testing order is not liable to any civil or criminal action in relation to the proper carrying out of the procedure or act if it is carried out with the consent of: (a) a parent of the child; or [page 549] (b) a guardian of the child; or (c) a person who, under a parenting order, has responsibility for the child’s long-term or day-to-day care, welfare and development. [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 80, opn 1 July 2006]

(2) Subsection (1) does not affect any liability of a person for an act done negligently, or negligently omitted to be done, in relation to the carrying out of the medical procedure or act.

[s 69ZB] Regulations about carrying out, and reporting on, parentage testing procedures

69ZB The regulations may make provision relating to: (a) the carrying out of parentage testing procedures under parentage testing orders; and (b) the preparation of reports relating to the information obtained as the result of carrying out such procedures.

[s 69ZC] Reports of information obtained may be received in evidence 69ZC (1) A report made in accordance with regulations covered by paragraph 69ZB(b) may be received in evidence in any proceedings under this Act. (2) If, under subsection (1), a report is received in evidence in proceedings under this Act, the court may make an order requiring the person who made the report, or any person whose evidence may be relevant in relation to the report, to appear before the court and give evidence in relation to the report. (3) A court may make an order under subsection (2): (a) on its own initiative; or (b) on the application of: (i) a party to the proceedings; or (ii) an independent children’s lawyer representing the relevant child’s interests under an order made under section 68L. [subs (3) am Act 46 of 2006 s 3 and Sch 5 item 7, opn 1 July 2006]

[s 69ZD] Parentage testing for purposes of international maintenance agreements 69ZD

For the purpose of the carrying out of any of

Australia’s obligations under: (a) an arrangement with a reciprocating jurisdiction, or with a jurisdiction with restricted reciprocity, within the meaning of section 110; or (b) the Convention referred to in section 111; or (ba) the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at The Hague on 2 October 1973; or (bb) the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000; or (bc) the Agreement between the Government of the United States of America and the Government of Australia for the Enforcement of Maintenance (Support) Obligations, which was concluded and entered into force on 12 December 2002; [page 550] the regulations may make provision: (c) conferring jurisdiction on a court to make an order requiring a parentage testing procedure to be carried out at the request of: (i) a court or authority in a foreign country; or (ii) the Secretary of the Department, or a person authorised by the Secretary; or (d) for the carrying out of a parentage testing procedure, and

the preparation of a report in relation to the information obtained as a result of the carrying out of the procedure; or (e) for the admissibility in legal proceedings of a report, in relation to the information obtained as a result of the carrying out of a parentage testing procedure, received from an authority in a foreign country; whether or not there is any express provision in the relevant arrangement or in the Convention authorising the carrying out of a parentage testing procedure. [s 69ZD am Act 82 of 2007 s 3 and Sch 2 [108], opn 19 July 2007; Act 5 of 2011 Sch 7[58], opn 19 Apr 2011]

Subdivision F — Extension, application and additional operation of Part

[s 69ZE]

Extension of Part to the States

69ZE (1) Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania. (2) Subject to this section and section 69ZF, this Part extends to Western Australia if: (a) the Parliament of Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters: (i) the maintenance of children and the payment of expenses in relation to children or child bearing; (ii) parental responsibility for children; or (b) Western Australia adopts this Part. (3) This Part extends to a State under subsection (1) or (2) only for so long as there is in force: (a) an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth: (i) the matters referred to in subparagraphs (2)(a)(i) and (ii); or (ii) matters that include, or are included in, those matters; or (b) a law of the State adopting this Part. (4) This Part extends to a State at any time under subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to: (a) the matters that are at that time referred to the

Parliament of the Commonwealth by the Parliament of the State; or (b) matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters. COMMENTARY ON SECTION 69ZE Introductory comments …. Child welfare laws — “subject to section 69ZF” ….

[s 69ZE.1] [s 69ZE.5] [page 551]

[s 69ZE.1] Introductory comments This section provides that Pt VII extends to the states other than Western Australia, with some complications. It is based on the reference of power from the states to the Commonwealth. [s 69ZE.5] Child welfare laws — “subject to section 69ZF” The significance of this exception relates to children who are affected by state and territory child welfare laws. See the commentary to ss 69ZF and 69ZK.

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[s 69ZF] Unless declaration in force, Part’s extension to a State has effect subject to modifications 69ZF (1) The Governor-General may, by Proclamation, declare that all the child welfare law provisions of this Part extend to a specified State. (2) Despite anything in section 69ZE, if no declaration under subsection (1) is in force in relation to a particular State, this Part, as it extends to that State because of section 69ZE, has effect as if:

(a) subsection 66F(2) were omitted; and (b) subsections 69ZE(1) and (2) were amended by omitting “and section 69ZF”; and (c) section 69ZF were omitted; and (d) paragraph 69ZK(1)(b) were omitted; and (e) subsection 69ZK(2) were amended by adding at the end the following word and paragraphs: “; or (d) the jurisdiction of a court under a child welfare law to make an order in relation to the maintenance of the child; or (e) an order of the kind referred to in paragraph (d).” (3) A Proclamation that was in force in relation to a State under subsection 60E(6) of this Act as in force before the commencement of this section has effect, after that commencement, as if it were a Proclamation under subsection (1) of this section. Note: This section preserves the effect of subsections 60E(6) and (7) of this Act as in force before the commencement of this section. Under those subsections, the amendments of this Act made by the Law and Justice Legislation Amendment Act 1992 did not extend to a State unless a Proclamation was in force in relation to the State. COMMENTARY ON SECTION 69ZF Introductory comments …. “Child welfare law provisions”: meaning of …. Effect of declaration …. Proclamations made for New South Wales, Victoria, Queensland and Tasmania …. No proclamations made for South Australia or Western Australia ….

[s 69ZF.1] [s 69ZF.5] [s 69ZF.8] [s 69ZF.9] [s 69ZF.15]

[s 69ZF.1] Introductory comments This section is one of a number of complex provisions dealing, mainly, with the interaction between the Family Law Act 1975 (Cth) and state child welfare laws. It provides, in substance, that the application of certain provisions of Pt VII in particular states depends on whether that state has made a proclamation under the section declaring that Part VII operates in that state. Some states have made proclamations, others have not: the position is set out below. There is no problem in the territories, where Part VII operates according to its terms: see s 69ZG. [page 552] [s 69ZF.5] “Child welfare law provisions”: meaning of This term is not specifically defined. Section 4 has a definition of “child welfare law”, but this is not relevant, being a reference to prescribed legislation of states and territories. It also has a definition of “child welfare provisions”, but this applies only in relation to parenting plans. In that context it means “any other aspect of parental responsibility for a child”: see s 63C. In the absence of any other definition, “child welfare law provisions” as used in s 69ZF may have a similar broad meaning. [s 69ZF.8] Effect of declaration A declaration (contained in a proclamation by the Governor-General) is that all the child welfare provisions of Pt VII extend to a specified state. [s 69ZF.9] Proclamations made for New South Wales, Victoria, Queensland and Tasmania Proclamations have been made for New South Wales, Victoria, Queensland and Tasmania. It follows that all the child welfare provisions of Pt VII operate in those states. The details are: New South Wales: A proclamation was made on 4 December 1996 (Commonwealth of Australia Gazette No GN 49, 11 December 1996, page 3648), declaring under s 69ZF that all child welfare law provisions of Pt VII of the Act extend to New South Wales on and from 1 January 1997. Victoria: A proclamation was made on 9 December 1998 (Commonwealth

Gazette S 53 of 8 February 1999) declaring that under s 69ZF(1) all child welfare provisions of Pt VII of the Act extend to Victoria on and from the date of gazettal of the proclamation. Queensland: A proclamation under s 69ZF(1) was made on 5 February 2004, declaring that all child welfare provisions of Pt VII of the Act extend to Queensland. (See Commonwealth Government Gazette GN 6, 11 February, 2004 page 244). Tasmania: A proclamation was made under the equivalent section on 19 October 1995, contained in Commonwealth of Australia Gazette GN 42 of 25 October 1995, page 3913, declaring that the amendments of Pt VII of the Act made by the Law and Justice Legislation Amendment Act 1992 extend to Tasmania on and from 1 November 1995. A proclamation made under the equivalent section prior to the 1995 amendments has effect as if made under s 69ZF(3). [s 69ZF.15] No proclamations made for South Australia or Western Australia No proclamations have been made relating to South Australia or Western Australia. In these states Pt VII operates as if various specified provisions were omitted or amended. The effect of these is summarised below: s 66F(2) omitted: a child welfare officer cannot apply for child maintenance orders where the child is under state child welfare laws. s 69ZE, omission of words “and section 69ZF”, and omission of s 69ZF: it is not the case that “all the child welfare provisions” of Pt VII apply to these states. s 69ZK(1)(b) omitted: court may not, under Family Law Act 1975 (Cth), make an order in relation to a child under a state child welfare law even with the written consent of a state child welfare officer: for details, see s 69ZK. s 69ZK(2) amended: preserves the operation of state laws for maintenance of children under state child welfare laws.

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[s 69ZG] Application of Part in, and in relation to, Territories 69ZG

[s 69ZH]

This Part applies in and in relation to the Territories.

Additional application of Part

69ZH (1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section. (2) By virtue of this subsection, Subdivisions BA and BB of Division 1, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, [page 553] 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if: (a) each reference to a child were, by express provision, confined to a child of a marriage; and (b) each reference to the parents of the child were, by express provision, confined to the parties to the marriage. [subs (2) am Act 46 of 2006 s 3 and Sch 1 item 39, opn 1 July 2006; Act 189 of 2011 s 3 and Sch 1 item 36, opn 7 June 2012]

(3) The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage

for a child of the marriage, including (but not being limited to): (a) the duties, powers, responsibilities and authority of those parties in relation to: (i) the maintenance of the child and the payment of expenses in relation to the child; or (ii) whom the child lives with, whom the child spends time with and other aspects of the care, welfare and development of the child; and (b) other aspects of duties, powers, responsibilities and authority in relation to the child: (i) arising out of the marital relationship; or (ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or (iii) in relation to the divorce of the parties to that marriage, an annulment of that marriage or a legal separation of the parties to that marriage, that is effected in accordance with the law of an overseas jurisdiction and that is recognised as valid in Australia under section 104. [subs (3) am Act 98 of 2005 s 2 and Sch 1, cl 81–82, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 8 item 81, opn 1 July 2006]

(4) By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor. COMMENTARY ON SECTION 69ZH Introductory comment …. The analysis in Gray v Williams ….

[s 69ZH.1] [s 69ZH.2]

Issues of interpretation ….

[s 69ZH.3]

[s 69ZH.1] Introductory comment One of the few points to emerge clearly from the High Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 31 Fam LR 339; (2004) FLC 93–174; [2004] HCA 20; BC200402148 (HC) (MIMIA v B) is that s 69ZH is extremely difficult to understand. (In that case the High Court held unanimously that there is no jurisdiction under the Family Law Act to order that children be released from immigration detention. See generally commentary to s 67ZC.) Gleeson CJ and McHugh J referred to the complexity of the legislative scheme in Pt VII and said: “… it appears that this form of drafting does not convey clearly to the reader the object of the legislation. What is clear to the drafter is not necessarily clear to the reader…” Subsection (1) suggests that the provisions to follow extend rather than limit the operation of Pt VII, although this is not easy to reconcile with some of the judgments in MIMIA v B (see below). Subsections (2) and (3) deal with a bundle of provisions in Pt VII. In a word, those are the [page 554] provisions dealing with parental responsibilities and parenting orders and related matters — including ss 67ZC and 68B — but not including certain topics, notably enforcement aspects of parenting orders and child maintenance. Subsection (2) says, in substance, that those provisions have effect as if they referred to parties to marriages, and the children of those marriages, and subs (3) says that they have effect only to the extent that they make provision about parental responsibilities. [s 69ZH.2] The analysis in Gray v Williams What the legislature almost certainly intended to do in s 69ZH is succinctly stated by Riethmuller FM in Gray v Williams (2008) 39 Fam LR 313; 217 FLR 1; [2008] FMCAfam 282; BC200802146. His Honour explained that jurisdiction over children can come from several different constitutional sources. The restrictive part of s

69ZH, namely subs (3), is obviously intended to deal with one source of power, namely the power relating to marriage. It sets out restrictions that make sense only as a legislative attempt to draw on the marriage power carefully, seeking not to go outside it. There is no sensible reason to think that the legislature would have wished these restrictions to apply to provisions in the Act that drew on other sources of constitutional power, especially the reference of power by the states to the Commonwealth — s 51(xxxvi) (s 69ZE provides that Pt VII “extends to” the states that referred power.) Riethmuller FM said: “…there is no room for the operation of the provisions of s 69ZH in a case where the child’s parents have never married, as the power to make orders in such a case is the power referred by the states…” [s 69ZH.3] Issues of interpretation The difficulty is whether the tangled language of the section and the complex analyses by several High Court justices in MIMIA v B can be reconciled with the clear and sensible explanation in Gray v Williams (2008) 39 Fam LR 313; 217 FLR 1; [2008] FMCAfam 282; BC200802146. The main problem, it seems, is the structure of s 69ZH and the operation of subs (4). Subsection (1) says that without prejudice to its effect apart from this section, Pt VII “also” has effect as provided by this section. Then subss (2) and (3) say that certain provisions have effect as if they referred to children of a marriage and only have a somewhat limited effect: those limitations are clearly intended to ensure that the marriage power is not exceeded. The provisions mentioned in subs (2) include Div 6, which provides for parenting orders. So far, this fits the analysis by Riethmuller FM: the jurisdiction arising under the reference of power is unaffected by the limitations in subs (3). A different interpretation, however, can be based on subs (4), which says that certain miscellaneous provisions “have effect according to their tenor”. This could be seen to suggest that that because the Act expressly says those provisions have effect according to their tenor, it implies that other provisions — including the bulk of Pt VII — do not. And if they don’t operate according to their tenor, presumably they are limited by the restrictions in subs (3). In MIMIA v B, above, Gummow, Hayne and Haydon JJ, adopted this

second view, holding that the welfare power, s 67ZC, was thus limited by s 69ZH(3): see especially paragraph [111]. In Gray v Williams, above, Riethmuller FM held, nevertheless, that his interpretation was consistent with that of the High Court. He said that the relevant passages in the judgment of Gummow, Hayne and Haydon JJ should be seen as being “in the context” of a discussion of the marriage power (paragraph 21). If this reading is correct, MIMIA v B provides no obstacle to his analysis. If it is not, however, the fate of his interpretation might depend on whether the view of Gummow, Hayne and Haydon JJ is regarded as the majority view in MIMIA v B. Gleeson CJ and McHugh J left the matter open, as did Kirby J. So the question seems to turn on whether Callinan J’s judgment embraces the same view of s 60ZH as that of Gummow, Hayne and Haydon JJ. This may be open to argument: see especially paragraph [205]. It is to be hoped (RC) that s 60H and the other tangled sections will be cleaned up by a thoroughgoing amendment. In the meantime, although the question is complex, there is much to be said for embracing the interpretation of Riethmuller FM, which is surely a correct [page 555] understanding of what the legislature intended, namely to draw on the marriage power to the extent that is possible, in addition to the reference of power. Whatever might be said about the confusing language of s 69ZH, it makes no sense to say that the limitations in subs (3) apply when — as in most cases — the court is making orders based on the reference of power.

____________________

[s 69ZJ]

Additional jurisdiction of courts

69ZJ In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on

the court, as the case requires, in matters between residents of different States, being matters with respect to: (a) the maintenance of children and the payment of expenses in relation to children or child bearing; or (b) parental responsibility in relation to children.

[s 69ZK]

Child welfare laws not affected

69ZK (1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless: (a) the order is expressed to come into effect when the child ceases to be under that care; or (b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained. (2) Nothing in this Act, and no decree under this Act, affects: (a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or (b) any such order made or action taken; or (c) the operation of a child welfare law in relation to a child. (3) If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any

proceedings before it that relate to the child. COMMENTARY ON SECTION 69ZK Introductory comments …. Restriction on orders under the Family Law Act 1975 relating to children in care: subs (1) …. Protection of acts etc under child welfare laws — subs (2) …. Adjournments — subs (3) …. Case law relevant to s 69K ….

[s 69ZK.1] [69ZK.5] [s 69ZK.10] [s 69ZK.15] [s 69ZK.25]

[s 69ZK.1] Introductory comments In essence, s 69ZK preserves the operation of certain state and territory laws (“a child welfare law”) from becoming inoperative because of inconsistency with the Family Law Act 1975 (Cth). Because of s 69ZK the Family Law Act 1975 (Cth) does not operate to invalidate or frustrate the operation of the state and territory child welfare laws. Were it not for this provision, the operation of these laws might be rendered inoperative under s 109 of the Constitution, in part or in whole, since to some extent at least the field would have been covered by Pt VII of the Family Law Act 1975. [page 556] What is a “child welfare law” The words “a child welfare law” are defined in S 4 as meaning a law of a state or territory prescribed, or included in a class of laws or a state or territory prescribed, for the purpose of the definition. Regulation 12B of the Family Law Regulations provides that for the purpose of the definition, certain laws are prescribed. Under sub-reg (1) they include what one might call juvenile justice laws; in the words of the regulation, “any law of [each state and territory] that relates to the imprisonment, detention or residence of a child upon being dealt with for a criminal offence”. Sub-reg (2) prescribes each law specified in Sch 5. Schedule 5 of the Regulations sets out a list of specified Acts of the states and territories. Broadly speaking, they comprise legislation dealing with adoption,

child welfare and child protection, maintenance relating to children in care, and some related legislation on mental health. Regulation 12B and Sch 5 can be found under the guidecard “Family Law Regulations”. Some of the state and territory legislation referred to is published in the Australian Family Law State Legislation Volumes, under guidecards “Adoption” and “Child Welfare”. Preservation of state and territory child welfare laws: overview In substance s 69ZK does three things. First, while it does not stop orders being made under the Family Law Act 1975 in relation to children affected by the child welfare laws, it does say in subs (1) that those orders cannot override the state or territory laws: to be valid, they must provide that they come into force only when the child leaves the care of those authorities, or they must be made with the consent of the child welfare authorities. Secondly, it provides in effect that acts done under the child welfare laws are not affected by the Family Law Act 1975: subs (2). Thirdly, it make provision for adjournments if there are parallel proceedings under the Family Law Act 1975 and the child welfare law: subs (3). [69ZK.5] Restriction on orders under the Family Law Act 1975 relating to children in care: subs (1) Introductory Comments The main significance of the section is probably the protection afforded by subs (2). Given the scope of that subsection, no order made under the Family Law Act 1975 would be able to interfere with the operation of the child welfare laws. However in subs (1) the section also imposes some restrictions on orders made under the Family Law Act 1975 where a child is in care. Child under the care etc The restriction in subs (1) applies where a child is “under the care (however described) of a person under a child welfare law”. This is a widely expressed version of a provision that previously caused difficulty in its application. There are no reported cases on the present wording, which is wide. Orders which take effect when child leaves care There is no absolute

prohibition against orders under the Family Law Act 1975 even when the child is in care under the child welfare law. Orders can be made if they are “expressed to come into effect when the child ceases to be under that care”. Thus, for example, it would be possible (whether desirable is another matter) for a court to make an order when a child ceased to be in care under a child welfare law, a particular person should have parental responsibility for the child, or the child should live with a particular person, and so on. That order would become effective on the discharge of the child from care. Orders made with written consent of a child welfare officer Under s 69ZK orders may also be made in proceedings relating to the child where the written consent of a child welfare officer of the relevant state or territory has been obtained to the institution or continuation of the proceedings under the Family Law Act 1975. [s 69ZK.10] Protection of acts etc under child welfare laws — subs (2) Protection against provisions of the Family Law Act 197, and orders under it The protection is against both provisions of the Family Law Act 1975 and orders under it. Thus, for example, if [page 557] an order were made that the child should live with a particular person, it would be open to the child welfare authorities to take the child into care notwithstanding the order. Similarly, they could prevent a person spending time with the child (provided they were so authorised by the child welfare legislation of the state or territory involved) notwithstanding that a current order under the Family Law Act 1975 provided for the person to spend time with the child. Similarly, they could remove a child from a parent although the parent had parental responsibility under s 61C of the Family Law Act 1975. Protection from acts etc under child welfare laws The protection extends to protect the jurisdiction of courts under the child welfare laws, orders made

under them, and most generally, the operation of those laws. It is a comprehensive protection, to ensure that the laws function as if the Family Law Act 1975 had not been passed. [s 69ZK.15] Adjournments — subs (3) This subsection provides for adjournments where related matters come before different courts. It probably serves mainly as a reminder, since of course the courts have a general power to adjourn; but perhaps it puts the matter beyond doubt. [s 69ZK.25] Case law relevant to s 69K For an illustration of the operation of s 69K see Dunstan v Jarrod and Another (2009) 41 Fam LR 535; [2009] FamCA 480; BC200950341. There is a body of case law on earlier versions of this provision. However it generally deals with issues that arose on the drafting, especially of the original provision, which was s 10 of the Act. Most of the difficulties, if no all, were solved by the amended provision, which became s 60H, and which is now (again slightly amended) s 69ZK. The cases include R v Lambert; Ex parte Plummer (1980) 146 CLR 447; 6 Fam LR 355; FLC 90–904; In the Marriage of Sargent: Director of Dept of Youth and Community Services (Intervener) (1985) 10 Fam LR 867; (1986) FLC 91– 718; In the Marriage of Uriarau; Director General of Social Welfare, NZ (Intevener) (1986) 11 Fam LR 657; FLC 91–728; In the Marriage of Lane (1986) 10 Fam LR 1018; FLC 91–734; Re J (1990) 14 Fam LR 584.

____________________ DIVISION 12A — PRINCIPLES FOR CONDUCTING CHILDRELATED PROCEEDINGS [Div 12A insrt Act 46 of 2006 s 3 and Sch 3 item 4, opn 1 July 2006] COMMENTARY ON DIVISION 12A Introduction to Div 12A ….

[Div12A.1]

[Div12A.1] Introduction to Div 12A Division 12A was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (2006 Act). It sets out new principles and rules relating (mainly) to the conduct of

children’s proceedings. Background: the Family Court’s Children’s Cases Program The new developments have been closely modelled on the “less adversarial approach” of the Children’s Cases Program, introduced as a pilot by the Family Court prior to the first parliamentary inquiry that led to the 2006 Act, and later extended to registries throughout Australia. The Children’s Cases Program is described in detail on the Family Court’s website. In brief, the program applied to litigants who consent to be part of it: they agreed, in substance, that the presiding judge would play a more active part, and have more powers, than would otherwise be the case. The process emphasises the need to focus on the children’s needs rather than each party’s perceived grievances, and features an educational role for the “family consultant” (the term used in Div 12A). By contrast with the Children’s Cases Program, Div 12A applies in all children’s cases, not only in cases where the parties consent to the process. It is understood that there have been some differences in judicial approach in the implementation of the Children’s Cases Program, and it may take a little time before a clear [page 558] pattern is established in proceedings under Div 12A, whose provisions give the court considerable flexibility. This applies both to the Family Court and to the Federal Magistrates Court, to which of course Div 12A also applies. To what proceedings does Div 12A apply? The application of the Div is set out in s 69ZM. The proceedings to which it applies are called “child-related proceedings”: s 69ZM(4). Firstly, the Division applies to proceedings that are “wholly under” Pt VII. This includes not only parenting and similar proceedings in which the child’s best interests are the paramount consideration, but also, for example, contravention proceedings under Div 13A. Secondly, it applies to proceedings that are partly under Pt VII, to the

extent that they are under Pt VII. This appears to mean, for example, that if a case involves both financial and parenting matters, the parenting matters, but not the financial matters unless the parties consent, are to be dealt with under Div 12A. Thirdly, Div 12A applies to other proceedings under the Act that arise from the breakdown of the parties’ relationship, if the parties consent. This can take either of two forms. In proceedings that are partly under Pt VII, the parties can consent to the other part of the proceedings (eg for property adjustment) also being dealt with under Div 12A. The parties can also consent to the Division applying to proceedings that have nothing to do with Pt VII, eg pure property proceedings. Curiously, as a result of s 69ZM(4), such proceedings are “child-related proceedings”. Examples of proceedings that cannot be dealt with under Div 12A because the proceedings do not arise from the breakdown of the parties’ relationship probably include an application for a decree of nullity of marriage, or a declaration of paternity. An overview of the provisions of Div 12A Section 69ZN states “Principles for conducting child related proceedings”, and s 69ZQ imposes some “general duties” imposed on the courts. Together, these provisions indicate that the judicial officer should take an active part in the management of the proceedings. Section 69ZR provides, in substance, that the court has power to make determinations, findings and orders at any stage of proceedings Sections 69ZS provides for the use of family consultants, whose functions (see s 11A) include “assisting and advising people involved in proceedings”, and “helping people to better understand the effect of things on the child concerned”, as well as informing people about other services available. There are significant changes in relation to evidence: Subdiv D. In brief, most of the exclusionary provisions of the Evidence Act 1995 (Evidence Act) (eg the hearsay rules) do not apply to child-related proceedings. But the court can decide what weight to give to evidence admitted as a consequence of the Evidence Act rules not applying: s 69ZT(2). It is important to note, in this connection, that certain provisions of the Evidence Act that give the court power to exclude evidence remain applicable, notably ss 135 and 136. (The Evidence Act 1995 is in Vol 3, Related Commonwealth Legislation). And in

exceptional circumstances the court may apply some of the provisions of the Evidence Act: s 69ZT(3). The court can take into account what family consultants say only if it is sworn evidence, or if the parties consent: s 69ZU. The existing rules about children’s evidence are in substance retained: s 69ZV. The court has a general power to give directions relating to evidence: s 69ZX. There is a new rule about evidence relating to child abuse or family violence: s 69ZW. The court may require a prescribed state or territory agency to provide the court with the documents or information specified in the order, including notifications of suspected abuse and assessments and reports. However the order cannot require the agency to provide documents or information that include the identity of the person who made a notification. Where there is evidence of the identity of the person who made a notification, the court must not disclose the person’s identity unless the person consents to the disclosure, or the court is satisfied that the identity or information is “critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice”. [page 559] See generally Truman & Truman [2008] FamCAFC 4; (2008) FLC ¶93360, which provides a valuable illustration of the conduct of children’s cases under Div 12A, and a discussion of procedural fairness. The Division is essentially concerned with procedure and evidence and does not, either alone or in combination with other sections of the Act, allow the court to join an unwilling third party (in that case the Secretary of the state child welfare authority): Secretary, Department of Health and Human Services v Ray (2010) 247 FLR 455; 45 Fam LR 1; [2010] FamCAFC 258; BC201051264 at [78].

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Subdivision A — Proceedings to which this Division

applies [s 69ZM] applies

Proceedings to which this Division

69ZM (1) This Division applies to proceedings that are wholly under this Part. (2) This Division also applies to proceedings that are partly under this Part: (a) to the extent that they are proceedings under this Part; and (b) if the parties to the proceedings consent — to the extent that they are not proceedings under this Part. (3) This Division also applies to other proceedings between the parties that involve the court exercising jurisdiction under this Act if: (a) the proceedings: (i) arise from the breakdown of the parties’ marital relationship; or (ii) are a de facto financial cause; and (b) the parties to the proceedings consent. [subs (3) subst Act 115 of 2008 s 3 and Sch 1[39], opn 1 Mar 2009]

(4) Proceedings to which this Division applies are child-related proceedings. (5) Consent given for the purposes of paragraph (2)(b) or subsection (3) must be: (a) free from coercion; and (b) given in the form prescribed by the applicable Rules of Court.

(6) A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of paragraph (2)(b) or subsection (3). COMMENTARY ON SECTION 69ZM Introduction …. Division 12A applies to proceedings wholly under Pt VII: subs (1) …. Division 12A applies to proceedings partly under Part VII to the extent that they are under Part VII: subs (2) (a) …. Division 12A applies to proceedings partly under Part VII to the extent that they are under other Parts, if the parties consent: subs (2)(b) …. Division 12A applies to certain proceedings not under Part VII, if the parties consent: subs (3) …. Consent for Division 12A to apply to non-Part VII proceedings: subss (2), (5), and (6) …. Application of Div 12A to contraventions committed before 1 July 2006 …. Application to re-open parenting proceedings ….

[s 69ZM.1] [s 69ZM.5]

[s 69ZM.8]

[s 69ZM.12] [s 69ZM.15] [s 69ZM.20] [s 69ZM.25] [s 69ZM.30]

[s 69ZM.1] Introduction Division 12A was inserted by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (the Act), Sch 3, Item 4. By s 2 of the amending Act, Sch 3 [page 560] commenced on 1 July 2006. Section 3 of the Act provides that each Act specified in a Schedule is amended as set out in the applicable items of the Schedule concerned. Section 69ZM identifies the proceedings to which Div 12A applies. The proceedings to which it applies are called child related proceedings: s 69ZM(4).

[s 69ZM.5] Division 12A applies to proceedings wholly under Pt VII: subs (1) By subs (1), Div 12A applies to proceedings that are “wholly under” Pt VII. This includes not only parenting and similar proceedings in which the child’s best interests are the paramount consideration, but also, for example, contravention proceedings under Div 13A. Of course it does not include proceedings that are entirely under some other Part of the Act, such as property proceedings under Pt VIII. Nor does subs (1) apply to proceedings that are partly under Pt VII and partly under another Part, such as proceedings for parenting orders under Pt VII and also for property orders under Pt VIII: as to these, see subs (2). [s 69ZM.8] Division 12A applies to proceedings partly under Part VII to the extent that they are under Part VII: subs (2)(a) By subs (2)(a), Div 12A applies to proceedings that are partly under Pt VII, such as proceedings both for parenting orders and for property orders, to the extent that they are under Pt VII. This appears to mean, for example, that if a case involves both financial and parenting matters, the parenting matters, but not the financial matters unless the parties consent (see below), are to be dealt with under Div 12A. The application of Div 12A to the Pt VII matters does not depend on the parties’ consent. [s 69ZM.12] Division 12A applies to proceedings partly under Part VII to the extent that they are under other Parts, if the parties consent: subs (2)(b) Subsection (2)(b) also deals with proceedings that are partly under Pt VII. It provides that if the parties consent, the proceedings under the other Part (eg the property proceedings) are also governed by Div 12A. The consent must comply with subs (5); and may be revoked, with the leave of the court: subs (6). [s 69ZM.15] Division 12A applies to certain proceedings not under Part VII, if the parties consent: subs (3) Subsection (3) provides that if the parties consent, Div 12A also applies to certain proceedings that are not under Pt VII at all (other proceedings), providing only that the proceedings: “involve the court exercising jurisdiction under this Act”, and “arise from the breakdown of the parties’ marital relationship”.

The consent must comply with subs (5); and may be revoked, with the leave of the court: subs (6). Curiously, even in this case, the proceedings are called “child related proceedings”: subs (4). Examples of proceedings that cannot be dealt with under Div 12A because the proceedings do not arise from the breakdown of the parties’ relationship probably include an application for a decree of nullity of marriage, or for a declaration of paternity. [s 69ZM.20] Consent for Division 12A to apply to non-Part VII proceedings: subss (2), (5), and (6) As noted above, by subss (2) and (3), if the parties consent, Div 12A applies to proceedings, or parts of proceedings, that are not under Pt VII at all. Subsections (5) and (6) relate to the consent. It must be free from coercion, and given in the form prescribed by the applicable rules of court. (As to the latter, see in this Volume under the guide card “Family Law Rules”, and in Volume 2, under the guide card “Forms”). It can be revoked, with the leave of the court: subs (6). In Dobbs v Brayson (No 2) (2007) FLC 93-354; [2007] FamCA 1511 the Full Court held that where proceedings were commenced before 1 July 2006 and Division 12A could therefore apply only with the parties’ consent, there was an ‘overriding principle of the need for a consent to be a fully informed consent’ (para 35), which did not occur when an unrepresented mother gave oral consent in circumstances where she had no opportunity to obtain legal advice. Further, the procedure adopted by the trial judge (which prevented the mother from cross-examining) failed to provide procedural fairness. [page 561] [s 69ZM.25] Application of Div 12A to contraventions committed before 1 July 2006 As mentioned above, Div 12A applies to contravention proceedings under Div 13A, because they are proceedings “wholly under” under Pt VII. Does Div 12A apply to proceedings involving contraventions that are committed before 1 July 2006? If Div 12A does apply to contraventions committed before 1 July 2006, it might be said that it has a retrospective application, since Div 12A did not

exist at the time of the contravention. It is therefore appropriate to examine the provisions with some care. The amendments to Div 12A derive from Sch 3 of the Act. Item 8 provides that “The amendments made by Part 1 of this Schedule apply: (a) to proceedings commenced by an application filed on or after 1 July 2006…” Section 69ZM identifies what type of proceedings are governed by Div 12A, the answer being, in part, “proceedings that are wholly within this Part”. The section does not deal with the matter of timing, that is, whether Div 12A applies to proceedings brought at one time or another, or involving contraventions committed at one time or another. There is no ambiguity about Item 8, and no inconsistency between it and s 69ZM. It follows that even if Item 8 does give Div 12A a retrospective operation, there is no ambiguity that would lead to it being interpreted so as to avoid retrospectivity. Further, the retrospective operation of Div 12A to proceedings involving contraventions committed before 1 July 2006 does not involve the worst form of retrospectivity, namely making something illegal that was lawful when it was done, or increasing a penalty from what it was at the time the act was done. The powers of the court in Div 12A have a degree of flexibility that should mean there is no unfairness in its application to contraventions committed before 1 July 2006. It is submitted, therefore, that Div 12A probably does apply to contravention proceedings commenced after 1 July 2006, even if those proceedings relate to a contravention committed before that date. [s 69ZM.30] Application to re-open parenting proceedings In Suell v Suell (2009) 40 Fam LR 690, Murphy J held that an application to re-open a parenting case at a time when the hearing was completed and judgment had been reserved did not constitute ‘child-related proceedings’ within the meaning of the Act, referring to s 69ZM. His Honour’s reasoning was that it was similar to an application to admit further evidence on appeal, which is not a ‘parenting order’: CDJ v VAJ (No 1) (1998) 197 CLR 172; (1998) 23 Fam LR 755; (1998) FLC 92-828. Presumably this led his Honour to conclude that the proceedings could not be characterised as ‘under this Part’ for the purpose of s 69ZM. However he went on to hold, correctly it is

submitted, that the principles in Div 12 applied because the Court was making ‘decisions about the conduct of child-related proceedings’ within s 69ZN. The decision is an instructive example of the use of the principles in such applications.

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Subdivision B — Principles for conducting childrelated proceedings [s 69ZN] Principles for conducting child-related proceedings 69ZN Application of the principles (1) The court must give effect to the principles in this section: (a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to childrelated proceedings; and (b) in making other decisions about the conduct of childrelated proceedings. Failure to do so does not invalidate the proceedings or any order made in them. [page 562] (2) Regard is to be had to the principles in interpreting this Division. Principle 1

(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. Principle 2 (4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings. Principle 3 (5) The third principle is that the proceedings are to be conducted in a way that will safeguard: (a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and (b) the parties to the proceedings against family violence. [subs (5) am Act 189 of 2011 s 3 and Sch 1 item 37, opn 7 June 2012]

Principle 4 (6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties. Principle 5 (7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. COMMENTARY TO [S 69ZN.1] [s 69ZBN.1] Procedural fairness in child-related proceedings The procedure adopted must provide procedural fairness, and the guidelines

formulated in F (Litigants in Person Guidelines), Re (2001) 161 FLR 189; 27 Fam LR 517; FLC 93-072; [2001] FamCA 348 at para 253, “generally remain relevant and apposite to child related proceedings conducted under Div 12A”: see Dobbs v Brayson (No 2) (2007) FLC 93-34; [2007] FamCA 1511 at para 25. For a valuable example of the use of the principles in an application to re-open a parenting case, see Suell v Suell (2009) 40 Fam LR 690, Murphy J.

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[s 69ZO] This Division also applies to proceedings in Chambers 69ZO A judge, Judicial Registrar, Registrar or magistrate, who is hearing child-related proceedings in Chambers, has all of the duties and powers that a court has under this Division. Note: An order made in Chambers has the same effect as an order made in open court. [s 69ZO am Act 13 of 2013 s 3 and Sch 1 item 292, opn 12 Apr 2013]

[s 69ZP] Powers under this Division may be exercised on court’s own initiative 69ZP The court may exercise a power under this Division: (a) on the court’s own initiative; or (b at the request of one or more of the parties to the proceedings. [page 563]

Subdivision C — Duties and powers related to giving

effect to the principles [s 69ZQ]

General duties

69ZQ (1) In giving effect to the principles in section 69ZN, the court must: (aa) ask each party to the proceedings: (i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and (ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence; and (a) decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and (b) decide the order in which the issues are to be decided; and (c) give directions or make orders about the timing of steps that are to be taken in the proceedings; and (d) in deciding whether a particular step is to be taken — consider whether the likely benefits of taking the step justify the costs of taking it; and (e) make appropriate use of technology; and (f) if the court considers it appropriate — encourage the parties to use family dispute resolution or family counselling; and (g) deal with as many aspects of the matter as it can on a single occasion; and

deal with the matter, where appropriate, without (h) requiring the parties’ physical attendance at court. [subs (1) am Act 189 of 2011 s 3 and Sch 1 item 38, opn 7 June 2012]

(2) Subsection (1) does not limit subsection 69ZN(1). (3) A failure to comply with subsection (1) does not invalidate an order.

[s 69ZR] Power to make determinations, findings and orders at any stage of proceedings 69ZR (1) If, at any time after the commencement of childrelated proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following: (a) make a finding of fact in relation to the proceedings; (b) determine a matter arising out of the proceedings; (c) make an order in relation to an issue arising out of the proceedings. Note: For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders. (3) To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings. [subs (3) am Act 13 of 2013 s 3 and Sch 1 item 293, opn 12 Apr 2013]

[page 564]

[s 69ZS]

Use of family consultants

69ZS At any time during child-related proceedings, the court may designate a family consultant as the family consultant in relation to the proceedings. Note 1: Family consultants have the functions described in section 11A. These include assisting and advising people involved in proceedings, and this assistance and advice may involve helping people to better understand the effect of things on the child concerned. Family consultants can also inform people about other services available to help them. Note 2: The court may also order parties to proceedings to attend, or arrange for a child to attend, appointments with a family consultant. See section 11F. [s 67ZS am Act 189 of 2011 s 3 and Sch 2[21], opn 7 Dec 2011]

Subdivision D — Matters relating to evidence [s 69ZT] Rules of evidence not to apply unless court decides 69ZT (1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings: (a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, reexamination and cross-examination), other than sections 26, 30, 36 and 41; Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections); (c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character). (2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1). (3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if: (a) the court is satisfied that the circumstances are exceptional; and (b) the court has taken into account (in addition to any other matters the court thinks relevant): (i) the importance of the evidence in the proceedings; and (ii) the nature of the subject matter of the proceedings; and (iii) the probative value of the evidence; and (iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. (4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying. (5) Subsection (1) does not revive the operation of:

(a) a rule of common law; or [page 565] (b) a law of a State or a Territory; that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection. COMMENTARY ON SECTION 69ZT Evidence in child-related proceedings ….

[s 69ZT.5]

[s 69ZT.5] Evidence in child-related proceedings Section 69ZT provides, in brief, that certain provisions of the Evidence Act 1995 do not apply to child-related proceedings, although the court may apply such provisions if it is satisfied that the circumstances are exceptional, and if it has taken into account a list of matters. The unnecessarily elaborate words of subss (2) and (4) simply mean that, as usual, the court has to decide what weight to give any evidence it receives. Note that only some provisions are governed by subs (1) — it is a mistake to say that the section dispenses with (all) the rules of evidence. For example, evidence improperly obtained (such as DNA evidence based on a sample taken from a child without parental authority) remains governed by s 138 of the Evidence Act. Similarly, the reception of evidence by way of judicial notice requires application of s 141: see eg McGregor v McGregor (2012) 47 Fam LR 498 (FC); (2012) FLC ¶93-507; [2012] FamCAFC 69; BC201250279. The application of the section is discussed and illustrated in Khalil v TahirAhmadi (2012) 47 Fam LR 347 (FC); (2012) FLC ¶93-506; [2012] FamCAFC 68; BC201250282.

____________________

[s 69ZU] 69ZU

Evidence of family consultants [s 69ZU rep Act 189 of 2011 s 3 and Sch 2[22], opn 7 Dec

2011]

[s 69ZV]

Evidence of children

69ZV (1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings. (2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay. (3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2). (4) This section applies despite any other Act or rule of law. (5) In this section: child means a person under 18. representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct. COMMENTARY ON S 69ZV Introduction …. Application of section: the reference to s 69ZT and the problem with subs (1) …. Application to “child-related proceedings” …. Application to proceedings commenced before or after 1 July 2006 ….

[s 69ZV.1] [s 69ZV.5] [s 69ZV.7] [s 69ZV.9]

[s 69ZV.1] Introduction In substance, this section establishes an exception to the hearsay rule: it does not apply to exclude representations by children. The precise terms of the exception [page 566] are contained in subs (2). In effect, where it applies, the exception allows other people to give evidence about things said by children, although such evidence might have otherwise been inadmissible as hearsay. The section applies despite any other law: subs (4). Subsection (3), which deals with weight, is surely unnecessary: children’s representations are, of course, just bits of evidence, and the court can obviously give them appropriate weight (and anyway subs (3) duplicates ss 69ZT(2) and (4)). Subsections (4) and (5) contain definitions of “child” and “representation” which are obvious and straightforward. History This exception to the hearsay rule was introduced into the Act in 1991 (by the Family Law Amendment Act 1991 No 37 of 1991, s 15) as s 100A (now repealed). It is entirely sensible, confirming and clarifying a line of authority in which the courts had established essentially the same exception to the hearsay rule: see eg, Official Solicitor to the Supreme Court v K (infants) [1965] AC 201; [1963] 3 All ER 191; 3 WLR 408; Reynolds v Reynolds (1973) 1 ALR 318; 47 ALJR 499; BC7300029; Burhop, In the Marriage of (1979) 37 FLR 237; 5 Fam LR 345; FLC 90-672; and the discussion in VJ & CJ, In the Marriage of (1997) 22 Fam LR 166; FLC 92772. [s 69ZV.5] Application of section: the reference to s 69ZT and the problem with subs (1) The problem By subs (1), the section applies “if the court applies the law against hearsay under s 69ZT(2) to child-related proceedings”. Unfortunately, this makes no sense, because s 69ZT(2) refers to something different, namely what weight the court may give to evidence that is admitted. Read literally, s

69ZV would never apply: it would be a complete dead letter, because the court cannot, logically, “apply the law against hearsay under s 69ZT(2)”. Obviously, this could not have been the intention. The legislative solution No doubt the legislature will fix the problem, the obvious solution being to amend s 69ZV(1) so it refers to s 69ZT(3) rather than to s 69ZT(2), although it has been suggested that the legislature could usefully take the opportunity to simplify the provision: R Chisholm, “Children’s representations and the hearsay rule: sorting our s 69ZV”, Australian Family Law Bulletin No 225, August 2007. The judicial solution In the meantime, it is submitted (RC) that the slip is so obvious, and the intention so clear, that the court could read the provision in the way it was obviously intended. Authorities that might support this approach are readily found in Pearce and Geddes, Statutory Interpretation in Australia, 6th Ed, 2006, especially at [2.24]. If this is correct, then s 69ZV(1) can be read as if it had said (emphasis added): “This section applies if the court applies the law against hearsay under s 69ZT(3) to child-related proceedings”. The following commentary is based on this reading. [s 69ZV.7] Application to “child-related proceedings” Possible application of rule in non-children’s cases In its previous form (as s 100A) the provision applied “in any proceedings under Part VII”. In the s 69ZV version, the reference is to “child-related proceedings”. That term is defined by ss 4 and 69ZM in a way that includes some proceedings that may have nothing to do with children (for details, see s 69ZM and the commentary thereto). As a result, the rule could in theory apply not only to children’s cases under Part VII, but also to some proceedings that are not children’s cases at all, although because of the terms of subs (2), it would apply only if for some reason the welfare of a child was an issue in those proceedings. A possible example might be a proceeding in which a party sought an injunction under s 114, say to exclude a person from a residence, and the

court considered that the welfare of a child was a matter that was relevant to the exercise of discretion: in such a case, if the parties had agreed that Div 12A was to apply, s 69ZV would seem to apply to any relevant representation by the child. [page 567] “…applies the law against hearsay to child-related proceedings” It has been submitted above that s 69ZV(1) should be read as if it referred to s 69ZT(3) not s 69ZT(2). That subsection provides that the court may apply one or more of the specified provisions of the Evidence Act “to an issue in the proceedings”. The opening words of s 69ZV refer to the court applying the rule against hearsay not to an issue in the proceedings but “to childrelated proceedings”. Suppose that in a children’s case the court decides, under s 69ZT(3), to apply the hearsay rule to the issue whether the child was abused. Suppose the child makes a representation about another issue, for example with whom the child wishes to live. Could it be argued that the difference in wording must be taken to be deliberate and that s 69ZV therefore applies only if the court is applying one or more of the provisions of the Evidence Act to the whole proceedings? It is submitted that this is not a desirable interpretation, and that undue significance should not be given to the difference in phrasing. Such an interpretation would give the well-established exception to the hearsay rule an arbitrarily narrow scope, and there is no reason to think that this was intended. If this is accepted, then in the above example, the child’s representation would be admissible (as it would have been under s 100A). [s 69ZV.9] Application to proceedings commenced before or after 1 July 2006 The section applies to child-related proceedings commenced on or after 1 July 2006, and to proceedings commenced before that date if the parties consent and the court grants leave. See Family Law Amendment (Shared Parental Responsibility) Act 2006, Schedule 3, Part 2, Item 8, which provides:

Application of amendments 8 The amendments made by Part 1 of this Schedule apply: (a) to proceedings commenced by an application filed on or after 1 July 2006; and (b) to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave. In relation to child-related proceedings commenced before 1 July 2006 in which the parties do not consent or the court does not grant leave, it seems that the repealed s 100A applies. If so, children’s representations will still be exempt from the hearsay rule. On this matter, see the commentary to the repealed s 100A.

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[s 69ZW] Evidence relating to child abuse or family violence 69ZW (1) The court may make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order. (2) The documents or information specified in the order must be documents recording, or information about, one or more of these: (a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child; (b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations; (c) any reports commissioned by the agency in the course of

investigating a notification. (3) Nothing in the order is to be taken to require the agency to provide the court with: (a) documents or information not in the possession or control of the agency; or (b) documents or information that include the identity of the person who made a notification. (4) A law of a State or Territory has no effect to the extent that it would, apart from this subsection, hinder or prevent an agency complying with the order. [page 568] (5) The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely. (6) Despite subsection (5), the court must not disclose the identity of the person who made a notification, or information that could identify that person, unless: (a) the person consents to the disclosure; or (b) the court is satisfied that the identity or information is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice. (7) Before making a disclosure for the reasons in paragraph (6) (b), the court must ensure that the agency that provided the identity or information: (a) is notified about the intended disclosure; and

(b) is given an opportunity to respond. COMMENTARY ON SECTION 69ZW Introduction …. Protecting the notifier: subs (3) ….

[s 69ZW.1] [s 69ZW.5]

[s 69ZW.1] Introduction Section 69ZW allows the court to make an order in child-related proceedings requiring a prescribed state or territory agency to provide the court with documents or information of the kind specified in subs (2) — in substance, records of notification, investigations and reports relating to child abuse or family violence. By subs (3), nothing in the order is to be taken to require the agency to provide documents or information not in its possession or control, or documents or information that include the identity of the person who made a notification. In contrast to the general position protecting the operation of state and territory child protection laws against inconsistency with the Family Law Act (especially s 69ZK), subs (4) says that a state or territory law has no effect to the extent that it would hinder or prevent an agency complying with the order. In other words, in this matter the Family Law Act 1975 expressly overrides inconsistent state laws; something it did not do when interpreted by the High Court in Northern Territory v GPAO (1999) 196 CLR 553; 24 Fam LR 253; (1999) FLC 92–838; BC9900714. Subsection (5) says that if the court wishes to act on the information it must be admitted as evidence. Subsections (6) and (7) restrain the court from disclosing the identifier’s identity except with the person’s consent, or where it is satisfied (after having given the agency a hearing on the question) that information about the person’s identity “is critically important to the proceedings and that failure to make the disclosure would prejudice the proper administration of justice”. Prescribed state or territory agency: see Reg 12CD, Sch 9. [s 69ZW.5] Protecting the notifier: subs (3) The most obvious meaning of subs (3) is that it restricts the court’s power to require the disclosure of the identity of identifiers. Thus in Department of Human Services v Brigham

[2010] FamCA 937; BC201051038; Halsen v Nasser Talbet (2010) 44 Fam LR 248; [2010] FamCA 1065; BC201051196 at [28], Johnston J said: In my view the provisions of s 69ZW of the Family Law Act reinforce the primacy of s 29 of the New South Wales Act in protecting the identity of persons who make reports notifying agencies such as that of the DirectorGeneral about suspected children at risk. In this regard, s 69ZW(3)(b) of the Family Law Act provides in effect that nothing in an order made under s 69ZW(1) can require an agency to provide the court with documents or information that include the identity of the person who made a notification. [page 569] Cleary J has taken a contrary view in an ex tempore decision, holding that the section only provides that an order will not be interpreted as requiring the agency to provide the documents identifying the notifier unless the order expressly says so: Jordan v Callaghan [2011] FamCA 1070; BC201150784. The EM is not helpful on this issue, merely repeating the wording of the section when it says the provision “clarifies that nothing in the order is to be taken to require the agency to provide the court with documents or information … that include the identity of the person who made the notification.” (Para 379, at sub-para 16). Johnston J’s view seems more consistent with the well-recognised policy, reflected in state and territory child protection legislation, of protecting the anonymity of notifiers of child abuse: see, eg Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29. It seems unlikely that the Commonwealth would have intended to provide that the family law courts could require the state and territory child protection agencies to provide the notifier’s identity with no legislative guidelines or limits other than making the requirement explicit in the court’s order (compare subss (6) and (7), dealing with when the court can disclose the person’s identity). If the intention had been to override this long-standing policy, the Family Law Act 1975 would surely have made this explicit.

Johnston J’s interpretation therefore appears to be the better view. Subsection (3) limits what the court can do; a s 69ZW order cannot create a legal obligation on the agency to disclose the identity of the notifier, even if the order explicitly purports to do so. Determining whether the documents or information include the identity of the notifier On the face of it, whether the documents do or do not include the notifier’s identity is a question of fact that the court could, in the event of dispute, determine on the evidence. A difficulty arises, however, where the state or territory law provides, in effect, that the notifier’s identity cannot be disclosed and also that the court cannot look behind a certificate by the child protection agency stating that the documents do in fact include the notifier’s identity. An example is Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29 and 29(1A). Do such provisions operate to prevent the Family Court from requiring the document’s production? Northern Territory v GPAO, above, indicates that such a provision might apply, being picked up by the Judiciary Act. It would not apply, however, if it were held to be inconsistent with the Family Law Act 1975. In Halsen v Nasser Talbet (2010) 44 Fam LR 248; [2010] FamCA 1065; BC201051196, Johnston J upheld an agency’s objection based on such a certificate, ruling that there was no such inconsistency.

____________________

[s 69ZX] Court’s general duties and powers relating to evidence 69ZX (1) In giving effect to the principles in section 69ZN, the court may: (a) give directions or make orders about the matters in relation to which the parties are to present evidence; and (b) give directions or make orders about who is to give evidence in relation to each remaining issue; and (c) give directions or make orders about how particular evidence is to be given; and (d) if the court considers that expert evidence is required — give directions or make orders about: (i) the matters in relation to which an expert is to provide evidence; and (ii) the number of experts who may provide evidence in relation to a matter; and (iii) how an expert is to provide the expert’s evidence; and [page 570] (e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings. (2) Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:

(a) (b) (c) (d) (e) (f) (g)

about the use of written submissions; or about the length of written submissions; or limiting the time for oral argument; or limiting the time for the giving of evidence; or that particular evidence is to be given orally; or that particular evidence is to be given by affidavit; or that evidence in relation to a particular matter not be presented by a party; or (h) that evidence of a particular kind not be presented by a party; or (i) limiting, or not allowing, cross-examination of a particular witness; or (j) limiting the number of witnesses who are to give evidence in the proceedings. (3) The court may, in child-related proceedings: (a) receive into evidence the transcript of evidence in any other proceedings before: (i) the court; or (ii) another court; or (iii) a tribunal; and draw any conclusions of fact from that transcript that it thinks proper; and (b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii). Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.

(4) In proceedings under this Part in which the court is required to regard the best interests of the child as the paramount consideration: (a) subsection 126K(1) of the Evidence Act 1995 does not apply in relation to information that would: (i) reveal the identity of a journalist’s source; or (ii) enable that identity to be discovered; if the court considers that it is in the best interests of the child for the information to be disclosed; and (b) the court must not direct, under a law of a State or Territory relating to professional confidential relationship privilege specified in the regulations, that evidence not be adduced if the court considers that adducing the evidence would be in the best interests of the child. [subs (4) subst Act 21 of 2011 s 3 and Sch 1[4], opn 13 Apr 2011; am Act 132 of 2015 s 3 and Sch 1 item 34, opn 14 Oct 2015] COMMENTARY ON SECTION 69ZX Introduction …. Powers to give directions relating to evidence: subss (1) and (2) …. Powers in relation to transcripts etc from other court decisions: subs (3) …. Evidence not to be excluded under s 126B of Evidence Act 1995 contrary to child’s best interests: s 69ZX(4) ….

[s 69ZX.1] [s 69ZX.2] [s 69ZX.5]

[s 69ZX.10] [page 571]

[s 69ZX.1] Introduction Subsections (1) and (2) provide, in substance, that the court may give detailed directions about many aspects of the giving of evidence in child-related proceedings. Subsection (3) enables the court to take advantage of material that arose in previous proceedings in a court or tribunal: it may receive a transcript of evidence and draw conclusions from it, and may “adopt” any recommendation, finding, decision or judgment of the earlier court or tribunal. Subsection (4) deals with a very limited topic, namely the special privilege that journalists have to protect their sources; it provides in substance that this privilege cannot operate to disadvantage children. [s 69ZX.2] Powers to give directions relating to evidence: subss (1) and (2) The powers in subss (1) and (2) are extensive, and are a deliberate measure to increase the control of the judge and create “less adversarial” proceedings. See above, [Div12A.1] Introduction to Div 12A. [s 69ZX.5] Powers in relation to transcripts etc from other court decisions: subs (3) By subs (3)(a), in child-related proceedings the court may receive into evidence the transcript of evidence in courts or tribunals, and may “draw any conclusions of fact from that transcript that it thinks proper”. By subs (3)(b) the court may “adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii)”. The Full Court considered this provision in detail in Donnell v Dovey (2010) 237 FLR 53; 42 Fam LR 559; [2010] FamCAFC 15; BC201050115. For a thoughtful discussion, and illustration of the use of the section, see Donaghey v Donaghey (2011) 45 Fam LR 183 (Murphy J), especially at [70]–[71]. It is, of course, necessary to provide procedural fairness in relation to the use of these powers. For example, a judge intending to rely on findings from a previous judgment would be obliged to indicate this so that the parties have a chance to address the court on the question. See eg Lamereaux v Noirot (2008) 216 FLR 432; (2008) FLC ¶93-364; [2008] FamCAFC 22; BC200850163; compare Baranski v Baranski [2012] FamCAFC 18; BC201250070.

[s 69ZX.10] Evidence not to be excluded under s 126B of Evidence Act 1995 contrary to child’s best interests: s 69ZX(4) This sub-section was inserted by the Evidence Amendment (Journalists’ Privilege) Act 2007 No. 116, operative 26 July 2007. It prevents s 126B of the Evidence Act 1995 (Cth) from operating to exclude evidence when the court considers that adducing the evidence would be in the best interests of the child, in proceedings in which the child’s best interests are the paramount consideration, such as parenting proceedings (see s 60CA). In brief, s 126B of the Evidence Act gives the courts a discretion to exclude evidence that would disclose ‘a protected confidence’ or ‘the contents of a document recording a protected confidence’, or ‘protected identity information’. The court should do so when it considers that the harm caused by the evidence would outweigh the desirability of it being given. ‘Protected confidence’ is defined to mean certain confidential communications to journalists. ‘Protected identity information’ is defined to mean, in substance, information that could identify the person who made a protected confidence. (The Evidence Act 1995 is printed in volume 3 of this Service, under its own guidecard).

____________________ DIVISION 13 — STATE, TERRITORY AND OVERSEAS ORDERS

Subdivision A — What this Division does [s 70A]

What this Division does

70A This Division provides for: (a) the registration of State and Territory orders dealing with children (Subdivision B); and [page 572]

(b) the registration of overseas orders dealing with children (Subdivision C); and (c) the transmission of Australian orders to overseas jurisdictions (Subdivision D).

Subdivision B — Registration of State and Territory orders [s 70B] 70B

Interpretation [s 70B rep Act 46 of 2006 s 3 and Sch 9 item 59, opn 1 July

2006]

[s 70C] General registration of orders made under law of prescribed State 70C The applicable Rules of Court may make provision for and in relation to the registration in a court having jurisdiction under this Part of State child orders made under a law of a prescribed State. [s 70C am Act 194 of 1999 s 3 and Sch 11[64]]

[s 70D] State

Registration of orders in a particular

70D The applicable Rules of Court may make provision for and in relation to the registration in a State in a court having jurisdiction under this Act of State child orders made by a court in another State. [s 70D am Act 194 of 1999 s 3 and Sch 11[65]]

[s 70E]

Effect of registration

70E A State child order registered in a court under section 70C or 70D has the same force and effect as if it were an order made by that court under this Part.

Subdivision C — Registration of overseas orders [s 70F] 70F

Interpretation [s 70F rep Act 46 of 2006 s 3 and Sch 9 item 60, opn 1 July

2006]

[s 70G]

Registration of orders

70G The regulations may make provision for and in relation to the registration in courts in Australia of overseas child orders, other than excluded orders.

[s 70H]

Effect of registration — general

70H An overseas child order registered in a court under section 70G has the same force and effect as if it were an order made by that court under this Part. Note: Division 4 of Part XIIIAA (International protection of children) may affect the operation of a registered overseas child order. [Note insrt Act 69 of 2002 s 3 and Sch 1 item 21, opn 1 Aug 2003]

[s 70J] Effect of registration on exercise of jurisdiction 70J (1) A court in Australia that is aware that an overseas child order is registered under section 70G must not exercise jurisdiction in proceedings for the making of a Subdivision C parenting order in relation to the child concerned unless:

[page 573] (a) each person: (i) with whom the child is supposed to live; or (ii) who is to spend time with the child; or (iii) who is to have contact with the child; or (iv) who has rights of custody or access in relation to the child; under the overseas order consents to the exercise of jurisdiction by the court in the proceedings; or (b) the court is satisfied that there are substantial grounds for believing that the child’s welfare requires that the court exercise jurisdiction in the proceedings. [subs (1) am Act 46 of 2006 s 3 and Sch 8 items 82–83, opn 1 July 2006]

(2) If a court exercises jurisdiction in proceedings for a Subdivision C parenting order in relation to a child who is the subject of an overseas child order, the court must not make a Subdivision C parenting order in relation to the child unless it is satisfied: (a) that the welfare of the child is likely to be adversely affected if the order is not made; or (b) that there has been such a change in the circumstances of the child since the making of the overseas child order that the Subdivision C parenting order ought to be made. [subs (2) am Act 46 of 2006 s 3 and Sch 8 items 84–85, opn 1 July 2006] COMMENTARY ON SECTION 70J Introductory comments …. Child’s best interests not paramount ….

[s 70J.1] [s 70J.5]

[s 70J.1] Introductory comments The interpretation and purpose of the equivalent provision prior to the Family Law Reform Act 1995 was considered in detail by the Full Court In the Marriage of Domroese and Leggett (1995) 20 Fam LR 213. The Full Court said (at 220): “Major policy purposes behind the legislation include the discouragement of international child abduction and the discouragement of international forum shopping by placing a barrier before an unsuccessful litigant who wishes to disregard a judicial decision or relitigate the same issue in a different jurisdiction, together with the promotion of judicial comity by recognising decisions of the relevant courts. “However, the policy and the effect of the legislation is wider than that, as it also proceeds on the basis that the original court should continue to exercise jurisdiction unless the other court is satisfied that there are “substantial grounds” for believing that the welfare of the child will be adversely affected if jurisdiction is not exercised by it…” The Full Court went on to make the point that litigation relating to children, unlike litigation in other areas of law which usually involves the resolution of issues arising from a particular past transaction, is of an ongoing nature and the question which court is the more appropriate forum may change in the light of changing circumstances. See also the discussion by the Full Court in In the Marriage of Trnka (1984) 10 Fam LR 213 at 230; FLC 91–535, a decision which was quoted with approval In the Marriage of Domroese and Leggett, above. [s 70J.5] Child’s best interests not paramount In the Marriage of Domroese and Leggett, above, the Full Court held (at 228) that the welfare of the child was not paramount in relation to s 68, which provided “a clear but limited statutory exception to the welfare paramountcy provision and principle and within its ambit provides a specific test for the assumption of jurisdiction by an Australian court in overseas custody orders. In effect it prohibits this court from exercising jurisdiction in proceedings for the custody of, or access to, the child unless the tests set out in that

[page 574] section are satisfied”. It is submitted that this reasoning applies with at least equal force to s 70J. If anything, the point is clearer, because the 1995 amending Act made the paramountcy principle applicable to certain specified matters, and these do not include the registration of orders under s 70G.

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[s 70K] Cancellation of registration if Subdivision C parenting order made 70K If a court: (a) is aware that an overseas child order is registered under section 70G; and (b) makes a Subdivision C parenting order in relation to the child concerned; the court must cancel the registration of the overseas child order. [s 70K am Act 46 of 2006 s 3 and Sch 8 item 86, opn 1 July 2006]

[s 70L] Relationship between Australian orders and registered overseas child orders 70L (1) In this section: Australian child order means: (a) a Subdivision C parenting order; or (b) a State child order. [def am Act 46 of 2006 s 3 and Sch 8 item 87, opn 1 July 2006; Act 46 of 2006 s 3 and Sch 9 item 61, opn 1 July 2006]

responsible person, in relation to an Australian child order or an overseas child order, means a person:

(a) with whom the child is supposed to live under the order; or (aa) whom the child is supposed to spend time with under the order; or (ab) whom the child is supposed to have contact with under the order; or (b) who is responsible for the child’s day-to-day care, welfare and development under the order; or (c) who has a right to custody of, or access to, the child under the order. [def am Act 46 of 2006 s 3 and Sch 8 item 88, opn 1 July 2006]

(2) This section applies if: (a) an Australian child order, whether made under this Part or another law, is in force under this Part in relation to a child; and (b) an overseas child order, other than an excluded order, that relates to the child but that has a different effect from the Australian order has been registered under section 70G (whether before or after the making of the Australian child order) and its registration has not been cancelled. (3) A responsible person under the overseas child order may apply to a court having jurisdiction under this Part for the discharge of the Australian child order. (4) A responsible person under the Australian child order may apply to a court having jurisdiction under this Part for the cancellation of the registration of the overseas child order. (5) If an application is made under subsection (3) or (4), the court must:

(a) if a condition specified in subsection (6) is satisfied — cancel the registration of the overseas child order; or [page 575] (b) in any other case — discharge the Australian child order. (6) For the purposes of paragraph (5)(a), the conditions are: (a) each responsible person under the overseas child order consents to the cancellation of the registration of the order; or (b) the court is satisfied that there are substantial grounds for believing that the child’s welfare will be adversely affected if the overseas child order continues to operate in relation to the child; or (c) the court is satisfied that there has been a change in the circumstances of the child since the overseas child order was made that makes it inappropriate for the order to continue to operate in relation to the child.

Subdivision D — Transmission of Australian orders to overseas jurisdictions [s 70M] Registrar to send documents etc to overseas jurisdiction 70M (1) This section applies if: (a) a court in Australia makes, in relation to a child who is under 18: (i) a parenting order, other than a child maintenance

order; or (ii) a State child order; and (b) the order is enforceable in a prescribed overseas jurisdiction under provisions corresponding to Subdivision C. [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 89, opn 1 July 2006]

(1A) This section also applies if: (a) a court in Australia makes, in relation to a child who is under 18, an order under regulations made for the purposes of section 111B; and (b) the order is enforceable in a convention country (within the meaning of those regulations) under provisions corresponding to Subdivision C. [subs (1A) insrt Act 143 of 2000 s 3 and Sch 3 item 71 opn 27 Dec 2000]

(2) A person referred to in subsection (3) may, in writing, request the Registry Manager of the court to send to an appropriate court or authority in the overseas jurisdiction or convention country the documents and information necessary for securing the enforcement of the order in the overseas jurisdiction or convention country. [subs (2) am Act 143 of 2000 s 3 and Sch 3 item 72 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 3 item 27 opn 14 Jan 2004]

(3) A request under subsection (2) may be made by: (a) a person with whom the child is supposed to live under the order; or (aa) a person with whom the child is supposed to spend time under the order; or (ab) a person with whom the child is supposed to have contact under the order; or

(b) a person who has a right to custody of, or of access to, the child under the order. [subs (3) am Act 46 of 2006 s 3 and Sch 8 item 90, opn 1 July 2006]

(4) The Registry Manager of the court must comply with a request under subsection (2). [subs (4) am Act 138 of 2003 s 3 and Sch 3 item 28 opn 14 Jan 2004]

[s 70N] Regulations may deal with sending Australian orders etc to overseas jurisdiction 70N (1) The regulations may make provision for and in relation to the sending to a prescribed overseas jurisdiction of copies of, and documents relating to: [page 576] (a) a parenting order, other than a child maintenance order; or (b) a State child order; that relates to a child to whom an overseas child order relates. [subs (1) am Act 46 of 2006 s 3 and Sch 8 item 91, opn 1 July 2006]

(2) The regulations may make provision for and in relation to the sending to a convention country (within the meaning of the regulations made for the purposes of section 111B) of copies of, and documents relating to, an order under regulations made for the purposes of that section, that relates to a child to whom an overseas child order relates. [subs (2) insrt Act 143 of 2000 s 3 and Sch 3 item 73 opn 27 Dec 2000]

DIVISION 13A — CONSEQUENCES OF FAILURE TO COMPLY WITH ORDERS, AND OTHER OBLIGATIONS, THAT AFFECT CHILDREN [Div 13A subst Act 46 of 2006 s 3 and Sch 2 item 6, opn 1 July 2006] COMMENTARY ON DIVISION 13A Introduction to Division 13A ….

[Div 13A.1]

[Div 13A.1] Introduction to Division 13A This Division was created by the Family Law Amendment Act 2000 (operative 27 December 2000) which set out what was then a new three stage “parenting compliance regime”. The Division was substantially revised by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). That revision retained the general approach of the Division, but substantially re-organised it, and made numerous changes of detail to the provisions. The regime under Div 13A entirely supersedes the enforcement powers contained in Pt XIIIA of the Act so far as orders affecting children are concerned. Division 13A had its origins in the 1988 Report of the Family Law Council, Child Contact Orders: Enforcement and Penalties. The organisation of Div 13A now follows the analysis explained in s 70NAA: a progression from lesser to greater seriousness or punitiveness. In brief it deals in turn with: Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdiv A; Varying parenting orders, which can be regarded as the least punitive response to the problem: subdiv B; Contravention alleged but not established — provision for costs orders against the person bringing the proceedings: subdiv C; Contravention established, but a reasonable excuse — the court can make orders for compensation for time lost, and costs orders: subdiv D; Less serious contraventions, and no reasonable excuse — the court has various powers, especially orders for post-separation parenting programs, bonds, and costs: subdiv E;

More serious contraventions, and no reasonable excuse — the court has more serious and more punitive powers, including fines and imprisonment: subdiv F. Perhaps surprisingly, the new provisions about less adversarial proceedings apply to contravention proceedings in children’s matters: see the commentary to Div 12A.

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Subdivision A — Preliminary [s 70NAA]

Simplified outline of Division

70NAA (1) This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children. [page 577] (2) The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB). (3) The other orders that the court can make depend on whether: (a) a contravention is alleged to have occurred but is not established (Subdivision C); or (b) the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or (c) the court finds that there was a contravention and there

is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

[s 70NAB]

Application of Division

70NAB Despite anything contained in any other provision of this Division, this Division does not apply in respect of a contravention, committed before this Division commences, of an order under this Act affecting children if a court made an order, in respect of that contravention before this Division commences, under this Act as previously in force.

[s 70NAC]

Meaning of contravened an order

70NAC A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if: (a) where the person is bound by the order — he or she has: (i) intentionally failed to comply with the order; or (ii) made no reasonable attempt to comply with the order; or (b) otherwise — he or she has: (i) intentionally prevented compliance with the order by a person who is bound by it; or (ii) aided or abetted a contravention of the order by a person who is bound by it. Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the

terms of the parenting order. COMMENTARY ON SECTION 70NAC Introduction …. Contravention of old joint guardianship orders ….

[s 70NAC.1] [s 70NAC.5]

[s 70NAC.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), replacing old s 70NC. It defines “contravened an order” for the purpose of Div 13A. The section deals separately with persons who are bound by an order and those who are not. By para (a), those who are bound by the order contravene the order if they intentionally fail to comply with it or make no reasonable attempt to do so. By para (b), those who are not bound by the order may contravene it if they: intentionally prevent compliance with the order by someone who is bound by it; or aid or abet a contravention by a person who is bound by the order. [page 578] There is older authority to the effect that an attempt to do something that is forbidden by a court order (the respondent had placed an advertisement seeking to contact a child when the order was that she should not contact the child) is not a contravention of the order: Mileham v Talbot (unreported, 24 June 1997, No SA 9 of 1997, FC). However such conduct today would be likely to constitute a contravention because of the words ofs 70NAC(a)(ii) (“made no reasonable attempt to comply with the order”). [s 70NAC.5] Contravention of old joint guardianship orders In relation to proceedings arising from orders made before 11 June 1996 for “joint guardianship”, see In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; FLC 92–778 where it was held that an “old” joint guardianship order took effect as a specific issues order conferring on both parties joint

responsibility for the long term care, welfare and development of the children, with the practical effect that the wife was required to consult with the father in relation to matters such as education, religion and the naming of the children. Her failure to do so in that case was enforceable by order under s 112AD (which then applied to children’s orders). Positive obligations in relation to spending time with a child The authorities emphasise that parents have positive obligations to comply with orders to the effect that the child should spend time with the other parent. They must genuinely comply with the order by encouraging access. Token compliance or passive resistance is not sufficient: see In the Marriage of O’Brien (1992) 16 Fam LR 723; FLC 92–396. The authorities provide examples. Assume that under parenting orders, the child lives with M and is to spend time with F. M contravenes the order by concealing the whereabouts of the child when F comes to collect the child: see In the Marriage of Stavros (1984) 9 Fam LR 1025; FLC 91–562 (FC). Similarly, M contravenes the order if she deliberately induces in the child an unwillingness to go on contact visits: see Matthews v Millar (1988) 12 Fam LR 205; BC8802025. Earlier decisions on the extent to which a person was justified in contravening a parenting order on the ground of a belief that to comply would be contrary to the welfare of a child include In the Marriage of Gaunt (1978) 4 Fam LR 305; FLC 90–468 (FC); In the Marriage of Cavanough (1980) 6 Fam LN N3; FLC 90–851; In the Marriage of Smith and Jorgensen (1980) 5 Fam LN 22; FLC 90–807.

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[s 70NAD] Requirements taken to be included in certain orders 70NAD For the purposes of this Division: (a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in

accordance with section 65M in relation to the order; and (b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and (c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and (d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order. COMMENTARY ON SECTION 70NAD Introduction ….

[s 70NAD.1]

[s 70NAD.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), replacing old s 70ND. It provides, in effect, [page 579] that the Div 13A proceedings can be taken if a person fails to comply with the requirements imposed by ss 65M, 65N, 65NA and 65P. Those sections provide, in brief, that people must not act in ways that frustrate the operation of parenting orders. It is unclear why s 70NAD was thought necessary.

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[s 70NAE]

Meaning of reasonable excuse for

contravening an order 70NAE (1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7). (2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if: (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and (b) the court is satisfied that the respondent ought to be excused in respect of the contravention. (3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order. (4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if: (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to

protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). (5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if: (a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). (6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if: [page 580] (a) the respondent believed on reasonable grounds that not

allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). (7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if: (a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a). COMMENTARY ON SECTION 70NAE Reasonable excuse: an inclusive definition …. Court’s obligation to explain obligations of order and consequences of breach: subs (1A) …. Reasonable excuse for contravention of parenting orders where respondent did not understand the obligations under the order: subs (1A) …. Reasonable excuse for contravention of parenting orders where respondent fears for person’s health or safety: subss (4)–(7) …. Deprivation no longer than necessary: subss (4)–(7) ….

[s 70NAE.1] [s 70NAE.5]

[s 70NAE.10]

[s 70NAE.15] [s 70NAE.20]

Whether respondent’s concerns for child’s interests outside subss (4)–(7) can otherwise be a “reasonable excuse” ….

[s 70NAE.25]

[s 70NAE.1] Reasonable excuse: an inclusive definition This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), replacing old s 70NE. It sets out an inclusive definition of “reasonable excuse” for the purpose of the Division. It is relevant because when a person has contravened an order, the court can make certain orders (eg requiring the person to attend a post-separation parenting program, or imposing a fine) only if the person does not prove that he or she had a reasonable excuse for the contravention. Note that the general terms of subs (1) do not exhaustively list the circumstances constituting a reasonable excuse. Thus there may be circumstances falling outside s 70NE that nevertheless constitute a reasonable excuse. Speaking of the equivalent provision in non-children’s matters, it has been said: “The circumstances in which a person has a reasonable excuse for contravening an order under the Act include but are not limited to those specified in s 112AC: s 112AC(1)”: Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; 24 Fam LR 253 at 258; FLC 92–838; [1999] HCA 8; BC9900714, per Gleeson CJ and Gummow J. This is an important point. It is a bad mistake to assume that because a respondent cannot find something in s 70NAE to support a defence of reasonable excuse, no such defence exists. [s 70NAE.5] Court’s obligation to explain obligations of order and consequences of breach: subs (1A) Where the reasonable excuse is that the person did not understand the obligations under the order, the court has a duty to explain the obligations under the order and the consequences of contravening it. This is consistent with the court’s obligations to explain created under s 65DA. [page 581]

[s 70NAE.10] Reasonable excuse for contravention of parenting orders where respondent did not understand the obligations under the order: subs (1A) The respondent has a reasonable excuse under subs (1A) if (i) he or she contravened the order because, or substantially because, he or she did not at the time understand the obligations under the order, and (ii) the court is satisfied that the respondent ought to be excused. The Full Court considered this provision in Ongal v Materns (2015) 54 Fam LR 86; [2015] FamCAFC 68; BC201550236. As to the second element, namely whether the court is satisfied that the person ought to be excused, their Honours said (at [38]): The legislation is silent on the matters a court should consider in deciding whether someone ought to be excused from a contravention pursuant to s 70NAE(2)(b) for misunderstanding an order. The discretion is therefore of considerable breadth and, to adopt the expression used in Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; [2012] HCA 52; BC201208691 at [36], “it is not possible to chart its metes and bounds”. The facts of that case provide an excellent example of the operation of the provision. The Full Court (re-exercising discretion) excused a father who had contravened parenting orders for the following reasons (at [44]): the father first endeavoured to follow the proper court processes to deal with the issue, but those processes were not successful in ensuring the children could spend half of the relevant holidays with him; although the father’s actions constituted a breach, they gave effect to the spirit of the orders, namely that holidays be shared equally; and the orders had been in operation for many years, with only two findings of contravention by the father, one of which was an unrelated breach. [s 70NAE.15] Reasonable excuse for contravention of parenting orders where respondent fears for person’s health or safety: subss (4)–(7) Introduction These subsections deal with the situation where a person contravenes the operation of parenting orders (other than child maintenance

orders) because he or she reasonably fears for the health or safety of the child or another person. The subsections deal in turn with contraventions of orders that a child live with a person; subs (4), orders that a child spend time with a person; subs (5), orders that a child communicate with a person; subs (6), and orders allocating parental responsibility; subs (7), referring to s 65P. They provide the same ground for reasonable excuse in each case, but it is stated three times, those responsible for the drafting presumably having thought it desirable to repeat the ground for each type of parenting order. Thus subs (4) refers to contravening an order “in a way that resulted in the child not living with a person in whose favour an order was made”; subs (5) to a contravention of an order “in a way that resulted in a person and a child not spending time together as provided for in the order”; subs (6) to the contravention of an order “in a way that resulted in a person and a child not having the communication provided for under the order”; and subs (7) to “the action constituting the contravention” of the order. Despite their length, the provisions of subss (4)–(7) seems to mean simply that a person who contravenes a parenting order has a reasonable excuse if he or she believed on reasonable grounds that the contravention was necessary to protect the health or safety of a person, and that the contravention was for no longer than was necessary to protect the health or safety of the person. [s 70NAE.20] Deprivation no longer than necessary: subss (4)–(7) The subsections are satisfied only if the period of the contravention is not longer than necessary to protect the child. Where a child is actually at risk, this test appears fairly straightforward. A question of interpretation could arise, however, if the respondent believes on reasonable grounds that the child is at risk, but in fact the child is not at risk. On a literal reading, in such a case there could be no reliance on these provisions, since no contravention is in fact necessary to protect the child. This reading, however, would mean that the provisions could never operate unless the child was [page 582]

actually at risk, and is inconsistent with a belief on reasonable grounds being sufficient. The provisions should probably be read, therefore, as referring to a period no longer than would have been, on the basis of the respondent’s beliefs on reasonable grounds, necessary to protect the health or safety of the child. [s 70NAE.25] Whether respondent’s concerns for child’s interests outside subss (4)–(7) can otherwise be a “reasonable excuse” A respondent might have a belief that complying with the order would be contrary to the child’s interests, without that belief falling within the terms of subss (4)–(7). An example might be where the respondent reasonably believed that a contact parent planned to take the child to another country, where such an action could not be shown to put the child’s health or safety at risk. Can such a belief ever constitute a reasonable excuse under s 112AC(1)? This question could be of some practical importance, and one must turn to the case law. Early decisions There are three significant reported cases on these provisions or their predecessors. The first is In the Marriage of Gaunt (1978) 4 Fam LR 305 at 308; FLC 90–468, where the Full Court (Evatt CJ Emery SJ and Hogan J) said: The essential question is this: can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act. … A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”. Evidence of changed circumstances or of matters not considered when the

order was made might be. The next case is In the Marriage of Cavanough (1980) 6 Fam LN N3; FLC 90-851. There, Connor J held that the circumstances were “very different” from those in Gaunt. He reviewed them, and concluded: I am prepared to accept that the husband had an honest and reasonable belief that the children did not wish to be with their mother on the terms stated in the order and that it was not in their interests that they should be subjected to embarrassment during access. This being the case the husband did have just cause or excuse for not complying with the terms of the order. Where the welfare and interests of the children are the paramount consideration and where the husband believes that to act in accordance with the order would be against their interests his failure to act is excused. Connor J in substance reconciled his decision with Gaunt on the basis that the husband had established that the situation had changed since the orders were made, and as a result had a reasonable belief that to act in accordance with the order would be against their interests. It was thus more than the father’s “subjective view of the rights and wrongs” of the order. The last sentence of the quoted passage should probably be read in this context: Connor J probably did not intend to say that the father’s belief of itself was an excuse. Both of these decisions pre-dated s 112AC, the predecessor to s 70NAE. The legislation considered in those cases merely required the applicant to show that there was a contravention “without just cause of excuse”. Section 112AC was however considered in In the Marriage of O’Brien (1992) 16 Fam LR 723 at 727; (1993) FLC 92–396, where Smithers J said: Whatever one may say about Cavanough’s case, and the suggestion that one has to take into account the welfare of the child in determining whether a person has reasonable excuse for not complying with the access order, it seems to me that the passing of s 112AC(3) makes it clear [page 583]

that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child. On the facts, the decision is no doubt correct: Smithers J found that there was no basis upon which the wife might have believed on reasonable grounds that that contact was not in the child’s interests. But his Honour’s quoted statement that a reasonable excuse relating to the welfare of the child is limited to the belief referred to, in that it was “necessary to protect the health or safety of a person”, is, with respect, difficult to reconcile with the express words of s 112AC(1) (and of the present s 70NAE(1)) that the matters in the subsections are not exclusive. The problem was considered by Warnick J in Childers v Leslie (2008) Fam LR 379; [2008] FamCAFC5. He said, in the course of an illuminating discussion, ‘I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection.’ Conclusions There may be a need for further judicial clarification on the implications of subss (4)–(7) for the scope of “reasonable excuse” in relation to parenting orders. However, it is submitted that the law is as follows: The respondent has a reasonable excuse if the facts fall within subss (4)–(7). The mere subjective view of the respondent that complying with the order would be against the child’s interests does not of itself constitute a reasonable excuse: Gaunt; O’Brien; this proposition is consistent with the holding and the reasoning in Cavanough’s. There may be circumstances relating to the interests of a child which provide a reasonable excuse, even though they fall outside the terms

of subss (4)–(7): it is submitted that dicta in O’Brien to the contrary are incorrect. It is nevertheless reasonable to say that having regard to the reversal of the onus of proof in s 70NJ(1)(ba), and the limited scope of the express words of subss (3)–(5), the court should be cautious in finding that there is a “reasonable excuse” in cases where respondents contravene parenting orders on the basis that complying with those orders is contrary to the child’s interests. This is especially so where the excuse offered goes outside the limits indicated in subsections (4)(7): Childers v Leslie.

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[s 70NAF]

Standard of proof

70NAF (1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities. (2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention. (3) The court may only make an order under: (a) paragraph 70NFB(2)(a), (d) or (e); or (aa) paragraph 70NEB(1)(da); or (ab) paragraph 70NECA(3)(a); or (b) paragraph 70NFF(3)(a); [page 584]

if the court is satisfied beyond reasonable doubt that the grounds for making the order exist. [sub (3) am Act 189 of 2011 s 3 and Sch 2[23], opn 7 Dec 2011] COMMENTARY ON SECTION 70NAF Standard of proof in proceedings under Division 13A …. Standard of proof generally on balance of probabilities under Division 13A: subs (1) …. Standard of proof on balance of probabilities for determination of reasonable excuse for contravention: subs (2) …. Court to be satisfied of grounds beyond reasonable doubt in order to make certain orders: subs (3) ….

[s 70NAF.1] [s 70NAF.2]

[s 70NAF.3] [s 70NAF.5]

[s 70NAF.1] Standard of proof in proceedings under Division 13A This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), replacing old s 70NEA, and was amended in 2011. It states the standard of proof to be applied in determining proceedings under the Division. The standard is to be proof on the balance of probabilities (subs (1)) except in relation to certain punitive orders: see subs (3). [s 70NAF.2] Standard of proof generally on balance of probabilities under Division 13A: subs (1) By subs (1), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities, except that proof beyond reasonable doubt is required for making certain punitive orders: see subs (3). [s 70NAF.3] Standard of proof on balance of probabilities for determination of reasonable excuse for contravention: subs (2) The onus of proof of a reasonable excuse is on the respondent (see s 70NDA), and s 70NAF(2) states that the standard of proof of reasonable excuse is on the balance of probabilities. Although logically unnecessary because of subs (1), subs (2) spells out a point that is important in practice, and will no doubt assist unrepresented litigants.

[s 70NAF.5] Court to be satisfied of grounds beyond reasonable doubt in order to make certain orders: subs (3) By subs (1), the standard of proof to be applied in determining proceedings under the Division is the balance of probabilities. Subsection (1) is however subject to subs (3) which prevents the court from making certain orders unless it is satisfied “beyond reasonable doubt” that the grounds for making the order exist. The orders that require proof beyond reasonable doubt are specified in subsection (3). As one would expect, they are those of a punitive kind, namely where the court: makes a community service order for a “more serious” contravention (s 70NFB(2)(a)); or imposes a fine for a “more serious” contravention (s 70NFB(2)(d)); or imposes a term of imprisonment for a “more serious” contravention (s NFB(2)(e)); or imposes a fine for failure to enter a bond when ordered to do so after a “less serious” contravention (s NEB(1)(da)); or imposes a fine for noncompliance with a bond after a “less serious” contravention (s NECA(3)(a)); or imposes a fine for noncompliance with a bond or a community service order after a “more serious” contravention (s NFF(3)(a)). Section 70NAF was considered by the Full Court in Dobbs v Brayson (2007) 215 FLR 30; (2007) FLC 93-346; [2007] FamCA 1261; BC200750297 at [29]–[62] (Finn, Warnick and Boland JJ). [page 585] The Full Court concluded that before making such an order, the court must be satisfied beyond reasonable doubt of the following: All the factual matters that relate to the finding of contravention (para [51]); All the factual matters that relate to “the treatment of the contravention as one to which Subdiv F of Div 13A applies” (ie “more serious” contraventions) (para [51]); and

The facts relevant to the particular order made, where those facts are adverse to the respondent (para [62]). It follows that where there is some prospect of making orders of the kind specified, practitioners would do well to keep in mind that the outcome might depend on the application of the criminal as well as the civil standards. Final submissions might have to canvass whether the necessary findings can be made on the civil or the criminal standard, since the court’s ability to make the specified orders would depend on the answer.

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Subdivision B — Court’s power to vary parenting order [s 70NBA]

Variation of parenting order

70NBA (1) A court having jurisdiction under this Act may make an order varying a primary order if: (a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and (b) it is alleged in those proceedings that a person committed a contravention of the primary order and either: (i) the court does not find that the person committed a contravention of the primary order; or (ii) the court finds that the person committed a contravention of the primary order. (2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the

following considerations is relevant, take that consideration into account: (a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program; (b) there was no post-separation parenting program that the person who contravened the primary order could attend; (c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post-separation parenting program, or a part of such a program; (d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children. (3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order. COMMENTARY ON SECTION 70NBA Overview …. Additional relevant matters in relation to variation of primary order in the case of serious contraventions: subs (2) ….

[s 70NBA.1]

[s 70NBA.5] [page 586]

[s 70NBA.1] Overview This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act),

replacing old s 70NEA. As subs (1) makes clear (and see s 70AA(2)), there is power to vary the relevant parenting order (the “primary order”) whatever the state of the contravention proceedings. An order varying a parenting order is itself a parenting order: s 64B(1)(a). Thus, in considering whether to make an order varying a parenting order, the court must treat the child’s best interests as the paramount consideration: s 60CA. Subsection (2) deals with a specific situation, namely serious contraventions, and provides that certain other things must be considered, if they are relevant. [s 70NBA.5] Additional relevant matters in relation to variation of primary order in the case of serious contraventions: subs (2) An order varying a parenting order is itself a parenting order: s 64B(1)(a). Thus, in considering whether to make an order varying a parenting order, the court must treat the child’s best interests as the paramount consideration: s 60CA. Subsection (2) recognises this, and provides that if subdiv F applies, the court must also take certain things into consideration if they are relevant. Subdiv F deals with more serious contraventions. The things that must be taken into account are those in paras (a), (b) and (c) of subs (2). They focus mainly on the behaviour of the person who contravened the order in relation to post-separation parenting programs, and also on whether the primary order was a compensatory parenting order. These matters could be relevant in various ways. However an example of the application of the paragraphs would appear to be that the court might be inclined to limit the amount of time the person spends with the child if, for example, they have not benefited from a post-separation parenting program, or have refused to attend one.

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[s 70NBB]

Effect of parenting plan

70NBB (1) This section applies if: (a) a parenting order has been made in relation to a child (whether before or after the commencement of this

section); and (b) after the parenting order was made, the parents of the child made a parenting plan that dealt with a matter (the relevant matter) that was dealt with in the parenting order. (2) If: (a) section 70NBA applies to proceedings brought in relation to the parenting order in relation to the relevant matter; and (b) the parenting plan was in force when the contravention of the parenting order: (i) is alleged to have been committed; or (ii) occurred; the court must, in exercising its powers under section 70NBA: (c) have regard to the terms of the parenting plan; and (d) consider whether to exercise its powers under section 70NBA to make an order varying the parenting order to include (with or without modification) some or all of the provisions of the parenting plan. Note: An action that would otherwise contravene a parenting order may not be a contravention because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order (see section 64D). COMMENTARY ON SECTION 70NBB Introduction ….

[s 70NBB.1]

[s 70NBB.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). Its essence is that in considering whether to

[page 587] vary a parenting order (s 70NBA) the court should have regard to anything relevant in a parenting plan, and in particular should consider whether to vary the parenting order to make it consistent with the parenting plan. The parenting plan must have been in force at the time the alleged or proven contravention occurred. The section is not of course limited to registered parenting plans. This section is consistent with s 64D, which provides that normally a later parenting plan will prevail over a parenting order.

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Subdivision C — Contravention alleged but not established [s 70NCA]

Application of Subdivision

70NCA This Subdivision applies if: (a) a primary order has been made, whether before or after the commencement of this Subdivision; and (b) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and (c) it is alleged in those proceedings that a person (the respondent) committed a contravention of the primary order; and (d) the court does not find that the respondent committed a contravention of the primary order. Note: The court may also vary the primary order under Subdivision B. COMMENTARY ON SECTION 70NCA

[s 70NCA.1]

Introduction ….

[s 70NCA.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). It explains that this subdivision applies in contravention proceedings where the court does not find that the respondent contravened the primary order. “Primary order” means a parenting order: s 4. The substantive content of the subdivision is contained in s 70CB. Note however that the court also has power to vary the parenting order in these circumstances: s 70NBA.

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[s 70NCB]

Costs

70NCB (1) The court may make an order that the person who brought the proceedings (the applicant) pay some or all of the costs of another party, or other parties, to the proceedings. (2) The court must consider making an order under subsection (1) if: (a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and (b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought: (i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

[page 588] (ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention. COMMENTARY ON SECTION 70NCB Introduction ….

[s 70NCB.1]

[s 70NCB.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act). The Explanatory Memorandum (EM), para 275, says: The intention is to deter people from making repeated contravention applications which aim to harass or inconvenience the other party. This implements recommendation 40 of the LACA Report. The section does not refer to s 117 (the main costs section) and indeed refers to making a costs order “under subs (1)”. However, it is submitted that since the section merely says that the court must consider making a costs order in certain situations and does not attempt to state all the principles that might apply, it is likely that the legislature assumed that the court would also be guided by s 117.

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Subdivision D — Contravention established but reasonable excuse for contravention [s 70NDA] 70NDA

Application of Subdivision

This Subdivision applies if:

(a) a primary order has been made, whether before or after the commencement of this Subdivision; and (b) a court having jurisdiction under this Act is satisfied that a person (the respondent) has, whether before or after the commencement, committed a contravention (the current contravention) of the primary order; and (c) the respondent proves that he or she had a reasonable excuse for the current contravention. Note: The court may also vary the primary order under Subdivision B. COMMENTARY ON SECTION 70NDA Introduction ….

[s 70NDA.1]

[s 70NDA.1] Introduction This section, added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), explains that the subdivision applies (in brief) where there has been a contravention of a parenting order, but the respondent has a reasonable excuse.

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[s 70NDB] lost

Order compensating person for time

70NDB (1) If: (a) the primary order is a parenting order in relation to a child; and (b) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

[page 589] the court: (c) may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and (d) must consider making that kind of order. Note: If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).

(2) The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so. COMMENTARY ON SECTION 70NDB Introduction …. Relevant principles — child’s best interests paramount: subs (2) ….

[s 70NDB.1] [s 70NDB.5]

[s 70NDB.1] Introduction This section was added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), but provision for compensatory orders is not new: old s 70NG(1)(b). The section deals with a situation is which there is a contravention, but also a reasonable excuse for it, and the contravention resulted in a person not spending time with the child (or the child not living with a person for a period). An example would be where an order provides for a child to be with the father, say, on a weekend, and the father led the mother to believe, wrongly, that he would not be available on that weekend. The father brings contravention proceedings. The court find that the mother contravened the order, but had a reasonable excuse, that she believed the father would not attend. By this section, the court may make a further parenting order that “compensates” the father for

the lost time with the child. [s 70NDB.5] Relevant principles — child’s best interests paramount: subs (2) Because the section speaks of “compensating” the adult party (rather than the more child-focused idea of compensating the child) it might be thought that such notions as fairness between the parents, or the adult party’s rights, would be relevant. However the section clearly states that the compensatory order is a parenting order, and thus, by s 60CA, the child’s best interests must be the paramount consideration. It follows that the question whether to make the compensation order must be based on the child’s best interests. Had the legislature intended something different it would not have specified that the order was a parenting order. Logically, subs (2) (order not to be made if not in the child’s best interests) is unnecessary, and may be seen, like some other provisions of the Act since the 1995 and 2006 amendments, as re-stating the law for additional clarity or emphasis. This analysis is supported by the Explanatory Memorandum (EM). From the point of view of the parents, in the previous example, it might be thought hard on the mother to have to provide the child for an additional period, since it was not her fault that the child did not spend the weekend with the father (she had a “reasonable excuse”). Thus, the EM explains why compensatory time might be justified by the child’s best interests, even when the loss of time was not the respondent’s fault: 279. This allows for the court to order make-up time even where the person who committed the contravention had a reasonable excuse. This is appropriate given that the original parenting order for contact was made in the best interests of the child, that contact with both parents is an important aspect of ensuring that a child maintains a meaningful relationship with both parents and that parents are able to fulfil their parental responsibilities in relation to their child.

____________________ [page 590]

[s 70NDC]

Costs

70NDC (1) If the court does not make an order under section 70NDB in relation to the current contravention, the court may make an order that the person who brought the proceedings (the applicant) pay some or all of the costs of another party, or other parties, to the proceedings. (2) The court must consider making an order under subsection (1) if: (a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and (b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought: (i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or (ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NEB or 70NFB in relation to the contravention. COMMENTARY ON SECTION 70NDC Introduction ….

[s 70NDC.1]

[s 70NDC.1] Introduction This section, added by the Family Law

Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), provides for the court to consider making a costs order against the person who brought the contravention proceedings. It applies when the court does not make a compensatory time order under the previous section. The thinking seems to be that the failure to make such an order, where there is a reasonable excuse for the contravention, may suggest that the proceedings should not have been brought, and it is fair that the applicant should pay the respondent’s costs. This is consistent with the matters dealt with in subs (2). Like s 70NCB, this section does not refer to s 117 (the main costs section) and indeed refers to making a costs order “under subsection (1)”. However, it is submitted that since the section merely says that the court must consider making a costs order in certain situations and does not attempt to state all the principles that might apply, it is likely that the legislature assumed that the court would also be guided by s 117.

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Subdivision E — Contravention without reasonable excuse (less serious contravention) [s 70NEA] 70NEA

Application of Subdivision

(1) Subject to subsection (4), this Subdivision applies

if: (a) a primary order has been made, whether before or after the commencement of this Division; and (b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and (c) the person does not prove that he or she had a reasonable excuse for the current contravention; and

[page 591] (d) either subsection (2) or (3) applies; and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred. (2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously: (a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or (b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order. (3) For the purposes of paragraph (1)(d), this subsection applies if: (a) a court has previously: (i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or (ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and (b) the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision. (4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current

contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order. COMMENTARY ON SECTION 70NEA Introduction ….

[s 70NEA.1]

[s 70NEA.1] Introduction This section, added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), explains the application of Subdiv E. The substance of the subdivision is that the court can make the orders under s 70NEB, notably requiring attendance at a post-separation parenting program, but also other orders including compensatory orders, costs, and bonds. In brief, by this section the subdivision applies to less serious contraventions without reasonable excuse. The detailed provisions in this section are rather complicated, and it might be helpful to set out the main elements, leaving some of the minor details to be filled in. The main matters in this section may be shortly summarised as follows. Subdivision E applies if: there has been a contravention of a parenting order, and; the person has not established a reasonable excuse, and; this is the first established contravention of the parenting order (for specifics, see subs (2)(a)); or although it is not the first established contravention, the court is satisfied that it is appropriate to apply this subdivision (for specifics, see subs (3)). Even if the subdivision would otherwise apply, however, the court may in effect decide not to apply it if the person who contravened the order “showed a serious disregard for his or her obligations” under the parenting order.

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[s 70NEB]

Powers of court

70NEB (1) If this Subdivision applies, the court may do any or all of the following: (a) make an order directing: (i) the person who committed the current contravention; or [page 592]

(b)

(c)

(d)

(da)

(ii) that person and another specified person; to attend a post-separation parenting program; if the current contravention is a contravention of a parenting order in relation to a child — make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention; adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order; make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC; if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) — impose a fine not exceeding 10 penalty units on the person;

(e) if: (i)

the current contravention is a contravention of a parenting order in relation to a child; and (ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and (iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention; make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); (f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and (g) if the court makes no other orders in relation to the current contravention — order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention. Note 1: The court may also vary the primary order under Subdivision B. Note 2: Paragraph (1)(a) — before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E). [subs (1) am Act 189 of 2011 s 3 and Sch 2[24], opn 7 Dec 2011]

(2) The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and (b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates. [page 593] (3) If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order. (4) If: (a) the current contravention is a contravention of a parenting order in relation to a child; and (b) the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention. (5) The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.

(6) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following: (a) whether the primary order was made by consent; (b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner; (c) the length of the period between the making of the primary order and the occurrence of the current contravention; (d) any other matters that the court thinks relevant. (7) The court must consider making an order under paragraph (1)(g) if: (a) the person (the applicant) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent) who committed the current contravention committed a contravention of the primary order or that other primary order; and (b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought: (i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or (ii) was satisfied that the respondent had committed a contravention of the primary order or that other

primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention. COMMENTARY ON SECTION 70NEB Introduction …. To attend a post-separation parenting program: subs (1) (a); s 70NEG …. A compensatory parenting order: subs (1)(b) …. Adjourn so that a variation application can be made: subs (1)(c) …. Order the person who contravened the order to enter into a bond: subs (1)(d) …. Order compensation for expenses: subs (1)(e) …. Costs against the respondent: subs (1)(f) …. Costs against the applicant: subs (1)(g) ….

[s 70NEB.1] [s 70NEB.5] [s 70NEB.10] [s 70NEB.15] [s 70NEB.20] [s 70NEB.25] [s 70NEB.30] [s 70NEB.35] [page 594]

[s 70NEB.1] Introduction This complex section, added by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (2006 Act), sets out a range of possible orders the court can make, with various qualifications and conditions. It is probably easiest to consider each type of order in turn. [s 70NEB.5] To attend a post-separation parenting program: subs (1)(a); s 70NEG This order can be made against the person who contravened the order. It can also be made against another specified person, if the conditions in subs (2) are met. There is also a machinery provision: the court must ensure that the provider of the program is notified of the order: subs (3). Section 70NEG deals with the situation where a person fails to attend a post-separation parenting program, or is assessed as unsuitable for it. The court can then “make such orders as it considers appropriate”.

[s 70NEB.10] A compensatory parenting order: subs (1)(b) This sort of order is sufficiently discussed above, in relation to s 70NDB. The reference to the child’s best interests is in subs (5). [s 70NEB.15] Adjourn so that a variation application can be made: subs (1)(c) In contravention proceedings, the court can of course always make a parenting order varying the primary order: see s 70NBA. This provision allows the court to order an adjournment so that the parties can have a chance to prepare the relevant evidence for such a proceeding. This sort of order would typically be made where a party persuades the court that a variation might be useful, but more time is needed to deal with that matter. [s 70NEB.20] Order the person who contravened the order to enter into a bond: subs (1)(d) See also s 70NEC for details relating to this order. The Full Court has held, in effect, that it is pointless to order a bond for a less serious breach of parenting order, because breach of the order unders 70NEB(1)(d) requiring the person to enter into the bond would have no legal consequences, and under s 70NEC(5), the court would have to point this out. Elspeth, Mark and John v Peter (Penalty and Costs) (2007) 214 FLR 116; (2007) 37 Fam LR 696; (2007) FLC 93-341; [2007] FamCA 1072. With respect, however, this decision is mistaken (RC), since a breach of an order requiring a person to enter the bond can be enforced in the ordinary way under s 112AD. It is to be hoped that the error is soon corrected, because the use of bonds is a valuable part of the court’s resources in the important task of enforcing parenting orders. It might be arguable that because the error is per incuriam, a judicial officer could decline to follow the decision, but a better solution would be for the Full Court to correct the error at the first possible opportunity, perhaps by way of a stated case. See generally R Chisholm, ‘Freed from her bonds!’ (2008) 22 Aust J Fam Law 79. [s 70NEB.25] Order compensation for expenses: subs (1)(e) This order can be made where as a result of the contravention a person spends less time with a child and incurs expenses. The Explanatory Memorandum (EM) says: 290. … The expenses incurred must be reasonable expenses. This provision is intended to cover situations where airfares or other tickets

purchased are wasted as a result of a person, for example, not making the child available for time with the other parent under a parenting order. [s 70NEB.30] Costs against the respondent: subs (1)(f) This is a power to order that the person who contravened the order should pay some or all of the costs of other parties. As to the relationship between this power and s 117, see the discussion above, in relation to s 70NCB. [s 70NEB.35] Costs against the applicant: subs (1)(g) This is a power to order that the person who brought the contravention proceedings should pay some or all of the costs of other parties. This order can only be made if the court makes no other orders in relation to the current [page 595] contravention. The thinking is presumably that where the court makes no orders in relation to the contravention, even though there was a contravention without reasonable excuse, the application might have been unreasonably made and it is appropriate for the court to consider whether to make a costs order against the applicant. By subs (7), the court “must consider” making such an order in the circumstances there specified. The EM says: 292. … The intention is to deter people from making repeated contravention applications which aim to harass or inconvenience the other party. This implements recommendation 40 of the LACA Report. As to the relationship between this power and s 117, see the discussion above, in relation to s 70NCB.

____________________

[s 70NEC] 70NEC

Bonds (1) This section provides for bonds that a court may

require a person to enter into under paragraph 70NEB(1)(d). (2) A bond is to be for a specified period of up to 2 years. (3) A bond may be: (a) with or without surety; and (b) with or without security. (4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person: (a) to attend an appointment (or a series of appointments) with a family consultant; or (b) to attend family counselling; or (c) to attend family dispute resolution; or (d) to be of good behaviour. (5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed requirement; and (b) the consequences that may follow if the person: (i) fails to enter into the bond; or (ii) having entered into the bond — fails to act in accordance with the bond. COMMENTARY ON SECTION 70NEC Overview ….

[s 70NEC.1]

[s 70NEC.1] Overview This section deals with specific aspects of bonds. In relation to subs (4), the Explanatory Memorandum (EM) says: 301. The conditions that may be imposed on a person by a bond are detailed in subsection 70NEC(4) but are not limited to those listed in that subsection. The court may require good behaviour by a person or for that

person to attend an appointment with a family consultant, or attend family counselling or family dispute resolution.

____________________ [page 596]

[s 70NECA]

Procedure for enforcing bonds

70NECA (1) If a court has made an order under paragraph 70NEB(1)(d) requiring a person to enter into a bond in accordance with section 70NEC, the following provisions have effect. (2) If the court (whether or not constituted by the judge or magistrate who required the bond to be entered into in accordance with section 70NEC) is satisfied that the person has, without reasonable excuse, failed to comply with the bond, the court may take action under subsection (3). [subs (2) am Act 13 of 2013 s 3 and Sch 1 item 294, opn 12 Apr 2013]

(3) The court may: (a) without prejudice to the continuance of the bond entered into in accordance with section 70NEC, impose a fine not exceeding 10 penalty units on the person; or (b) revoke the bond entered into in accordance with section 70NEC and, subject to subsection (4), deal with the person, for the contravention in respect of which the bond was entered into, in any manner in which the person could have been dealt with for the contravention if: (i) the bond had not been entered into; and

the person was before the court under section (ii) 70NEB in respect of the contravention. (4) In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account: (a) the fact that the bond was entered into; and (b) anything done pursuant to the bond; and (c) any fine imposed, and any other order made, for or in respect of the contravention. [s 70NECA insrt Act 189 of 2011 s 3 and Sch 2[25], opn 7 Dec 2011]

[s 70NED] Duties of provider of post-separation parenting program 70NED The provider of a post-separation parenting program must inform the court if: (a) the provider considers that a person ordered to attend the program under paragraph 70NEB(1)(a) is unsuitable to attend the program, or to continue attending the program; or (b) a person ordered to attend the program under paragraph 70NEB(1)(a) fails to attend the program, or a part of it.

[s 70NEF]

Evidence

70NEF (1) Evidence of anything said, or of any admission made, by a person attending a post-separation parenting program is not admissible: (a) in any court (whether exercising federal jurisdiction or not); or

in any proceedings before a person authorised by a law (b) of the Commonwealth, of a State or of a Territory, or by the consent of the parties, to hear evidence. (2) Subsection (1) does not apply to the following: [page 597] (a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; (b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse; unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

[s 70NEG] Court may make further orders in relation to attendance at program 70NEG The court may make such orders as it considers appropriate, other than the orders referred to in subsection 70NFB(2), in respect of a person, if: (a) it appears to the court that the person has not attended a post-separation parenting program that the person was ordered to attend; or (b) the person was assessed as unsuitable to attend a program. COMMENTARY ON SECTION 70NEG Introduction ….

[s 70NEG.1]

[s 70NEG.1] Introduction This section deals with the situation where a person has been ordered (under s 70NEB(1)(a)) to attend a post-separation parenting program and fails to do so, or is considered unsuitable. It gives the court an open-ended power to make such orders as it considers appropriate. The limits of this power remain to be explored.

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Subdivision F — Contravention without reasonable excuse (more serious contravention) [s 70NFA] 70NFA

Application of Subdivision

(1) Subject to subsection (2), this Subdivision applies

if: (a) a primary order has been made, whether before or after the commencement of this Division; and (b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and (c) the person does not prove that he or she had a reasonable excuse for the current contravention; and (d) either subsection (2) or (3) applies. Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.

(2) For the purposes of paragraph (1)(d), this subsection applies if: (a) no court has previously: (i) made an order imposing a sanction or taking an

action in respect of a contravention by the person of the primary order; or (ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and (b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. [page 598] (3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously: (a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or (b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order. (4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E. (5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

[s 70NFB]

Powers of court

70NFB (1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention: (a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and (b) if the court makes an order under paragraph (2)(g) — consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and (c) if the court does not make an order under paragraph (2) (g) — make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances. (2) The orders that are available to be made by the court are: (a) if the court is empowered under section 70NFC to make a community service order—to make such an order; or (b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or (c) if the current contravention is a contravention of a parenting order in relation to a child—to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or (d) to fine the person not more than 60 penalty units; or (e) subject to subsection (7), to impose a sentence of

imprisonment on the person in accordance with section 70NFG; or (f) if: (i) the current contravention is a contravention of a parenting order in relation to a child; and (ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and (iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention; to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or [page 599] (g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or (h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division. Note: The court may also vary the primary order under Subdivision B.

(3) If a court varies or discharges under section 70NFD a

community service order made under paragraph (2)(a), the court may give any directions as to the effect of the variation or discharge that the court considers appropriate. (4) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent. (5) The court must not make an order imposing a sentence of imprisonment on a person under this section in respect of: (a) a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act 1989; or (b) a breach of a child support agreement made under that Act; or (c) a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act). (6) An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event. (7) When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened. COMMENTARY ON SECTION 70NFB Sentencing under s 70NFB ….

[s 70NFB.10]

[s 70NFB.10] Sentencing under s 70NFB The Full Court considered

sentencing under this section in McClintock & Levier [2009] FamCAFC 62; (2009) 41 Fam LR 245. The main points to emerge appear to be as follows: General deterrence not to be considered The Full Court held that the permissible purposes of penalties under Div 13A do not include general deterrence (Coleman and Cronin JJ; Finn J disagreeing) or punishment as such (Coleman and Cronin JJ; Finn J not deciding). Coleman J said that while the Court is entitled to have regard to relevant sentencing principles or guidelines, it is not entitled to have regard to ensuring that the person is adequately punished in a way that would prevent other people from committing the same or similar breaches, to protect the community from the person, or, other than for the purposes of procuring compliance of the Court’s orders, to denounce the conduct of the person (para 158). Similarly, Cronin J said at 233-4 that the focus must be to enforce future compliance [by the person], and that it would be an error of law for the Court to punish the person for the purposes of making other like-minded persons comply with orders relevant to them, or to make an example of them. Tailoring an order to ensure compliance by that party may dissuade like-minded persons from behaving in similar ways, but that cannot be the deliberate purpose of the Court dealing with the application. [page 600] Finn J disagreed on this aspect, holding that although ensuring compliance by the person is an ‘important, indeed probably the principal consideration’ it is open to the Court to have regard to general deterrence: para 44. Her Honour considered that the words in s 70NAA(“.to make orders to enforce compliance with orders under the Act affecting children”) could be read as having a general application to all parenting orders, not just the orders in the case at hand. (Cronin J preferred the narrow interpretation, and Coleman may have done so implicitly.) Suspended sentence to be considered Although there is no reference to a suspended sentence in s 70NFB, it may be considered, either because it is incorporated by the reference in s 70NFB(2)(e) to a sentence of imprisonment

‘in accordance with section 70NFG’ or because it is required by s 70NFG(5): see paras 56-57 (Finn J); 165 (Coleman J); see also 245-248 (Cronin J) (suggesting that it might be desirable that s 70NFB be amended to refer expressly to the option of a suspended sentence). Reasons When the Court imposes a sentence of imprisonment, by s 70NFG(3) it must give at least brief reasons explaining why the various options in s 70NFB(2), including a suspended term of imprisonment, were considered inappropriate, with the result that a term of imprisonment is the only option: paras 60-61 (Finn J). Matters to be considered The Court must have regard to the matters listed in the relevant provisions of the Family Law Act 1975, but is not precluded from also having regard to other matters ‘which have historically been recognised as relevant to the exercise of the sentencing discretion’: para 125 (Coleman J). Similarly, Cronin J said at para 235 that there was no reason why the Court could not seek guidance from (in that case) the ACT sentencing legislation as to what relevant factors should be applied to determine what is an appropriate way to encourage compliance with court orders, providing the Court’s focus is on the individual party rather than on general deterrence or policy. To that extent, the Full Court did not seem attracted by the argument that the provisions constituted a ‘code’ (at paragraph 43, Finn J found it unnecessary to decide this point). Danger of global approach Dealing with several breaches together in a global fashion has dangers: paragraphs 66 (Finn J); 166-177 (Coleman J); 252-259 (Cronin J). 12 months maximum to be considered only in the most serious case Cronin J said at para 178 that the limit of 12 months imprisonment (in contrast to s 112AP) implies that the legislature intended that the most serious case would invoke a sentence of that duration.

____________________

[s 70NFC]

When court is empowered to make a

community service order 70NFC (1) Subject to this section, if, under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to make a community service order in respect of a person convicted of an offence against the law of the State or Territory, a court exercising jurisdiction in the State or Territory may, under paragraph 70NFB(2)(a) make a community service order. (2) A community service order made under paragraph 70NFB(2)(a): (a) is to be such that the total number of hours during which the order regulates the conduct of the person in respect of whom it is made does not exceed the maximum period in relation to the State or Territory in which the order is made; and (b) ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order. [page 601] (3) A community service order may be an order of any of the following kinds: (a) an order known as: (i) a community service order; or (ii) a work order; or (iii) an attendance centre order; or (iv) an attendance order; or

(v) a community based order; (b) an order that is similar to an order referred to in paragraph (a); (c) an order prescribed for the purposes of this paragraph. (4) If a court exercising jurisdiction under section 70NFB in a particular State or Territory makes a community service order under paragraph 70NFB(2)(a), the provisions of the laws of the State or Territory with respect to a community service order that is made under those laws are, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, to apply in relation to the order. (5) If a court proposes to make a community service order under paragraph 70NFB(2)(a), it must, before doing so, explain to the person in respect of whom it is made, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed order; and (b) the consequences that may follow if the person fails to comply with the proposed order or with any requirements made in relation to the order by or under the applied provisions; and (c) if the proposed order may be revoked or varied under the applied provisions—that the proposed order may be so revoked or varied. (6) In this section: maximum period, in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory. participating State means a State in relation to which an agreement under section 70NFI is in force.

participating Territory means a Territory in relation to which an agreement under section 70NFI is in force.

[s 70NFD] Variation and discharge of community service orders 70NFD A community service order made under paragraph 70NFB(2)(a) may be varied or discharged: (a) if the court that made the order is the Family Court or the Federal Circuit Court of Australia — by either of those Courts; or (b) otherwise — by the court that made the order or the Family Court. [s 70NFD am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

[s 70NFE]

Bonds

70NFE (1) This section provides for bonds that a court may require a person to enter into under paragraph 70NFB(2)(b). (2) A bond is to be for a specified period of up to 2 years. [page 602] (3) A bond may be: (a) with or without surety; and (b) with or without security. (4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person: (a) to attend an appointment (or a series of appointments)

with a family consultant; or (b) to attend family counselling; or (c) to attend family dispute resolution; or (d) to be of good behaviour. Note: Before imposing a condition under this subsection, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E).

(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed requirement; and (b) the consequences that may follow if the person: (i) fails to enter into the bond; or (ii) having entered into the bond — fails to act in accordance with the bond.

[s 70NFF] Procedure for enforcing community service orders or bonds 70NFF (1) If a court makes a community service order under paragraph 70NFB(2)(a) in respect of a person, or an order under paragraph 70NFB(2)(b) requiring a person to enter into a bond in accordance with section 70NFE, the following provisions have effect. (2) If the court (whether or not constituted by the judge or magistrate who made the community service order or required the bond to be entered into in accordance with section 70NFE) is satisfied that the person has, without reasonable excuse, failed to comply with the order or bond, the court may take action under subsection (3).

[subs (2) am Act 189 of 2011 s 3 and Sch 2[26], opn 7 Dec 2011; Act 13 of 2013 s 3 and Sch 1 item 295, opn 12 Apr 2013]

(3) The court may: (a) without prejudice to the continuance of the community service order or the bond entered into in accordance with section 70NFE, impose a fine not exceeding 10 penalty units on the person; or (b) revoke the community service order or the bond entered into in accordance with section 70NFE and, subject to subsection (4), deal with the person, for the contravention in respect of which the community service order was made or the bond was entered into, in any manner in which the person could have been dealt with for the contravention if: (i) the community service order had not been made or the bond had not been entered into; and (ii) the person was before the court under section 70NFB in respect of the contravention. [page 603] (4) In dealing with the person as mentioned in paragraph (3)(b), the court must, in addition to any other matters that it considers should be taken into account, take into account: (a) the fact that the community service order was made or the bond was entered into; and (b) anything done under the community service order or pursuant to the bond; and

(c) any fine imposed, and any other order made, for or in respect of the contravention.

[s 70NFG]

Sentences of imprisonment

70NFG (1) A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be: (a) for a specified period of 12 months or less; or (b) for a period ending when the person: (i) complies with the order concerned; or (ii) has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court; whichever happens first. (2) A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2). (3) If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must: (a) state the reasons why it is satisfied as mentioned in subsection (2); and (b) cause those reasons to be entered in the records of the court. (4) The failure of a court to comply with subsection (3) does not invalidate a sentence. (5) A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:

suspend the sentence upon the terms and conditions (a) determined by the court; and (b) terminate a suspension made under paragraph (a). (6) A court, when sentencing a person to imprisonment under paragraph 70NFB(2)(e), may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (7) after he or she has served a specified part of the term of imprisonment. (7) A bond for the purposes of subsection (6) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years. (8) A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned. (9) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 70NFB(2)(e) for failure to make a payment under a child maintenance order does not affect the person’s liability to make the payment. [page 604]

[s 70NFH] other laws

Relationship between Subdivision and

70NFH (1) This section applies where an act or omission by a person: (a) constitutes a contravention of an order under this Act

affecting children; and (b) is also an offence against any law. (2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NFB in respect of the contravention of the order must: (a) adjourn those proceedings until the prosecution has been completed; or (b) dismiss those proceedings. (3) The person may be prosecuted for, and convicted of, the offence. (4) Nothing in this section renders the person liable to be punished twice in respect of the same act or omission.

[s 70NFI] Arrangements with States and Territories for carrying out of sentences and orders 70NFI An arrangement made under section 112AN for or in relation to the carrying out of sentences imposed, or orders made, under Division 2 of Part XIIIA is taken to extend to the carrying out of sentences imposed, or orders made, under this Subdivision.

[s 70NFJ] Subdivision does not limit operation of section 105 70NFJ Nothing in this Subdivision is intended to limit the operation of section 105. DIVISION 14 — MISCELLANEOUS

[s 70P]

What this Division does

70P This Division deals with miscellaneous matters relating to children.

[s 70Q]

Certain instruments not liable to duty

70Q (1) The following instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory: (a) an instrument executed under, or for the purposes of, an order made under this Part; (b) an eligible parenting plan that confers a benefit in relation to a child, to the extent to which it confers the benefit; (c) an instrument executed under, or for the purposes of, an eligible parenting plan and that confers a benefit in relation to a child, to the extent to which it confers the benefit. (2) An eligible parenting plan is a parenting plan: (a) that is a registered parenting plan within the meaning of subsection 63C(6); and (b) that is not a maintenance agreement, or, if it is a

maintenance agreement, it relates to a child who is not a child of the marriage to which the maintenance agreement relates; and [page 605] (c) that: (i) is made by the parties to a de facto relationship in connection with the breakdown of that relationship; or (ii) relates to a child whose parents (being parties to the plan) were neither married to each other, nor living with each other in a de facto relationship, at the time of the child’s conception. [subs (2) am Act 138 of 2003 s 3 and Sch 1 item 15 opn 14 Jan 2004]

(3) In this section, a reference to an instrument that confers a benefit in relation to a child includes a reference to an instrument that confers an entitlement to property in relation to a child even though the instrument also deprives the child or another person of an entitlement to other property in relation to the child. *Editor’s note: Schedule 2 of the Family Law Reform Act 1995 No 167 contains transitional provisions relating to the repeal and re-making of Pt VII. See [s 1.0.0] where Sch 2 is reproduced.

[page 607]

PART VIII — PROPERTY, SPOUSAL MAINTENANCE AND MAINTENANCE AGREEMENTS* [Heading subst Act 181 of 1987 s 36] PROCEEDINGS RELATING TO PROPERTY: SS 78, 79 INTRODUCTION [Pt VIII.1] Origins of property — Jurisdiction When the Family Law Act first came into operation on 5 January 1976, it attempted to increase the scope of the Commonwealth jurisdiction in respect to property proceedings between the parties to a marriage. Under the repealed Matrimonial Causes Act 1959, courts exercising jurisdiction had power to effect a settlement of property in proceedings under s 86 of that Act, only if proceedings for principal relief were also brought. Section 86 was an exercise of the “divorce and matrimonial causes power” in s 51(xxii) of the Constitution. Proceedings between husband and wife relating to their property, which were not connected with proceedings for principal relief, fell under State law and within the jurisdiction of State Supreme Courts. The Family Law Act endeavoured to make changes to the division of jurisdiction. The jurisdiction conferred on the Family Court by the Family Law Act depended upon the relevant paragraph of the definition of “matrimonial cause” in s 4. In the original definition of “matrimonial cause” in s 4, the paragraph relating to property proceedings provided: “(c) (ii) proceedings with respect to the property of the parties to a marriage or either of them.”

There was no requirement that the property proceedings be related to divorce or nullity proceedings, or even that the proceedings had to be between the parties to a marriage. Section 78 proceedings for a declaration of existing property interests was an attempt to take over the jurisdiction of the various State Supreme Courts in the pre-divorce period. The Act in its original form in the now repealed s 79(3) also attempted to give the court jurisdiction to make a just and equitable alteration of property interests under s 79 in the pre-divorce period by the device of attaching the s 79 jurisdiction to the simple filing by a party to the marriage pursuant to s 15 of a notice of intention to seek counselling. In 1976 a challenge was made to the constitutionality of certain provisions of the Act including s 78. In Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90–039, the High Court held that the relevant definition of “matrimonial cause”, in its then form, was not sufficiently connected with the “marriage” power in s 51(xxxi) of the Constitution. The wording of the definition of “matrimonial cause” was not sufficiently limited to matrimonial property or to circumstances arising from the marriage to be an exercise of the marriage power. The High Court held that para (c)(ii) of the definition of matrimonial cause could be read down only under the “divorce and matrimonial causes” power in s 51(xxii) of the Constitution. The effect of this was to confine the operation of ss 78 and 79 to the post-divorce period. The definition of matrimonial cause in s 4(1) relating to property was subsequently amended by the Family Law Amendment Act 1976 following the decision of the High Court to read: [page 608] “(ca)proceedings between the parties to a marriage with respect to the property of the parties to a marriage or either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties.”

The effect of this new definition was to tie property proceedings to divorce or nullity proceedings or other applications for principal relief and also limit the proceedings to proceedings between the parties to a marriage. The Family Court made attempts to overcome the loss of the jurisdiction under s 79 and the apparent revival of the jurisdiction of State Supreme Courts in the pre-divorce period. The practice was developed of instituting proceedings for a declaration of the validity of the marriage under s 113, with the real intent of bringing proceedings under ss 78 or 79: see In the Marriage of Read (1977) 2 Fam LR 11,596; FLC 90–201. The Full Court of the Family Court, however, placed restrictions on this device and held that as a matter of law, the court should not declare valid a marriage, the validity of which had never been in doubt, and where the relief of the declaration could have no effect on the parties or their status or on any other matter: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; see also In the Marriage of Savage and Hodgson (1982) 8 Fam LR 658; FLC 91– 281. The device of obtaining a declaration of divorce decree has again been used in order to confer jurisdiction under s 79 in relation to a foreign divorce: see In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91–347. The position remained however that, in practice, proceedings for property disputes between a husband and a wife about their property remained within the jurisdiction of State legislation and of the State courts until divorce proceedings were commenced. Once divorce proceedings were commenced, any property dispute between the husband and the wife became the subject of the Family Law Act. State law governed a matrimonial property dispute only until divorce proceedings were instituted between the parties to a marriage. The difficulty was, however, that there was a distinction between the Family Law Act and the law of the majority of the States in relation to a wife’s indirect nonfinancial contribution to the financial resources of the husband and the wife. Under the Family Law Act the court has a discretionary power to alter property interests between a husband and wife. By contrast, in determining property disputes between a husband and a wife under the legislation of all the States except Victoria and Western Australia, the courts had to apply the strict rules of law and equity, under which it is not possible to take into account the non-financial contribution by a wife to the acquisition of family

assets, or future needs. This lack of protection for a wife’s non-financial contribution to property meant that a husband would have up to 12 months after he separated from his wife to dispose of property, the title of which was in his name, but to the acquisition of which the wife may have indirectly made a contribution. The Family Court of Australia, however, in connection with the need to protect the interest of a spouse in family assets during the 12 months’ separation period, held that once a marriage had broken down, the court’s power to grant an injunction under s 114(1) could be used to protect the incipient or inchoate right of a spouse to seek an order altering property interests under s 79 of the Act: In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; see also R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616; In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806. The Family Law Amendment Act 1983 endeavoured to confer on the Family Court a jurisdiction in certain property proceedings in the predivorce period. The definition of matrimonial cause was amended and in particular, there was inserted in s 4 the following definition: [page 609] “(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them being proceedings: (i) arising out of the marital relationship, (ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief, or (iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment, or legal separation effected in accordance with the law of an overseas country, where that dissolution, annulment or legal separation is recognized as valid in Australia under

section 104.” The jurisdiction over property proceedings tied to proceedings for principal relief was retained in para (ca)(ii), but in addition the Family Court was given by para (ca)(i) jurisdiction in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them being proceedings arising out of the marital relationship. The Family Court was also given the power by para (ca)(iii) to make a property order when the marriage has been dissolved or annulled in an overseas country and Australian law recognises the decree as valid. [Pt VIII.2] Relationship between Family Law Act jurisdiction and State jurisdiction Section 8(1)(a) provides that after the commencement of the Act proceedings by way of a matrimonial cause shall not be instituted except under the Act. Once proceedings are classified as a “matrimonial cause”, then the Family Law Act claims exclusive jurisdiction. In two proclamations issued by the Governor-General pursuant to s 40(3), it is further provided that proceedings to which the proclamations apply, may no longer be instituted in or transferred to State courts. These proclamations have commencing dates of 1 June 1976 and 25 November 1983 respectively and, in effect, apply to matrimonial causes as defined in s 4(1) of the Act: see Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91–500. Section 109 of the Constitution provides: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.” Inconsistency under s 109 can arise in two ways, namely: (a) by a direct conflict between a law of the Commonwealth and a law of the State; (b) by a law of the Commonwealth indicating that it is to “cover the field” in respect of a particular subject on which there is also State law. The area covered by s 78 coincides largely with the area covered by State legislation, such as the Married Persons (Property and Torts) Act 1901 (NSW) s 22 and similar legislation in other States. These statutes, as well as

other State legislative provisions, such as those dealing with the power of courts to order the partition or sale of property held jointly or in common, are still in force and the question which arises is whether they could be invoked in matrimonial disputes between parties to a marriage. In such a case, the question of inconsistency between Federal and State law may arise. [Pt VIII.3] The position prior to the Family Law Amendment Act 1983 By virtue of the previous definition of “matrimonial cause” in para (ca) of s 4(1), property proceedings could only be commenced between parties to a marriage under the Act if those proceedings were “in relation to concurrent, pending or completed proceedings for principal relief”. “Proceedings for principal relief” were defined in s 4(1) as “proceedings for dissolution of marriage, nullity, or for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage”. [page 610] The question which arose was whether, prior to the commencement of proceedings for principal relief, property proceedings between spouses could be commenced in a State court. There were three elements involved in the definition of property proceedings in para (ca) of s 4(1) namely: (a) that the proceedings were between the parties to a marriage; (b) that they were proceedings with respect to the property of those parties, or of either of them; and (c) that the proceedings bore a relationship to proceedings for principal relief. There was no reason why a party to a marriage could not commence property proceedings under a State law right up to the time that proceedings were commenced for principal relief: see Tansell v Tansell (1977) 3 Fam LR 11,441; FLC 90–280; see also In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711. The question which then arose was whether there was jurisdiction in State

courts to entertain proceedings under State law if those proceedings were instituted after proceedings were commenced in the Family Court for principal relief: see In the Marriage of Cattarossi (1976) 2 Fam LR 11,436; FLC 90–106; see also Reynolds v Reynolds (1977) 3 Fam LR 11,529; (1979) FLC 90–728 at 78,924. The answer to the question depended on whether the proceedings in the State court could be described as proceedings in relation to the proceedings for principal relief: see In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91–087 at 76,596. If the proceedings in respect of the property held by parties to a marriage were made because the marriage between the parties had been dissolved, or was about to be dissolved, then the proceedings for property were proceedings in relation to proceedings for principal relief: see In the Marriage of Rennie and Higgon, above; see also R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598 at 602; FLC 90–606 at 78,104. If the proceedings instituted by a party in the State court had a direct cause or relationship with the proceedings for principal relief and related to property held by the parties, the disposition of which had to be determined one way or the other as a result of the proceedings for principal relief, then the proceedings were in relation to proceedings for principal relief. There was nothing in the Family Law Act to indicate that the Act was intended to “cover the field” in relation to all property disputes between spouses. The Act did not grant jurisdiction to the Family Court to deal with all property disputes arising out of the marital relationship: see In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91–087; see also Reynolds v Reynolds, above; In the Marriage of Cacek (1978) 5 Fam LR 377; (1979) FLC 90–637; In the Marriage of Baba and Jarvinen (1980) 6 Fam LR 276; FLC 90–882. The Family Law Act covered the field in property relief only to the extent that it expressly so provided in s 8(1)(a) and in the first proclamation, and State jurisdiction was not, therefore, displaced or invalidated by subsequent proceedings under the Family Law Act. A State Supreme Court may, however, as a matter of discretion, stay proceedings before it when it becomes apparent that the Family Court has also taken jurisdiction in the matter in order to resolve the problem of the

possibility of conflicting orders; see Williams v Williams (1979) 5 Fam LR 137; FLC 90–640; see also In the Marriage of Baba and Jarvinen, above. However, the practice of adjourning proceedings as a matter of discretion was complemented by the practice of the Family Court of restraining by injunction, the continuation of such concurrent property proceedings in State courts: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; see also In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856; In the Marriage of Bak (1979) 6 Fam LR 411; (1980) FLC 90–877; In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91–067; In the Marriage of Macvean (1980) 7 Fam LR 8; FLC 90–912. Another view was that prima facie, if State jurisdiction has been properly invoked prior to the institution of proceedings for principal relief, it would not be ousted by the subsequent [page 611] commencement of such proceedings in the Family Court. If, however, proceedings were subsequently instituted under the Family Law Act in respect of the same subject matter, there may be an inconsistency, not by the mere co-existence of the Federal and State law, but by action under the Federal law in the face of which action under the State law must give way: see Tansell v Tansell (1977) 3 Fam LR 11,441 at 11,448; FLC 90–280 at 76,493; see, however, In the Marriage of McLean (1978) 4 Fam LR 181; FLC 90–502 at 77,630. See also In the Marriage of Cacek (1978) 5 Fam LR 377; (1979) FLC 90–637; at 78,332. The State proceedings were displaced through inconsistency. Should the proceedings under the Family Law Act be discontinued, the State jurisdiction revives. It may be that the answer to the question still depends on whether the proceedings instituted in the State court have a direct cause or relationship with the dissolution of the marriage. If the institution of the proceedings for principal relief followed the institution of proceedings by a party to the marriage in a State court, then there may be no cause or connection between the institution of the proceedings for principal relief in the Family Court and

the proceedings in the State court so that the proceedings in the State court could not be said to be proceedings in relation to proceedings for principal relief: see In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91–087 at 76,598. Once there is an application for principal relief, proceedings between the parties in respect of their property which are instituted in another jurisdiction and which are consequential upon the breakdown of their marriage, and the proceedings for its dissolution, then the proceedings in respect of their property may fall into para (ca) of matrimonial cause and therefore the exclusive jurisdiction of the Family Court. The answer depends upon the ambit of the expression “in relation to”. [Pt VIII.4] The Family Law Amendment Act 1983 A new paragraph was added to the definition of matrimonial cause by the Family Law Amendment Act 1983, namely para (ca)(i) which reads: “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them being proceedings arising out of the marital relationship”. This new paragraph may define what proceedings can be commenced under the Family Law Act and what proceedings cannot be commenced in State courts. A broad interpretation of para (ca)(i) may mean that State courts can no longer hear inter-spousal applications such as the appointment of trustees for sale over jointly-owned property: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108. Since the enactment of the Family Law Amendment Act 1983, property proceedings between the parties to a marriage are almost completely covered by para (ca). Any property dispute between parties to a marriage will fall within that paragraph, and thus the exclusive jurisdiction of courts acting under the Family Law Act provided that it can be said that the proceedings flowing from it arise out of the marital relationship or are in relation to concurrent pending or completed proceedings for principal relief. The operation of State laws has been displaced by the now comprehensive provisions of the Act, and the operation of State law will only arise in exceptional cases, such as, perhaps, where property proceedings are commenced some considerable time after the completion of proceedings for

principal relief. [Pt VIII.5] The court which decides the issue concerning jurisdiction Each court should determine its own jurisdiction: In the Marriage of Baba and Jarvinen (1980) 6 Fam LR 276; FLC 90–882 at 75,574. [Pt VIII.6] Injunctions to restrain proceedings in a State court The Family Court may grant an injunction restraining a party from continuing with proceedings in a State court in the period prior to the commencement of proceedings in the Family Court and for property. The injunction is granted to protect the incipient right which a party has under the Family Law Act: [page 612] see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90– 627; see also In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856; In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90– 711; In the Marriage of Gillies (1981) 7 Fam LR 106; FLC 91–054. [Pt VIII.7] Proceedings between the parties to a marriage Proceedings with respect to property must be between the parties to a marriage. However, for the purposes of jurisdiction over financial matters, the concept of marriage will include: (a) any arrangement commenced by a purported marriage ceremony in Australia, whether “valid” or “void”: In the Marriage of Miller (1983) 9 Fam LR 10; FLC 91–328; Ungar v Ungar (No 2) (1968) 11 FLR 301; In the Marriage of Barriga (1979) 5 Fam LR 488; FLC 90–690. (b) Any arrangement in the nature of marriage which is recognised in Australia as “valid” or “void” under the rules of Private International Law: see ss 6 and 104. (c) A marriage which has been dissolved or annulled in Australia or elsewhere.

[Pt VIII.8] Proceedings with respect to the property of the parties or either of them Property is defined in s 4(1) of the Act. The word “property” as used in s 78(1) has the same meaning as the definition in s 4(1): see In the Marriage of Schreiber and Dixon (1977) 3 Fam LR 11,379 at 11,387; FLC 90–274; see also Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90– 481. The assets of a partnership between a husband and a wife, however, may not be property in respect of which a declaration could be made under s 78, particularly if a third party is involved in the partnership: see R v RossJones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90– 606; see also Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 at 453. [Pt VIII.9] Courts in which proceedings must be instituted Proceedings with respect to property must, after 1 June 1976, be brought in one of the following courts: (a) The Family Court of Australia. There are no restrictions as to which registry may be chosen by an applicant. However, an order may be sought that proceedings be transferred from one registry to another pursuant to s 45(2). (b) The Family Court of Western Australia. (c) The Supreme Court of the Northern Territory. (d) Subject to the provisions of s 46(1) relating to property of the value exceeding $20,000, any court of summary jurisdiction of a state or territory except in the Perth Metropolitan Area where the Family Court of Western Australia has exclusive jurisdiction. [Pt VIII.10] Proceedings in the Family Court of Western Australia By virtue of the Family Law Amendment Act 1978 (WA), which came into operation on 16 June 1978, the Family Court of Western Australia has been invested with non-Federal jurisdiction to declare in proceedings between the parties to a marriage the existing title or rights, if any, which a party to a marriage may have in respect of the property of such parties or either of them except the interest of a party to the marriage in a partnership with a person who is neither a party to the marriage, nor a child of the marriage:

see s 29(1) of the Family Court Act 1975–1982 (WA). By virtue of s 30(1) of the Family Court Act, the Family Court of Western Australia has been invested with jurisdiction to make such order as it thinks fit altering the interests of the parties to a marriage in property owned by them, except the interest of a party to the marriage in a partnership with a person who is neither a party to the marriage or a child of the marriage. [Pt VIII.11] Ineffective orders At common law a court usually will not make an ineffective order. If a party has left Australia taking all of his or her property, with little likelihood of [page 613] returning, the court may refuse to make a useless order in Australia: see P E Nygh, Conflict of Laws in Australia, 4th ed; see also In the Marriage of Woo (1976) 2 Fam LN 9; FLC 90–107; In the Marriage of Allison (1981) 7 Fam LR 953. A court, however, may order a person within Australia to transfer title to foreign property as a matter of personal obligation: In the Marriage of Perry (1979) 5 Fam LR 454; FLC 90–701 and In the Marriage of Anderson (1981) 8 Fam LR 161; FLC 91–104 Orders made with respect to realty abroad can only be enforced against the person. If an order is made under s 106A for the execution of documents, such documents are not likely to be recognised abroad. **Editor’s

Note: Important commentary relating to Part VIII (ss 78, 79) has been reproduced directly under the heading to Part VIII. Sections 71–90 (including annotations) follow the Part VIII commentary. Please note that further commentary relating to ss 78 and 79 can be found at [s 78.1]–[s 78.9] and [s 79.1]–[s 79.389].

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[s 71]

Interpretation

71 In this Part: marriage includes a void marriage. re-marriage, in relation to a person who was a party to a purported marriage that is void, means marriage. COMMENTARY ON SECTION 71 Definition — introductory comment …. General principles …. Remarriage ….

[s 71.1] [s 71.3] [s 71.4]

[s 71.1] Definition — introductory comment This provision is in substantially the same terms as s 55 of the repealed Matrimonial Causes Act 1958. It defines “marriage” and “remarriage” for the purposes of Pt VIII of the Act. It has the effect that a party to a void marriage stands in exactly the same position as to Pt VIII as a party to a lawful and legal marriage. Every “matrimonial cause” defined in s 4(1) is dependent upon the past or present existence of a “marriage”. [s 71.3] General principles In determining the entitlement to maintenance and settlement of property, the same principles should be applied as if the marriage was a valid one: see Ungar v Ungar (No 2) (1968) 11 FLR 301; see also In the Marriage of Barriga (1979) 5 Fam LR 488 at 490; FLC 90–690; In the Marriage of Miller (1983) 9 Fam LR 10; FLC 91–328; In the Marriage of Lengyel and Rasad (1990) 14 Fam LR 198; FLC 92–154. The court may make orders under Pt VIII if there is pending before the court an application seeking a decree of nullity: see In the Marriage of Barriga, above; see also In the Marriage of Lynch and Slater (1977) 3 Fam LR 11,515; FLC 90–309. [s 71.4] Remarriage This definition is relevant to the provisions of s 82(4) which provides that upon the remarriage of a party who is the beneficiary of an order for maintenance, the entitlement to maintenance shall cease unless

the court otherwise orders. Where a party to a marriage enters into a second marriage which is a void marriage, that second marriage is, by virtue of this definition, deemed to be a remarriage. So also, where a party to a void marriage enters into another void marriage, that second marriage is, by virtue of this definition, deemed to be a remarriage.

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[s 71A] This Part does not apply to certain matters covered by binding financial agreements 71A (1) This Part does not apply to: (a) financial matters to which a financial agreement that is binding on the parties to the agreement applies; or [page 614] (b) financial resources to which a financial agreement that is binding on the parties to the agreement applies. (2) Subsection (1) does not apply in relation to proceedings of a kind referred to in paragraph (caa) or (cb) of the definition of matrimonial cause in subsection 4(1). [subs (2) insrt Act 20 of 2005 s 3 and Sch 1 cl 21, opn 18 Sep 2005] [s 71A insrt Act 143 of 2000 s 3 and Sch 2 item 4 opn 27 Dec 2000] COMMENTARY ON SECTION 71A Part VIII has no application to financial matters or resources to which a binding financial agreement applies ….

[s 71A.1]

[s 71A.1] Part VIII has no application to financial matters or resources to which a binding financial agreement applies This section makes it clear that where such an agreement is binding under Pt VIIIA, the powers contained in Pt VIII do not apply to financial matters or resources to which such an agreement applies. Where a binding agreement does not deal comprehensively with all aspects of the parties’ financial affairs, the court’s powers under Pt VIII remain; but the terms of any such agreement will be relevant to the exercise by the court of its powers under Pt VIII: see s 75(2)

(p). A financial agreement cannot oust the jurisdiction of the court if it was entered into to defeat creditors.

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[s 72]

Right of spouse to maintenance

72 (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). [subs (1) subst Act 72 of 1983 s 34]

(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. [subs (2) insrt Act 20 of 2005 s 3 and Sch 1 cl 22, opn 18 Sep 2005] COMMENTARY ON SECTION 72 Relevant sections …. Right of spouse to maintenance — s 72 …. Nature of maintenance order …. Distinction between maintenance and property ….

[s 72.1] [s 72.2] [s 72.3] [s 72.4]

When proceedings may be instituted …. Dominant principle …. The need of the applicant — threshold requirement …. Onus on applicant …. Nominal order …. Needs exceed income …. Relevance of conduct ….

[s 72.5] [s 72.6] [s 72.7] [s 72.8] [s 72.9] [s 72.10] [s 72.11] [page 615]

Inability to support herself or himself adequately …. Factors — s 72 …. Care and control of child — s 72(a) …. Capacity for employment — s 72(b) …. Other factors — s 75(2) …. Ability of respondent to pay …. Order for payment of a lump sum …. Power under s 74 …. Relationship between maintenance and property settlement …. Maintenance and Bankruptcy ….

[s 72.12] [s 72.13] [s 72.14] [s 72.15] [s 72.16] [s 72.17] [s 72.18] [s 72.19] [s 72.20] [s 72.21]

[s 72.1] Relevant sections The relevant sections of the Act relating to spousal maintenance are ss 71, 72, 74, 75, 77, 77A, 80–85. The relevant “matrimonial cause” is para (c) of the definition of “matrimonial cause” in s 4(1). [s 72.2] Right of spouse to maintenance — s 72 Section 72 imposes an obligation on the spouses for mutual support. It is one of the incidents of consortium which is explicitly recognised by the Act: see In the Marriage of Pavey (1976) 1 Fam LR 11,358; FLC 90–051 at 75,213. [s 72.3] Nature of maintenance order Maintenance, in this sense, has to be distinguished from an order for settlement of property. A maintenance order

is simply an order for the payment of money, usually at regular intervals, for the support of the person to be maintained. The essential feature is that, unless ordered to be paid in one lump sum, it rises and falls with the need of the person to be maintained, having regard also to the means of the person paying the maintenance: see Weiss v Weiss (unreported, SC(NSW), Allen J, 1 December 1971), referred to in In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226 at 76,195; see also In the Marriage of Branchflower (1979) 6 Fam LR 188; (1980) FLC 90–857. [s 72.4] Distinction between maintenance and property The main purpose of spousal maintenance is to make provision for future needs, whereas s 79 (property distribution) is mainly (though not exclusively) concerned with past contributions: see In the Marriage of Crawford (1979) 5 Fam LR 106; FLC 90–647. However, this distinction has become blurred as a result of recent cases in which the court has been prepared to make generous adjustments to property awards made under s 79 in recognition of the s 75(2) factors (for which purpose it is not necessary to satisfy the s 72 threshold): see commentary at [s 79.235]. The maintenance component (if any) in financial orders must be clearly specified (s 77A). For these purposes, “maintenance component” does not include the s 75(2) uplift element of a property order made under s 79: see commentary on s 77A. [s 72.5] When proceedings may be instituted Maintenance proceedings may be instituted: (a) before divorce — the entitlement of a spouse to maintenance does not even depend upon separation: see In the Marriage of Eliades (1980) 6 Fam LR 916; (1981) FLC 91–022; (b) after divorce, but subject to leave after 12 months (s 44(3)); (c) even though the parties’ marriage is void (s 71). [s 72.6] Dominant principle The liability to pay maintenance depends on two basic matters, namely: (a) the need of the applicant for maintenance; and (b) the ability of the respondent to pay maintenance.

The dominant principle is the need of the applicant balanced against the ability of the respondent to pay. His Honour Justice O’Ryan in Brown and Brown [2005] FamCA 1165 at 282 citing A Dickey 4th ed, 2002 at 470 noted that the factors are “in essence economic” in nature. The assessment of whether an order should be made can be approached as a four step process (see Saxena and Saxena (2006) FLC 93-268 per Coleman J): 1. To what extent can the applicant support him/herself? 2. What are the applicant’s reasonable needs? [page 616] 3. 4.

What capacity does the respondent have to meet an order? If steps 1-3 favour the applicant what order is reasonable having regard to s 75(2)?

[s 72.7] The need of the applicant — threshold requirement There can be no liability to pay maintenance unless the need of the applicant is first established, that is, that the applicant is “unable to support herself or himself adequately” (s 72): see In the Marriage of Slattery (1976) 2 Fam LR 11,251 at 11,253; FLC 90–110; see also In the Marriage of Biddulph (1977) FLC 90–243; In the Marriage of Schefe (1978) 4 Fam LR 292; FLC 90–473; In the Marriage of Corner (1978) 4 Fam LN 1; FLC 90–438; In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011; In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601. [s 72.8] Onus on applicant The onus of establishing a need is on the applicant. If the applicant cannot establish an inability to support himself or herself adequately, an order for maintenance cannot and will not be made: see In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90–310 at 76,651; see also In the Marriage of McMahon (1977) 3 Fam LN 12; In the Marriage of Stacy (1977) 3 Fam LN 70; FLC 90–324 and In the Marriage of Patterson (1979) FLC 90–705.

[s 72.9] Nominal order Since need must be established, a nominal order cannot be made: see In the Marriage of Crossan (1976) 2 Fam LR 11,374; FLC 90–116 at 75,528. In circumstances where there is no current capacity to apply s 72, a maintenance application should be dismissed, although there may be cases where it is appropriate to stand over a maintenance application: see In the Marriage of Poulos (1984) FLC 91–515 (FC). [s 72.10] Needs exceed income The court will examine the assets, income and expenditure of the applicant in order to help assess whether the applicant’s reasonable needs and expenditure exceed the income available for his or her support: see In the Marriage of Koch (1977) 3 Fam LN 66; FLC 90–312; see also In the Marriage of Biddulph (1977) FLC 90–243; In the Marriage of Corner (1978) 4 Fam LN 1; FLC 90–438; In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90–513. [s 72.11] Relevance of conduct Matrimonial misconduct as such is not relevant to eligibility to, or quantum of maintenance: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124; see also In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500. Spousal maintenance is concerned with needs and capacities: see In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601. The financial consequences of “misconduct” may, of course, be relevant, as where the respondent’s maltreatment of the applicant leads to the applicant’s loss of employment or medical expenses: see Barkley v Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90–216. Waste of property, or deliberate worsening by a party of his or her financial position, may also be taken into account: see In the Marriage of Cordell (1977) 3 Fam LR 11,588; FLC 90–322; see also In the Marriage of Kowaliw (1981) 7 Fam LN N13; FLC 91–092; In the Marriage of Anastasio (1981) 7 Fam LN 8; FLC 91–093; In the Marriage of Tuck (1979) 7 Fam LR 492; (1981) FLC 91–021 at 76,720; In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90–908. However the necessary findings must be made: see In the Marriage of Browne and Green (1999) 25 Fam LR 482 (FC). [s 72.12] Inability to support herself or himself adequately The section provides that the applicant must establish that he or she is unable to support

herself or himself adequately. The word “adequately” is not to be determined according to any fixed or absolute standard, but by reference to the matters referred to in s 75(2), and especially in paras (a), (b), (g), (j), (k) and (n) of s 75(2): In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601. It is not a subsistence level, but a level that is reasonable in all the circumstances, including the circumstances that the parties are [page 617] no longer husband and wife and that that assets and resources that were available to them both in common have now been divided between them: In the Marriage of Nutting (1978) 4 Fam LN 7; FLC 90–410; In the Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC 92–600. An applicant for maintenance need not have used up all assets and capital (including any awarded under s 79) in order to satisfy the requirement that she is unable to support herself “adequately”, especially where the wife’s age and limited earning capacity make it legitimate for her to set aside a reasonable capital sum by way of a nest egg against future contingencies, uncertainties such as illness, or other significant changes in her life which may call for expenditure going beyond the parameters of a small income (see s 75(2)(b) and (g)): In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601. It may also be reasonable for the wife to invest the proceeds of a property settlement in a new home for herself, thereby diminishing any income return from her capital, especially where the capital sum in question is small and the husband’s earnings are much higher than the wife’s: In the Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC 92–600. Where the husband has ample resources and the parties have enjoyed a high standard of living during the marriage, it may be unreasonable to expect the wife to seek unskilled and low paid employment, especially if the marriage is of long duration and the wife has no recent work experience: see In the Marriage of Astbury (1978) 4 Fam LR 395 at 399; FLC 90–494; see also In the Marriage of Corner (1978) 4 Fam LN 1; FLC 90–438. The standard of living to which a party was accustomed is a matter to

which the court must refer in determining whether a figure is adequate or not: see In the Marriage of Nutting (1978) 4 Fam LN 7; FLC 90–410; see also In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435; In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872; In the Marriage of Atwill (1981) 7 Fam LR 573; FLC 91–107. However, it does not follow that the spouse of a wealthy person should be paid spouse maintenance to live a luxurious lifestyle: W & W (1990) FLC 90-872. The eligibility of a party to an income tested pension will be relevant when the court has to determine the quantum of maintenance; however it is irrelevant to the question of whether or not a spouse is unable to support himself or herself adequately: see Wong v Wong (1976) 2 Fam LR 11,159; 30 FLR 418; see also In the Marriage of Kajewski (1978) 4 Fam LN 42; FLC 90–472 at 77,427. A woman who has no income other than social security will normally be able to establish that she is unable to support herself adequately: see In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806; see also In the Marriage of Eliades (1980) 6 Fam LR 916; (1981) FLC 91–022. [s 72.13] Factors — s 72 Section 72 lists certain factors which may affect a spouse’s capacity for self-support, although the section must be read with s 75. The need of a spouse can arise by reference to one or more of the factors set out in s 72. [s 72.14] Care and control of child — s 72(a) The applicant may be unable to support himself or herself adequately because he or she has the care of children: see In the Marriage of Burton (1978) 4 Fam LR 783; (1979) FLC 90–622; see also In the Marriage of Patterson (1979) FLC 90–705 and In the Marriage of Heeks (1980) FLC 90–804. The age of the child, the number of children and any special needs of a particular child will be relevant: see In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603; see also In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073; In the Marriage of Burton (1978) 4 Fam LR 783; (1979) FLC 90–622; In the Marriage of Van Dongen (1976) 1 Fam LR 11,290; FLC 90–071; In the Marriage of Maher (1980) 6 Fam LR 429; FLC 90–834.

The applicant’s ability to obtain suitable child-minding facilities will also be relevant: see In the Marriage of Maher, above; see also In the Marriage of Heeks (1980) FLC 90–804. [s 72.15] Capacity for employment — s 72(b) In In the Marriage of Mitchell (1995) 19 Fam LR 44 at 61–2; FLC 92–601 at 81,997, the Full Court (referring to the Canadian decision of Moge v Moge (1992) 43 RFL (3d) 345) held that in approaching the question of an applicant’s capacity [page 618] to support herself through employment, the court will take judicial notice or social science research concerning the economic consequences of marriage and its dissolution, which shows that women who are primary carers of dependent children inevitably drop out of paid employment and consequently suffer financial deprivation, which is exacerbated by marriage breakdown (see, for example, the studies carried out by the Australian Institute of Family Studies: P McDonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia (1986); Funder, Harrison and Weston, Settling Down: Pathways of Parents after Divorce (1993)) and more recently David de Vaus, Matthew Gray, Lixia Qu and David Stanton, The consequences of divorce for financial living standards in later life, Australian Institute of Family Studies, February 2007. See also Morgan J, Equity Does Not Necessarily Mean Equality: Spouse Support and Other Techniques as a Means of Redressing Economic Equalities in a Marriage, Seventh National Family Law Conference, Canberra, October 1996, 43. As the Full Court put it (In the Marriage of Mitchell (1995) 19 Fam LR 44 at 61; FLC 92–601 at 81,997): “Importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment, especially for people in middle age, lacking experience and confidence, and who have been out of the skilled work-force for many years, and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining in developing skills in an

increasingly skilled work-force with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which the court must take notice and apply in a realistic way.” Such evidence is “background information” against which the court will construe the evidence on the record, in particular evidence concerning a wife’s attempts to find employment, her likelihood of success and the prospect of her obtaining an income from employment from which she can support herself adequately. Such background information is not, however, a substitute for evidence in the particular case concerning the wife’s chances of finding employment sufficiently remunerative to support herself adequately. The court may consider that the applicant has little or no earning capacity by reason of such factors as the following: Failing health: see In the Marriage of Puls (1976) 1 Fam LR 11,252; FLC 90–036; see also In the Marriage of Bird (1979) 5 Fam LR 370; FLC 90–678; Sharp v Sharp (1978) 4 Fam LN 38; FLC 90–470; In the Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC 90–890. Approaching retiring age: see In the Marriage of Olliver (1978) 4 Fam LR 360; FLC 90–499; see also In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603; In the Marriage of Whitford (1979) 4 Fam LR 754; FLC 90–612; In the Marriage of Atwill (1981) 7 Fam LR 573; FLC 91–107. Lack of employment for many years: see In the Marriage of Whitford (1979) 4 Fam LR 754; FLC 90–612; see also In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011. An order for maintenance for a limited period while the wife seeks employment may be appropriate in such cases: In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601. Having no qualifications: see In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603. A relationship exists between child care responsibilities and the capacity for employment: see In the Marriage of Lusby (1977) 3 Fam LN 85; FLC 90– 311. See also In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90–513. [s 72.16] Other factors — s 75(2) Section 75(2) sets out a number of factors

which can be relied upon pursuant to s 72 to show either why the applicant is unable to support himself or herself adequately or to test whether the applicant is unable to support himself/herself adequately at all. The factors specified in s 75(2) are of a broadly financial character. [page 619] The phrase in s 72 “having regard to any relevant matter referred to in subsection 75(2)” governs all that precedes it and is to be referred to both in order to ascertain whether the applicant is unable to support himself or herself adequately and in order to ascertain whether “for any other adequate reason” (s 72(c)) and to ascertain the extent to which the respondent is reasonably able to maintain the applicant (SO’R): see [s 75.1]. [s 72.17] Ability of respondent to pay If the court determines that the applicant for maintenance is unable to support himself or herself adequately, then there is an inquiry as to the means and reasonable needs of the respondent and the extent of his or her ability to contribute towards the support of the applicant. Ability to pay must be judged in the light of all the circumstances, mental and physical resources, money at a party’s disposal, capital position and current necessary expenditure: see In the Marriage of Vartikian (1984) 10 Fam LR 165 at 175–6; FLC 91–334 at 79,738 per Gee J. If this inquiry reveals that the respondent has no such ability, then the application will fail and no further inquiry is necessary. The maintenance obligation is limited by the extent of the respondent’s available resources. The court will not make an order if the respondent is incapable of satisfying the order: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124; see also In the Marriage of Whitford (1979) 4 Fam LR 754; FLC 90–612 and In the Marriage of W (1980) 6 Fam LR 538; FLC 90– 872. If this inquiry establishes that the respondent does have an ability to contribute towards the maintenance of the applicant, then there is a further

inquiry as to the extent to which it is reasonable that he or she should do so: see In the Marriage of Kajewski (1978) 4 Fam LN 42; FLC 90–472 at 77,428. It is not enough to say that the respondent should pay moneys or that the applicant is entitled to moneys if there is no evidence of any funds from which those moneys can come: see In the Marriage of Palsboll (1976) 2 Fam LR 11,171 at 11,175; FLC 90–094. The funds, out of which the maintenance is to be paid, must also belong to the party against whom the order is made. An order must not be ordered to be paid out of funds which belong to someone else or the ownership of which is disputed: see In the Marriage of Gerszt (1979) 5 Fam LR 118; FLC 90–641; see, however, J v J [1955] P 215; [1955] 2 All ER 617; St John v St John (1974) 6 Fam LN 14, referred to in In the Marriage of Hendrikse (1976) 1 Fam LN 18; FLC 90–069. The question of a respondent’s ability to pay maintenance where the respondent has voluntarily reduced his or her earnings from employment was discussed in In the Marriage of DJM and JLM (1998) 23 Fam LR 396; FLC 92–816. The Full Court noted that there is no reference in s 75(2)(b) to earning capacity as a factor relevant to the s 72 threshold, but held that the fact that a party was voluntarily earning less than they could was to be taken into account either under s 75(2)(o) or in deciding whether a party is reasonably able to provide maintenance under s 72. The Full Court went on to hold, however, that the fact that party has the capacity to earn more is more likely to be taken into account in making property orders than when assessing what a respondent is reasonably able to pay; but that ultimately, it turns on the judge’s discretion in light of all the circumstances of the case. [s 72.18] Order for payment of a lump sum Two approaches to the award of lump sum maintenance can be discerned in the authorities, which may be termed the “narrow” and “broad” view: (a) The narrow view: The narrow view is set out in the reasons of the Full Court in In the Marriage of Clauson (1995) 18 Fam LR 693; FLC 92–595. On this view, lump sum maintenance is the capitalisation of periodic maintenance. It is not a freestanding claim or a separate head of power. Thus, it is necessary to determine the issue of periodic maintenance first. This

means that the court must satisfy itself that the elements of a claim for periodic payments (ie, the need for and capacity to make periodic payments) are established, and must then determine the periodic amount to be awarded. Only then can the issue of capitalisation be considered. [page 620] On this view, the power to award lump sum maintenance should be exercised cautiously and should usually be considered only where there is doubt about the preparedness of the payer to comply with an order, or some doubt about the payer’s continuing ability to pay: Clauson, above (see also In the Marriage of Vaughan (1981) 7 Fam LR 379; FLC 91–066; In the Marriage of O’Brien (1982) 8 Fam LR 691; (1983) FLC 91–316; In the Marriage of Spano (1979) 5 Fam LR 506; FLC 90–707; In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91–201; In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91–334). Lump sum maintenace will not be awarded if the effect would be to reduce the respondent’s ability to earn a living: see Matar v Matar (1977) 2 Fam LR 11,632. (b) The broad view: A broader view of the role of lump sum maintenance has been expressed since Clauson by the Full Court in In the Marriage of Vautin (1998) 23 Fam LR 627; FLC 92–827. In this case, the Full Court said that lump sum maintenance was not confined to the capitalisation of lump sum maintenance, nor to those cases where periodic payments were unlikely to be made because of concerns about the payer’s willingness to pay. Nor was lump sum maintenance confined to those cases where the need for and capacity to pay periodic maintenance was demonstrated. Instead, lump sum maintenance could be ordered in appropriate cases quite independently from the capitalisation of a periodic sum, for example, to meet the non-periodic expenditure for the maintenance of the payee where there was an established need and capacity to pay (at 636). There are arguments for and against both views. Against the narrow view, it could be argued that there is no warrant in the legislation, and s 80 in particular, for insisting that lump sum maintenance be paid only as

capitalised periodic maintenance. Instead, s 80 envisages a number of ways in which a party may be “maintained”. Against the broad view, it could be argued that it blurs the distinction between property and maintenance, a distinction that is otherwise clearly maintained by the legislation (see discussion at [s 74.3]). See also [s 72.20] below. [s 72.19] Power under s 74 Until the criteria set out in s 72 have been satisfied, the powers of the court under s 74 cannot be exercised: see In the Marriage of McMahon (1977) 3 Fam LN 12; see also In the Marriage of Lyons and Boseley (1978) 4 Fam LN 17; 32 FLR 386; FLC 90–423 and In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603. [s 72.20] Relationship between maintenance and property settlement The relationship between property and spousal maintenance claims was clarified by the Full Court in In the Marriage of Clauson (1995) 18 Fam LR 693; FLC 92–595. In particular, the Full Court stated that spousal maintenance is the “fourth step in the process” (that is, after the three steps entailed in considering a s 79 application have been completed — see [s 79.153] for discussion of those three steps). In other words, spousal maintenance should only be considered after the s 79 application. Spousal maintenance is not to be confused with the s 75(2) component in the s 79 exercise. The outcome of the s 79 application determines the background against which the application for spousal maintenance is considered — it affects whether an applicant is able to support themselves adequately, and whether the other party has a capacity to pay. It follows from this that while a property award is relevant to spousal maintenance, the reverse proposition (that spousal maintenance is relevant to the determination of a property award) does not hold. For example, it is not open to a court to increase a party’s share of property as a way of avoiding the need for spousal maintenance: see In the Marriage of Rosati (1998) 23 Fam LR 288 at 312; FLC 92–804. The question of spouse maintenance falls to be determined in light of the distribution of property: Figgins and Figgins (2002) 173 FLR 273; (2002) 29 Fam LR 544; [2002] FamCA 688. However, against this approach, it has been said that the powers exerciseable under Pt VIII may “overlap and may be exercised separately or

in combination to produce a total result which in the circumstances of the case is just and equitable”: see In the Marriage of Vautin (1998) 23 Fam LR 627 at 636; FLC 92–827 (citing Windeyer J in Sanders v Sanders (1967) 116 CLR 366 at 379–380; [1968] ALR 43 at 50–1). On this view, property and spousal maintenance claims could [page 621] properly be considered together, and as interlocking parts of a package, rather than having to be considered only in strict sequence. (Cf the discussion in [s 79.18], above, of the “narrow” and “wide” views of the role of lump sum maintenance.) In some cases, a person who secures a settlement under s 79, may, as a result, no longer need to be maintained: see In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90–897; In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91–201; In the Marriage of Morris (1982) 8 Fam LR 740; FLC 91–271 at 77,525; In the Marriage of Clauson (1995) 18 Fam LR 693; FLC 92–595; In the Marriage of Georgeson (1995) 19 Fam LR 302; FLC 92–618. Equally, the reduction of a spouse’s property award on appeal may create a need for spousal maintenance: see Rosati, above. [s 72.21] Maintenance and Bankruptcy Prior to the inclusion of s 72(2) the court was not empowered to deal with the assets of a bankrupt spouse if those assets had vested in the trustee in bankruptcy. This section makes clear that a party seeking spouse maintenance is entitled to look to vested bankruptcy assets to satisfy an application for maintenance. The court will have regard to the interests of creditors in making such a distribution: see s 75(2)(ha).

____________________

[s 73] 73

Maintenance of children [s 73 rep Act 181 of 1987 s 37]

[s 74] Power of court in spousal maintenance proceedings 74 (1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part. (2) If: (a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and (b) either of the following subparagraphs apply to a party to the marriage: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the

proceedings. [subs (2) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005]

(3) If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. [subs (3) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005]

(4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances. [subs (4) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005]

[page 622] (5) If: (a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and (b) either of the following subparagraphs apply to a party to the marriage (the debtor party): (i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or (ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be

joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the trustee of the agreement as a party to the proceedings. [subs (5) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005]

(6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement. [subs (6) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005]

(7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances. [subs (7) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005]

(8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. [subs (8) insrt Act 20 of 2005 s 3 and Sch 1 cl 23, opn 18 Sep 2005] [s 74 am Act 181 of 1987 ss 38, 63 and Sch] COMMENTARY ON SECTION 74 PRELIMINARY Powers of court in maintenance proceedings —

introductory comment …. Types of maintenance orders ….

[s 74.1] [s 74.2]

DISTINCTION BETWEEN MAINTENANCE AND PROPERTY ORDERS Distinction between a maintenance order and a property order …. Order of consideration of proceedings for maintenance and property …. Classification of property and maintenance orders ….

[s 74.3]

PURPOSE OF MAINTENANCE ORDER Introductory comment …. Capital sum after death …. Benefit of children ….

[s 74.4] [s 74.5]

[s 74.6] [s 74.7] [s 74.8] [page 623]

Restitution …. Maintenance not for paying legal costs …. Occupancy of home …. Maintenance and the bankrupt spouse ….

[s 74.9] [s 74.10] [s 74.11] [s 74.12]

PRELIMINARY [s 74.1] Powers of court in maintenance comment Under the Act, the power of the discretionary. This section provides that in court may make such order as it thinks maintenance in accordance with Pt VIII.

proceedings — introductory court to order maintenance is maintenance proceedings, the proper for the provision of

Appropriate level of maintenance If the threshold condition in s 72 is satisfied, the court should make an order for maintenance that, consistently with s 74, is “proper”. This, in turn, means maintenance at a level sufficient to enable the applicant to support himself or herself adequately, since an

order below that level would not remove the applicant’s need for maintenance, as defined in s 72. “Adequate” means a level of support above subsistence level; but there is no fettering principle that the maintenance must be such as to maintain a pre-separation standard of living, where the respondent’s means permit: In the Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC 92–600. Instead, the court must exercise its discretion to award the level of maintenance that is reasonable in all the circumstances, having regard to the factors in s 75(2), and to ss 72 and 74. The level of maintenance awarded may also be affected by the proceeds of any property settlement: see s 75(2)(n). No application to child maintenance The 1987 amending Act removed child maintenance from Pt VIII, and relocated it, together with other matters relating to children, in Pt VII. Section 74 now applies only to spousal maintenance. [s 74.2] Types of maintenance orders Ordinary spouse maintenance What may be called “ordinary” maintenance orders are made under s 74 and discussed in this commentary, and in the commentary to s 75. Urgent spouse maintenance “ Urgent” maintenance orders may be made under s 77: see the commentary to that section. Interim spouse maintenance There is no express reference to “interim” maintenance in the Act, but this term is commonly used to describe applications for maintenance in which the court is asked to make an order “until further order” under s 80(1)(h). Such orders are made under s 74, and are to be distinguished from urgent orders under s 77. They are similar to ordinary maintenance proceedings, except for the following: (a) The hearing is “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: In the Marriage of Williamson (1978) 4 Fam LR 355 at 359; FLC 90–505 per Fogarty J, quoted in In the Marriage of Wilson (1989) 13 Fam LR 205; FLC 92–033 (FC) per Nygh J.

(b) “The trial judge has considerable discretion and the appellate tribunal would be much more reluctant to interfere than would be the case with an order for indefinite maintenance”: In the Marriage of Wilson (1989) 13 Fam LR 205; FLC 92–033 (FC) per Nygh J, citing In the Marriage of Redman (1987) 11 Fam LR 411; FLC 91– 805. Pre-separation earnings not necessarily maintained There is no principle that where the respondent is of great wealth the order must be such that the applicant’s pre-separation standard of living should not be reduced (although of course the court may find that to be an appropriate [page 624] order in all the circumstances of the case). It is inappropriate to rely too much on decisions prior to 1976 dealing with alimony pendente lite: see In the Marriage of Wilson (1989) 13 Fam LR 205; FLC 92–033 (FC). Not “practice and procedure” An interim order for maintenance is not “an order relating to practice and procedure”, and the restricted role of an appeal court that applies to such orders does not apply to an interim maintenance order: In the Marriage of Wilson (1989) 13 Fam LR 205; FLC 92–033 (FC). Further comments See also the commentary to s 80(1)(h), [s 80.13–14]. DISTINCTION BETWEEN MAINTENANCE AND PROPERTY ORDERS [s 74.3] Distinction between a maintenance order and a property order The power of a court to order maintenance and the power of the court to make an order altering the property interests of spouses are to be exercised as complementary to each other: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,487; FLC 90–056, and some of the factors referred to in s 75(2) are relevant to the exercise of power under s 74 and the exercise of power under s 79. There are, however, important differences. See the discussion and authorities cited in the commentary to s 79, especially at [s

79.165]. Differences The most important differences are as follows: (a) An order under s 74 can only be made if need on the part of the applicant is first established under s 72, whereas an order under s 79 can be made whenever the court is satisfied that it is just and equitable in the circumstances to make the order: see s 79(2). (b) An order for maintenance is open to variation under s 83. An order made under s 79 can only be set aside in the limited circumstances set out in s 79A. (c) In determining the quantum of maintenance, the court must pay regard to the factors as set out in s 75(2). In determining an order under s 79 the court must firstly consider the factors set out in s 79(4), although the factors set out in s 75(2) may also become relevant. (d) An order for maintenance under s 74 cannot be expanded so as to include what, in effect, amounts to an alteration of property rights. Although an order for property settlement may be sought in conjunction with an application for maintenance, the applicant for property adjustment has to make out a separate case under s 79: see In the Marriage of Taylor (1977) 3 Fam LR 11,220 at 11,231; FLC 90–226; see also In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299. (e) Pending maintenance proceedings under s 74 cannot be continued once the applicant dies. However, pending property proceedings under s 79 can be continued: s 79(8). (f) The maintenance provision contained in a maintenance agreement registered under s 86 can be varied under s 86(2). However, property provisions in such an agreement can be varied only once by an application under s 79: see In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90–652. (g) Existing maintenance orders under s 74 (if made after 25 November 1983), cannot be enforced against the estate of a deceased payer. An order for property settlement under s 79 is enforceable against the estate of a deceased payer: s 79(1A), 79(1B). (h) Maintenance obligations which are more than 12 months in arrears may

not be enforced whereas no such approach applies to enforcement of property obligations in arrears. No general power An order that a party shall pay money or transfer assets to the other party can only be made under either s 74 or 79. There is no general discretionary power in Pt VIII to affect the financial relationship between the parties. [s 74.4] Order of consideration of proceedings for maintenance and property See commentary [s 72.20] and commentary to s 79, especially from [s 79.151]. [page 625] [s 74.5] Classification of property and maintenance orders It is important to determine when an order should be classified as an order for maintenance or as an order for settlement of property, particularly as maintenance can be ordered to be paid by either periodical payments or as a lump sum: see s 80. The necessity to be able to distinguish between maintenance and property orders is important as maintenance orders may be modified under s 83 and property orders are only capable of variation within the narrow limits of s 79A: see In the Marriage of Taylor (1977) 3 Fam LR 11,220 at 11,231; FLC 90–226. If the order involves the transfer in whole or in part of an existing specific fund, then it is an adjustment of property rights: see In the Marriage of Collins (1977) 3 Fam LR 11,424 at 11,430; FLC 90–286. If the order deals with a specific piece of property it is probably a property order, even if the major purpose is to provide assistance towards maintenance. If, however, the order provides for periodic sums to be paid or provides for payment of a lump sum of money in a way that is not specifically related to a claim to some identifiable property, it is probably a maintenance order: see In the Marriage of Branchflower (1979) 6 Fam LR 188; (1980) FLC 90–857; see also In the Marriage of Slattery (1976) 2 Fam LR 11,251 at 11,254; FLC

90–110; Sanders v Sanders (1967) 116 CLR 366 at 380; [1968] ALR 43. PURPOSE OF MAINTENANCE ORDER [s 74.6] Introductory comment A maintenance order is intended to provide for the needs of the recipient of the order. These needs may be best served by orders of a lump sum or a periodic nature. However, as is seen in [s 74.5], above, there is a clear distinction between a maintenance order and a property order. It is submitted (SO’R) that s 72 is clear in the requirement that the applicant for maintenance must establish some kind of “need” for maintenance. [s 74.7] Capital sum after death It is not the function of a maintenance order to provide a capital sum or fund out of which an applicant can make provision after his or her death: see Noske v Noske (1967) 10 FLR 192. [s 74.8] Benefit of children It is also not the function of a maintenance order to provide or make provision for the accumulation of assets for the benefit of children when they reach adulthood: see In the Marriage of Koch (1977) 3 Fam LN 66; FLC 90–312. [s 74.9] Restitution It is not the function of a maintenance order to provide restitution for money lent before or during the marriage by one spouse to the other: see In the Marriage of Slattery (1976) 2 Fam LR 11,251 at 11,254; FLC 90–110. [s 74.10] Maintenance not for paying legal costs Maintenance orders should not be used for the purpose of paying the costs of a party in the proceedings: s 117 governs this matter: see In the Marriage of Wilson (1989) 13 Fam LR 205; FLC 92–033. [s 74.11] Occupancy of home An order for maintenance need not merely provide for the payment of money, but may also provide for the occupancy of the matrimonial home: see Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303. If an order providing for occupation of a matrimonial home specifies that the right to occupy is to continue until children of the marriage shall become self-supporting, then this is a strong indication that the

orders are properly categorised as orders for maintenance: see Mullane v Mullane, above. An order which merely excludes one party to the marriage from the enjoyment of property, albeit for many years in order to permit its better enjoyment by the other party, does not alter an interest in that property and therefore is not an order under s 79: see Mullane v Mullane, above. [page 626] Orders which are proprietary in form are property orders: see Mullane v Mullane, above. See, however, s 79A(3) of the Act which partially reverses Mullane v Mullane: see also In the Marriage of Parker (1983) 9 Fam LR 323; FLC 91–364 (Nygh J). [s 74.12] Maintenance and the bankrupt spouse Whether before the commencement of proceedings or during the commencement of proceedings a party to the marriage is or becomes bankrupt or subject to a personal insolvency agreement and the non-bankrupt spouse seeks orders which may have effect the interests of creditors then the trustee in bankruptcy or trustee of the personal insolvency agreement will be entitled to be heard in proceedings before a court exercising jurisdiction under the Family Law Act. In respect of vested bankruptcy property the bankrupt spouse will not be entitled to make submissions save if the court finds that exceptional circumstances are established and leave is thereby granted.

____________________

[s 75] Matters to be taken into consideration in relation to spousal maintenance 75 (1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

[subs (1) am Act 63 of 1976 s 24]

(2) The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the

party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and [page 627] (j)

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; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa)the terms of any order or declaration made, or proposed

(na)

(o)

(p) (q)

to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and the terms of any financial agreement that is binding on the parties to the marriage; and the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

[subs (2) am Act 63 of 1976 s 39 and Sch; Act 72 of 1983 s 35; Act 181 of 1987 s 39; Act 124 of 1989 s 192; Act 84 of 1997 s 3 and Sch 1; Act 143 of 2000 s 3 and Sch 2 item 5 opn 27 Dec 2000; Act 98 of 2005 s 2 and Sch 1, cl 83, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cls 24–25, opn 18 Sep 2005; Act 115 of 2008 s 3 and Sch 1[40]–[43], opn 1 Mar 2009]

(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit. [subs (3) insrt Act 181 of 1987 s 39]

(4) In this section: party means a party to the marriage concerned. [subs (4) insrt Act 20 of 2005 s 3 and Sch 1 cl 26, opn 18 Sep 2005] COMMENTARY ON SECTION 75 PRELIMINARY The relevance of s 75(2) to maintenance proceedings …. Types of maintenance proceedings ….

[s 75.1] [s 75.2] [page 628]

Relationship of each factor ….

[s 75.3]

AGE Introductory comment — s 75(2)(a) ….

[s 75.4]

HEALTH Introductory comment — s 75(2)(a) ….

[s 75.5]

INCOME Introductory comment — s 75(2)(b) …. Disclosure of income ….

[s 75.6] [s 75.7]

PROPERTY Introductory comment — s 75(2)(b) ….

[s 75.8]

FINANCIAL RESOURCE Introductory comment — s 75(2)(b) …. Income or property of third party — financial resource …. Trust — superannuation — financial resource …. Financial ability of party — financial resource …. Gifts — financial resource ….

[s 75.9] [s 75.10] [s 75.11] [s 75.12] [s 75.13]

Prospect of remarriage — financial resource …. Long service leave — financial resource …. Assets of company — financial resource …. Insurance policy — financial resource …. Service pension — financial resource …. Importance of control — financial resource …. Value of financial resource ….

[s 75.14] [s 75.15] [s 75.16] [s 75.17] [s 75.18] [s 75.19] [s 75.20]

CAPACITY FOR EMPLOYMENT Introductory comment — s 75(2)(b) ….

[s 75.21]

RESPONSIBILITY FOR A CHILD Introductory comment — s 75(2)(c) ….

[s 75.22]

COMMITMENTS Introductory comment — s 75(2)(d) …. Meaning of “commitment”, “necessary” and “duty” …. Needs of applicant and respondent …. Support of children …. Another person …. Duty to maintain ….

[s 75.23] [s 75.27] [s 75.28] [s 75.29] [s 75.30] [s 75.31]

RESPONSIBILITY FOR ANY OTHER PERSON Introductory comment — s 75(2)(e) …. The responsibility to support a second wife or de facto spouse — s 75(2)(e) …. The responsibility to support children of a second wife or de facto wife — s 75(2)(e) …. Responsibility to other persons — s 75(2)(e) …. ELIGIBILITY FOR SOCIAL SECURITY Introductory comment — s 75(2)(f) …. 1987 Amendment Act …. Any superannuation fund or scheme — s 75(2)(f) …. STANDARD OF LIVING

[s 75.32] [s 75.33] [s 75.34] [s 75.35]

[s 75.36] [s 75.37] [s 75.38]

Introductory comment — s 75(2)(g) ….

[s 75.39]

EARNING CAPACITY Introductory comment — s 75(2)(h) ….

[s 75.40] [page 629]

CREDITORS’ INTERESTS Introductory comment ….

[s 75.40A]

CONTRIBUTION Introductory comment — s 75(2)(j) ….

[s 75.41]

DURATION OF MARRIAGE Introductory comment — s 75(2)(k) …. Earning capacity …. Compensation ….

[s 75.42] [s 75.43] [s 75.44]

ROLE OF PARENT Introductory comment — s 75(2)(1) ….

[s 75.45]

COHABITATION WITH ANOTHER PERSON Introductory comment — s 75(2)(m) ….

[s 75.46]

EFFECT OF ORDER Introductory comment — s 75(2)(n) ….

[s 75.47]

JUSTICE OF CASE Introductory comment — s 75(2)(o) …. Relevance of conduct — s 75(2)(o) …. Can conduct ever be relevant — s 75(2)(o) …. Matters relevant under s 75(2)(o) — manipulation or destruction of assets …. Other matters relevant under s 75(2)(o) ….

[s 75.48] [s 75.49] [s 75.50] [s 75.51] [s 75.52]

The terms of binding financial agreement — s 75(2)(p) …. RELEVANCE OF PENSION, ALLOWANCE OR BENEFIT Introductory comment — s 75(3) …. Limitation on consideration ….

[s 75.52A]

[s 75.53] [s 75.54]

PRELIMINARY [s 75.1] The relevance of s 75(2) to maintenance proceedings Section 75(1) requires the court when exercising jurisdiction under s 74 to take into account the matters referred to in s 75(2). There is a distinction between the operation of s 75 in relation to ss 72 and 74. Section 72 lays down the conditions in which a party to a marriage is entitled to maintenance. Maintenance is payable if and only if the applicant can show a need for it. Section 75(2) provides the factors which can be relied upon when considering the matters referred to in s 72. The factors listed in s 75(2) are relevant in determining both whether the applicant is unable to support himself or herself adequately, and in determining the reasons for this inability. Once the court has determined the entitlement of a party to maintenance, it must then decide on the nature of its order under s 74; that is the question of quantum, whether the order should be periodical or for a lump sum, and for what period it should be, or extend. In relation to these questions, the factors set out in s 75(2) are relevant. It limits the matters which the court may take into consideration on an application for maintenance. It has had the effect of changing the emphasis from matrimonial misconduct to economic considerations: see In the Marriage of James (1977) 3 Fam LN 28; FLC 90– 260; see also In the Marriage of Gates (1976) 1 Fam LR 11,452; In the Marriage of Soblusky (1976) 2 Fam LR 11,528 at 11,551; FLC 90–124. This was recently confirmed by the Full Court in In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118, where it was said that questions of conduct were not relevant to spousal maintenance applications, spousal maintenance being “essentially concerned with issues of need and capacity” (per Fogarty and Lindenmayer JJ at Fam LR 21). The court is required to advert to such of the matters listed in s 75(2) as it

considers relevant in reaching its conclusion. The reference need not be explicitly to each paragraph in s 75(2), but [page 630] a listing of the individual factors relied upon will suffice: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,490; FLC 90–056; see also Willett v Willett (1976) 1 Fam LR 11,242 at 11,247; FLC 90–022. [s 75.2] Types of maintenance proceedings The court, in considering whether to make an order under s 79, is specifically required by s 79(4)(e) to consider the 14 factors listed in s 75(2). This is sometimes referred to as the “maintenance element” or a “maintenance component” in a s 79 order and it is to be distinguished from a maintenance order under s 74: see In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709. As to periodical, lump sum payments and other forms of order see also commentary to s 80. [s 75.3] Relationship of each factor The various paragraphs of s 75(2) cannot be read in isolation from each other. The court must weigh each of the matters referred to, and give lesser or greater weight to one or other of them, depending upon the circumstances of the case. AGE [s 75.4] Introductory comment — s 75(2)(a) This factor is clearly relevant to the question of entitlement to maintenance, because the older the spouse, the more difficult it may be for the spouse to obtain employment and support himself or herself. This factor is also relevant to quantum, because a spouse capable of only limited or part-time employment by reason of age, can expect some contribution from the physically and economically capable spouse or ex-spouse: see Barkley v Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90– 216. Similarly, the older a spouse, the more reasonable and legitimate it will be for that spouse to set aside a capital sum out of any property order as a “nest egg” to deal with future uncertainties; as a result, the fact that a sizeable

property distribution has been made in a party’s favour will not necessarily debar a spousal maintenance claim: see In the Marriage of Mitchell (1995) 19 Fam LR 44 at 60; FLC 92–601 at 81,995. It may also be, that having regard to the age of a spouse, the employment prospects of the spouse are such that it is inappropriate for the spouse to be retrained and then endeavour to obtain employment: see In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435; see also In the Marriage of Mapstone (1979) 5 Fam LR 205; FLC 90–681. The outcome may be no different where the spouse is already in employment, where there is an expectation that the spouse will not continue working past a certain age: see Sharp v Sharp (1978) 4 Fam LN 38; FLC 90– 470; see also In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90– 603. An applicant who is reasonably young and presently unemployed will normally be regarded as capable of re-entering the workforce: see In the Marriage of Patterson (1979) FLC 90–705. The relevance of future superannuation prospects will also be affected by the age of a party: see In the Marriage of Richardson, above; see also In the Marriage of Mapstone (1979) 5 Fam LR 205; FLC 90–681 and In the Marriage of Finnis (1978) 4 Fam LN 15; FLC 90–437. If both parties are approaching retirement age, the court will attempt to make an order ensuring each of them a reasonable degree of financial security. A combination of age and (ill) health may impact on a parties’ life expectancy and hence his or her financial position following separation, see Van Ballekom v Kelly (2005) 34 Fam LR 1; FLC 93-233; [2005] FamCA 853. HEALTH [s 75.5] Introductory comment — s 75(2)(a) The state of health of a party may have a direct relationship with his or her earning capacity and the final outcome of proceedings: see In the Marriage of Mackenzie (1978) 4 Fam LR 374; FLC 90–496. It is relevant, in assessing the extent of capacity of a party to support himself or herself adequately.

It does not matter that the state of ill-health arose prior to the marriage: see In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90–453. [page 631] It does not always follow that a poor state of health automatically entitles an applicant to maintenance if it can be shown that employment may have a therapeutic value: see In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008; see also In the Marriage of Finnis (1978) 4 Fam LN 15; FLC 90–437. The health of a spouse may be a matter of such significance that the court is satisfied that a party is unable to support himself or herself adequately and the circumstances warrant a transfer of the ownership of property by way of lump sum maintenance and property settlement: see In the Marriage of DowSainter (1980) 6 Fam LR 684; FLC 90–890. See also In the Marriage of Bolton (1992) 15 Fam LR 615; FLC 92–309. If the health condition is likely to improve, the court may make an order for a limited period: see In the Marriage of Tye (No 2) (1976) 2 Fam LR 11,205; FLC 90–048. The state of ill-health may be relevant even where the applicant is currently employed and has been employed for some time, if further employment is improbable at the end of the current employment or the current employment is likely to be restricted: see In the Marriage of Finnis (1978) 4 Fam LN 15; FLC 90–437; see also Barkley v Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90–216; In the Marriage of Kajewski (1978) 4 Fam LN 42; FLC 90– 472; In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469. The applicant’s state of health may be important because it gives rise to special needs: see In the Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC 90–890; see also In the Marriage of Hack (1980) 6 Fam LR 425; FLC 90–886. The applicant’s state of health may reduce the quantum of an order, if the applicant’s needs in consequence of such state of health, are limited, or if the applicant is in receipt of an invalid pension: see In the Marriage of Hack

(1980) 6 Fam LR 425; FLC 90–886; see also In the Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC 90–890. The respondent’s state of health is relevant in determining the extent of his earning capacity and his or her ability to pay maintenance: see In the Marriage of Mackenzie (1978) 4 Fam LR 374; FLC 90–496; see also In the Marriage of Lawrie (1981) 7 Fam LR 560; FLC 91–102. INCOME [s 75.6] Introductory comment — s 75(2)(b) The “income” must be actual income reFceived at the time of the hearing. It is the net income after tax: see Van Dongen v Van Dongen (1976) FLC 90–084; see also In the Marriage of Olliver (1978) 4 Fam LR 360; FLC 90–499. However, income is not limited to assessable income for the purposes of taxation, but may include resources in addition to assessable income: see In the Marriage of Whitford (1979) 4 Fam LR 754; FLC 90–612; J v J [1955] P 215; [1955] 2 All ER 617; Wong v Wong (1976) 2 Fam LR 11,159; 30 FLR 418. If an applicant for maintenance has sufficient income to provide for his or her reasonable needs, then no order for maintenance should be made: see In the Marriage of Corner (1978) 4 Fam LN 1; FLC 90–438; see also In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90–310. The significance of the income of an applicant will however depend on the significance of various other matters to be taken into account. It is also important, when considering income, to have regard to a standard of living that is appropriate and whether the income of the applicant is sufficient to maintain that standard of living. [s 75.7] Disclosure of income The Family Law Rules 2004 make detailed provision for disclosure of a party’s financial circumstances. See Ch 13, particularly Pt 13.1, and the commentary thereto. Problems have arisen in relation to a respondent who is not prepared to disclose his or her income, but concedes that he or she has adequate income to satisfy any order made. If a respondent does not disclose his or her income and states that he or she has adequate income to satisfy the order sought by the applicant, the court is entitled to proceed on the basis that

[page 632] he or she is a person of such wealth that he or she can have no answer to the orders sought, unless the objection is based upon the means, including the capacity to earn, of the applicant. It is impossible for the respondent to complain that the amount ordered to be paid is excessive: see Simmonds v Simmonds (1973) 21 FLR 484; see also St John v St John (1974) 6 Fam LN 14: see [s 72.17]. See, however, Hains v Hains (1970) 16 FLR 185. On the obligation to make disclosure, see [s 79.66–79.67]. PROPERTY [s 75.8] Introductory comment — s 75(2)(b) The relevance of the property of a party in relation to a claim for maintenance will usually depend upon whether the property could be realised and the proceeds utilised for the support of the applicant: see In the Marriage of Bailey (1978) 4 Fam LR 86; FLC 90–424; see also In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90–310. An applicant for maintenance is not entitled to retain a substantial nonincome producing asset which is readily realisable, and claim maintenance on the basis that he or she has insufficient income to provide for his or her needs: see In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872. In determining whether the property should be realised, the court will consider a number of factors, such as the form of the property and its value and the cost of realising it. If the property is reasonably required for use or occupation by the applicant, then it may be unreasonable to require the applicant to realise it. The property of the applicant may be relevant to the determination of particular needs of the applicant. If an applicant owns or occupies a property which is suitable and reasonable for occupation by the applicant, then there will be no need to include in a maintenance order, a component for housing of the applicant: see In the Marriage of Bailey (1978) 4 Fam LR 86; FLC 90– 424; see also In the Marriage of Bird (1979) 5 Fam LR 370; FLC 90–678. The fact that the applicant is to receive a significant property distribution

under s 79 is not necessarily a bar to a claim for maintenance. It is not necessary for an applicant for maintenance to have used up all his or her assets and capital in order to satisfy the requirement of being unable to support himself or herself “adequately”: see In the Marriage of Mitchell (1995) 19 Fam LR 44 at 60; FLC 92–601 at 81,995. The extent of the respondent’s property is also relevant. If the respondent has a significant amount of property, then it may be appropriate to consider providing lump sum maintenance or a property provision with a substantial maintenance element for an applicant, in preference to an order for periodic maintenance. If a spouse has assets which are not income producing, but which could be used for that purpose, then that spouse has a capacity to earn that amount which those assets, reasonably invested or utilised, would produce: see In the Marriage of Beck (No 2) (1983) 8 Fam LR 1017; FLC 91–318; see also In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91–334 (Gee J). Property On what constitutes “property”, see the commentary to s 79. FINANCIAL RESOURCE [s 75.9] Introductory comment — s 75(2)(b) The court is required to not only consider “income” and “property” of the parties but also what is described as “financial resources”. The term “financial resources” means something not covered by the terms “income and property”: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762 at 773; FLC 91–108. A financial resource need not amount to property within the meaning of that term as used in the Act: see In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90–615; see also In the Marriage of Whitehead (1979) 5 Fam LR 308; FLC 90–673; In the Marriage of Kelly (1981) FLC 91–033; In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603. [page 633] The statutory definition of property does not include assets or interest over

which a party has no legal control but such assets or interest may be a “financial resource”. “Property” and “financial resources” In relation to the items discussed under the following paragraphs, it is always important to consider first whether the interest is “property”. As to this, see the commentary to s 79. If the interest is not property, the question is whether it is a “financial resource”: the following paragraphs deal with this issue. In recent years, the Full Court has been inclined to widen the category of interests that are “property” and some of the authorities below, while still helpful in relation to “financial resources”, may be outdated insofar as they deal with what is “property”. Definition of financial resource The term “financial resource” is not defined in the Act. It is, however, intended to have a wide operation: see In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90–615; see also In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709. The term “financial resource” has been defined in the following terms: “a financial stock or reserve over which a party has sufficient control as a matter of fact to draw upon when necessary towards supplying some financial want or deficiency of the party”: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108; see also In the Marriage of Crapp, above, and In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91–334 (Gee J). The term “financial resource” must add something not covered by the term “income and property”. For example, a contingent interest or benefits which a party actually receives or was likely to receive, whether legally entitled thereto or not: see In the Marriage of Kelly (No 2), above; see also In the Marriage of Greedy (1982) 8 Fam LR 669; FLC 91–250; In the Marriage of Jensen (1982) 8 Fam LR 594; FLC 91–263. [s 75.10] Income or property of third party — financial resource There are circumstances in which the income or property of a third party can be taken into consideration as a financial resource of a party to the marriage: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762 at 770; FLC 91–108; see also In the Marriage of Heeks (1980) FLC 90–804; In the Marriage of Kajewski (1978) 4 Fam LN 42; FLC 90–472.

Drawings on loan account In In the Marriage of Reynolds (1984) 10 Fam LR 388; (1985) FLC 91–632, the Full Court held that the generosity on the part of the family of a party by permitting generous drawings on a partnership loan account by a party as an advance, could be taken into account under s 75(2)(o) but not as a financial resource under s 75(2)(b). [s 75.11] Trust — superannuation — financial resource The benefits which a party might receive under the terms of a discretionary trust or a superannuation scheme, even though there is no present entitlement to the receipt of any moneys out of the trust or the fund, may be a financial resource of a party. The benefits will remain a financial resource of a party even if the receipt of such benefits depends on the discretion of trustees: see In the Marriage of Bailey (1978) 4 Fam LR 86; FLC 90–424; see also In the Marriage of Stacy (1977) 3 Fam LN 70; FLC 90–324; In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90–615; In the Marriage of Mapstone (1979) 5 Fam LR 205; FLC 90–681; In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108; In the Marriage of Whitehead (1979) 5 Fam LR 308; FLC 90–673. [s 75.12] Financial ability of party — financial resource It may also cover the ability of a party through capital gains, borrowing and other means, such as gambling skills, to raise finance on which he or she could support himself or herself, or the other party: see Wong v Wong (1976) 2 Fam LR 11,159; 30 FLR 418; see also Nelson v Nelson [1965] NSWR 793. [s 75.13] Gifts — financial resource Regular gifts of financial assistance from a parent may be regarded as a financial resource to be taken into account: see Trenerry v Trenerry (1970) 16 FLR 406 at 408; see also In the Marriage of Dow-Sainter (1980) 6 Fam LR 684; FLC 90–890; In the Marriage of Baber (1980) 6 Fam LR 796; FLC 90–901. [page 634] [s 75.14] Prospect of remarriage — financial resource A prospect of remarriage may also be considered as a financial resource, particularly in

relation to an application for lump sum maintenance, or an application for alteration of property interests: see In the Marriage of Steinmetz (1981) 6 Fam LR 554; FLC 91–079; see also In the Marriage of Steinmetz (1981) 6 Fam LR 554; FLC 91–079. A prospect of remarriage, however, may make an order for lump sum maintenance inappropriate: see In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073; see also In the Marriage of Rouse (No 2) (1981) 7 Fam LN 22; (1982) FLC 91–226. [s 75.15] Long service leave — financial resource An entitlement to long service leave may be a financial resource: see In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603. There are two ways in which it may be so regarded. The first is where the employee intends to take a lump sum in lieu of long service leave entitlement: see In the Marriage of Harrison (1996) 20 Fam LR 322; FLC 92–682. Provided this likelihood is supported by evidence, it will be proper for a court to regard long service leave as a “resource”. The second is where the employee intends to take a period of leave and put it to some economically productive use. Thus, where an employee intends to acquire new qualifications or start a new business during the period of leave, it can properly be regarded as a financial resource; but it must be shown that the employee intends to make use of the leave in a productive way, rather than merely to enjoy a period of leave: see In the Marriage of Gould (1995) 20 Fam LR 1 at 20; (1996) FLC 92–657 at 82,774. [s 75.16] Assets of company — financial resource If a party has control of assets through a company, the court may regard the assets of the company as a financial resource of that party: see In the Marriage of Collins (1977) 3 Fam LR 11,424; FLC 90–286; see also In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90–898; In the Marriage of Waters (1981) 6 Fam LR 871; FLC 91–019; In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108; In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90-709. [s 75.17] Insurance policy — financial resource An insurance policy maturing at a future time may be a financial resource: see In the Marriage of Lange and Moores (1979) FLC 90–651.

[s 75.18] Service pension — financial resource A future service pension may be a financial resource: see In the Marriage of Stokoe (1976) 2 Fam LR 11,151; FLC 90–092. [s 75.19] Importance of control — financial resource The question of whether the property of a third party such as a trust or company is a financial resource of a party will depend upon the control which a party exercises in relation to the trust or company. If a party has legal control over the assets or income of the third party then the assets or income of the third party will probably be considered as a financial resource: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108; see also In the Marriage of Whitehead (1979) 5 Fam LR 308; FLC 90–673; In the Marriage of Stacy (1977) 3 Fam LN 70; FLC 90–324. It is not necessary to establish that a party to the marriage has full legal control over the assets or income of a party or a third party. It is sufficient if a party has reasonable grounds to expect that he or she will derive some benefit: see In the Marriage of Kelly (No 2), above; see, however, in In the Marriage of Yates (1982) 8 Fam LR 273; FLC 91–227, where it was held that the assets of a family company were not financial resources. However, in In the Marriage of Yates (No 2) (1982) 7 Fam LN 20; FLC 91–228, the Full Court of the Family Court held that control in the circumstances of that matter was not necessarily to be equated with beneficial entitlement or the power to appropriate assets to the purpose of a party to the proceedings. The husband did not have the same control over the assets and income of the company as the shares giving right to assets and income were held by the children. A person without legal control of an asset may yet have factual control over it: see In the Marriage of Kelly (No 2), above. [page 635] [s 75.20] Value of financial resource The value of the financial resource will depend also on the degree of control and/or the benefits obtained. The value is readily quantifiable if the party can exercise considerable control.

The value may be the financial benefit derived, or which could be derived particularly in circumstances where the legal control of an asset is vested in a third party. The financial resource which a person has is not necessarily to be equated with the asset or income from which benefit is derived. For example, if the rental of a property were regularly paid to a person under a family arrangement, the receipt of the rent may be regarded as a resource of the person concerned, not necessarily the capital value of the property. It is important, therefore, to define what benefit a person has received in the past and what is likely to be received in the future. Where there is factual control, that may enable the person concerned not only to ensure the continuation of past benefits, but also to expand to some extent the possibility of future benefits within the limits of the control, but neither legal or factual control is essential: see Moss v Moss (1867) 15 WR 532; Howard v Howard [1945] P 1; [1945] 1 All ER 91. CAPACITY FOR EMPLOYMENT [s 75.21] Introductory comment — s 75(2)(b) The court is required to consider the mental and physical capacity for appropriate gainful employment of both applicant and respondent. Capacity for employment and earning capacity or potential In some contexts, the courts appear to distinguish capacity for employment from earning capacity or earning potential. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; FLC 92–816, for example, the Full Court appeared to accept this distinction in the context of a case in which the respondent husband had changed jobs to a lower paying one shortly after the parties separated. According to the Full Court, the reference to “capacity for employment” in s 75(2)(b) does not include an individual’s earning potential (although the court also held that earning potential could be taken into account under s 75(2)(o) or in considering the respondent’s reasonable ability to pay under s 72). If there is such a distinction, it lies presumably in the difference between being able to get a job at all and being able to get a job at a particular wage or salary. But it may be a fine one to draw, especially given that s 75(2)(b) refers to “appropriate gainful employment”, which could be

said to incorporate reference not just to capacity for employment but to employment at a particular rate of pay or salary. Not all of the cases in this area have observed this distinction, and it may only be important where there is evidence that one or other party is deliberately taking employment at a lower rate of pay than they are capable of obtaining. The question of deliberate under-employment is considered further below. The importance of In the Marriage of Mitchell The interpretation of the phrase “capacity for employment” in so far as it relates to the applicant’s capacity must be seen in the light of the important decision in In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601, already discussed at [s 72.15]. That decision indicates that, in assessing whether an applicant has satisfied the threshold test in s 72 and her future capacity for employment under s 75(2)(b), the court will take judicial notice of social science data showing the adverse effects of marriage and divorce on women’s earning capacities and earning potential. Such background evidence is relevant in assessing the evidence in the particular case relating to the applicant’s attempts to find suitable employment, and the prospects of obtaining sufficiently remunerative employment to dispense with the need for maintenance. A court should now be cautious in assuming that a woman with employment qualifications will be able to obtain employment that will meet her reasonable needs. Equally, nothing said in Mitchell should be taken as dispensing with the need for an applicant to demonstrate that she has taken suitable steps to find appropriate employment. Physical and mental capacity The earning potential of a party must be viewed in the light of his or her physical and mental capacity: see Barrack v Barrack [1964] QWN 30; see also Barkley v Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90–216; Wong v Wong (1976) 2 Fam LR 11,159; [page 636] 30 FLR 418; In the Marriage of Tye (No 2) (1976) 2 Fam LR 11,205; FLC 90–048; In the Marriage of Petterd (1976) 1 Fam LR 11,496; FLC 90–065.

Assessing employment capacity Subject to what has been said about Mitchell above, the court is required to take into account the capacity of a party for employment and this capacity must be considered regardless of whether it is being exercised or not. If an applicant wife is in good health and has no responsibility for young children it may be unreasonable for her to decline to exercise such workforce skills as she may possess: see In the Marriage of Astbury (1978) 4 Fam LR 395 at 399; FLC 90–494 at 77,563; see also In the Marriage of Dench (1978) 6 Fam LR 105 at 110; 4 Fam LN 39; FLC 90–469 at 77,405. Again, subject to Mitchell, above, in considering the capacity of a party for gainful employment, evidence of previous careers and employment will be relevant: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 256–7; 9 ALR 551 at 559–60; 1 Fam LR 11,297 at 11,305; FLC 90–059 at 75,269, as will such qualifications for employment a party has at the time of the hearing or may acquire in the future: see Lang v Lang (1976) 1 Fam LR 11,283; see also In the Marriage of Wolifson (1977) 3 Fam LR 11,627. A minimal earning capacity, however, may be treated as no earning capacity at all: see In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90–453. Under-employment or failure to realise earning capacity or potential The reasonableness of a failure to exercise an earning capacity depends upon the facts of each individual case. The court may make an order for maintenance of a spouse only for a relatively short period of time to enable that party to find employment or enhance his or her working skills: see In the Marriage of Patterson (1979) FLC 90–705; see also In the Marriage of de Mooy (1978) FLC 90–411. A party may actually be under-employed and can in fact earn more income having regard to his or her mental and physical capacity. The court may conclude that a person is under-employed: see Armstrong v Armstrong (1977) 3 Fam LN 16; see also Fisher v Fisher (1976) 2 Fam LN 22; W v W (No 3) [1962] P 124; In the Marriage of Myerthall (1977) 3 Fam LR 11,324; FLC 90–273. The earning potential of a party is a relative matter which may vary depending upon such personal factors as age, ill health, lack of mental capacity, lack of qualifications, and the standard of living enjoyed during the

marriage. The decision in Mitchell, above, has also established that structural factors relating to women’s position in the labour market will be relevant as “background information”. Where the issue is one of a failure to maximise earning capacity, rather than of capacity for employment (see above), the Full Court in In the Marriage of DJM and JLM (1998) 23 Fam LR 396; FLC 92–816, held that a court could take account of potential earning capacity where there was suspected deliberate reduction of earnings through either s 75(2)(o) or in assessing the respondent’s reasonable ability to pay under s 72; but it was also held that voluntary reduction of income was more likely to be taken into account in assessing property awards than in making orders for spousal maintenance: see also [s 72.17]. Section 75(2) factors interrelated The factors referred to in s 75(2) are not separate and independent, but relate to each other. There is an interrelationship of the various factors in s 75(2) in considering the earning capacity of a party: see In the Marriage of Astbury (1978) 4 Fam LR 395; FLC 90–494; see also In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469; In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435; In the Marriage of Petterd (1976) 1 Fam LR 11,496; FLC 90–065. Interrelationship with property orders A court may decline to make an order for periodic maintenance on the basis of capacity for employment, but take into consideration when applying the s 75(2) factors in an order for alteration of property interests the likelihood of some limiting effect upon the earning capacity of an applicant party: see In the Marriage of Dench, above. Conversely, the court is more likely to take account of a respondent’s deliberate reduction of earning capacity by means of a property order than a maintenance order: see DJM, above. [page 637] Availability of appropriate employment Even if it is appropriate for a party

to seek employment rather than rely upon maintenance, this may not conclude the matter if it proves impossible to get a job. The court may consider the state of the employment market: see In the Marriage of Astbury (1978) 4 Fam LR 395 at 399; FLC 90–494 at 77,563; see also In the Marriage of Baber (1980) 6 Fam LR 796; FLC 90–901; as well as general evidence concerning the employment prospects of women after divorce: see In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601. The appropriateness of employment opportunity may also depend upon whether it can be reconciled with the care of young children: see In the Marriage of Menz (1980) 6 Fam LR 325; FLC 90–852; see also In the Marriage of Heeks (1980) FLC 90–804. RESPONSIBILITY FOR A CHILD [s 75.22] Introductory comment — s 75(2)(c) Section 72(a) provides that an applicant for maintenance is entitled to rely upon his or her having the care and control of a child as a reason why that party is unable to support himself or herself adequately. The same consideration arises again under s 75(2)(c) in considering the quantum of an order. The child of the marriage in s 75(2)(c) refers to a child of the marriage as defined in s 60F. The needs of a party who has the care of a child who does not fall within s 60F would be considered under s 75(2)(d) or (e). The most significant aspect of having the care and control of a child is that it limits the capacity for gainful employment and in consequence there is a need for maintenance. It is also relevant to the quantum of maintenance. A party who has the care and control of a child will have to pay expenses which he or she would not otherwise have to pay, or not otherwise have to pay as much, in addition to expenses directly incurred for the child: see In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435. The party who has the care and control of a child may need a capital sum to provide accommodation for the child and the court may order lump sum maintenance: see In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603; see also In the Marriage of Ramsey (1978) 4 Fam LN 20; FLC 90– 449. The court may make an order for periodic maintenance which takes into account expenditure incurred in providing accommodation for children: see

In the Marriage of Burton (1978) 4 Fam LR 783; (1979) FLC 90–622. The fact that a party has the care or control of a child of the marriage is most significant in relation to the maintenance element in an order for alteration of property interests under s 79. The relevance of this factor may not be confined to the financial implications of being the primary carer of children. It may also include the “moral and social responsibilities” that go with being the primary carer: see In the Marriage of Collins (1990) 14 Fam LR 162; FLC 92–149. In In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555, however, the Full Court preferred to express no concluded view on whether Collins was a correct interpretation of s 75(2)(c); see also In the Marriage of Brandt (1997) 22 Fam LR 97; FLC 92–758, where the Full Court doubted the correctness of Collins. The court also, in taking into account this factor, should give consideration to the clear direction in s 43(c) that the court, in the exercise of its jurisdiction under the Act, shall have regard to the need to protect the rights of children and to promote their welfare: see In the Marriage of Kemp (1976) 2 Fam LR 11,289; FLC 90–109. Even if a residence parent may not establish an entitlement for a personal maintenance order, such a party may receive a greater proportion of a property settlement than otherwise would be the case because of the general financial burden associated with providing a home and support for children: see In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90– 469; see also In the Marriage of Kemp (1976) 2 Fam LR 11,289; FLC 90– 109. A court, however, will not make an order which has the effect of binding a party to penury until a child reaches majority: see In the Marriage of Koch (1977) 3 Fam LN 66; FLC 90–312. [page 638] There is no rule or principle that a party who has the care and control of a child, could, by that matter alone, receive the greater proportion of the

property settlement. It is a factor to be taken into account, weighed against all other matters which the court is required under the Act to take into account in making an order for alteration of property interests: see In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507. There is no basis for taking into consideration under s 75(2)(c) as a relevant factor in proceedings for alteration of property interests that a party to the proceedings had in the past provided for the care of a child of the parties, particularly where at the time of the hearing that child may be an adult: see In the Marriage of Rainbird (1977) 3 Fam LR 11,368; FLC 90– 256. COMMITMENTS [s 75.23] Introductory comment — s 75(2)(d) This paragraph was amended by the 1987 Amendment Act. The repealed paragraph required the court to take into account “the financial needs and obligations of each of the parties”. The section now refers to the commitments of each of the parties that are necessary to enable a party to support himself or herself and any child or another person that the party has a duty to maintain. The present wording of the paragraph was said to be made to maintain consistency with the criteria for child maintenance. The new paragraph arguably shifts the emphasis from a consideration of “financial needs and obligations” in general, to needs and obligations that are clearly connected with discharging duties of support. However, since this has yet to receive authoritative judicial support, discussion of the old law has been retained as a guide to the present law. [s 75.27] Meaning of “commitment”, “necessary” and “duty” The term “commitment” is not defined in the Act. The repealed provision referred to “needs” and “obligations”. As to what was covered by the term “needs” see [s 75.28]. It is submitted (SO’R) that the term “commitment” will encompass all that was covered by the term “needs”. It could, however, be argued that “commitment” has to be read in the broader context of the paragraph, which focuses on needs connected with self-support and support of defined others, rather than needs in general. This is emphasised by the word “necessary”, the purpose of which appears to be to confine attention to the impact on a party’s financial position of support obligations.

The term “necessary” itself appears in child support and child maintenance provisions (for example, s 66C(2)(b) of the Family Law Act 1975; s 117(20) (a)(iii) of the Child Support (Assessment) Act 1989) and in that context has been interpreted to mean “reasonably necessary”: see Beck v Sliwka (1992) 15 Fam LR 520; FLC 92–296. Thus, in deciding what commitments are “necessary” for self-support, a court will regard the spouse in question as entitled to a standard of living that is reasonable in all the circumstances. The term “duty” is also used in child support legislation (for example, s 117(2)(a) of the Child Support (Assessment) Act 1989) and has been interpreted to mean a legal, not moral, duty: see In the Marriage of Hartcher and Vick (1991) 15 Fam LR 149; FLC 92–262. [s 75.28] Needs of applicant and respondent A need is a requirement of an essential, something that is necessary; however it does not mean destitution or extreme poverty. It means those requirements reasonably necessary to maintain a standard of living which is in all the circumstances reasonable: see In the Marriage of Lawrie (1981) 7 Fam LR 560; FLC 91–102 at 76,755; see also Re Borthwick [1949] Ch 395 at 401. The long term situation should be looked at: see In the Marriage of Lawrie, above. The court, in assessing the applicant’s needs, will take into account the standard of living enjoyed prior to separation. In consideration of an application for spousal maintenance pursuant to s 72, the needs of the applicant and the needs of the respondent require separate consideration. Once the needs and obligations of an applicant have been established as exceeding the income of the applicant or his or her reasonable earning capacity, it can be said that the applicant is unable [page 639] to support himself or herself adequately. It is then necessary to consider the quantum of the reasonable needs and obligations of the applicant in determining the quantum of the maintenance order. Once that is done it is

necessary to consider the needs of the respondent in so far as they reveal the capacity of the respondent to pay maintenance. The needs of the respondent are relevant in determining what resources are available over and above his or her reasonable needs, to satisfy an order for maintenance: see In the Marriage of Hellier (1976) 2 Fam LR 11,446. A comparison of the respective reasonable needs and obligations of the applicant and the respondent is also relevant to determine a reasonable standard of living in all the circumstances: see In the Marriage of Lusby (1977) 3 Fam LN 85; FLC 90–311; see also In the Marriage of Groutsch (1978) 4 Fam LN 35; FLC 90–461; In the Marriage of Patterson (1979) FLC 90–705. The needs of an applicant must be assessed, having regard to the standard of living of both parties. However, a wife is not entitled to live at a level of considerable luxury merely because the husband is very wealthy: see In the Marriage of McMahon (1977) 3 Fam LN 12; see also Gardiner v Gardiner (1925) 25 SR (NSW) 274 at 289; In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435; In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90– 513; In the Marriage of Malcolm (1977) 3 Fam LN 8; FLC 90–220. If an applicant for maintenance has a capital fund from which he or she may draw support, then an order under s 77 is inappropriate. However, when an order is being made under s 72 the court may take into consideration, under s 75(2)(d), the fact that an applicant had been without sufficient income for some time and had to rely on capital in order to subsist. The court may, in those circumstances, make an order which would have the effect of recouping such expenditure: see In the Marriage of Malcolm (1977) 3 Fam LN 8; FLC 90–220; see also In the Marriage of Tye (No 2) (1976) 2 Fam LR 11,205; FLC 90–048. The word “need” does not mean “present actual expenditure” as a party may be incurring expenditure which is greater or less than his or her reasonable needs. The word “financial” qualifies both “needs” and “obligations”: see In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90– 714. The words “financial obligations” are wide enough to include both, legally enforceable debts and, also, obligations for the payment of money

which are binding only in conscience, but not in law: see In the Marriage of Lutzke, above; see also In the Marriage of Hellier (1976) 2 Fam LR 11,446; In the Marriage of Mottee (1976) 2 Fam LR 11,177; FLC 90–099; In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819; In the Marriage of L (1978) FLC 90–493. The court may disregard a financial obligation which has been unnecessarily assumed: see In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90–453. Even if there is an obligation to pay a debt, the court may take into account how pressing the obligation is, and may not take into account an obligation which is not likely to have to be met. Whether the court takes into account an obligation may depend upon whether the debtor has previously shown that he or she treats the debt as an obligation: see In the Marriage of Petersens (1981) 7 Fam LR 402; FLC 91–095; see also In the Marriage of Candlish (1979) 5 Fam LN 11; FLC 90–668. [s 75.29] Support of children The Full Court has held that the costs of supporting children cannot be relied on in support of a claim to interim spousal maintenance: Stein v Stein (2000) 25 Fam LR 727; FLC 93–004. The Full Court said that in the context of a spousal maintenance application, the consideration in s 75(2)(d) of “the commitment of each of the parties that are necessary to enable the party to support … a child that a party has a duty to maintain”, has greater significance in determining the capacity of a payer to provide support for the children rather than in determining the extent to which the other party requires support. The same principles would seem to apply to applications for final spousal maintenance. [s 75.30] Another person The distinction between “another person” in para (d) and “any other person” in para (e) lies in the fact that para (d) refers to a “duty” to maintain another person, whereas para (e) refers to the “responsibility” to support any other person. Unlike the word “duty” [page 640]

in para (d), the word “responsibility” in para (e) may include moral as well as legal responsibilities: see In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714 and commentary at [s 75.32]. [s 75.31] Duty to maintain It is submitted (SO’R) that the 1987 amendments should have identified the persons in respect of whom it is considered that a party has a duty to maintain. The only possible person to whom a party could be said to have such a duty is a party to the marriage. RESPONSIBILITY FOR ANY OTHER PERSON [s 75.32] Introductory comment — s 75(2)(e) This paragraph refers to someone other than the parties to the marriage, or children of the marriage who have not attained the age of 18 years. Responsibility in s 75(2)(e) means the state or fact of either party being answerable or accountable for the support, or morally or legally obliged or duty bound to support, any other person: see In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714 at 78,836; see also In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90-709. To support, does not mean to provide full and complete support, but includes to contribute towards the support of any other person: see In the Marriage of Holmes (1976) 2 Fam LN 14; FLC 90–129; see also In the Marriage of Aroney, above. The expression “responsibilities” is wider than “obligations”, and may extend to responsibilities which cannot be quantified in financial terms. [s 75.33] The responsibility to support a second wife or de facto spouse — s 75(2)(e) Previously, courts considered that in competition for limited funds, when assessing the maintenance of a first wife, she had a priority over a second or de facto wife for claims upon the respondent’s resources, particularly where the first wife had not been guilty of any matrimonial misconduct; see McOmish v McOmish [1968] VR 524 at 528; see also In the Marriage of Van Dongen (1976) 1 Fam LR 11,290; FLC 90–071; Nelson v Nelson [1965] NSWR 793 at 796; In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714; In the Marriage of Ostrofski (1979) 5 Fam LR 685;

FLC 90–730. Other authorities suggested that priority must be given to the second or de facto wife: see Roberts v Roberts [1970] P 1. Another approach was that s 75(2)(e) is to be given a wider interpretation, and the court is required to consider in a realistic way the fact that a party has assumed responsibility to support another person: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124; see also In the Marriage of Axtell (1982) 7 Fam LR 931; FLC 91–208. The position at present is that the court should not approach the matter from the point of view that any person is a priori entitled to preferential treatment, but on a realistic assessment of the ability of a respondent to pay and which party is in the greatest need. The responsibility referred to in s 75(2)(e) must not be subjugated to the responsibility of the party to his or her spouse. The provision is couched in wide terms and must be given a wide interpretation. It all depends upon the circumstances of each case. The weight to be given to such responsibility depends upon the circumstances of each case. In Tasmania, the Relationships Act 2003 (Tas) provides in s 47 for maintenance orders. While the general rule (s 46) establishes no right to maintenance the matters which are to be considered when determining a maintenance application are similar to those contained in s 75(2) of the Family Law Act. In New South Wales, s 27 of the Property (Relationships) Act 1984 gives a de facto spouse a limited right to apply for maintenance. It is also submitted (SO’R) that the responsibility for a second wife or de facto spouse as a factor to be taken into account in a general discretionary way has been confirmed by the provisions of s 75(2)(m). [s 75.34] The responsibility to support children of a second wife or de facto wife — s 75(2)(e) It was formerly held that the needs of the children of the marriage must take priority over those children of a second wife or de facto spouse: see In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90– 714; see also In the Marriage of Ostrofski (1979) 5 Fam LR 685; FLC [page 641]

90–730. It was considered that the court should not take into account a moral obligation which is inconsistent with s 43. However, these authorities have been overruled by the Full Court in In the Marriage of Axtell (1982) 7 Fam LR 931; FLC 91–208 and what was said in In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124 has been affirmed as a general principle, capable of application to a multitude of different circumstances: see also In the Marriage of Holmes (1976) 2 Fam LN 14; FLC 90–129; In the Marriage of Burke (1981) 7 Fam LR 121; FLC 91–055; In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806. In any event, the legislative principles governing child support and child maintenance now make it clear that a parent’s duties of support are owed equally to all children, with no one duty of support taking priority over another: see s 66C(2)(a) of the Family Law Act 1975; s 3(2)(a) of the Child Support (Assessment) Act 1989. The facts of individual cases vary a great deal. It is generally a question of balancing different factors and according proper weight to them. One such factor is that a party may be sharing a household with a de facto spouse and his or her children from a former marriage and may need to make some contribution to their support: see In the Marriage of Axtell, above. If there are grounds for believing that some other person (for example, the children’s father) can and should be called upon to contribute to the support of the children, this may affect the weight given to that matter: see In the Marriage of Axtell (1982) 7 Fam LR 931 at 938; FLC 91–208; see also In the Marriage of Baber (1980) 6 Fam LR 796; FLC 90–901. [s 75.35] Responsibility to other persons — s 75(2)(e) Handicapped children over 18 years The responsibility may also apply to a handicapped child over the age of 18 years: see In the Marriage of Piper (1977) 3 Fam LN 17; 30 FLR 536. Child of former marriage The responsibility may also be to a child of a former marriage: see In the Marriage of Wolifson (1977) 3 Fam LR 11,627. Parents The responsibility may also be to parents: see In the Marriage of

Thrift (1975) 1 Fam LR 11,367; (1976) FLC 90–103. This is especially so “where a parent has donated funds or property to a child in the expectation of being financially maintained by the child”: see In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872; see also In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709. ELIGIBILITY FOR SOCIAL SECURITY [s 75.36] Introductory comment — s 75(2)(f) Paragraph (f) requires the court in proceedings for maintenance (s 74) to take into account (subject to s 75(3)) the eligibility of either party to a pension, allowance or benefit. This paragraph has been the subject of two significant amendments since the commencement of the Act. It has also been the subject of considerable, differing, judicial opinion as to its meaning and effect. 1987 Amendment Act The most recent amendment, by the 1987 amending Act, requires the court to disregard the applicant’s entitlement to a meanstested pension, benefit or allowance; see [s 75.53]. This amendment is obviously the result of concern by those in government of the cost to the country of social welfare and the perceived evasion by parties of the cost of their financial responsibility, by reliance on the availability of social security. 1983 Amendment Act This paragraph was amended by the Family Law Amendment Act 1983 to enable the court, in maintenance proceedings, to take into account the eligibility of either party for an overseas pension, superannuation, or like benefits as well as similar Australian benefits. Under the Matrimonial Causes Act 1959 (Cth) it lay in the discretion of the judge whether to take account of an eligibility to a pension and social welfare benefits or not: see Daley v Daley [page 642] (1964) 7 FLR 70. In exercising that discretion, judges started on the basis that such benefits should not be taken into account unless the husband’s resources

were minimal: see Hampson v Hampson (1974) 5 ALR 359 at 364–5, or where the effect of an order for maintenance would be that the husband would have an income below subsistence level. This approach is reversed by the Family Law Act. Eligibility is not limited to the case where a party has a presently existing right to receive payment. Pre-1988 judicial approach If a pension is a fixed sum to which a party is entitled and is not means-adjusted, then no problem arises: see In the Marriage of F (1982) 8 Fam LR 29; FLC 91–214. However, most pensions which arise for consideration are means tested and therefore subject to reduction if the pension recipient actually receives maintenance. Because of this, problems have arisen as to the correct judicial approach: see ss 62(3) and s 83AAD of the Social Security Act 1947 (Cth). Relevance of pension to need As to the relevance of a pension entitlement in determining whether an applicant for maintenance is able to support himself or herself adequately, it has been held that such an entitlement to a pension should not be taken into account and should be ignored in determining the threshold requirements of s 72. The proof of the receipt of or entitlement to receive a pension should be regarded as evidence that the applicant is in need, not that the applicant has no need. A person who is obliged to subsist on social security is not able to support himself or herself adequately: see Wong v Wong (1976) 2 Fam LR 11,159; 30 FLR 418; see also In the Marriage of Kajewski (1978) 4 Fam LN 42; FLC 90–472; In the Marriage of Matthews (1980) 6 Fam LR 142; FLC 90–887; In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90–513. The other approach is that the eligibility of an applicant for maintenance to a pension is a relevant matter in deciding whether the applicant can support himself or herself adequately. Since the Family Law Amendment Act 1983 all of the matters in s 75(2) are relevant. Relevance of pension to quantum The next question which arises is, should the court calculate maintenance as a means of merely supplementing the pension benefit, or replacing it? This question arises in determining the

quantum of a maintenance order. Preserve pension entitlement One approach is that the court should take into account, to the fullest extent, the social services being received, notwithstanding a finding of the respondent’s capacity to pay an appropriate maintenance order. The court should frame a financial provision for the applicant so as to preserve or create a pension entitlement: see In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90-513; see also In the Marriage of Mehrtens (1977) 3 Fam LN 46; FLC 90–288; In the Marriage of Spano (1979) 5 Fam LR 506; FLC 90–707; In the Marriage of Holmes (1976) 2 Fam LN 14; FLC 90–129; In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90–453; In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90–008. If an order is made for the payment of school fees and the fees are not paid to a party but direct to the school, they are not treated as income for the purpose of assessing the amount of the entitlement of a party to a supporting parents benefit: see ss 18 and 83AAE(2) Social Security Act. In In the Marriage of Tingley (1984) 10 Fam LR 707; FLC 91–588, Simpson and Barblett JJ said that although they were concerned that the general taxpayer should indirectly subsidise the private education of children of parties whose financial resources are above the community average, that is the result of the Social Security Act and the court should not make an order to remedy that situation. Primary responsibility on breadwinner A number of authorities, however, suggest a contrary approach in assessing the amount of a maintenance order. This view is that the responsibility of the public purse should only arise after the primary responsibility of the individual breadwinner is exhausted. The applicant’s eligibility for social security would be relevant only where the respondent has a limited capacity. [page 643] If the respondent is comfortably able to contribute a sum sufficient to

ensure adequate support of the applicant, any question of an applicant’s entitlement to a pension should be ignored. If there is likely to be hardship to the respondent in contributing to maintenance, then the applicant’s entitlement to a pension may be taken into account to the extent that it is necessary to do so to avoid hardship: see In the Marriage of Kajewski (1978) 4 Fam LN 42; FLC 90–472 (Fogarty J); see also In the Marriage of F (1982) 8 Fam LR 29; FLC 91–214 at 77,142; In the Marriage of Bailey (1981) 7 Fam LR 165; FLC 91–041 (Fogarty J); In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626. If the applicant is in need, and the respondent has some capacity to pay maintenance, the court should then determine how much maintenance should be paid by the respondent: see In the Marriage of Matthews (1980) 6 Fam LR 142; FLC 90–887; see also In the Marriage of Noel (1981) 6 Fam LR 816; FLC 91–035; In the Marriage of F (1982) 8 Fam LR 29; FLC 91–214. See, however, s 27(3) of the Property (Relationships) Act 1984 (NSW) at [40,630]. Whatever may be the correct approach, it is likely that the court will intervene where a wealthy spouse attempts to pay little or no maintenance to a needy applicant, by consent, order or agreement on the understanding that the needy spouse will be supported by the public purse: see In the Marriage of F, above. In In the Marriage of Tingley, above, Strauss J strongly condemned the situation in that case and said that the expense of such an education should not be borne either directly or indirectly by the taxpayer and in matters of maintenance and allied subjects the court not only owes a duty to the parties, but must also serve the public interest. In In the Marriage of Kauiers (1986) 11 Fam LR 41; FLC 91–708, the Full Court expressly disapproved of the “preservation” approach and said at Fam LR 58–75, 136–137 that the requirement to take into account the eligibility for a pension, does not mean, that in assessing maintenance the court should look first to the benefits which may be payable and order the payment of only such sum as is required to “top up” the pension entitlement to a level commensurate with the needs of the applicant. Evaluation depends on circumstances In Kauiers’ case the Full Court said

at Fam LR 58–75, 137 that the court is required to evaluate, realistically, the capacity of a respondent to contribute to the maintenance of the spouse and/or children, and then fix a fair and reasonable level of maintenance having regard to that capacity, the needs of the spouse and/or children, and the eligibility of the spouse and/or children for a pension. [s 75.37] 1987 Amendment Act The 1987 Act made para (f) subject to s 75(3). This amendment has now resolved the dispute between dependence on the “public purse” or the “breadwinner” by requiring that in proceedings for spousal maintenance the “public purse shall be disregarded”: see below, [s 75.53]. [s 75.38] Any superannuation fund or scheme — s 75(2)(f) Paragraph (f) of s 75(2) also directs the court to take into account, as a relevant factor, not only social security benefits, but also superannuation benefits. Where superannuation entitlements are actually being received and are not the subject of any means test which affects the amount received, then the receipt of a superannuation entitlement is merely part of the income of the applicant or the respondent. Section 75(2)(f), however, is more concerned with the eligibility under any superannuation fund or scheme in respect of which there is an expectation of benefits but which benefits are not being received at the time of consideration of any order. In proceedings under the Family Law Act, superannuation entitlements are usually considered more in relation to applications for alteration of property interests under s 79. Superannuation entitlements are, however, relevant in applications for periodic maintenance. The existence of the entitlements may have no effect upon a party’s resources at the time of the hearing, but give considerable security for the future and reduce a party’s present need to build up capital assets to provide for such security: see In the Marriage of Bailey (1978) 4 Fam LR 86 at [page 644]

96; FLC 90–424; see also In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90–453; In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90–615; In the Marriage of Stacy (1977) 3 Fam LN 70; FLC 90–324; In the Marriage of Matthews (1980) 6 Fam LR 142; FLC 90–887; In the Marriage of Noel (1981) 6 Fam LR 816; FLC 91–035. The fact, however, that a respondent has an expectation in the future to superannuation entitlements does not warrant an order for maintenance which would require the respondent to draw upon capital or borrow against the future entitlement to meet an order, particularly if this would place the respondent in a precarious financial position. The court may, however, make an order for periodic maintenance which would allow for proper adjustments to be made at the time when the anticipated change in the financial position of the respondent has occurred. This adjustment may be made by either increasing the periodic maintenance or by making a lump sum order: see In the Marriage of Mapstone (1979) 5 Fam LR 205; FLC 90–681; see also Sharp v Sharp (1978) 4 Fam LN 38; FLC 90–470; In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90–453. If and when the respondent does receive the superannuation entitlements, then an order for lump sum maintenance could be made. How taken into account Section 75(2)(f) offers no guidance as to how future superannuation entitlement should be taken into account: see In the Marriage of Whitehead (1979) 5 Fam LR 308; FLC 90–673. The weight to be given to this factor will depend upon the circumstances of each case. The weight to be given to superannuation entitlements depends upon the extent of those entitlements, the time elapsing before they fall due, and the present resources of the parties: see In the Marriage of Bird (1979) 5 Fam LR 370; FLC 90–678; see also In the Marriage of McHarg (1980) 7 Fam LN 4; FLC 90–811; In the Marriage of Richardson (1979) 4 Fam LN 58; FLC 90–603; In the Marriage of Finnis (1978) 4 Fam LN 15; FLC 90– 437; In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806. As to various methods to be adopted: see In the Marriage of Prestwich (1984) 9 Fam LR 1069; FLC 91–569; see also In the Marriage of Gill (1984) 9 Fam LR 969; FLC 91–582 and see [s 79.45] and the cases there reviewed.

STANDARD OF LIVING [s 75.39] Introductory comment — s 75(2)(g) There is no guidance in the Act as to the precise definition of “standard of living”. It is a concept in respect of which there have been various approaches by the reported cases. It is a relative concept which must be judged in the light of the standard of living to which the parties were accustomed during marriage: see In the Marriage of Aroney (1979) 5 Fam LR 535 at 545; FLC 90-709 at 78,790. It alters depending on the circumstances of the case. Standard appropriate for retired person One approach is that the rate should be assessed having regard to the current lifestyle of the applicant as compared to that of the respondent, though at a lesser rate, particularly when the respondent is still actively engaged in a business or profession. It should be a rate more akin to the rate which a person might look forward to upon retirement: see In the Marriage of Woolley (1981) 6 Fam LR 577 at 586; FLC 91-011 at 76,142; see also In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709. This approach suggests that the standard of living should be less than that which was enjoyed whilst the parties were living together at the same time, but not at a level considerably below that presently enjoyed by the respondent in his or her private capacity: see In the Marriage of W (1980) 6 Fam LR 538; FLC 90-872 at 75,528; see also In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90-500 (Strauss J); In the Marriage of Nutting (1978) 4 Fam LN 7; FLC 90-410; In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90-898. Standard same as during cohabitation The other approach is that the standard of living should be as near as possible to that enjoyed whilst the parties were living together: see In the Marriage [page 645] of Patterson (1979) FLC 90-705. While it is clear that there is no “fettering

principle” that the pre-separation standard of living must be awarded where the respondent’s means permit (In the Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC 92-600), it is equally clear that there is no “designated level” beyond which there could be no “need”. Thus, it may be proper for a court to make an order with the result that a spouse has a higher than average standard of living, where the other spouse has the capacity to pay such an order and where they enjoyed a high standard of living during the marriage: see Fogarty J in In the Marriage of Gamble (1978) 4 Fam LN 28; FLC 90-452 at 77,304; Nygh J in In the Marriage of Wilson (1989) 13 Fam LR 205 at 211; FLC 92033. Standard higher than during cohabitation In some circumstances the court may take the view that a reasonable standard of living for the applicant should be higher than that which the parties enjoyed during the marriage: see In the Marriage of Groutsch (1978) 4 Fam LN 35; FLC 90-461. Standard of living of respondent The applicant cannot claim that he or she should be maintained at a level consistent with a previous high standard of living if the effect of the order sought is that the applicant would be placed in a better financial position than the respondent: see In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90-908. If, however, the financial position of the respondent has deteriorated since the parties separated, then the applicant must expect that his or her standard of living will also be reduced: see In the Marriage of Hagon (1976) 1 Fam LN 41. There must be a degree of relativity having regard to the respondent’s standard of living: see In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500. Standard more than mere subsistence The wife or child of a person of means can expect more maintenance than would be required for mere subsistence: see In the Marriage of Money (1977) 3 Fam LN 37; FLC 90284; see also In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90-435; In the Marriage of Gamble (1978) 4 Fam LN 28; FLC 90-452; In the Marriage of Kutcher (1978) 4 Fam LN 32; FLC 90-453. It is something which is far removed from bare necessity levels: see In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90-513; see also In the Marriage of Evans, above. It may involve making reasonable provision for

what otherwise might be considered as luxuries such as holidays: see In the Marriage of Goode (1976) 2 Fam LR 11,422. Other persons to support There will also be a reduction in standard of living by reason of there being more than one household to support: see In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90-294; see also In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90-908; In the Marriage of Patterson (1979) FLC 90–705; In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011. Relevance of actual expenditure The current actual expenditure of an applicant may not be a sufficient indication of the reasonable needs of the applicant: see In the Marriage of Gwatkin (1978) 4 Fam LR 287; FLC 90-474 at 77,441. Difficulty in assessing appropriate standard If the parties have lived apart for a considerable period of time then it may be difficult to assess an appropriate standard of living and s 75(2)(g) may have little relevance: see In the Marriage of McHarg (1980) 7 Fam LN 4; FLC 90-811. EARNING CAPACITY [s 75.40] Introductory comment — s 75(2)(h) The purpose of this paragraph is to ensure that maintenance should not be a lifelong servitude and that the court should endeavour to reduce the obligation to support a separated or former spouse as soon as possible by making an order for maintenance which will enable an applicant to become self-supporting, even for the first time. It applies only when the proposed course of educational training or business will increase the earning capacity of the applicant. [page 646] An applicant who lacks skills, enabling him or her to earn an adequate income, may be given an order for a limited period enabling the applicant to maintain himself or herself and to enter on a training course to enable the

applicant to obtain an adequate income: see In the Marriage of Thurn (1977) 3 Fam LN 36. If an applicant at the time of consideration of an order has already undertaken a course of training, then the court may make an order which will enable the applicant to complete the course: see In the Marriage of Wolifson (1977) 3 Fam LR 11,627; see also In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90-294; In the Marriage of Whitford (1979) 4 Fam LR 754; FLC 90612; In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90-898. The court, however, may also make an order for a limited duration or by way of lump sum provision which will enable an applicant to commence a course of training: see In the Marriage of Ramsey (1978) 4 Fam LN 20; FLC 90-449; see also In the Marriage of Tiley, above, and In the Marriage of Matthews (1980) 6 Fam LR 142; FLC 90-887. The court may also make an order for maintenance without any limitation in the duration of the order in circumstances where the ultimate effect of the order upon the applicant’s capacity is uncertain or where the duration of the course is uncertain: see In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90-294. If, however, the applicant already possessed the qualification which gave him or her an adequate basis for support and the applicant wished to gain a further qualification to improve his or her earning capacity, this paragraph may have no relevance and the court may decline to make an order: see Lang v Lang (1976) 1 Fam LR 11,283; see also In the Marriage of McMahon (1976) 2 Fam LR 11,267; FLC 90-128. The court must consider whether it is reasonable for a party having regard to his or her existing qualifications, to acquire a further qualification. It may be unreasonable to expect an older spouse to retrain for paid employment after a lengthy marriage: see In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90-435. It may be unreasonable to expect a spouse who has the care of young children and little time for retraining to retrain. The court may have to examine the intellectual or business ability of the applicant and the practical likelihood of her successfully completing the course: see In the Marriage of Ramsey (1978) 4 Fam LN 20; FLC 90-449.

In order to rely upon the extent to which maintenance would enable an applicant to establish herself or himself in business, it would be necessary to adduce evidence which clearly indicated that the proposal was not uncertain and the chances of success: see In the Marriage of Lyons (1978) 4 Fam LN 37; FLC 90-459. The order would, in such circumstances, usually be for a lump sum. An order may be made for a lump sum to enable an applicant to stabilize an existing business: see In the Marriage of Warne (1982) 8 Fam LR 388; FLC 91-247. A lump sum maintenance order or order for alteration of property interests may provide a maintenance provision sufficient to enable an applicant to obtain sufficient income for his or her support. This is particularly so in proceedings for alteration of property interests because, if an applicant is entitled to a large property adjustment under s 79, then his or her need for support by way of maintenance will be reduced: see In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709. The amount received can be invested. The merits of the applicant’s proposals must also be weighed against the ability of the respondent to pay maintenance: see In the Marriage of Bailey (1978) 4 Fam LR 86; FLC 90-424. CREDITORS’ INTERESTS [s 75.40A] Introductory comment The Family Court has considered the interests of creditors when exercising power to adjust property interests between spouses prior to the introduction of s 75(2)(ha), see: Chemaisse & Commissioner of Taxation (No 3) (1990) 97 FLR 176; 13 Fam LR 724; FLC 92-133. The introduction of provisions to allow for the concurrent consideration of bankruptcy and family law proceedings and for the institution of property or maintenanceproceedings by a [page 647] non-bankrupt spouse against the trustee in bankruptcy in place of the

bankrupt spouse allow for a consideration of the competing interests of creditors on the one hand and spouses and children (see s 79(1)) on the other. At present no case law exists which indicates what approach the court will take to the weighing of these competing interests. CONTRIBUTION [s 75.41] Introductory comment — s 75(2)(j) This paragraph requires the court to consider the extent to which the applicant has made a contribution whether financial or not, to the income, earning capacity, property and financial resources of the respondent. The threshold requirement of s 72 must still be satisfied and the fact that a party has contributed to the resources of the respondent does not entitle a party to maintenance if a party is not in need of support: see In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90-310; see also In the Marriage of Slattery (1976) 2 Fam LR 11,251; FLC 90-110. The contribution may be by the provision of unpaid, or underpaid work in the respondent’s business. The contribution may be by the supply of capital to the respondent by way of gift or by loan. The contribution may be made by the provision of financial support to the respondent whilst the respondent was a student. This is a contribution to the respondent’s resources or earning capacity; see In the Marriage of Tye (No 2) (1976) 2 Fam LR 11,205; FLC 90-048; see also In the Marriage of Collins (1977) 3 Fam LR 11,424; FLC 90-286; In the Marriage of Ryan (1976) 2 Fam LR 11,510; FLC 90-144. The contribution need not necessarily have occurred while the parties were married. Contribution may have been made by the applicant prior to the marriage: see In the Marriage of Tye (No 2), above. It has been held that the contribution must have a direct relationship to the income, earning capacity, property and financial resources of the other party. Financial contributions to the upkeep of a matrimonial home, or even financial contributions to current household expenditure which do not themselves add anything to the financial resources of the other party do not come within this paragraph: see In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90-310. The criterion of past contribution is very relevant in proceedings under s

79. It may not be directly relevant in maintenance proceedings except where substantial contributions were made which did not produce any property such as a contribution to the respondent obtaining professional qualifications. An illustration of the importance of taking into account that one party had contributed to the other’s earning capacity is Re B and B (No 2) (2000) 26 Fam LR 437; FLC 93-031. There are a number of unresolved issues as to the meaning of this paragraph and its application. DURATION OF MARRIAGE [s 75.42] Introductory comment — s 75(2)(k) The purpose of this paragraph is not to create a distinction between marriages of long duration as compared with those of short duration when maintenance is under consideration: see In the Marriage of Petterd (1976) 1 Fam LR 11,496; FLC 90-065. However, the duration of a marriage may be an important factor, particularly in respect of a housewife who, after long years of domestic life, has become unfit to compete at an adequate level on the employment market: see In the Marriage of Bignold (1979) 5 Fam LR 97; FLC 90-620. In marriages of long duration the greater effluxion of time and the fact of increasing age will tend to produce more permanent changes in a person’s life, and may have affected earning capacity to a greater extent than will be apparent in a marriage of short duration: see In the Marriage of Petterd, above. The court has to consider the extent to which the marriage has affected the earning capacity of the party whose maintenance is under consideration. A wife who for many years prior to marriage had previously supported herself in an adequate manner and enjoyed by her own efforts a good [page 648] standard of living and a socially well-adjusted life, and then, by marriage, surrendered some freedom and financial independence, is not necessarily expected to go back to fending for herself if the marriage breaks down: see In

the Marriage of Petterd, above; see also In the Marriage of Hellier (1976) 2 Fam LR 11,446. It was argued in one case that if, as a result of the marriage, no matter what its duration, a financial loss had occurred, the claimant should recover compensation for that loss: In the Marriage of Hirst and Rosen (1982) 8 Fam LR 251 at 252; FLC 91-230 Nygh J said: “… this interpretation ignores the use of the word ‘duration’. It also ignores the use of the words ‘to the extent to which it has affected the earning capacity of the party whose maintenance is under consideration’. It is not the impact of the celebration of the marriage by itself, but the erosion which the duration of the marriage has upon the earning capacity which is referred to. Taking a broader view and assisted by the recent insertion in the Acts Interpretation Act 1901 (Cth) of s 15AA, I would suggests that para (k) is directed to deal with the situation where a woman has had her earning skills eroded as a result of the duration of the marriage, as a result, in other words, of having left the workforce to perform the role of housewife and/or mother for a considerable period.” See also In the Marriage of Beck (1982) 8 Fam LR 340; FLC 91–235 (Gibson J). [s 75.43] Earning capacity In In the Marriage of Beck (1982) 8 Fam LR 340 at 344; FLC 91-235, Gibson J said: “In my view, the expression ‘earning capacity’ in s 75(2)(k) does not refer to an ability to gain income by reason of property or property rights, but to a capacity to obtain income by virtue of personal skills or personal exertion.” In In the Marriage of Hirst and Rosen (1982) 8 Fam LR 251; FLC 91-230, Nygh J said that he agreed with the interpretation given by Gibson J in In the Marriage of Beck, above, and that earning capacity refers to skills in earning money, whether by way of wages or by way of business acumen. Nygh J also said at Fam LR 252: “Paragraph (k) cannot be read as if it referred to any loss of income as a result of a marriage. ‘Earning capacity’ does not have the same meaning as income. It relates to the ability to earn income which may or may not be commensurate with the income actually received: J v J [1955] P 215; [1955] 2 All ER 617”.

In In the Marriage of Beck (No 2) (1983) 8 Fam LR 1017 at 1019; FLC 91318, the Full Court held that “earning capacity” as expressed in the Act must be interpreted as having the same meaning as it had since the first maintenance Acts in Australia, “namely, as a capacity to obtain income which could be used to provide maintenance for a wife or children and not merely as current income from personal exertion or from the use of personal skills. A spouse who has assets which are not income producing but which could be used for that purpose has a capacity to earn the amount which those assets reasonably invested or utilised would produce: see generally Wearne v Wearne (No 3) [1964] ALR 207. Ability to pay has a similar meaning and must be judged in the light of all the circumstances, mental and physical resources, money at his disposal, capital position and current necessary expenditure”. The Full Court said: “The absence of a regular income may be important but not decisive s… Ability to earn means capacity to work and also any other means by which the respondent either does or could obtain income.” The relevance of this paragraph is not restricted to the period in which the parties were formally married. It refers to the period in which the parties were living together before the marriage: see In the Marriage of Collins (1977) 3 Fam LR 11,424 at 11,435; FLC 90-286. [s 75.44] Compensation An independent loss of income because of a former marriage is not relevant under para (k), but may be a relevant factor under s 75(2)(o): see In the Marriage of Beck (No 2) (1983) 8 Fam LR 1017; FLC 91-318, where the Full Court held that, with respect to maintenance, there is no concept of compensation for loss of expectations in the Act. The Full Court said “the question is not what sum of money paid periodically or by way of lump sum would adequately compensate for any past loss but, rather, by reason of that loss, what is appropriate by way of monetary payment to enable the claimant to enjoy an appropriate standard of living”. Past conduct may be an issue in determining the mechanics of an order, how it is to be implemented or whether or not there should be security, but it is not an issue in determining quantum. The Full [page 649]

Court also held that in considering a property claim under s 79, conduct, except for financial conduct, is not an issue, and even as to financial conduct there is no element of compensation. The Full Court held that the loss of a life estate by reason of marriage should be taken into account under para (o), not as involving any element of compensation but as an essential element in determining an appropriate standard of living as a factor in the amount of maintenance to be ordered. ROLE OF PARENT [s 75.45] Introductory comment — s 75(2)(1) This paragraph requires the court to consider the need to protect the position of the party who wishes only to continue his or her role as a parent. Prior to the Family Law Amendment Act 1983 it was held that the paragraph applied to a woman desirous of fulfilling the composite role of wife and mother and did not require the court to take into account the position of a woman who wished to continue her role of a wife or mother: see In the Marriage of McHarg (1980) 7 Fam LN 4; FLC 90-811 at 75,117. It was previously thought that the phrase “wife and mother” should be read disjunctively and it sufficed that the woman wished to continue her role as a mother: see Barker v Barker (1976) 13 ALR 123 at 132; 2 Fam LR 11,453 at 11,461. However, the section was held to be of limited application and would not apply where the parties were separated unless the wife desired to resume cohabitation with the husband and children and this was realistic. It would not apply to a maintenance application after a divorce: see In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91-011. The paragraph was amended by the Family Law Amendment Act 1983 to require the court to take into account the wishes of either parent to continue in their parenting role. Reference to the role of “wife” was deleted. The financial and other consequences of the child-care responsibilities of a residence parent or of an contact parent may now be taken into account. The paragraph does not give a parent an absolute right of choice in his or her role. The paragraph is only one of a number of factors to be taken into account and it must be weighed with other factors to determine what is

reasonable: see In the Marriage of Heeks (1980) FLC 90-804. COHABITATION WITH ANOTHER PERSON [s 75.46] Introductory comment — s 75(2)(m) This paragraph was amended by the Family Law Amendment Act 1983 to enable the court, in maintenance proceedings, to take into account the financial circumstances relating to the cohabitation with another person, of either party to the proceedings. The amended paragraph required the court to consider only the financial circumstances relating to the cohabitation of the applicant with a third party. It underlines the irrelevance of matrimonial “fault”, as it is not the fact of cohabitation which is important, but the financial consequences of that cohabitation. Cohabitation “ Cohabitation” means living together as if husband and wife: see In the Marriage of Grabar (1976) 2 Fam LR 11,581; FLC 90-147 at 75,718; see also Wheatley v Wheatley [1950] 1 KB 39 at 43. It may, however, refer to a relationship not including sexual intercourse at all, but to a relationship between two people who are cohabitating in the sense of living in the same premises and providing mutual help and assistance: see In the Marriage of Roberts (1977) 3 Fam LN 59. Another view is that non-sexual relationships are not includeed in view of the common meaning of “cohabitation” as an element of the marital relationship: see In the Marriage of L (1984) 9 Fam LR 1033; FLC 91-563. This paragraph requires evidence that a party is cohabitating with another person and in addition, that he or she is receiving financial support from that person to such an extent as to relieve the need of the other party in whole or in part to support the party who is cohabitating with another person: see In the Marriage of Woolley (1981) 6 Fam LR 577 at 585; FLC 91-011; see also In the Marriage of Grabar (1976) 2 Fam LR 11,581; FLC 90-147; In the Marriage of Butler (1978) 4 Fam LN 51; In the Marriage of Gwatkin (1978) 4 Fam LR 287; FLC 90-474. [page 650]

Financial circumstances The term “financial circumstances” is not confined to any actual financial arrangement between the relevant persons. It may also include financial arrangements which would be appropriate in those circumstances. The court is entitled to take economic potential into account: see In the Marriage of F (1982) 8 Fam LR 29; FLC 91-214 at 77,148; see also In the Marriage of Patterson (1979) FLC 90-705 at 78,759 and In the Marriage of Hart (1980) 5 Fam LR 844; FLC 90-833. EFFECT OF ORDER [s 75.47] Introductory comment — s 75(2)(n) This section requires the court to consider the effect of any order made under s 79 in relation to the property of the parties. The court is required to consider the question of maintenance and property adjustment together whenever practicable: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,487; FLC 90-056 at 75,232; see also Sanders v Sanders (1967) 116 CLR 366 at 379; [1968] ALR 43; In the Marriage of Stokoe (1976) 2 Fam LR 11,151 at 11,156; FLC 90-092. There is a cross-referencing of ss 75(2) and 79 provided by ss 75(2)(n) and 79(4): see In the Marriage of Todd (No 2) (1976) 1 Fam LR 11,186; 25 FLR 260; FLC 90-008; see also In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90-709 at 78,790; In the Marriage of Bignold (1979) 5 Fam LR 97; FLC 90-620; In the Marriage of Crawford (1979) 5 Fam LR 106; FLC 90-647. Because of the need to avoid duplication of relief it is important to consider the order in which a court would deal with a property and maintenance application, when both are before the court. It would not be proper to make a separate assessment of the two elements; they are complementary: see In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90-709. Where the applications for maintenance and property settlement are considered concurrently, the court is required to reach a decision on the property application, taking into account all matters under s 79, including those under s 75(2), before considering an application for maintenance. The court then has to consider the application for maintenance in the light of the impact of the property order on the parties’ financial circumstances. If the

applicant is unable to maintain himself or herself adequately, the court should go on to consider the form and quantum of the maintenance order: see In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91201 at 77,961; see also In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90-897; In the Marriage of Morris (1982) 8 Fam LR 740; FLC 91-271; In the Marriage of Aroney, above and In the Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC 92-600. JUSTICE OF CASE [s 75.48] Introductory comment — s 75(2)(o) This section was originally inserted in the Act to enable a wider consideration of the merits of a particular case than was possible under the other paragraphs of s 75(2). It enables the court to take into account all those situations or types of factual circumstances which the justice of the case requires. The discretion imposed under this section, however, must be exercised judicially, having regard to the facts of the particular case, and it is undesirable for the court to fetter this discretion by artificially restricting the scope of that discretion: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90-124 at 75,586. The section is couched widely and a flexible interpretation should be maintained within proper limits: see In the Marriage of Soblusky, above. It has been held that s 75(2)(o) should be construed as referring to facts or circumstances ejusdem generis with the matters referred to in the preceding paragraphs and that it relates to facts or circumstances of a broadly financial nature: see In the Marriage of Soblusky, above; see also Willett v Willett (1976) 1 Fam LR 11,242; FLC 90-022; In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90-500; In the Marriage of Mueller and Hegedues (1979) 5 Fam LN 14; FLC 90-708. [page 651] It has also been held that s 75(2)(o) allows the court to consider a variety of matters having financial or economic significance which are not expressly

enumerated in the preceding paragraphs: see In the Marriage of Ferguson, above. [s 75.49] Relevance of conduct — s 75(2)(o) Prima facie, evidence of spousal misconduct is not relevant to the quantification of property or maintenance orders: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90-124; see also In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90-500 and In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91-507 (Wilson J). However, in In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92-757; 139 FLR 118, the Full Court confirmed that while conduct is irrelevant in spousal maintenance applications, a history of family violence may be relevant in assessing the weight of the victim’s contributions under s 79: see the discussion at [s 79.195]. The Full Court left open the question of whether conduct could be taken into account by way of the s 75(2) factors in s 79 applications (at Fam LR 23). Broadly speaking, conduct is not relevant since s 75(2) refers exclusively to considerations of financial significance. Section 75(2)(o) does not include facts or circumstances relating to the marital history as such of the parties, but relates only as to facts and circumstances of a broadly financial nature: see In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90-124; see also In the Marriage of Grabar (1976) 2 Fam LR 11,581; FLC 90–147; In the Marriage of Beck (No 2) (1983) 8 Fam LR 1017; FLC 91–318. Paragraph (o) should be construed narrowly in the light of the financial considerations set out in the paragraphs of s 75(2). Conduct could only be relevant if it had financial consequences such as conduct resulting in the waste or dissipation of the family assets: In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90-500. There is no question of punishing anyone for causing a breakdown of the marriage: see In the Marriage of Hutcheson (1976) 2 Fam LN 25. There is no question of awarding a party for being an exemplary parent: see In the Marriage of Rainbird (1977) 3 Fam LR 11,368 at 11,372; FLC 90–256. However, the fact that a spouse has voluntarily contributed during a marriage to the welfare of children to whom he or she owes no legal obligation of support, thereby assisting the other spouse to discharge his or her duties

towards those children, is relevant under s 75(2)(o): see In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555. There is no question of awarding maintenance to an innocent party on the basis that this party should not be the one to suffer: see In the Marriage of Brown (1976) 2 Fam LR 11,147; FLC 90–090. [s 75.50] Can conduct ever be relevant — s 75(2)(o) The Full Court in In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124 said that, having regard to the clear directions contained in s 43, the court may consider (in an appropriate case) that a matter falling within the ambit of s 43 may be a fact or circumstance, proper for the court to take into account within the meaning of s 75(2)(o) but that such cases would be rare and exceptional. Section 43 deals with “principles to be applied by courts”. The possibility left open by the Full Court in In the Marriage of Soblusky, above, is so rare that it has never been applied except in In the Marriage of Issom (1977) 7 Fam LR 305; FLC 90–238 (Fogarty J) which preceded it and which was not expressly overruled in In the Marriage of Soblusky, above. In In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500, Watson and Wood JJ said that there may be a rare or exceptional case where a party has ignored completely the basic concepts upon which the partnership of marriage is founded. For example, there may have been no contribution, whatsoever, not even as a homemaker or parent. To this extent only the principles in s 43 may be relevant. In In the Marriage of Ferguson, above, Strauss J said that s 43 does not provide any justification for taking into account marital misconduct as such either under ss 75(2)(o) or under 79(2). It has also been suggested that there may be circumstances where the conduct of a party was of such a gross and obvious nature that common justice required that conduct to be taken into account: see Wachtel v Wachtel [1973] 1 All ER 829. This suggestion was accepted in some [page 652] decisions of the Family Court: see Willett v Willett (1976) 1 Fam LR 11,242;

FLC 90–022; see also In the Marriage of Petterd (1976) 1 Fam LR 11,496; FLC 90–065; In the Marriage of Issom, above. In In the Marriage of Soblusky, above, the Full Court rejected a test, based on English authority, and some early decisions of the Family Court, of obvious and gross misconduct as a test of whether conduct should be considered relevant under s 75(2)(o). Most of such cases would be adequately covered under the existing provisions of ss 72 and 75 without giving para (o) a wider interpretation: see also In the Marriage of Ferguson, above. In In the Marriage of Beck (No 2) (1983) 8 Fam LR 1017; FLC 91–318, the Full Court said, referring to para (o), that it is the financial consequences of all the relevant matters that are to be taken into account, and matters of conduct in a moral or non-financial sense are excluded. [s 75.51] Matters relevant under s 75(2)(o) — manipulation or destruction of assets If the conduct of a party has resulted in the waste or dissipation or destruction of the financial resources of the parties, it is appropriate that such waste or dissipation or destruction may be taken into account: see In the Marriage of Cordell (1977) 3 Fam LR 11,588; FLC 90– 322 at 76,702; see also In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90–908. If one party has injured the other party and by so doing reduced the other party’s earning capacity, this may be relevant: see Barkley v Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90–216; In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500; In the Marriage of Rogers (1980) FLC 90–874. If one party has so manipulated the assets of the parties to the disadvantage of the other party then this may be relevant under para (o): see In the Marriage of Tuck (1979) 7 Fam LR 492; (1981) FLC 91–021. If one party has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value, then this may be a relevant factor under para (o): see In the Marriage of Kowaliw (1981) 7 Fam LN N13; FLC 91–092; see also In the Marriage of Anastasio (1981) 7 Fam LN 8; FLC 91–093; In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90–908; In the Marriage of Browne and Green (1999) 25 Fam LR 482 (FC).

[s 75.52] Other matters relevant under s 75(2)(o) Breach of an agreement If one party has on earlier occasions agreed to accept a distribution of property less favourable than the one which such party may ultimately be seeking at a hearing, and the other party has at all times been prepared to abide by the terms of any earlier agreement, then this may be a relevant factor within para (o): see In the Marriage of Bates (1976) 2 Fam LR 11,407; FLC 90–123. The court may take into account as a matter of conduct relating to a financial matter, a breach of an agreement by one party to the marriage which has caused financial loss to the other party and which the justice of the case requires to be taken into account: see In the Marriage of A (1984) FLC 91– 590. Loss of pension The loss of a pension or other benefit may be a relevant factor under para (o): see In the Marriage of Hirst and Rosen (1982) 8 Fam LR 251; FLC 91–230 at 77,250. Loss of interest in estate The loss of income from a life estate under a will upon remarriage is not likely to be a factor to be taken into account under para (o): see In the Marriage of Beck (1982) 8 Fam LR 340; FLC 91–235 at 77,281. Failure to make request for contribution A failure to make a reasonable request to a third person for a reasonable contribution for money or support may be a relevant factor: see In the Marriage of Patterson (1979) FLC 90– 705 at 78,757. Improvement of qualifications The desire of a party to improve his or her qualifications with further education may be a relevant factor under para (o): see Lang v Lang (1976) 1 Fam LR 11,283. [page 653] Cohabitation before marriage Lengthy cohabitation before the marriage

may be a relevant factor under para (o), particularly where children have been born and raised: see In the Marriage of Olliver (1978) 4 Fam LR 360; FLC 90–499; see also In the Marriage of Collins (1977) 3 Fam LR 11,424; FLC 90–286; In the Marriage of Fane-Thompson (1981) 7 Fam LR 660; FLC 91– 053. Prospects of remarriage The prospects of remarriage of a party may be a relevant factor under s 75(2)(o): see In the Marriage of Steinmetz (1981) 6 Fam LR 554; FLC 91–079; see, however, In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011. It is appropriate to take into account the prospects of remarriage as a general statistical factor: In the Marriage of Rouse (No 2) (1981) 7 Fam LN 22; (1982) FLC 91–226. Creation of own incapacity for self-support In In the Marriage of Berta (1988) 12 Fam LR 191; FLC 91–916, the Full Court held that the fact that a party has created his or her own incapacity for self-support was clearly a fact or circumstance which the justice of the case required to be taken into account. In that case, the husband, who was incapable of earning a living and who received an invalid pension, had spent the money received in settlement of his worker’s compensation claim on the matrimonial home and other items. [s 75.52A] The terms of binding financial agreement — s 75(2)(p) Part XIIIA of the Act allows for binding financial agreements to be made governing the parties’ financial affairs on divorce or separation (see the commentary on Pt VIIIA). Where such an agreement is binding, the court’s powers under Pt VIII are excluded: s 71A. However, a binding agreement may not cover all the assets of the parties. Those assets not included will still have to be dealt with under Pt VIII. This paragraph ensures that, in exercising those continuing Pt VIII powers, the court is required to have regard to the terms of the agreement in assessing property distribution and spousal maintenance. RELEVANCE OF PENSION, ALLOWANCE OR BENEFIT

[s 75.53] Introductory comment — s 75(3) This section was inserted in the Act by the 1987 Amendment Act. It provides that in proceedings for spousal maintenance the court must disregard any eligibility for an income tested pension, allowance or benefit of the applicant for maintenance. It resolves the conflict which existed as to the relevance of such an eligibility in favour of the “public purse”. The primary responsibility to provide maintenance for a spouse now rests on the other spouse so far as he or she is able to bear such a responsibility. The question which arises is whether or not the court still retains a discretion to take such an eligibility into account in an appropriate case. It is submitted (SO’R) that on a literal reading of the provision such a discretion does not exist. It is submitted (SO’R) that if such a view is correct then it may cause injustice in some circumstances. [s 75.54] Limitation on consideration Section 75(4) makes clear that the references to “party” in s 75(2) do not include trustees in bankruptcy or other third parties. The interests of creditors are explicitly referred to in s 75(2)(ha).

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[s 76] 76

[s 77]

Maintenance of children [s 76 rep Act 181 of 1987 s 40]

Urgent spousal maintenance cases

77 Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, [page 654] should be made, the court may order the payment, pending the

disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable. [s 77 am Act 181 of 1987 s 41]

COMMENTARY ON SECTION 77 Introductory comment …. Child maintenance …. Urgent situation …. Summary hearing …. Ex parte application for urgent maintenance …. Interim maintenance ….

[s 77.1] [s 77.2] [s 77.3] [s 77.4] [s 77.5] [s 77.6]

[s 77.1] Introductory comment Urgent maintenance can be ordered under this section where it appears to the court that a party to the marriage is in immediate need of financial assistance, but in the circumstances it is not practical to determine immediately what, if any, order should be made: see In the Marriage of Malcolm (1977) 3 Fam LN 8; FLC 90–220; see also In the Marriage of Ashton (1982) 8 Fam LR 675; FLC 91–285 and In the Marriage of Pritchard (1982) 8 Fam LR 805; FLC 91–286. [s 77.2] Child maintenance Urgent maintenance for children is provided for in s 66K. [s 77.3] Urgent situation Section 77 applications have particular characteristics. They are intended to deal with urgent situations. They are normally relevant for a defined or definable period of time, and they are in the nature of stop-gap orders. That does not mean they have to be breadline orders. What the appropriate quantum is depends upon the particular circumstances of each case and the financial background and history of the parties: see In the Marriage of Chapman (1979) FLC 90–671; see also In the Marriage of Williamson (1978) 4 Fam LR 355; FLC 90–505. However, the applicant must show “immediate need of financial assistance”, an urgent and pressing or immediate need for maintenance: see In the Marriage of Williamson, above; see also In the Marriage of Pritchard (1982) 8 Fam LR 805; FLC 91–286.

[s 77.4] Summary hearing Where the need for maintenance is urgent, the court, under s 77, is authorised to make an order on such evidence as may be available in a summary hearing. The application is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte, or may have to be made on such evidence as the applicant is able to supply in the short period before the matter is set down for hearing: see In the Marriage of Ashton (1982) 8 Fam LR 675; FLC 91–285 (Nygh J); see also In the Marriage of Pritchard (1982) 8 Fam LR 805; FLC 91–286 (Nygh J) and In the Marriage of Malcolm (1977) 3 Fam LN 8; FLC 90–220. It must not be practicable in the circumstances to determine immediately what order, if any, should be made: see In the Marriage of Baber (1980) 6 Fam LR 796; FLC 90–901. [s 77.5] Ex parte application for urgent maintenance If an order for urgent maintenance is made ex parte, it should be strictly measured in days, or otherwise limited in time, in order to avoid serious injustice. The time should be the shortest period which must elapse before a preliminary hearing can be arranged: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713 at 717; FLC 90–627. [s 77.6] Interim maintenance Under the Family Law Act there is no special category of interim maintenance. The court is empowered by s 80(1)(h) to make a maintenance order “until further order” and this is sometimes referred to as an “interim maintenance” order. It is the same as ordinary maintenance under s 74, except that the court is making an order which is limited in duration, such as until further order or pending disposal of proceedings. If the court is dealing with an application for maintenance in the ordinary form, even if limited in duration, it conducts the [page 655] proceedings after the giving of the usual directions and after hearing all the relevant evidence before it, having regard to the matters set out in s 75(2): see In the Marriage of Ashton (1982) 8 Fam LR 675; FLC 91–285; see also In the Marriage of Pritchard (1982) 8 Fam LR 805; FLC 91–286.

____________________

[s 77A] Specification in orders of payments etc for spouse maintenance purposes *77A (1) Where: (a) a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a party to a marriage, is made by consent or varies an earlier order), and the order has the effect of requiring: (i) payment of a lump sum, whether in one amount or by instalments; or (ii) the transfer or settlement of property; and (b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a marriage; the court shall: (c) express the order to be an order to which this section applies; and (d) specify the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the party. (2) Where: (a) a court makes an order of a kind referred to in paragraph (1)(a); and (b) the order: (i) is not expressed to be an order to which this section

applies; or (ii) is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d); any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, shall be taken not to make provision for the maintenance of a party to the relevant marriage. [s 77A insrt Act 181 of 1987 s 42] *Editor’s note: Section 67(1) of the Family Law Amendment Act, No 181 of 1987, provides: Application of specification requirements in orders and agreements 67 (1) Sections 66L and 77A of the Principal Act as amended by this Act apply only in relation to orders made after the commencement of this Act. COMMENTARY ON SECTION 77A PRELIMINARY Introductory comment …. ORDERS TO WHICH S 77A APPLIES Introductory comment …. Lump sum payment, or transfer or settlement of property …. Purpose of making provision for maintenance …. Status of a s 77A declaration …. DUTY OF COURT Application of section — s 77A(1)(c) …. Portion attributable to maintenance — s 77A(1)(d) ….

[s 77A.1]

[s 77A.5] [s 77A.6] [s 77A.7] [s 77A.8]

[s 77A.10] [s 77A.11]

[page 656]

FAILURE TO COMPLY Effect of non-compliance — s 77A(2) …. Whether any effect on rights of parties ….

[s 77A.20] [s 77A.22]

PRELIMINARY [s 77A.1] Introductory comment This section was inserted in the Act by the 1987 Amendment Act. In an explanatory memorandum by the AttorneyGeneral it was said that the primary purpose of the provision is to enable the income-testing for social security purposes of maintenance received other than by way of periodic sums. ORDERS TO WHICH S 77A APPLIES [s 77A.5] Introductory comment The section applies to any order, made after 1 April 1988 (the commencement of amending Act No 181 of 1987), which satisfies two criteria. First, the order must have the effect of requiring payment of a lump sum or the transfer or settlement of property. Secondly, the purpose of one of the purposes of the payment transfer or settlement must be to “make provision for the maintenance of a party to the marriage”. [s 77A.6] Lump sum payment, or transfer or settlement of property The section applies where the order has the effect of requiring payment of a lump sum or the transfer or settlement of property. On the meaning of these terms, see commentary to ss 79, 80. Lump sum The lump sum payment may be by instalments. The section does not apply however to an order for periodical payments of maintenance. Maintenance or property proceedings The section applies whether or not the order is made in spousal maintenance proceedings: thus it could apply to an order made in s 79 proceedings. A declaration under s 77A can be made even where there is no application for maintenance before the court: Doig v

Doig (1999) 25 FamLR 572; FLC 92–869 (FC). Consent orders and variations It applies to consent orders, and orders which vary earlier orders. [s 77A.7] Purpose of making provision for maintenance Introductory comment It is not immediately apparent whether the section is intended to apply to orders which include what has been called a “maintenance component”, for example, a transfer of the matrimonial home to a wife under s 79, where one of the bases for the order is that the wife cannot afford other accommodation. A narrower reading is that the section applies only to orders which make provision for maintenance in the strict sense. The Full Court has adopted the second reading. Limited to maintenance “in the strict sense” The Full Court has held that the section does not apply to orders made under s 79 which include a “maintenance component”: it applies only to orders intended to make provision for maintenance in the strict sense. In the leading case, In the Marriage of Dein (1989) 12 Fam LR 853; FLC 92–014, the court ordered the payment of $150,000 to the wife by way of property settlement. Her claim was based mainly on s 75(2) factors rather than contributions. Further, the judge noted that when invested the sum would give to the wife a particular weekly income. The Full Court (Lindenmayer, Nygh and Barry JJ) nevertheless held that the section did not apply to the order. It applies only to orders intended to make provision for maintenance in the strict sense of the term. It does not apply to s 79 orders in which the amount ordered is determined by reference to s 75(2) factors (or by those factors which might be regarded as “the maintenance element”) rather than by contributions alone. The trial judge had properly considered s 75(2) in the process of making the s 79 order, and had considered whether the order [page 657] made would leave the wife with a further claim for maintenance, concluding

that it would not. It was therefore unnecessary to take “the third step” of making a maintenance order. It followed that s 77A did not apply. The Full Court approved a previous decision by Kay J to the same effect: In the Marriage of Habib (1988) 12 Fam LR 127; FLC 91–931. Kay J, at 12 Fam LR 130, expressed the distinction thus: “[Sections 66L, 77A and 87A] are intended to catch only that portion of the lump sum or property which could be fairly attributed to an order that could otherwise be made under s 66F for child maintenance or s 74 for spousal maintenance.” The same approach had been taken by Gee J in In the Marriage of Penza (1988) FLC 91–949. [s 77A.8] Status of a s 77A declaration Declarations under s 77A are commonly used in consent orders as a way of ensuring that all present applications for spousal maintenance are treated as having been dealt with. However this presupposes that a s 77A declaration is an “order”. The same question, of whether a s 77A declaration is an “order”, may also be relevant to the question of whether the maintenance element of a lump sum or property order can subsequently be varied or discharged under ss 82 and 83 since those sections also apply only to “orders” (although there is the additional problem that such orders, once complied with, cease to be “orders” in any event — see commentary on ss 82 and 83). This question arose in In the Marriage of Evans v Spicer (1992) 15 Fam LR 749; FLC 92–319, where Moss J held that a consent order containing a s 77A declaration contained no “order” for maintenance merely by virtue of the declaration itself. Moss J held that the s 77A declaration merely amounted to an agreement between the parties that a lump sum was to be treated in a particular way. However, it should be noted that the consent order in Evans was one in which the parties agreed in one order to transfer a lump sum and agreed in another that only part of that sum was to be treated as maintenance for the purposes of s 77A. One way of making sure that there is clearly an “order” in force is to separate out the sums and to make separate orders. Yet even if there are separate orders, there would still have to be a s 77A declaration with respect to the maintenance order since s 77A states that it applies where the sole purpose of an order is to provide for maintenance (as well as where one

order serves two purposes). In any case, it is arguable (contrary to Moss J) that where there is a “mixed purpose” order of the sort found in Evans, coupled with a s 77A declaration, that the parties have made it sufficiently clear from the declaration that they intend to deal with maintenance issues so that the specified part of the order is indeed an “order” for maintenance. Even so, where the issue is subsequent variation or discharge under ss 82 and 83, an applicant faces the difficulty that lump sum maintenance orders, once complied with, cease to be “orders” for the purposes of those sections in any event: see above. DUTY OF COURT [s 77A.10] Application of section — s 77A(1)(c) Where the court makes an order to which the section applies, it must express the order to be one to which the section applies. As to failure to comply, see below. [s 77A.11] Portion attributable to maintenance — s 77A(1)(d) Where the court makes an order to which the section applies, it must also specify the portion of the payment or the value of the portion of the property, attributable to the provision of maintenance. As to failure to comply, see below. FAILURE TO COMPLY [s 77A.20] Effect of non-compliance — s 77A(2) This provision sets out the consequences of a failure to comply with the requirements of s 77A(1). The payment, transfer or settlement shall be taken not to make provision for spousal maintenance. [page 658] The question of the consequences of non-compliance with s 77A arose before, but was not decided by, the Full Court in In the Marriage of Caska (1998) 23 Fam LR 659; FLC 92–826. The Full Court merely noted the difference in practice between registries in relation to non-compliance where an order is clearly intended to deal with the issue of maintenance.

[s 77A.22] Whether any effect on rights of parties It is unclear whether the court’s determination under s 77A or the operation of s 77A(2) has an effect on the rights of the parties. A plausible and convenient view is (RC) that s 77A should be read as having no such effect, being intended only to assist means testing for social security purposes.

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[s 78]

Declaration of interests in property*

78 (1) [Court may declare interests] In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property. (2) [Consequential orders] Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession. (3)* [subs (3) rep Act 120 of 1988 s 39] *Editor’s note: Important commentary relating to Part VIII (ss 78, 79) has been reproduced directly under the heading to Part VIII: see [Pt VIII.1] ff. *Editor’s note: Section 39(2) of the Law and Justice Legislation Amendment Act 1988 No 120 provides: 39 (2) The amendment made by subsection (1) applies in relation to proceedings instituted after this section commences.

COMMENTARY ON SECTION 78 PRELIMINARY Introductory comments …. Constitutional basis …. Historical antecedents …. JURISDICTION UNDER SECTION 78 Scope of jurisdiction …. Between the parties to a marriage …. With respect to existing title or rights in respect of property …. Time limit absent …. Previous orders made under s 79 …. Dispute as to title — whether necessary ….

[s 78.1] [s 78.2] [s 78.3]

[s 78.4] [s 78.5] [s 78.6] [s 78.7] [s 78.8] [s 78.9]

ORDERS UNDER SECTION 78 Declarations and consequential orders …. Declarations …. Consequential orders …. Recovery of money ….

[s 78.10] [s 78.11] [s 78.12] [s 78.13]

RELATIONSHIP BETWEEN SECTION 78 AND SECTION 79 Distinction between proceedings pursuant to ss 78 and 79 …. No need for s 78 proceedings with s 79 proceedings …. Limited use of s 78 …. No orders under s 79 upon s 78 application ….

[s 78.14] [s 78.15] [s 78.16] [s 78.17]

[page 659]

THIRD PARTIES Power to make orders affecting third parties …. Third parties should be joined ….

[s 78.18] [s 78.19]

PRELIMINARY [s 78.1] Introductory comments This section allows the court to declare interests in property and make certain consequential orders. It does not allow the court to alter existing rights; such a power, however is contained in s 79, which is the basis on which the vast majority of property proceedings are conducted. [s 78.2] Constitutional basis Matrimonial cause The words of s 78 refer to “proceedings between the parties to a marriage with respect to existing title or rights in respect of property”. However such proceedings must also fall within the definition of “matrimonial cause”, most obviously para (ca). They must therefore be:

“proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship; (ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief; or (iii) in relation to [an overseas divorce or annulment recognised in Australia].” It might be arguable that there could be situations in which proceedings under s 78 may constitute a “matrimonial cause” under (f) or (eb) of the definition of that term, but no such arguments appear to have been considered in reported cases. Link with Marriage The terms of para (ca) of “matrimonial cause” are intended to require a relationship between the proceedings and the marriage that would bring the proceedings within the scope of the constitutional power to make laws relating to marriage, and matrimonial causes: Constitution, s 51(xxi) and (xxii). They would no doubt exclude, for example, proceedings between parties who once happened to be married arising out of a commercial transaction after they divorced and having no relationship to their marital lives. The authorities are discussed in the commentaries to s 79 and s 4 (“matrimonial cause”). Exclusive jurisdiction Proceedings under s 78, like other proceedings by way of a “matrimonial cause”, must be brought under the Act: see s 8. Section 78 would appear to “cover the field”, except, conceivably, for any proceedings falling within the State legislation and outside the scope of s 78 and the definition of “matrimonial cause”, as to which see In the Marriage of Vance (1978) 4 Fam LR 579; FLC 90–522. Authorities The constitutional scope of proceedings under s 78 has not been the subject of detailed authoritative determination by the High Court or the Full Court. However it is reasonable to suppose that the authorities relating to s 79 apply also to s 78: see the commentary to s 79, and to s 4, “matrimonial cause”.

[s 78.3] Historical antecedents Section 78 confers on the court what is essentially the jurisdiction previously exercised by State courts under the various State equivalents of s 17 of the English Married Women’s Property Act 1882. Authorities under this legislation, such as Wirth v Wirth (1956) 98 CLR 228, have been treated as relevant to s 78. JURISDICTION UNDER SECTION 78 [s 78.4] Scope of jurisdiction The court has power under s 78 to consider all issues of law and equity relevant to the determination of a party’s title and rights in respect of property: see In the Marriage of Good (1982) 8 Fam LR 354; FLC 91–249; Balnaves v Balnaves (1988) [page 660] 12 Fam LR 488; FLC 91–952. The court can, under s 78, consider equitable defences of delay and whether there should be restitution as a condition of the declaration of a resulting trust: see In the Marriage of Good, above. See also In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,489; FLC 90– 056; Wirth v Wirth (1956) 98 CLR 228; In the Marriage of Lyons (1978) 4 Fam LN 37; FLC 90–459; Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90–481; In the Marriage of Helliar (1978) 5 Fam LR 432; (1979) FLC 90–684; In the Marriage of Javes and Dwyer (1979) FLC 90–675. See also [s 78.1], [s 78.14]. It has been held that s 78 enables declarations to be made where one party to a marriage seeks orders declaring that the other party to the marriage is the beneficial owner of property held by a third party: In the Marriage of Moran (1994) 18 Fam LR 534; (1995) FLC 92–559. In that case the applicant wife did not seek to join the third party or seek an order that would bind the third party, and on this basis Bulley J distinguished authorities such as Balnaves v Balnaves (1988) 12 Fam LR 488; FLC 91–952. Bulley J also held that sham transactions constitute exceptions to the proposition that the court must take the property of a party to the marriage as it finds it, and that, since the pleadings alleged that the relevant transactions were shams, the application

for a declaration under s 78 should not be struck out. Bulley J held, however, that notice should be given to the third parties so that they could give consideration to whether they should intervene. The Full Court has urged caution on practitioners in their use of s 78 in consent situations, where an order under s 79 might be more appropriate, being a single exercise of power which has the effect of adjusting property interests as between the parties: In the Marriage of Hickey (2003) 30 Fam LR 355; FLC 93–143; [2003] FamCA 395. [s 78.5] Between the parties to a marriage Other parties The proceedings must be between the parties to the marriage. However this does not prevent there being other parties to the proceedings. As to whether the section can be used to obtain consequential relief where there is no issue as to title, see below [s 78.9]. [s 78.6] With respect to existing title or rights in respect of property As to the meaning of “property”, see the commentary to s 4 and s 79. As to whether the section can be used to obtain consequential relief where there is no issue as to title, see below [s 78.9]. Gift during marriage In In the Marriage of Greer (1985) 10 Fam LR 528; FLC 91–645, Barblett J held that if an item of property was gifted by one party to the other during the marriage, then the court only has power under s 78 to declare the title or rights in the property of the party to whom the property was gifted. Bankruptcy The effect of s 58 of the Bankruptcy Act 1966 is to immediately vest the whole of a debtor’s property either in the Official Trustee or a registered trustee once a debtor has become bankrupt. In In the Marriage of Garmonsway (1986) 10 Fam LR 1026; FLC 91–746, Baker J held that the court has no jurisdiction to make a declaration under s 78 in respect of property which has vested in the Official Trustee pursuant to s 58 of the Bankruptcy Act. [s 78.7] Time limit absent Proceedings under s 79, and original proceedings

for spousal maintenance, cannot be brought after 12 months after the date on which the decree of dissolution became absolute: see s 44(3). However this limitation does not apply to proceedings under s 78. Thus proceedings under s 78 can be brought more than 12 months after the divorce, provided, of course, that they fall within the terms of s 78 and of the definition of “matrimonial cause”, as to which see above, especially [s 78.2]. The time limit on s 79 proceedings cannot be avoided by asking the court to make s 79 orders upon a s 87 application: In the Marriage of Smith (1990) 14 Fam LR 521 at 524; (1991) FLC 92–200. Section 44(3) In considering an application for leave under s 44(3) to institute s 79 proceedings, it might be relevant whether the issues can be satisfactorily determined under s 78 (although typically this will not be so, since under s 79 the court can have regard to a wide range of [page 661] considerations other than existing rights and title): see In the Marriage of Catlin and Kent (1986) 11 Fam LR 639; (1987) FLC 91–815 and the commentary to s 44(3). [s 78.8] Previous orders made under s 79 The question has arisen whether the court can make a declaration under s 78 in respect of property which has already been the subject of an order under s 79. In In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911, the Full Court said, “We incline to the view that parties may not apply to the court under s 78 to declare their title or rights in respect of property which has already been the subject of an order under s 79”. However in other cases the point has been left open, or given an affirmative answer: see In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005; FLC 91–323; In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299; In the Marriage of Vance (1978) 4 Fam LR 579; FLC 90–522, (Gibson J, holding that the court can make a declaration under s 78); In the Marriage of Greer (1985) 10 Fam LR 528; FLC 91–645; In the Marriage of Florie (1988) 12 Fam LR 7 at 16–17; FLC 91–913.

[s 78.9] Dispute as to title — whether necessary It is necessary that the rights of the parties in property be in dispute before proceedings can be commenced? It was originally considered necessary that the existing title or rights of parties in property be uncertain before proceedings could be commenced under s 78: In the Marriage of McDougall (1976) 1 Fam LR 11,581 at 11,588; FLC 90–076. It has since been held, however, that under the section it is open to a party to a marriage who is a co-owner of a property to seek a declaration for the purpose of obtaining consequential orders even though there is no dispute as to the title of the property: see In the Marriage of Vance (1978) 4 Fam LR 579; FLC 90–522, where Gibson J drew attention to the fact that in contrast with (what was then) s 22 of the Married Women’s Property Act of NSW, s 78 not expressly require a “question as to title” or “property in dispute” as a condition for its operation. ORDERS UNDER SECTION 78 [s 78.10] Declarations and consequential orders The court’s power under s 78 is limited to declaring existing rights and making consequential orders to give effect to the declarations: see In the Marriage of McDougall (1976) 1 Fam LR 11,581; FLC 90–076; see also In the Marriage of Vance (1978) 4 Fam LR 579; FLC 90–522. Examples of the use of s 78 include In the Marriage of Helliar (1978) 5 Fam LR 432; (1979) FLC 90–684; In the Marriage of Javes and Dwyer (1979) FLC 90–675. [s 78.11] Declarations A declaratory order is one which merely declares what the rights are between parties: see Young P W, Declaratory Orders (2nd ed, 1984); see also Meagher Gummow & Lehane: Equity Doctrines and Remedies (2nd ed, 1984) Ch 19. [s 78.12] Consequential orders Pursuant to s 78(2) the court may, if it makes a declaration under s 78(1), make consequential orders, including orders as to sale or partition and interim or permanent orders as to possession. The court, however, retains a discretion, and the court may refuse to make such an order or it may be unnecessary if the effect of a declaration is that only one party is entitled to the property: see In the Marriage of Jajko (1976)

2 Fam LN 7; FLC 90–136. If, however, a declaration is made that a party is entitled to a beneficial interest in property which has been disposed of then the court may make an order that the other party pay a sum of money to the value of that interest: see Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90–481. [s 78.13] Recovery of money It has been held that sums owed by one spouse to the other may be recovered under s 78; the court may declare the existence of a chose in action and, in the exercise of jurisdiction under s 78(2), give a money judgment to the applicant as a means of giving effect to the declaration of entitlement to the chose in action: see Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90–481. Of course debts by one party to another may also be dealt with in proceedings for spousal maintenance (s 74) and proceedings for property alteration (s 79). [page 662] RELATIONSHIP BETWEEN SECTION 78 AND SECTION 79 [s 78.14] Distinction between proceedings pursuant to ss 78 and 79 In exercising jurisdiction under s 78 the court must determine the existing property rights of parties according to the normal rules of law and equity. By contrast, proceedings under s 79 are not governed by ordinary principles of property law. Under s 79 the court can make orders altering the interests of the parties in property having regard to the matters referred to in s 79 and s 75. The importance of the distinction is illustrated by In the Marriage of Smith (1990) 14 Fam LR 521; (1991) FLC 92–200 (party cannot institute proceedings under s 78 and seek to rely on those proceedings to defeat the time limit in s 44(3) applicable to s 79 proceedings). See also the decision of the Full Court in In the Marriage of Wagstaff (1990) 14 Fam LR 78; FLC 90– 142. In that case the court was asked to make declarations under s 78 as to the application of certain trust moneys. The court held that, as the proceedings had been instituted under s 78 rather than s 79, it was required to analyse the

transactions which had taken place in the light of the trust deed under which the moneys in question had been held. See also In the Marriage of Randle (1987) 11 Fam LR 753; FLC 91–828. [s 78.15] No need for s 78 proceedings with s 79 proceedings It is clear that proceedings may be brought under s 79 alone: s 78 proceedings are in no way a necessary accompaniment or preliminary to s 79 proceedings. See also commentary to s 79. [s 78.16] Limited use of s 78 In view of the wide powers under s 79 to alter property interests, the situations in which s 78 proceedings will be used are limited: see In the Marriage of Olliver (1978) 4 Fam LR 360; FLC 90–499; see also In the Marriage of Good (1982) 8 Fam LR 354; FLC 91–249. Thus it has been said in In the Marriage of Catlin and Kent (1986) 11 Fam LR 639; (1987) FLC 91–815 that “the court has indicated its reluctance to embark upon a determination of s 78 issues alone, and … leans towards linking s 78 and 79 issues in one hearing … The question of legal and equitable ownership and entitlements is always relevant in s 79.” (quoted in In the Marriage of Smith (1990) 14 Fam LR 521 at 524; (1991) FLC 92–200). As to whether an application can be made in respect of property already subject to a s 79 order, see above, [s 78.8]. [s 78.17] No orders under s 79 upon s 78 application In proceedings pursuant to s 78 can the court make an order under s 79 without an application? If a respondent to an application pursuant to s 78 merely asserts legal rights and makes no cross-application pursuant to s 79, then the application must be dealt with according to general law and not by any of the principles set forth in s 79: see In the Marriage of Javes and Dwyer (1979) FLC 90–675; In the Marriage of Helliar (1978) 5 Fam LR 432; (1979) FLC 90–684. If an application is made pursuant to s 78 and the proceedings are defended, then the respondent should either contest the legal entitlement upon legal or equitable principles, or make an application to alter those legal entitlements under s 79: see In the Marriage of Garside (1978) 4 Fam LN 53; FLC 90–488. Similarly, instituting proceedings under s 78 cannot be used to circumvent the time limit in s 44(3) applicable to s 79 proceedings: In the Marriage of Smith (1990) 14 Fam LR 521; (1991) FLC 92–200.

THIRD PARTIES [s 78.18] Power to make orders affecting third parties Title or rights of party to marriage By its own terms, s 78 restricts the court to making declarations as to the “title or rights, if any, that a party has in respect of property”. It is not possible, therefore, to make a declaration to the effect that a third party has rights in respect of property. If, however, there is an issue between a party to a marriage and a third party in relation to title to property, the court could (subject to the discussion below) make a declaration as to the title of the party to the marriage in that property. If the third party was a party to the proceedings, [page 663] that declaration would bind the third party. A declaration that the party to the marriage had no title to the property would bind both the third party and the party to the marriage, although it would not constitute a holding that the third party (as distinct from some other person, or indeed no person) had title to the property. Repeal of subs (3) Prior to its repeal s 78(3) provided that orders under s 78 were “binding on the parties to the marriage but not on any other person”: see Balnaves v Balnaves (1988) 12 Fam LR 488; FLC 91–952. Since the repeal of subs (3), it would appear that there is nothing in the wording of the Act to prevent a declaration made under s 78 from binding third parties. The repeal of subs (3) would appear to be a clear indication that the Parliament intended that declarations made under s 78 could bind third parties. [s 78.19] Third parties should be joined It is clear that the court should not make an order affecting third parties unless the third parties have had an opportunity to be heard, for example, after becoming parties by intervention under s 92. See In the Marriage of Lanceley (1994) 18 Fam LR 71; FLC 92– 491 (FC). Orders which either bind or effect third parties are now explicitly dealt

with under Part VIIIAA. Third party unaffected It has been held that where a spouse applies under s 78 for a declaration that the other spouse is a beneficial owner of property held in the name of a third party, and no orders are sought against the third party nor is the third party joined, the court has jurisdiction under the section to make such orders: In the Marriage of Moran (1994) 18 Fam LR 534; (1995) FLC 92–559. However in that decision Bulley J also held that the third parties should be given formal notice of the declarations sought so that they may give consideration to seeking leave to intervene.

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[s 79]

Alteration of property interests*

79 (1) [Court may alter parties’ property interests] In property settlement proceedings, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any);

to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines. [subs (1) subst Act 20 of 2005 s 3 and Sch 1 cl 27, opn 18 Sep 2005]

(1A) [Order enforceable after death] An order made under subsection (1) in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. [subs (1A) insrt Act 72 of 1983 s 36; am Act 20 of 2005 s 3 and Sch 1 cls 28–29, opn 18 Sep 2005]

[page 664] (1B) [Adjournment of property proceedings] The court may adjourn property settlement proceedings, except where the parties to the marriage are: (a) parties to concurrent, pending or completed divorce or validity of marriage proceedings; or (b) [Repealed] (ba) parties to a marriage who have divorced under the law of an overseas country, where that divorce is recognised as valid in Australia under section 104; or (bb) parties to a marriage that has been annulled under the law of an overseas country, where that annulment is recognised as valid in Australia under section 104; or (c) parties to a marriage who have been granted a legal separation under the law of an overseas country, where that legal separation is recognized as valid in Australia under section 104;

on such terms and conditions as it considers appropriate, for such period as it considers necessary to enable the parties to the marriage to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage, but nothing in this subsection shall be taken to limit any other power of the court to adjourn such proceedings. [subs (1B) insrt Act 72 of 1983 s 36; am Act 181 of 1987 s 63 and Sch; Act 98 of 2005 s 2 and Sch 1, cl 84, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cls 30–31, opn 18 Sep 2005]

(1C) [Application to continue adjourned proceedings] Where the period for which a court has adjourned property settlement proceedings as provided by subsection (1B) has not expired and: (a) divorce or validity of marriage proceedings are instituted by one or both of the parties to the marriage; or (b) [Repealed] (ba) the parties to the marriage have divorced under the law of an overseas country and the divorce is recognised as valid in Australia under section 104; or (bb) the marriage is annulled under the law of an overseas country and the annulment is recognised as valid in Australia under section 104; or (c) the parties to the marriage are granted a legal separation under the law of an overseas country and the legal separation is recognized as valid in Australia under section 104; a party to the first-mentioned proceedings may apply to the court for the hearing of those proceedings to be continued. [subs (1C) insrt Act 72 of 1983 s 36; am Act 98 of 2005 s 2 and Sch 1, cl 85, opn 3 Aug 2005; Act 20 of 2005 s 3 and Sch 1 cls 32–35, opn 18 Sep 2005]

(2) [Requirements for order to be made] The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. (3) [subs (3) rep Act 63 of 1976 s 25] (4) [Relevant considerations] In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or [page 665] not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and (e) the matters referred to in subsection 75(2) so far as they are relevant; and (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage. [subs (4) subst Act 72 of 1983 s 36; am Act 124 of 1989 s 193; Act 84 of 1997 s 3 and Sch 1; Act 20 of 2005 s 3 and Sch 1 cls 36–37, opn 18 Sep 2005]

(5) [Further grounds for adjournment] Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in property settlement proceedings, a court is of the opinion: (a) that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and (b) that an order that the court could make with respect to: (i) the property of the parties to the marriage or either of them; or

(ii) the vested bankruptcy property in relation to a bankrupt party to the marriage; if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to: (iii) the property of the parties to the marriage or either of them; or (iv) the vested bankruptcy property in relation to a bankrupt party to the marriage; the court may, if so requested by either party to the marriage or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the marriage or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances. [subs (5) insrt Act 72 of 1983 s 36; am Act 20 of 2005 s 3 and Sch 1 cls 38– 41, opn 18 Sep 2005]

[page 666] (6) [Interim orders] Where a court proposes to adjourn proceedings as provided by subsection (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to: (a) any of the property of the parties to the marriage or of either of them; or

(b) any of the vested bankruptcy property in relation to a bankrupt party to the marriage. [subs (6) insrt Act 72 of 1983 s 36; am Act 20 of 2005 s 3 and Sch 1 cl 42, opn 18 Sep 2005]

(7) [Determining possible change in financial circumstances] The court may, in forming an opinion for the purposes of subsection (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the marriage, have regard to any change in the financial circumstances of a party to the marriage that may occur by reason that the party to the marriage: (a) is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or (b) may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property; but nothing in this subsection shall be taken to limit the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the marriage. [subs (7) insrt Act 72 of 1983 s 36; am Act 181 of 1987 s 63 and Sch]

(8) [Death of party before proceedings completed] Where, before property settlement proceedings are completed, a party to the marriage dies: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal

personal representative as a party to the proceedings; (b) if the court is of the opinion: (i) that it would have made an order with respect to property if the deceased party had not died; and (ii) that it is still appropriate to make an order with respect to property; the court may make such order as it considers appropriate with respect to: (iii) any of the property of the parties to the marriage or either of them; or (iv) any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and (c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. [subs (8) insrt Act 72 of 1983 s 36; am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[66]; Act 20 of 2005 s 3 and Sch 1 cls 43–45, opn 18 Sep 2005]

(9) [Conditions to be satisfied before order] The Family Court, or a Family Court of a State, shall not make an order under this section in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless: [page 667] (a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate

with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be; (b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or (c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a). [subs (9) insrt Act 72 of 1983 s 36; am Act 20 of 2005 s 3 and Sch 1 cl 46, opn 18 Sep 2005]

(10) [Interaction between family law and bankruptcy law] The following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to a marriage (the subject marriage): (a) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made; (aa) a person: (i) who is a party to a de facto relationship with a party to the subject marriage; and (ii) who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; (ab) a person who is a party to a Part VIIIAB financial

agreement (that is binding on the person) with a party to the subject marriage; (b) any other person whose interests would be affected by the making of the order. [subs (10) insrt Act 20 of 2005 s 3 and Sch 5, opn 15 Apr 2005; am Act 115 of 2008 s 3 and Sch 1[44]–[45], opn 1 Mar 2009]

(10A) Subsection (10) does not apply to a creditor of a party to the proceedings: (a) if the party is a bankrupt — to the extent to which the debt is a provable debt (within the meaning of the Bankruptcy Act 1966); or (b) if the party is a debtor subject to a personal insolvency agreement — to the extent to which the debt is covered by the personal insolvency agreement. [subs 10A insrt Act 98 of 2005 s 3 and Sch 1 cl 139, opn 18 Sep 2005]

(10B) If a person becomes a party to proceedings under this section because of paragraph (10)(aa), the person may, in the proceedings, apply for: (a) an order under section 90SM; or (b) a declaration under section 90SL; in relation to the de facto relationship described in that paragraph. in relation to the de facto relationship described in that paragraph. [subs (10B) insrt Act 115 of 2008 2008 s 3 and Sch 1[46], opn 1 Mar 2009]

(11) If: (a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and

either of the following subparagraphs apply to a party to (b) the marriage: (i) when the application was made, the party was a bankrupt; [page 668] (ii) after the application was made but before it is finally determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings. [subs (11) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005]

(12) If a bankruptcy trustee is a party to property settlement proceedings, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. [subs (12) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005]

(13) The court must not grant leave under subsection (12) unless the court is satisfied that there are exceptional circumstances. [subs (13) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005]

(14) If: (a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and (b) either of the following subparagraphs apply to a party to the marriage (the debtor party): (i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or (ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the trustee of the agreement as a party to the proceedings. [subs (14) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005]

(15) If the trustee of a personal insolvency agreement is a party to property settlement proceedings, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement. [subs (15) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005]

(16) The court must not grant leave under subsection (15) unless the court is satisfied that there are exceptional

circumstances. [subs (16) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005]

(17) For the purposes of subsections (11) and (14), an application for an order under this section is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. [subs (17) insrt Act 20 of 2005 s 3 and Sch 1 cl 47, opn 18 Sep 2005] *Editor’s note: Important commentary relating to Part VIII (ss 78, 79) has been reproduced directly under the heading to Part VIII: see [Pt VIII.1] ff.

[page 669] COMMENTARY ON SECTION 79 PRELIMINARY Overview of s 79 …. Basic issues in a s 79 application …. Discretion as to exercise of jurisdiction — clearly inappropriate forum …. Discretion to exercise jurisdiction — other grounds …. Place of s 79 in scheme of Act …. Further references …. JURISDICTION Introductory comments …. The required connection between marriage and the property proceedings …. Which court? ….

[s 79.1] [s 79.3] [s 79.4] [s 79.4A] [s 79.5] [s 79.7]

[s 79.21] [s 79.23] [s 79.25]

Exclusive jurisdiction …. Constitution of proceedings — “between the parties to a marriage” …. Constitution of proceedings — third parties …. Constitution of proceedings — children of the marriage …. Overseas divorce as basis of application …. Death of party to the marriage …. Overseas property order and res judicata …. Property outside jurisdiction …. Must there be property before proceedings can be instituted? …. PROPERTY Introductory comments …. Property of the parties or either of them …. Whether property is a prerequisite for s 79 orders …. Jurisdiction not limited to “matrimonial property” …. Obligation to make full disclosure of financial affairs …. Unascertained property …. What is “property”? — general principles …. Vested interest in estate …. Trusts — general …. Trusts — whether parties have “property” …. Moneys due under judgment …. Damages awards …. Pre-paid costs …. Partnership interests …. Company “alter ego” of party …. Superannuation …. Choses in action …. Right of action in tort …. Licenses …. Statutory and other pensions and benefits …. Redundancy payment ….

[s 79.27] [s 79.29] [s 79.31] [s 79.33] [s 79.35] [s 79.37] [s 79.39] [s 79.41] [s 79.43]

[s 79.61] [s 79.62] [s 79.63] [s 79.65] [s 79.66] [s 79.67] [s 79.69] [s 79.71] [s 79.73] [s 79.75] [s 79.77] [s 79.79] [s 79.80] [s 79.81] [s 79.83] [s 79.85] [s 79.87] [s 79.89] [s 79.91] [s 79.93] [s 79.94]

Occupation orders …. Post-separation lottery wins …. Debts and liabilities …. VALUATION OF PROPERTY Introductory comments …. The relevant time for valuation …. Methods of valuation — introductory comments ….

[s 79.95] [s 79.96] [s 79.97]

[s 79.111] [s 79.113] [s 79.115] [page 670]

Valuation and expert evidence …. Real property …. Valuing company shares — general …. Preferred methods of valuing shares …. Other methods of valuing shares …. Goodwill …. Partnerships …. Personalty …. Realisation costs and capital gains tax …. Liabilities ….

[s 79.117] [s 79.119] [s 79.121] [s 79.123] [s 79.125] [s 79.127] [s 79.129] [s 79.131] [s 79.132] [s 79.133]

GENERAL PRINCIPLES IN EXERCISING DISCRETION UNDER SECTION 79 Introductory comments …. [s 79.151] General approach to s 79 …. [s 79.153] Discretion, precedent and appellate guidance …. [s 79.155] Just and equitable — s 79(2) …. [s 79.157] A mathematical approach? …. [s 79.159] Consideration of contributions and s 75(2) factors …. [s 79.161] Application may be based on either contributions or s 75(2) factors alone …. [s 79.163] Relationship between adjustment for s 75(2) factors and

maintenance …. Distinguishing the contributions and s 75(2) factors in orders — s 77A …. Global or asset by asset approach to determining entitlement …. Prior maintenance agreements — relevance to subsequent proceedings under s 79 …. Section 86 maintenance agreements and s 79 proceedings …. Section 87 maintenance agreements and s 79 proceedings …. Estoppel, maintenance agreements and s 79 proceedings …. Estoppel and the principle in Elias …. ASSESSING CONTRIBUTIONS Introductory comments …. Financial and non-financial contributions …. Relevance of fault or conduct to contributions …. Contributions made prior to the marriage …. Assets acquired prior to the marriage …. Contributions made after separation …. Financial contribution made to property — s 79(4)(a) …. Lottery wins, “windfalls”, etc …. Gifts — financial contributions made on behalf of a party …. Weighing of financial contributions …. Financial contributions leading to over-capitalisation …. Non-financial contributions to property — s 79(4)(b) …. Contributions to the welfare of family — s 79(4)(c) …. Assessing contributions to the welfare of family …. ASSESSING SECTION 75(2) FACTORS Introductory comments …. Distinction between maintenance order and “section

[s 79.165] [s 79.167] [s 79.169] [s 79.171] [s 79.173] [s 79.175] [s 79.177] [s 79.178]

[s 79.191] [s 79.193] [s 79.195] [s 79.197] [s 79.199] [s 79.201] [s 79.203] [s 79.204] [s 79.205] [s 79.207] [s 79.209] [s 79.211] [s 79.213] [s 79.215]

[s 79.231]

75(2) factors” in s 79 order …. Assessment of s 75(2) factors …. Responsibility for children …. Financial circumstances of each party — s 75(2)(b) ….

[s 79.233] [s 79.235] [s 79.237] [s 79.239] [page 671]

Reasonable standard of living — s 75(2)(g) …. Contribution to the earning capacity of other spouse — para (j) …. Long service leave …. Legal costs …. Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account — s 75(2)(o) …. OTHER FACTORS TO BE CONSIDERED UNDER S 79(4) Effect on party’s earning capacity — s 79(4)(d) …. Any other order made under the Act affecting a party to the marriage or a child of the marriage — s 79(4)(f) …. PROPERTY ORDERS Introductory comments …. Nature of orders under s 79 …. Orders which can be made under s 79 …. Orders which cannot be made under s 79 …. Should the court award a fixed sum or a percentage interest in property? …. Lump sum payments …. Joint tenancy — when is it severed? …. Orders for the benefit of a child — s 79(1) …. Machinery or consequential orders …. Distribution of furniture etc ….

[s 79.240] [s 79.240A] [s 79.253] [s 79.255]

[s 79.257]

[s 79.271]

[s 79.273]

[s 79.291] [s 79.293] [s 79.295] [s 79.297] [s 79.299] [s 79.301] [s 79.303] [s 79.305] [s 79.307] [s 79.309]

Relationship between s 79 and maintenance proceedings …. Child maintenance and s 79 orders …. Child support and s 79 orders …. DEATH OF A PARTY TO THE MARRIAGE Introductory comments …. Property of the parties …. No institution of proceedings after death of party …. Continuation of property proceedings after death of a party — general …. Whether the court would have made an order had the deceased not died — s 79(8)(b)(i) …. Proceedings continued where respondent dies …. Proceedings continued where applicant dies …. Appeal rights survive after death of party …. Enforcement of property orders after death of party — s 79(1A) …. BANKRUPTCY OF A PARTY Introductory comments …. Bankruptcy of actual or potential respondent to s 79 proceedings …. Effect of respondent’s bankruptcy after s 79 order …. Bankruptcy of applicant …. ASPECTS OF PROCEDURE Time limit for bringing proceedings — s 44(3) …. Conferences required — s 79(9) …. Adjournment of property proceedings where no divorce — s 79(1B), (1C) …. Adjournment of proceedings — change in financial circumstances — s 79(5) …. Adjournment of proceedings — interim order s 79(6) ….

[s 79.311] [s 79.313] [s 79.320]

[s 79.321] [s 79.322] [s 79.323] [s 79.325] [s 79.327] [s 79.329] [s 79.331] [s 79.333] [s 79.335]

[s 79.351] [s 79.353] [s 79.355] [s 79.357]

[s 79.371] [s 79.373] [s 79.375] [s 79.377] [s 79.379]

[page 672] Adjournment of proceedings — matters which court may take into account — s 79(7) …. Referral of papers to the Attorney-General …. Certificate under s 128 of the Evidence Act 1995 (Cth) ….

[s 79.381] [s 79.385] [s 79.389]

PRELIMINARY [s 79.1] Overview of s 79 Power to redistribute property Under s 79, the court has power to make orders redistributing the property of parties to a marriage. The power may be exercised over any property owned by either party, or by the parties jointly. It is, therefore, not limited to property acquired during the marriage: there is no concept of “matrimonial property” under the Family Law Act. In contrast with s 78, the court is not limited to declaring and enforcing existing property rights: it can redistribute property, for example, by ordering one spouse to transfer the matrimonial home to the other spouse. This section is of the greatest importance in practice, and has attracted a great deal of case law, which will be examined in this commentary. Discretionary basis The power to redistribute property is not governed by specific rules of law, such as a rule that certain property should be shared equally between the parties. Instead, the court is given discretionary power to make whatever orders are appropriate in the particular circumstances of the case. The leading authority on the nature of the discretion under s 79 is the High Court’s decision In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507. Factors to be considered The discretionary power under s 79 is extremely wide, but it is not uncontrolled; the Act contains a number of provisions that guide the court in exercising the discretion. Section 79 itself provides that the court shall not make an order under the section unless it is satisfied, in all the circumstances, that it is just and equitable to make the order: subs (2). It goes

on to set out the facts that the court should take into account: subs (4). These facts fall broadly into two groups: the contributions that the parties have made (subs (4)(a)–(c)) and their respective needs and resources: subs (4)(e). In contrast with previous legislation, marital misconduct is not to be taken into account. In addition, s 81 provides that the court should as far as practicable make orders which will finally determine the financial relationship between the parties (the “clean break” principle). The case law, considered later in this commentary, provides valuable indicators to the courts’ approach in applying these general principles to particular cases; although they do not, as the High Court stressed in Mallet, above, establish independent rules of law. Connection with maintenance etc Orders relating to property and maintenance can be regarded as components of the total resolution of the parties’ financial affairs. Thus, as we shall see, the Act provides that courts should have regard to maintenance orders when considering property orders, and vice versa: s 79(4)(e) and 75(2)(n). Time limit for bringing proceedings — s 44(3) This matter is discussed below under the main heading, ASPECTS OF PROCEDURE. Conferences — s 79(9) The requirement for conferences in connection with s 79 proceedings is discussed below under the main heading, ASPECTS OF PROCEDURE. Interaction with bankruptcy law Section 79(1) makes clear that a trustee in bankruptcy can now stand in the position of the bankrupt spouse for the purpose of s 79 proceedings. The property against which an order might be sought includes the exempt property of the bankrupt spouse and the vested bankruptcy property. The terms of s 79(1) do not allow for the making of a property adjustment of order from the property of the non bankrupt spouse in favour of the trustee in bankruptcy. [page 673]

[s 79.3] Basic issues in a s 79 application Introductory comments Before embarking on a detailed discussion of the law under s 79, it might be useful to sketch in broad terms the basic issues in a normal s 79 application. Are proceedings properly constituted? To fall within s 79 the proceedings must be proceedings “between the parties to a marriage”; they must be with respect to the property of the parties or either of them; they must either arise out of the marital relationship or be in relation to principal relief. In addition, the proceedings must be brought in a court that has jurisdiction; and they must comply with the provisions relating to time limitations and other requirements of the Family Law Rules 2004. Identifying the property The property of the parties, or either of them, must be identified: Barker & Barker (2007) 36 FamLR 650; [2007] Fam CA 13. This step includes identifying title to property. Each party’s superannuation interest is to be identified at this stage. Valuing property The value of the property should be ascertained by agreement or formal valuation. Identifying and assessing contributions The first general matter taken into account by the courts is the contribution each party has made. Contributions include financial and non-financial matters. Identifying and assessing s 75(2) factors The second general matter taken into account by the courts is what is often referred to as the s 75(2) factors or sometimes as “maintenance factors”. It involves an assessment of the parties’ financial needs and resources, as well as some other matters. Orders, enforcement and associated matters Finally, it is necessary to consider the orders the court is able to make, and is likely to make, in the particular circumstances; and associated matters such as enforcement. Broadly speaking, the organisation of this commentary follows the sequence of the issues identified above.

Not normally necessary to determine equitable interests as between spouses It is not necessary for the court to make declarations as to the ownership of property under s 78 as a prelude to dealing with an application under s 79. But is it necessary for the court to make a determination of the legal and equitable interests of each party before considering what orders to make? Section 79 provides that the court may make orders “altering the interests of the parties in the property”. It could perhaps be argued that to consider what orders if any should be made altering the parties’ interests in the property, it is logically necessary first to determine what those interests are. Some support may be found in judicial statements for the view that a consideration of the parties’ equitable interests may be made as “a first step towards the determination of what, if any, orders were appropriate to make in respect of the alteration of property interests”: In the Marriage of Good (1982) 8 Fam LR 354; FLC 91–249 at Fam LR 356. See also In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,489; FLC 90–056 (declaring interests of the parties in property was “a proper course of action (even in the absence of an application) as a preliminary to the exercise of [the judge’s] jurisdiction under s 79”). Despite the logical attraction of this approach, in practice it is rare for the court in s 79 proceedings to give detailed consideration to the parties’ respective interests in what falls within the category of “the property of the parties or of either of them”. The reason for this is clear enough. Given the wide scope of the provisions of the Act, including s 75(2)(o), all of the matters which would be relevant to establishing equitable title, and in particular matters relevant to constructive trusts, would also be relevant matters under the provisions of ss 79 and 75(2). Those sections also refer to many other matters which are much more extensive than those relevant to equitable principles. It is therefore appropriate, at least in the vast majority of cases, that having [page 674] identified what falls within the category “the property of the parties or of either of them”, the court will proceed directly to the application of the

guidelines in Pt VIII. As was said in an early decision, “the court may proceed to alter the interests of the parties as presently shown on legal title or otherwise without seeking a more subtle declaration as to trust or some other purpose”: In the Marriage of Stathopoulos (1977) FLC 90–289 at 76,548. The position was precisely stated by the Full Court in In the Marriage of Olliver (1978) 4 Fam LR 360 at 365; FLC 90–499 where it was said that in s 79 proceedings: “the court may investigate and give effect to the legal and equitable rights of the parties, if the justice of the matter requires it. However, in the largest number of cases, the adjustment of property rights will be governed by the need to make such a distribution of the family assets as is just and equitable by reference to the matters specified in s 79(4), which include the relevant matters in s 75(2).” A similar approach appears to be taken under s 20 of the Property (Relationships) Act 1984 (NSW), See for example, Scott v Briggs (1991) 14 Fam LR 661, 670; DFC 95–106 (CA). [s 79.4] Discretion as to exercise of jurisdiction — clearly inappropriate forum Even where the formal requirements of jurisdiction are established, there may still be circumstances in which the court will refuse to exercise it. Australian courts now apply the “clearly inappropriate forum” test (see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124), which applies also to proceedings under the Family Law Act 1975 (Cth): Henry v Henry (1996) 20 Fam LR 171. See [s 39.1A] for further discussion. An example of that test being applied to stay s 79 proceedings in Australia is In the Marriage of Kemeny (1998) 23 Fam LR 105; FLC 92–806. Here, Moore J stayed applications under s 79 by a wife in circumstances where the parties had engaged in extensive litigation in relation to their property in the state of New Jersey, where the Superior Court of New Jersey had made final orders relating to the parties’ property and where both parties had acceded to the jurisdiction of that court. Moore J’s decision that the Family Court of Australia was a “clearly inappropriate forum” was upheld on appeal by the Full Court. However, the Full Court went on to hold that a finding that Australia was a clearly inappropriate forum for litigation of property matters did not prevent other matters, such as spousal maintenance, from being

litigated in an Australian court. [s 79.4A] Discretion to exercise jurisdiction — other grounds Parties not separated There may be situations, other than that the court is a clearly inappropriate forum, in which the court has jurisdiction but may properly decline to exercise it. The court may decline to embark on a property hearing when the parties have not separated, even though there may be jurisdiction: In the Marriage of Jennings (1997) 22 Fam LR 510; FLC 92– 773 (Dessau J). That decision also considers whether there can be circumstances that make it appropriate for the court to engage in some preliminary exercise of jurisdiction, and discusses In the Marriage of Neale (1991) 14 Fam LR 861; FLC 92–242. In Polik v Polik [2012] FamCA 335; BC201250418, Justice O’Reilly dismissed the wife’s application for summary dismissal of the husband’s s 79 application brought in circumstances where the parties had not separated. More recently the High Court in Stanford v Stanford (2012) 293 ALR 70; [2012] HCA 52; BC201208691 has reconfirmed the power to make orders in a relationship which is on foot if it would be “just and equitable” to do so. [s 79.5] Place of s 79 in scheme of Act Introductory comment Section 79 forms part of a set of provisions relating to financial matters. For convenience, the most important related provisions are noted here. Detailed discussion of the provisions is contained in the commentary to each section. Section 4, definition of “matrimonial cause”, and ss 31 and 39 Sections 39 and 31 invest the Family Court with jurisdiction over proceedings that can be characterised as a “matrimonial [page 675] cause”. Section 4 defines that term to include proceedings between the parties relating to the property of the parties or either of them, being proceedings that

arise out of the marital relationship or proceedings connected with proceedings for “principal relief”: see [s 79.21], where this definition is set out in full. Thus jurisdiction under s 79 arises through the combined operation of these provisions. Section 78 Allows the court to declare and enforce existing property rights of the parties. In practice it is of much less importance than s 79. It is not necessary for the court to apply s 78 before dealing with s 79, and in practice the vast majority of property applications are dealt with under s 79 with no reference to s 78. In exercising jurisdiction under s 79 one of the first steps is to ascertain the parties’ interests in property. That determination is routinely made as part of the process of determining what order, if any, should be made under s 79: it is not necessary to rely on s 78 in connection with making this determination. Section 79A Provides for the setting aside of s 79 orders in certain circumstances, for example, where there has been a miscarriage of justice or where it has become impracticable to carry out the terms of a s 79 order. Section 80 Provides a set of powers available to the court when exercising jurisdiction under s 79. Section 81 Establishes the “clean break” principle: the court should as far as practicable make orders which will finally determine the financial relationship between the parties and avoid further litigation. Section 106A Provides for the execution of documents by a court officer to give effect to a s 79 order, where a party refuses to do. Section 106B Provides for the setting aside of transactions which might have defeated an existing or anticipated s 79 order. Section 85A Provides for the making of orders relating to ante-nuptial or post-nuptial settlements. Sections 86–89 Provisions relating to maintenance agreements, defined in s 4 to include agreements involving transfer of property. However, as of 28

December 2001, such agreements have been replaced by financial agreements pursuant to Pt VIIIA. Sections 72–77 and 82–83 Provisions relating to spousal maintenance. Maintenance of children is dealt with under Pt VII, and the child support legislation, under the guide card, “CHILD SUPPORT”, in Vol 2. Sections 90A–90L Provisions relating to the making and setting aside of financial agreements between parties to a marriage. Section 114 Provides for injunctions and similar orders, which can be used in conjunction with s 79 proceedings, for example, to restrain a party from dealing with property pending the completion of s 79 proceedings. [s 79.7] Further references This section has naturally been the subject of considerable literature. Because of the several amendments to the Family Law Act and the steady flow of case law, texts become dated rather quickly. Provided this is kept in mind, a number of publications can provide assistance. A particularly valuable discussion is contained in the report of the Australian Law Reform Commission, Matrimonial Property, ALRC 39, 1987. Other useful discussions include: A Dickey, Family Law, 3rd ed, Law Book Company, North Ryde, 1997; H A Finlay, R J Bailey-Harris and M Otlowski, Family Law in Australia, 5th ed, Butterworths, Sydney, 1997; I J [page 676] Hardingham and M A Neave, Australian Family Property Law, Law Book Company, North Ryde, 1984; J H Wade, Property Division upon Marriage Breakdown, CCH Australia Ltd, North Ryde, 1984; Broun et al, Australian Family Law and Practice, 1982, CCH Australia Ltd, looseleaf. Periodical articles can be found in the Australian Journal of Family Law and other Australian legal journals. The major Australian study of property and income distribution, carried out by the Australian Institute of Family Studies, is published as Peter McDonald, ed, Settling Up (1986) and Settling Down (1993).

JURISDICTION [s 79.21] Introductory comments Jurisdiction in s 79 proceedings is created by the combination of s 39(1), under which the Family Court has jurisdiction in “matrimonial causes”, and s 4, which defines that term. The definition is as follows: (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings: (i) arising out of the marital relationship; (ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief; or (iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that dissolution, annulment or legal separation is recognized as valid in Australia under section 104;” Constitutional validity The High Court has upheld the constitutional validity of para (ca)(i): In the Marriage of Fisher (1986) 57 ALR 513; 11 Fam LR 11; FLC 91–767; Dougherty v Dougherty (1987) 11 Fam LR 577; FLC 91–823. In practice, subject to any constitutional difficulties yet to emerge, it is not normally necessary to rely on (ca)(ii), since (ca)(i) appears to cover at least most property proceedings brought under s 79. Requirements for conferences — s 79(9) See below, under main heading, ASPECTS OF PROCEDURE. Time limits — s 44(3) See below, under main heading, ASPECTS OF PROCEDURE. Estoppel Ordinary principles of res judicata and issue estoppel will normally prevent a person from instituting fresh proceedings where a final order has already been made under s 79. See In the Marriage of Miller and Caddy (1986) 10 Fam LR 858; FLC 91–720 (FC); In the Marriage of Hodges (1993)

FLC 92–413. Re-opening the decision may however be possible if the requirements of s 79A are met. [s 79.23] The required connection between marriage and the property proceedings Introductory comments For detailed discussion of the requirements of these provisions see the commentary to s 4. Briefly, however, it may be said that the courts’ interepretation of the definition of “matrimonial cause” has been generous, in that where property proceedings are commenced after marriage breakdown, they are generally taken to have arisen “out of the marital relationship” under (i), or to have the necessary connection with proceedings for principal relief under (ii). Arising out of the marital relationship The definition of “matrimonial cause”, para (ca)(i), requires that the proceedings can be characterised as “proceedings arising out of the marital relationship”. The required connection was discussed by the High Court in In the Marriage of Fisher (1986) 57 ALR 513; 11 Fam LR 11; FLC 91–767. Mason and Deane JJ said at Fam LR 20: [page 677] “It is well settled that the constitutional concept of marriage, considered as a head of legislative power, embraces marriage as a relationship. In the exercise of that legislative power, Parliament may regulate the relationship and, subject to the requirement that the law remain one ‘with respect to’ marriage, attach to it such consequences as Parliament considers appropriate. It follows that Parliament may make provision for the alteration of the interests of the parties to a marriage in their property or the property of either of them by reference to considerations arising out of the relationship.” The court did not provide a detailed account of the nature of the requirement, since it was conceded that it had been met in that case: Gibbs CJ at Fam LR 14. However, while making it clear that there could in principle be proceedings between parties to a marriage relating to property that did not

have the necessary connection with marriage, the judgments cast no doubt on the applicability of the jurisdiction to the normal situation where parties seek redistribution of their property entitlements following marriage breakdown. For example, Brennan J said at Fam LR 23: “As the adjusting of those interests is an incident of marriage, a proceeding in which the jurisdiction to make orders adjusting those interests is invoked is a proceeding arising out of the marital relationship … Such a proceeding may be contrasted with a proceeding affecting the title to or the benefit or enjoyment of, the property of either spouse where the ground on which the claim is made does not arise as an incident of marriage.” See also per Gibbs CJ at Fam LR 16, and per Mason and Deane JJ at 20. See also In the Marriage of Cain (1987) 11 Fam LR 540 at 545; FLC 91– 808, where it was held that whether the proceedings arise out of the marital relationship is a matter of fact and degree in each case. It would seem that there is little difficulty in establishing the necessary connection where the proceedings involve the former matrimonial home, although of course the connection may be established in other situations as well. For further discussion of this requirement see commentary to s 4. [s 79.25] Which court? Introductory comment For a detailed account, see ss 39, 40, 41 and 46 and commentary thereto. A summary follows. Family Court of Australia Proceedings under s 79 may be brought in the Family Court of Australia. Family Court of Western Australia In Western Australia proceedings under s 79 may be brought in the Family Court of Western Australia. Courts of summary jurisdiction Although under s 39 courts of summary jurisdiction have jurisdiction to entertain proceedings under s 79, this jurisdiction is limited by the provisions of s 46. By that section where the value of the property exceeds $20,000 in contested proceedings, the court of summary jurisdiction may hear the matter only with the consent of the parties. See generally the commentary to s 46.

[s 79.27] Exclusive jurisdiction Introductory comment Section 8(1) provides that “proceedings by way of a matrimonial cause shall not be instituted except under this Act”. Its effect is to make the jurisdiction under s 79 exclusive. Thus, if a proceeding can be characterised as a “matrimonial cause”, it must be brought under the Family Law Act. See commentary to s 8. Cross-vesting legislation It is possible, however, as a result of the crossvesting legislation, for courts other than the Family Court to exercise jurisdiction under the Family Law Act: see the commentary to the crossvesting legislation in guide card “RELATED COMMONWEALTH LEGISLATION” in Vol 3. [page 678] [s 79.29] Constitution of proceedings — “between the parties to a marriage” Parties to a marriage The proceedings must be “between the parties to a marriage”. This requirement does not derive from s 79, but from the words of para (ca) of “matrimonial cause”, defined in s 4. Meaning of “between” In this context, the word “between” requires that there be some issue between the parties. It seems that if the substance of the proceedings was a dispute between a party to a marriage on the one hand and another person on the other, the proceedings could not be converted into a matrimonial cause by merely adding the name of the other spouse. It was said in Fountain v Alexander (1982) 150 CLR 615; 8 Fam LR 67 at Fam LR 71; FLC 91–218 per Gibbs CJ, that the phrase “between the parties to a marriage” refers to proceedings in which one party is contending against the other, not to proceedings in which they join together with a common interest against others; such proceedings would be between the parties to the marriage on the one hand and the other persons on the other. It may be, as well, that if there were no issue between the parties to the marriage the proceedings

would also fail to meet the definition of “matrimonial cause” because they would not “arise out of the marital relationship”, and would not be in relation to proceedings for principal relief. [s 79.31] Constitution of proceedings — third parties Introductory comments Issues relating to third parties have proved among the most difficult confronting Australian family law. They are of considerable practical importance, because family wealth is often held through trusts and family companies. In addition, sometimes there are issues as to title to property made available to the parties, for example, by parents: in the context of family breakdown there can be dispute about whether the property was intended to be a gift or a loan. Both as a matter of interpretation of the Family Law Act and as a matter of constitutional power, it has sometimes proved difficult for the Family Court to deal effectively with such matters. The difficulties have arisen particularly in connection with s 114: see the commentary to that section. Section 79 has been of little help in these cases, because it is limited to proceedings between the parties in relation to their own property; and s 78 was limited by s 78(3) (repealed in 1988) which provided that s 78 was binding only on the parties to the marriage. See the commentary to s 78. Third parties cannot initiate proceedings Third parties cannot initiate s 79 proceedings, because there is no provision for such applications in the definition of “matrimonial cause”. As we have seen, proceedings under s 79 are based on para (ca) of “matrimonial cause”, which requires that the proceedings be between the parties to the marriage in respect of the property of the parties or either of them. As to whether children of the marriage can initiate s 79 proceedings, see below. Third parties as interveners Third parties may, however, seek to join existing s 79 proceedings as interveners by application under s 92. See for example In the Marriage of Pritchard; Redwood Banner Pty Ltd (in liq) Intervener (1988) 12 Fam LR 219; FLC 91–929; See also the commentary to s 92.

Due process for third parties The importance of the issues relating to third parties is underlined by a ruling that failure to give notice of consent orders adversely affecting third party rights may lead to a miscarriage of justice: Semmens v Commonwealth (1989) 13 Fam LR 715; (1990) FLC 92–116 (FC). Specific provisions relate to the accordance of procedural fairness to superannuation trustees where one or both parties seek orders which would bind or affect the trustee. Former difficulties where third party claims title A third party may claim title to some item of property which is asserted to be the property of the parties to the marriage, or either of them. Formerly, this posed a problem, since the Family Court had no jurisdiction under s 79 to make any [page 679] order relating to the property of anyone other than the parties to the marriage. Nor could the Family Court, under s 79, make an order in favour of the third party: In the Marriage of Wallace (1984) 9 Fam LR 960; FLC 91–553. Thus, if the court found that the property belonged to the third party, it could make no order in relation to that property: In the Marriage of Anderson (1981) 8 Fam LR 161; FLC 91–104; In the Marriage of Pritchard; Redwood Banner Pty Ltd (in liq) Intervener, above. If it found that the property belonged to a party to the marriage, it seems that such a ruling would not bind the third party, who would be able to bring fresh proceedings under the general law claiming the property. More complex permutations were possible: see for example, In the Marriage of Ireland (1986) 11 Fam LR 104; FLC 91–731. See also In the Marriage of Gillies (1981) 7 Fam LR 106; FLC 91–054, discussed in Finlay, Bailey-Harris and Otlowski, Family Law in Australia, 5th ed, Butterworths, Sydney, 1997. Repeal of s 78(3) The repeal of s 78(3) removes an impediment to the Family Court making effective determinations in cases where third parties make property claims in the context of s 79 proceedings. See commentary to that section.

Accrued and associated jurisdictions It is submitted that the cross-vesting legislation represents the most attractive solution to the problem. However, it should be mentioned that the doctrines of “accrued” and “associated” jurisdictions may also have the potential to assist. See generally commentary to s 31, and Finlay, Bailey-Harris and Otlowski, above, pp 341–2. Third party creditors as parties If a trustee in bankruptcy is a party to the proceedings then individual creditors are not entitled to become parties to proceedings. If there is no bankruptcy or personal insolvency agreement then a creditor is entitled to become a party (but not to commence proceedings). [s 79.33] Constitution of proceedings — children of the marriage Whether child can initiate proceedings Although s 79 provides that orders may be made for the benefit of a child of the marriage, it has been held that a child cannot institute such proceedings: In the Marriage of Egan (1985) 10 Fam LR 577; FLC 91–608. The conclusion follows from the lack of any part of the definition of “matrimonial cause” that would embrace such an application. Child can intervene Although a child of the marriage may not be able to initiate proceedings under s 79, the High Court has held that such a child can apply to intervene in s 79 proceedings between the parties to the marriage: Dougherty v Dougherty (1987) 11 Fam LR 577; FLC 91–823; See generally s 92 and commentary thereto. Party may seek order for child A party to the marriage may seek an order for the benefit of a child of the marriage. The court has power to make the order even where the child is not a party to the proceedings, and where the child has no view on the matter, although the child’s views may affect the court’s decision on whether an order should be made. Where an adult child expressly dissociates himself or herself from the application, it seems that no order should be made, and indeed that to press for an order in such circumstances might be an abuse of the court’s process. See In the Marriage of Spellson and George (1989) 13 Fam LR 242 at 262–4; FLC 92–046 (FC). [s 79.35] Overseas divorce as basis of application An application under s

79 may be based on an overseas divorce, falling within the s 4 definition of “matrimonial cause” para (ca)(iii). To do so it must bear an appropriate relationship to the divorce. See In the Marriage of Caddy and Miller (1985) FLC 91–625 (Nygh J); and In the Marriage of Miller and Caddy (1986) 10 Fam LR 858; FLC 91–720 (FC), allowing the appeal, but not on this ground. [s 79.37] Death of party to the marriage Proceedings may be continued by or against the estate of a party who dies after the proceedings have commenced; and s 79 orders can be enforced by or against the estate of a deceased party. See below under main heading, DEATH OF A PARTY TO THE MARRIAGE. [page 680] [s 79.39] Overseas property order and res judicata When a foreign court has made a property order in proceedings between the parties, the Family Court is not deprived of jurisdiction. However it has been held that the Family Court must apply the law of evidence, which includes the rules relating to estoppel and res judicata. As a result, the decision of the foreign court may create an estoppel between the parties. See In the Marriage of Miller and Caddy (1986) 10 Fam LR 858; FLC 91–720 (FC). [s 79.41] Property outside jurisdiction The court cannot in the absence of express statutory authorisation, exercise jurisdiction in respect of title to or possession of property situated abroad. See British South Africa Co v Companhia de Mocambique [1893] AC 602. See also P E Nygh, Conflict of Laws in Australia, 4th ed, Butterworths, Sydney, 1984, p 65. The court may nevertheless make orders directed against a party to the marriage and personally enforceable against that party, relating to such property: see In the Marriage of Perry (1979) 5 Fam LR 454; FLC 90–701. Rule abolished in New South Wales The Mocambique rule has been abolished in New South Wales: Jurisdiction of Courts (Foreign Land) Act 1989 (NSW).

[s 79.43] Must there be property before proceedings can be instituted? The terms of s 79 require that there should be some property in existence before the court can make an order under the section: see [s 79.63]. Is it possible, however, to commence s 79 proceedings where there is no property yet in existence, but there is likely to be in the future? The question arose in In the Marriage of Law-Smith and Seinor (1989) 13 Fam LR 397; FLC 92– 050 (FC), where the husband was of retiring age and was in a position to instruct the administrators of a superannuation fund to pay him a lump sum on retirement. Nicholson CJ, with whom Baker J agreed, said at 13 Fam LR 402 that s 79 proceedings could be commenced: “I can see no reason why the proof of the physical existence of property at the commencement of [a s 79 proceeding] is a necessary prerequisite to the commencement of it. The fact that no property arising out the matrimonial relationship is in, or is ever likely to come into, existence may be a ground for striking out such proceedings as frivolous or vexatious in certain circumstances, but in circumstances where there is a very real possibility of property coming into existence, which may be characterised as arising out of the matrimonial relationship, such considerations would not apply.” Nicholson CJ considered that subss (5) and (7) supported this interpretation. It is submitted that Nicholson CJ’s reasoning (which was not strictly necessary because there was other property in existence) is convincing, and that the alternative reading of the section, taking it to mean that there must be property in existence before proceedings could be commenced, could produce substantial injustice. The position in relation to superannuation has been clarified by legislative amendment but the decision remains applicable to cases involving other “financial resources”. PROPERTY [s 79.61] Introductory comments Section 79 relates to proceedings “with respect to the property of the parties or either of them”, and allows the court to make orders “altering the interests of the parties in the property”. This part of the commentary deals with the effects of those references to property. It deals with the definition of “property” in this context, the scope of the court’s powers over property, and issues relating to establishing title to property. We

first consider some general issues relating to property, and then decisions on whether specific interests have been held to constitute “property” under the Act. [s 79.62] Property of the parties or either of them The court’s power is limited to making orders in relation to the property of the parties or either of them. It may thus be necessary to determine whether a party holds property in trust for another. See for example In the Marriage of Wagstaff (1990) 14 Fam LR 78; FLC 90–142 (FC), (properly held partly on trust for children of wife’s first marriage). [page 681] [s 79.63] Whether property is a prerequisite for s 79 orders Introductory comments The wording of s 79(1) suggests that there can be no exercise of jurisdiction unless there is some “property of the parties to the marriage or either of them”. More specifically, it is difficult to see how an order could be made unless the respondent has some property that is the subject of s 79 orders. The authorities are consistent with this analysis, and suggest that it is correct, without being unequivocal. See In the Marriage of Yates (1982) 8 Fam LR 273; FLC 91–227; Sharp v Sharp (1978) 4 Fam LN 38; FLC 90–470; In the Marriage of Page (No 2) (1982) 8 Fam LR 316; FLC 91–241; In the Marriage of Bailey (1978) 4 Fam LR 86 at 93; FLC 90–424; Re Public Trustee (SA) and Keays (1985) 10 Fam LR 610; FLC 91–651; In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108. The Full Court’s decision in In the Marriage of Robson [2003] Fam CA 217 is authority for the proposition that the court may exercise jurisdiction under s 79 (perhaps in combination with s 80 (1)(k)) to dismiss an application for property settlement. There is, therefore, clearly s 79 jurisdiction in the absence of property. Whether injustice might result If the narrow view (no jurisdiction without property) is correct, Broun et al, Australian Family Law and Practice, CCH Australia Ltd, para 37–510, suggest that it could be “very hard” for a party

seeking financial adjustment against a spouse who had considerable wealth in the form of “financial resources” but no property that could be the subject of an order under s 79. Such an applicant would no doubt have to rely on maintenance orders, and on the face of it would be prejudiced in that he or she could not rely on s 79(4) contributions. However, in such a case it is submitted (RC) that justice might be done by a creative use of s 75(2)(o) in such a way as to allow the court to take into account the applicant’s contributions, thus preventing the respondent from circumventing the spirit of the Act. [s 79.65] Jurisdiction not limited to “matrimonial property” Orders may relate to any property Under the Family Law Act there is no category of “matrimonial property”. The court’s powers under s 79 extend to “the property of the parties or either of them”. As a matter of jurisdiction, orders can be made relating to any such item of property, whether or not it has had any connection with the marital relationship. The court could make an order, for example, relating to the winnings by one party in a lottery after the parties had separated and divorced. The same applies to inheritances: In the Marriage of Carter (1981) 7 Fam LR 41; 7 Fam LN 11; FLC 91–061 (FC). See also In the Marriage of Collins (1990) 14 Fam LR 162; FLC 92– 149 (FC); In the Marriage of Jones (1990) 14 Fam LR 19; FLC 92–143 (FC). Nature of property may be relevant to discretion The connection between items of property and the marital life of the parties may, however, be highly relevant to the way the court exercises its discretion. Such phrases as “matrimonial property” have sometimes been used loosely to describe property, such as the matrimonial home, which has a close connection with the married lives of the parties. Another phrase sometimes used is “divisible assets”: see for example per Nygh J in In the Marriage of Pickard (1981) 7 Fam LR 636 at 645; FLC 91–034. Such usage may be useful as a quick summary of aspects of the court’s exercise of discretion, but should not be taken to suggest that the court’s jurisdiction is limited to such property, or that only some assets are capable of being divided between the parties. Despite remarks in some earlier cases, all the property must be taken into account, and it is wrong to limit consideration to “divisible assets”: In the

Marriage of Carter, above; In the Marriage of Shaw (1989) 12 Fam LR 806 at 820–3; FLC 92–010 (FC); In the Marriage of Jacobson (1988) 12 Fam LR 828; (1989) FLC 92–003 (FC). It is also a mistake to assume that contributions in the domestic sphere cannot extend to what might be called “business assets”: In the Marriage of Napthali (1988) 13 Fam LR 146; (1989) FLC 92–021 (FC); In the Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC 92–108. See also In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335. The factors governing the exercise of discretion are discussed in detail below, under the main headings, GENERAL PRINCIPLES, ASSESSMENT OF CONTRIBUTIONS, and ASSESSMENT OF s 75(2) FACTORS. [page 682] [s 79.66] Obligation to make full disclosure of financial affairs The parties are each obliged to make full disclosure of their financial position, both as to assets and liabilities: Oriolo v Oriolo (1985) 10 Fam LR 665; FLC 91–653 (FC); In the Marriage of Mezzacappa (1987) 11 Fam LR 957; FLC 91–853 (FC); In the Marriage of Giunti (1986) 11 Fam LR 160; FLC 90–142; In the Marriage of Black and Kellner (1992) 15 Fam LR 343; FLC 92–287 (FC); In the Marriage of Suiker (1993) 17 Fam LR 236; FLC 92–436. The Family Law Rules 2004 make detailed provision for disclosure of a party’s financial circumstances: see Ch 13, particularly Pt 13.1, and the commentary thereto. See also [s 79.67] below. [s 79.67] Unascertained property Duty to make full disclosure The court has repeatedly held that the parties are obliged to make full and substantive disclosure of their financial affairs: In the Marriage of Black and Kellner (1992) 15 Fam LR 343; FLC 92–287 (FC); In the Marriage of Weir (1992) 16 Fam LR 154; (1993) FLC 92–338 (FC); In the Marriage of Suiker (1993) 17 Fam LR 236; FLC 92–436; In the Marriage of Kannis (2003) 30 Fam LR 83; FLC 93-135. See also Oriolo v Oriolo (1985) 10 Fam LR 665; FLC 91–653 (costs may be awarded against

non-disclosing party). The fact that the non-disclosure may be inadvertent may not be material, as the duty is an absolute one: In the Marriage of Kannis (2003) 30 Fam LR 83. A failure to provide the trial judge with a basis upon which to make findings about the composition and value of the asset pool will render any consequent orders vulnerable on appeal: Barker & Barker (2007) 36 FamLR 650; [2007] Fam CA 13. Non-disclosure: consequences for orders It is not uncommon that some or all of a party’s property is unascertained. There may be grounds for believing that the party has not made full disclosure. It was once suggested that it is not possible to make orders against unascertained property and that the ascertained property sets the upper limit of what can be transferred to the other party: In the Marriage of Monte (1986) FLC 91–757. The weight of authority, however, especially the most recent Full Court decisions, holds that a party should not be able to take advantage of his or her own non-disclosure: In the Marriage of Black and Kellner (1992) 15 Fam LR 343; FLC 92–287 (FC); In the Marriage of Weir (1992) 16 Fam LR 154; (1993) FLC 92–338 (FC). The latter case holds that once there is sufficient evidence to support a finding that a party has failed to make full disclosure, the court has jurisdiction to make an order in relation to unidentified or undisclosed property. On this point Weir, at 16 Fam LR 158–9, effectively overrules Monte, above. It may often be appropriate to make an order for the payments of money in such cases, as in Weir, above (RC). And where there is clear evidence of non-disclosure by one party, Weir holds that the court should not be “unduly cautious” in making findings in favour of the other party. See also In the Marriage of Stein (1986) 11 Fam LR 353; FLC 91–779; In the Marriage of Mezzacappa (1987) 11 Fam LR 957; FLC 91–853. Failure by the parties to provide credible evidence relating to aspects of their financial affairs does not entitle the court to dismiss applications out of hand; such a failure does not relieve the court of the responsibility of applying the provisions of the Act in the light of such findings as can be made: see In the Marriage of Efthimiadis (1993) 16 Fam LR 384; FLC 92– 362. See also In the Marriage of Stay (1997) 21 Fam LR 626; FLC 92–751, where a husband’s non-disclosure of details of the trusteeship of his superannuation fund, of which he was the only member, led the court to

conclude that the husband exerted a sufficient degree of control of the fund for it to be counted in as “property” rather than merely a financial resource: see commentary at [s 79.85] for further discussion of superannuation. Anton Piller order Where there is a reasonable belief that moveable property does exist and may be ascertained it may be appropriate for the court to make an Anton Piller order for the purpose of establishing the existence of such property and the amount of it: In the Marriage of Mazur (1991) 15 Fam LR 574; (1992) FLC 92–305. [page 683] [s 79.69] What is “property”? — general principles Wide definition The word “property” is defined in s 4 to mean “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”. It is now settled that the word “property” includes a wide range of interests; in particular it includes incorporeal interests, the words “whether in possession or reversion” being words of extension, not limitation. The leading case is In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90–217 in which it was held that shares in a company are “property”. (The holding of Hogan J in In the Marriage of Komaromi (1977) 2 Fam LR 11,590; (1976) FLC 90–142. that the term included only corporeal property, has been superseded). Other cases indicate that a right of action in contract, and an interest in a partnership, may be “property”. Not a merely personal right The High Court has held that “property” does not include a mere personal right, such as a right to occupy the matrimonial home: Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303. Future expectations not “property” It is clear that a mere hope or expectation of acquiring an interest or receiving benefits such as discretionary payments under a trust does not constitute “property”. The authorities are discussed below in connection with discretionary trusts and superannuation prior to the introduction of Pt VIIIB. For an excellent discussion, see A

Dickey, Family Law, pp 501–5. Unusual situations involving a degree of discretion may give rise to uncertainty. In the Marriage of Holmes (1988) 12 Fam LR 331; FLC 91–944 (FC), a statutory fund consisting of a damages claim in favour of an incapable husband was held to be “property” of the husband notwithstanding considerable discretion in the trustee. Compare Perrett and Perrett (1989) 13 Fam LR 464; (1990) FLC 92–101 (FC). Borrowing capacity has been held not to be property: In the Marriage of Walters (1986) 10 Fam LR 1006; FLC 91–733. Contingent interests Anthony Dickey has argued that property includes future contingent interests in the technical sense, as distinct from a mere hope or expectancy: see Family Law, p 500. Must “property” be valuable? For an argument that something of no value may nevertheless be “property” see Dickey, above, pp 503–4. Given the considerations that the court is required to take into account under s 79(4), valueless property seems unlikely to have a significant effect on proceedings under s 79. Must “property” be alienable? There has been much judicial discussion of the question whether an interest must be alienable if it is to be characterised as property. The Full Court’s most recent views are to be found in In the Marriage of Best (1993) 16 Fam LR 937; FLC 92–418, which included approving references to the discussion by McCall in In the Marriage of Zorbas (1990) 14 Fam LR 226; FLC 92–160. In Best, the Full Court said at Fam LR 952: “Inalienability does not deprive an interest of the characteristic of property except where it is an inherent characteristic of the right that it is both personal and unassignable and hence not proprietary in character, the most common example of which is a personal right to sue for damages.” The court went on to explain (at 954) that disincentives or practical difficulties associated with alienation, as can arise in the case of partnerships, did not prevent the interest from constituting property. The Full Court also referred, at 953, to the judgment of Deane and Gaudron JJ in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 110–1 to the

effect that rights to traditional Aboriginal title, though not assignable outside the overall native system, were true legal rights so that any legislative extinguishment of them would fall within Constitution s 51(xxxi), which requires the Commonwealth to provide just terms when acquiring property. Earlier authorities include: National Provincial Bank v Ainsworth [1965] AC 1175 at 1247–8 (Lord Wilberforce), discussed in Re Toohey (Aboriginal Land Commissioner); Ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59 at 64 per Mason J. In National Trustees Executors and Agency [page 684] Co of Australasia Ltd v FCT (1954) 91 CLR 540 at 583, Kitto K expressly denied that alienability is an indispensable attribute of “property”. Authorities under the Act suggesting that “property” must be alienable include: In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90–615 at Fam LR 65 (FC); per Forgarty J; In the Marriage of Woodham (1984) FLC 91–547. Alienability is often mentioned as an important factor in the decision whether something is property: see In the Marriage of Parker (1983) 9 Fam LR 323 at 326; FLC 91–364 per Nygh J; Perrett and Perrett (1989) 13 Fam LR 464; (1990) FLC 92–101 at Fam LR 468. See also the authorities cited under “choses in action”, and “right of action in tort”. In the case of an inalienable interest, it may often be unnecessary to decide whether it is “property”, since it will presumably be impossible for the court to order its transfer under s 79, and there may be little practical difference if it is regarded as a “financial resource” under s 75(2). “Financial resource” distinguished The fact that something is a “financial resource” does not mean that it can be the subject of an order under s 79. It must fall within the definition of “property” of the parties or either of them in order to be the subject of an order under s 79. The significance of something being a “financial resource” is that it may be taken into account in determining what orders to make over other property. See the cases cited in the last paragraph, and also In the Marriage of Yates (No 2) (1982) 7 Fam LN 20; FLC 91–228, (refusing certificate for High Court appeal). The

significance of financial resources in affecting the court’s exercise of jurisdiction is considered below under the main heading, ASSESSING s 75(2) FACTORS. Tax avoidance arrangements It is not uncommon for parties to divide income and/or assets between them, using partnerships, companies or trusts, in order to reduce their tax liability. The courts have said that it is not open to one party to represent to the court that the property should be treated as belonging to one party by disregarding the forms in which the family wealth is held: “if, during the course of a marriage, the party represents to the Commissioner of Taxation that his or her spouse is a partner in a business operated by that party, or is a bona fide employee of such a business and is paid a salary as such, that party cannot be heard to say, in subsequent proceedings in this court, that his or her spouse was not in fact a partner or was not in fact a bona fide employee, as the case may be”: In the Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC 92–108, approved by In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335 at Fam LR 31–2. The question of assessing the parties’ respective contributions in these cases is considered below, [s 79.203]. [s 79.71] Vested interest in estate A vested interest in an estate, even though postponed during a life estate, is “property”: In the Marriage of White (1979) FLC 90–682 (FC). [s 79.73] Trusts — general Introductory comments In these paragraphs we consider the extent to which parties can be said to have “property” in respect of discretionary trusts. Trust A trust exists when the holder of a legal or equitable interest in certain property is bound by an equitable obligation to hold his or her interest for the benefit of another person or object, either in whole or in part. The essential elements of a trust are that there be: (a) a trustee; (b) trust property; (c) a beneficiary;

(d) a personal obligation annexed to the property. Discretionary trusts and fixed trusts A discretionary trust is one which involves the transfer of property to a trustee or trustees on trust to distribute it, or the income arising from it, in such manner as is thought fit, among a range of objects of the trust. It is left to the trustees to determine [page 685] how the relevant income or capital will be distributed and whether it will be distributed and to whom it will be distributed. In a fixed trust each beneficiary has a defined interest in the trust subject matter. The trustees of a discretionary trust may, however, be directed by the trust deed to distribute trust property and the discretion is then confined to determining the manner in which the distribution is to be effected amongst the beneficiaries. [s 79.75] Trusts — whether parties have “property” Introductory comments In this section we consider whether parties to a marriage have “property” arising out of a trust. Much depends on the type of trust, and the party’s relationship to the trust. “Financial resource” distinguished As in other contexts, it is important to keep in mind that an interest or expectation that cannot be characterised as “property” may be a “financial resource” under s 75 and therefore be taken into account in determining what order to make relating to property (and maintenance). See In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108; In the Marriage of Ashton (1986) 11 Fam LR 457 at 471; FLC 91–777 (FC). Party as settlor or contributor The settlor of a trust, or a contributor to a trust, has as such no “property” arising from the trust. Of course, the settlor may also be a beneficiary and have a property interest in that capacity.

Party as trustee A trustee has a legal interest but no equitable interest in the trust assets. Party as beneficiary of fixed trust The beneficiary of a fixed trust (as distinct from a discretionary trust) has a property interest that can be the subject of an order under s 79. Party as object (beneficiary) of discretionary trust It has been held that the interest or expectation of a person who is the object of a discretionary trust is not “property”: In the Marriage of Stacy (1977) 3 Fam LN 70; FLC 90–324; In the Marriage of Whitehead (1979) 5 Fam LR 308; FLC 90–673. This is because such a person has a mere expectation of receiving benefits under the trust. The party has a right to require the trustee to administer the trust, but cannot require the trustee to exercise discretion in the party’s favour. Trust structure may be disregarded where party has control Following the lead of the High Court, the Family Court has held that where a party to the marriage effectively treats the trust property as his or her own, the trust property can be treated in s 79 proceedings as property of that party: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000; In the Marriage of Stein (1986) 11 Fam LR 353; FLC 91– 779 (FC); In the Marriage of Ashton (1986) 11 Fam LR 457; FLC 91–777 (FC); In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108; In the Marriage of Bowman (1984) 9 Fam LR 619; FLC 91–574. It is not necessary to establish that the trust (or company structure) is a complete sham and without any effect. It may have legal effect, but be disregarded by the court for the purpose of s 79 proceedings. See also In the Marriage of Goodwin and Goodwin Alpe (1990) 14 Fam LR 801; (1991) FLC 92–192 (FC); In the Marriage of Davidson (1990) 14 Fam LR 817; (1991) FLC 92– 197 (FC); In the Marriage of Harris (1991) 15 Fam LR 26; FLC 92–254. But recent decisions have reinforced that trustee cannot be directed to act in any manner which is inconsistent with the trustee’s duties pursuant to the trust deed or contrary to the due administration of the trust. In addition, a party seeking transfer of the shares in a trustee company for the sole or main purpose of realising trust assets is not automatically entitled to such relief: In the Marriage of BP and KS [2002] FamCA 1454.

In cases where it is open to the court to treat trust assets as the property of a spouse, there may be countervailing reasons for not doing so. For example, if it is clear that the party in question intends that the income from the trust is to be paid to the parties’ children, then it may be [page 686] appropriate to treat the trust assets or income as a financial resource of that party and not as their property: In the Marriage of Webster (1998) 24 Fam LR 198; FLC 92–832. [s 79.77] Moneys due under judgment The right to moneys due under a verdict has been held to constitute property: In the Marriage of Debs (1978) 4 Fam LN 48; 34 FLR 1. [s 79.79] Damages awards An award of damages to a party to a marriage constitutes property of that party for the purpose of s 79: see Williams v Williams (1985) 10 Fam LR 355 (HC) per Mason ACJ, Wilson, Brennan, Deane and Dawson JJ at 356. See also In the Marriage of Holmes (1988) 12 Fam LR 331; FLC 91–944. [s 79.80] Pre-paid costs Where one party has received advance payment out of the pool of assets in order to meet legal expenses during the course of proceedings between the parties, those payments should normally be treated as being notionally part of the pool of assets, and should not be deducted from it. Failure to do so could have the effect of defeating the policy enshrined in s 117 of requiring each party to bear their own costs: see In the Marriage of DJM and JLM (1998) 23 Fam LR 396 at 411; FLC 92–816. At the very least, departures from this practice would have to be clearly justified. The focus is the source of the pre-paid costs: see Chorn v Hopkins (2004) FLC 93–204. [s 79.81] Partnership interests Introductory comments It is not uncommon for parties to a marriage to be

in partnership with each other, and/or with others, in some commercial venture. This commentary is concerned with the application of s 79 in such cases. Partnership share is “property” for purpose of s 79 The interest that each of the husband and the wife have in a partnership is “property” within the meaning of s 79(1): In the Marriage of Best (1993) 16 Fam LR 937; FLC 92– 418 (FC). The interest of a partner in a partnership is his or her proportion of the assets of the partnership after their realisation and conversion into money and after payment of partnership debts. The Family Court is not normally concerned with the rights of the partners in relation to the partnership, but with making orders for the division of the property of the two parties to the marriage, including the property that each has in the partnership. On the Family Court’s powers relating to partnerships, see generally R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90–606 (HC). The Family Court can determine the interests of the parties in a partnership, and to that end may for example make a declaration of the rights of the parties or an order for the taking of accounts (see per Gibbs J at Fam LR 602). It can make orders for the transfer of the property constituted by each party’s share in the partnership. On the other hand it cannot make orders relating to the partnership as such, such as an order appointing a receiver, except as a step towards making orders under s 79: per Gibbs J at Fam LR 603, Jacobs J at Fam LR 606. See also In the Marriage of Petersens (1981) 7 Fam LR 402; FLC 91–095. Strauss J has pointed to the difference between making an order under s 79 and taking partnership accounts: In the Marriage of Norbis (1983) 9 Fam LR 385; (1984) FLC 91–543 at Fam LR 395 (the subsequent High Court appeal being unrelated to this observation). Earlier decisions include In the Marriage of Hayne (1977) 3 Fam LN 25; FLC 90– 265; In the Marriage of Cordell (1977) 3 Fam LR 11,588; FLC 90–322; In the Marriage of Elias (1977) 3 Fam LR 11,496; FLC 90–267. [s 79.83] Company “alter ego” of party Where there is evidence suggesting that a company is merely the “alter ego” of the parties, or one of them, then the assets of the company will be treated as property of the parties: see In the Marriage of Foda (1997) 21 Fam LR 653; FLC 92–753. If not the “alter ego” of one of the parties, the value of the party’s interest in any company (taking

into account the value of the company’s assets) will be an asset. [page 687] [s 79.85] Superannuation This part of the commentary previously dealt with whether superannuation was property and the manner in which the court dealt with superannuation. On 28 December 2002, sweeping changes to this area of the law were introduced. On that date a new superannuation regime was introduced. In a complete change to the erstwhile law, superannuation is now to be “treated as property” for s 79 purposes. The Family Court has been given specific powers to make orders with respect to superannuation interests. Equally significantly, the court now has power to binding trustees of superannuation funds who are not parties to the marriage. In the vast majority of cases, the court must determine the amount of a superannuation interest in accordance with methodologies prescribed by regulation. The new superannuation regime is discussed in detail at [120,000] and following behind the SUPERANNUATION guide card in Vol 3 of Australian Family Law. [s 79.87] Choses in action “The expression ‘chose in action’ … means a thing recoverable by action, as contrasted with a chose in possession which is a thing of which a person may have not only ownership but also actual physical possession … [It] is now used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession … [it] includes the benefit of a contract …”: Halsbury’s Laws of England, 4th ed, Vol 6, quoted In the Marriage of Schreiber and Dixon (1977) 3 Fam LR 11,379; FLC 90–274 per Joske J at Fam LR 11,386. There is considerable authority that choses in action are “property”: In the Marriage of Spellson and George (1989) 13 Fam LR 242; FLC 92–046; Schreiber and Dixon, above; Matusewich v Matusewich (1978) 4 Fam LR 258; FLC 90–481; In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90–217 (FC); In the Marriage of Holden (1987) 11 Fam LR 835; FLC 91–

842; In the Marriage of Best (1993) 16 Fam LR 937; FLC 92–418. [s 79.89] Right of action in tort It has been held that the right to sue a person in tort for damages for personal injury, being incapable of assignment at law or in equity, is not “property”: In the Marriage of Barkely (1976) 1 Fam LR 11,554 at 11,559 (Carmichael J); (1977) FLC 90–216; In the Marriage of Palmer (1985) 10 Fam LR 406; FLC 91–606 (Gee J); In the Marriage of Saba (1984) 9 Fam LR 780 at 783 (Gee J); FLC 91–579; In the Marriage of Pleym (1986) 11 Fam LR 451; FLC 91–762 (Gee J); In the Marriage of Carvill (1984) 9 Fam LR 1055; FLC 91–586 (Barblett J). Compare, however, In the Marriage of Holden (1987) 11 Fam LR 835 at 839; FLC 91–842 at 76,345, where Purdy J declined to follow the judgments of Gee J on this point. See also In the Marriage of James (1984) FLC 91–537; In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91–541; In the Marriage of Madjeric (1984) 9 Fam LR 825; FLC 91–552; In the Marriage of Zorbas (1990) 14 Fam LR 226; FLC 92–160; In the Marriage of Best (1993) 16 Fam LR 937; FLC 92–418. [s 79.91] Licenses A taxi licence was treated as property in In the Marriage of Kimber (1980) 7 Fam LR 483; (1981) FLC 91–085 (FC). For an interesting discussion on transferability of licenses see: In the Marriage of B and B (2000) FLC 93–002 (abalone licence). [s 79.93] Statutory and other pensions and benefits The decisions on superannuation provide some guidance as to the characterisation of particular schemes for non-superannuation pensions or benefits. See Perrett and Perrett (1989) 13 Fam LR 464; (1990) FLC 92–101 (FC) where the husband was held to have “property” only in each payment as it was received, but not in the fund or in the capitalised equivalent of his predicted entitlement under his inalienable pension. It is now clear that pensions which form part of complying superannuation funds will be valued and regarded as property. It seems likely that this change will lead to decisions such as Perrett being revisited. [s 79.94] Redundancy payment On the treatment of redundancy payments, see In the Marriage of Burke (1992) 16 Fam LR 324; (1993) FLC 92–356.

[page 688] [s 79.95] Occupation orders Orders relating to the occupation of the matrimonial home are not property orders under s 79: Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303 (HC). [s 79.96] Post-separation lottery wins The width of the court’s powers under s 79 are illustrated by In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93–060, where a husband’s $5 million lottery win was treated as property available for distribution, even though it came two years after the parties had separated. The fact that the winnings represented the only significant asset of the parties meant that an analysis of contributions overwhelmingly favoured the husband, because the winnings were treated as his rather than jointly owned: see [s 79.204]. The Full Court also held that there is no limitation in the Act to the effect that contributions made by one party cannot be measured in property that only becomes available after the contributions were made. [s 79.97] Debts and liabilities Introductory comments Where parties own property which is subject to a mortgage, the court will apply s 79 to the parties’ equity in the property. Similarly, debts will normally be taken into account, so that the court will deal with the parties’ net assets. Rights of creditors A party who has commenced proceedings under s 79 does not acquire any right of priority over creditors of the other party. If the assets of the party are insufficient to pay debts owing to third parties and to meet any orders made under s 79, the resolution of the competing claims will be determined under the law of bankruptcy. See Re Chemaisse and Commissioner of Taxation (1990) 13 Fam LR 724; FLC 92–133 (FC) and the authorities cited at 13 Fam LR 733. In Chemaisse, above, the Full Court (Fogarty, Nygh and Maxwell JJ) held that the decision in In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627 was not to be read as suggesting that under s 79 parties built up during the marriage any rights

that could prevail against creditors. Compare however In the Marriage of Hannah; In the Marriage of Tozer (1989) 13 Fam LR 531; FLC 92–052, where Elliott J held that the mere fact that a third party unsecured creditor has a writ of execution against the property does not entitle the third party to intervene and set aside as 79 order. Whether revenue authorities in special position In the Marriage of Hannah; In the Marriage of Tozer, above, Elliott J also suggested that the revenue authorities may be specially favoured in such cases, citing Re Chemaisse, above; Deputy Federal Commissioner of Taxation (WA) v Spanjich (1988) 12 Fam LR 313; FLC 91–936 and Deputy Commissioner of Taxation v Rowell (1989) FLC 92–026. This, however, seems contrary to principle, and is not supported by other authorities: see for example In the Marriage of Bailey (1989) 13 Fam LR 652; (1990) FLC 92–117 (FC). Determining claims of creditors It will often be necessary as part of the determination of the s 79 application, for the court to determine the extent of third party rights, so that it will be able to identify “the property of the parties to the marriage or either of them”. The Full Court has said: “as a necessary preliminary to its jurisdiction, the court has jurisdiction to determine the issue of whether certain assets belong to either of the parties and may in the course of this investigation come to the conclusion that they do not but belong to a third party”: In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90–908 at Fam LR 563. This may involve applying state law. See, for a good example and clear analysis, In the Marriage of Petersens (1981) 7 Fam LR 402; FLC 91–095 (Nygh J). It might be appropriate in some circumstances to order a stay of proceedings to enable the rights of a third party to be established in proceedings in another court: see In the Marriage of Bailey (1989) 13 Fam LR 652; (1990) FLC 92–117; In the Marriage of Prince (1984) 9 Fam LR 481; FLC 91–501. In Bailey, above, the Full Court said at Fam LR 658: [page 689] “[I]t is not proper for the court to proceed in a property application without

due regard to liabilities of a party which are either established or in the process of being determined where the liabilities are of such magnitude as to be defeated by the order being sought in the Family Court.” Compare; In the Marriage of Hannah; Marriage of Tozer (1989) 13 Fam LR 531; FLC 92– 052 per Elliott J. Debts may be relevant to assessment of contributions The circumstances in which a debt is incurred might well affect the ultimate determination of the s 79 proceedings. For example the court may consider that the debt was incurred with deliberate disregard for the other party’s potential entitlement. In such cases, an appropriate alteration might be made to the adjustment of the parties’ interests in property. An example is In the Marriage of Mead (1983) 9 Fam LR 193; FLC 91–354. However this relates to the discretionary element of the s 79 proceedings, and is not relevant to the initial task of determining the extent of the parties’ interests in property. This is clearly explained in In the Marriage of Prince (1984) 9 Fam LR 481 at 486–7; FLC 91–501 (FC) per Evatt CJ. Where there is no specific evidence relating to the circumstances in which a debt was incurred, the debt will usually be deducted from the total asset pool “as part of the vicissitudes of the economic life of the parties and [as] a debt to be shared between them”: In the Marriage of DJM and JLM (1998) 23 Fam LR 396 at 410; FLC 92–816. Unenforceable or artificial debts may be disregarded The court may disregard debts which are not really expected to be repaid or enforced: see In the Marriage of Petersens, above, at Fam LR 408–9 and 413. Where a party or a company asserts a liability to a third party, it may be disregarded if it is a sham or if the transaction is not intended to create a genuine liability: In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335 (“paper” distributions by company, intended to achieve a financial advantage to company rather than create a genuine liability to beneficiaries; artificial and inappropriate to treat the distributions as a genuine debt). Order to repay It has been held that the court may make specific orders against one or both parties to repay creditors: see In the Marriage of

Zdravkovic (1982) 8 Fam LR 97; FLC 91–220 (FC). VALUATION OF PROPERTY [s 79.111] Introductory comments It has been pointed out that one of the early steps in a property application is the valuation of property. There are no special provisions in the Act on this matter, and of course the value of any property is a matter for evidence or formal agreement. However there is a body of case law on issues that have arisen in connection with valuation, and they are dealt with in this section. Before discussing methods of valuation, we consider the question whether the valuation should be made as at the date of the hearing, or at some other time. Valuation, estoppel, and the principle in Elias The question whether the principle in In the Marriage of Elias (1977) 3 Fam LR 11,496; FLC 90–267 could be used to prevent a party relying on valuation evidence was considered in In the Marriage of Jordan (1996) 21 Fam LR 382; (1997) FLC 92–736. [s 79.113] The relevant time for valuation Introductory comments There is often a considerable time between the parties’ separation and the determination of the s 79 proceedings, and during this time the property may have appreciated or depreciated in value. The question is often posed: what is the proper time at which the property should be valued? [page 690] A suggested analysis It may be misleading to expect the authorities to provide an answer to the question: “As of what date should the property be valued?” This question presupposes that there is only one appropriate date and it is the same date in all cases. It is submitted that it is more helpful, and consistent with the authorities, to say that it is normally necessary for the court to ascertain the value of the property as at the date of the hearing. It

may be necessary to ascertain its value as at other dates, too, such as the date at which it was acquired, or dates (often the date of separation) which marked a significant change in the parties’ contributions. Ascertaining the value of the property as at different dates, however, is merely a process of factual determinations: it provides a basis on which the court may exercise its discretion. The process of taking into account contributions and s 75(2) factors is a complex and variable one, and the value of property at different dates may have some significance in determining the end result. It is submitted, therefore, that it is helpful to consider what dates, on the facts of each particular case, are significant in assessing the relevant contributions and s 75(2) factors to be taken into account in that case. Importance of date of hearing It seems clear that the court should attempt to ascertain the value of the property at the date of the hearing: the need to know this seems inherent in the provisions of s 79, requiring the court to make orders relating to the property of the parties or either of them. No other date has this significance, and it is not surprising that it has been emphasised in many cases as an important date: see especially In the Marriage of Warne (1982) 8 Fam LR 388; FLC 91–247 (FC). See also In the Marriage of Zappacosta (1976) 2 Fam LR 11,214 at 11,217; FLC 90–089; In the Marriage of Wardman and Hudson (1978) 5 Fam LR 889; (1978) 4 Fam LN 44; FLC 90–466; In the Marriage of Myerthall (1977) 3 Fam LR 11,324 at 11,327; FLC 90–273; In the Marriage of Waters (1981) 6 Fam LR 871; FLC 91–019; In the Marriage of Quinn (1979) FLC 90–677. Importance of other dates It is submitted that in addition to the date of the hearing, the value of property at other dates may be important. In particular, the value of items of property when first acquired, and the value of items when the nature of a party’s contribution changed markedly (for example, when a party stopped paying the mortgage, or left the matrimonial home), may well be important to the court in determining the order to be made under s 79. Illustrations An example of the importance of dates other than the date of hearing is In the Marriage of Cozanitis (1979) 4 Fam LR 709; 34 FLR 523; FLC 90–643. The parties acquired a business and shortly thereafter separated,

the husband taking control of the business. The s 79 hearing came on some years later, when the business had increased in value due to the husband’s efforts. It could be said that the Full Court “held that in these circumstances the proper time to value this property was at the time of separation”: Dickey, Family Law, p 522. We would prefer to say that the court found that since separation the husband had made the sole contribution to the property, and this should be recognised in the exercise of discretion; because of the difference in the parties’ contributions since that time, it was appropriate to have regard to the value of the property at the time of separation as well as at the time of the hearing. (In so far as it failed to have regard to s 75(2) factors, the actual decision might not be followed today.) Other examples include In the Marriage of Hayne (1977) 3 Fam LN 25; FLC 90–265; In the Marriage of Howes (1981) 7 Fam LR 650; FLC 91–044; In the Marriage of Mackie (1981) 7 Fam LR 365; FLC 91–069. Another example is In the Marriage of James (1978) 4 Fam LR 401; FLC 90–487. In that case, the parties had worked on the husband’s father’s property for a long time; the father died and left the property to the husband. The Full Court considered that the acquisition was not unexpected and that the parties had expected that one day the property would become theirs. In those circumstances it was right to consider the wife as having contributed to it; it was quite different from a windfall such as a lottery win (cf In the Marriage of Wardman and Hudson, above, at FLC 77,386). This case indicates clearly (RC) that the important question is not so much the date of valuation as the contributions of the parties, and the s 75(2) issues. [page 691] Although it is submitted that these decisions are useful in illustrating the need to have regard to the changing nature of parties’ contributions, they may well be unreliable guides to the actual result, in light of later amendments to s 79 and changing emphases in the case law. Contributions to be acknowledged Since s 79 requires the court to take into account contributions, it is obviously right that where one party brought

about an increase in value by effecting a major alteration, improvement or addition to the property since the separation, then he or she will be entitled, on the basis of contributions made, to a higher proportion of the added value: see In the Marriage of Cozanitis, above; In the Marriage of Lange and Moores (1979) FLC 90–651; In the Marriage of Quinn (1979) FLC 90–677. On the other hand, it should be kept in mind that the exercise of discretion under s 79 is also based on s 75(2) factors, and that (especially since its amendment in 1983) s 79 does not require contributions to be linked to particular items of property: see for example In the Marriage of Noel (1981) 6 Fam LR 816; FLC 91–035 (FC). In these two respects, the older authorities need to be treated with caution. Arrangements made at separation The value of the property at the date of separation may be important if the parties acted on such a valuation and one party received his or her entitlement on the basis of that valuation: see In the Marriage of Howes (1981) 7 Fam LR 650; FLC 91–044. It has been held that in circumstances where parties acted upon an unapproved maintenance agreement, it was appropriate to value the assets of the parties at the date of separation, rather than at the date of the hearing: see In the Marriage of P & P (1985) 9 Fam LR 1100; FLC 91–605. [s 79.115] Methods of valuation — introductory comments An essential step in any proceedings for property settlement or maintenance is the identification of the value of the parties’ assets and liabilities. Value to be determined by court While it is possible for the parties to reach agreement on the value of their assets, where the value of assets is in issue, the court is required to determine the value of the assets: see In the Marriage of Lenehan (1987) 11 Fam LR 615; FLC 91–814; In the Marriage of Dah and Hull (1983) 9 Fam LR 241. In reaching a value the court will have regard to the evidence of the single expert agreed upon by the parties or appointed by the court, or, if permission has been granted, the evidence of more than one expert: see Family Law Rules 2004 Div 15.5.3. Special provisions apply to the valuation of superannuation interests: see [120,050].

Obligation to disclose While each party in s 79 proceedings is obliged to disclose the value of assets held and the basis upon which their value has been calculated (In the Marriage of Bonser (1988) 12 Fam LR 299), he or she is not currently obliged to disclose a valuation obtained for the purpose of the proceedings: In the Marriage of Anderson (1999) 26 Fam LR 348; (2000) FLC 93-016; [1999] FamCA 1026. This is part of the obligation on parties to proceedings to make a full and frank disclosure of all relevant financial circumstances: Oriolo v Oriolo (1985) 10 Fam LR 665; FLC 91–653 (FC); Dowrick v Sissons (1996) 20 Fam LR 466. “Willing purchaser” test of value In In the Marriage of Dunbar (1987) 11 Fam LR 901 at 911; FLC 91–846 (FC), the Full Court accepted the test of the real value of an asset which was laid down by the High Court in Spencer v Commonwealth (1907) 5 CLR 418: “The object of any valuation exercise is to establish what a willing but not anxious purchaser would be prepared to pay and a willing but not anxious seller would be prepared to accept.” It is however open to the court to find that the real value of an asset in one party’s hands is at variance with the value to a hypothetical purchaser, and to value the asset accordingly: see Sapir v Sapir (No 2) (1989) 13 Fam LR 362; FLC 92–047. See also In the Marriage of Turnbull (1990) 15 Fam LR 81; (1991) FLC 92–258 where Baker J held that shares in private family companies ought to be valued on the basis of their worth to the shareholder, rather than on the basis of what a hypothetical purchaser might pay for them. [page 692] Methods of valuation — court’s discretion No method for the valuation of assets (excluding superannuation) is prescribed in the Family Law Act 1975, the rules or regulations: see In the Marriage of Shaw (1989) 12 Fam LR 806; FLC 92–010 (FC). Hence the court is free to exercise its discretion in each case as to the method of valuation which is most appropriate. Nonetheless guidance as to the most appropriate method of valuation can be obtained from the Family Court’s decisions which have given consideration to the preferred method of valuation in specific instances. For a helpful discussion

of the relevant principles, see S O’Ryan, “Valuation of Property in the Family Law Context”, (1989) 3 Australian Journal of Family Law 251. [s 79.117] Valuation and expert evidence Expert witnesses Evidence of value is properly given by expert witnesses. Where the court has arrived at a valuation by reference to other than the established principles of valuation, or without taking evidence on the issue, this has been held to be a basis upon which the appellate court could interfere with the findings of the trial judge as to the value of assets. See In the Marriage of Lenehan (1987) 11 Fam LR 615; FLC 91–814; In the Marriage of Dean (1988) 12 Fam LR 633; FLC 91–982. As valuation is a matter of expertise it is not a matter upon which the court should conduct its own inquiry, or seek to inform itself from textbooks. It is however, subject to certain guidelines, appropriate for the court to refer to textbooks on valuation. As to the use of textbooks by the court and expert witnesses, see In the Marriage of Chick (1987) 12 Fam LR 64 at 70, and the discussion in S O’Ryan, “Valuation of Property in the Family Law Context”, (1989) 3 AJFL 251. Court not bound to accept expert evidence Where there is a discrepancy between two or more values it is not open to the court merely to adopt a mean or average figure between the rival opinions of experts. See In the Marriage of Lenehan, above; In the Marriage of Dunbar (1987) 11 Fam LR 901; FLC 91–846. However this does not mean that, when faced with two competing valuations, the court is bound to accept one or the other. It is free to form its own view as to the proper value of the assets by the proper application of established principles of valuation. See Commonwealth v Milledge (1953) 90 CLR 157; In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507; In the Marriage of Borriello (1988) 13 Fam LR 415; (1989) FLC 92–049; In the Marriage of Chick, above. See also Miller v Baker (1990) 14 Fam LR 303; In the Marriage of MacGregor (1996) 21 Fam LR 57; FLC 92–710. If there is considerable disparity in the evidence, so that it is difficult and complex to ascertain the true value of property, it may be a proper solution for the court to consider a sale of the property: In the Marriage of Little (1990) 13 Fam LR 118; FLC 92–147. Where the court

prefers one expert to another, reasons for the preference should be stated by the court: see In the Marriage of Gamer (1988) 12 Fam LR 73 at 82–3; FLC 91–932. [s 79.119] Real property The approach to valuation of real property is relatively settled. Evidence as to valuation of real estate is usually given by a licensed valuer, although it is open to the court to accept the evidence of a real estate agent as to valuation of the property. The valuation will usually be reached by reference to comparable sales of real estate, or, where the property is an investment property, by reference to rental value and comparable sales. See In the Marriage of Georgeson (1995) 19 Fam LR 302; FLC 92–618. Life estate Where the interest in real property is a life estate, no method of valuation is prescribed. In In the Marriage of Brennan (1991) 14 Fam LR 725; FLC 92–229, the value of the life estate was reached by reference to the value of the property, an appropriate rate of return and a life interest factor so as to arrive at an amount which if invested for life, would produce $1 on the death of the life tenant. [s 79.121] Valuing company shares — general In valuing a party’s shareholding in a company it must be remembered that the purpose of the valuation exercise is to ascertain the real value of the shares: In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; [page 693] FLC 91–507 (HC), per Mason J at Fam LR 464. It is clear that what is to be valued is not the business itself, but rather the party’s shareholding in that company. See also In the Marriage of Gamer (1988) 12 Fam LR 73; FLC 91–932. However, to arrive at a value for the shareholding, it may first be necessary to value the company. In principle, where shares in a company are realisable it seems correct that they must at least be treated as having the value represented by the price for which they could be sold. In addition, where the shares represent a going

concern, and for reasons specific to the party the going concern has a value to the party greater than it might have to a potential purchaser, it seems correct in principle to have regard to that additional value or benefit. Where the interest cannot be realised or transferred, it seems correct to have regard to its value to the party as a going concern. It may be of assistance in assessing that value to have regard to general valuation principles, even though those principles might have been developed and applied to determine the realisable value of an interest. Public company Where parties hold shares in a public company, the true value of the shares will be the market for those shares, that is their listed value on the stock exchange. This is consistent with the “willing but not anxious purchaser” test laid down by the High Court in Spencer v Commonwealth (1907) 5 CLR 418. Proprietary company The method of valuation of shares in a proprietary company is not prescribed by the statute and a number of methods have been used. While there are no settled principles as to which method of valuation is preferred, the value given to the shares should take into account the earning power of the company and the value of its capital assets: In the Marriage of Mallet, above, per Gibbs CJ at 9 Fam LR 457. The Full Court has held that the value to be ascribed to shares in a family company must be a realistic one, and may be based upon the worth of the shares to the party himself or herself. See In the Marriage of Harris (1991) 15 Fam LR 26; FLC 92–254, citing In the Marriage of Hull (1983) 9 Fam LR 241; FLC 91–360; In the Marriage of Turnbull (1990) 15 Fam LR 81; (1991) FLC 92–258; In the Marriage of Reynolds (1984) 10 Fam LR 388; (1985) FLC 91–632; Sapir v Sapir (No 2) (1989) 13 Fam LR 362; FLC 92–047. Capital gains tax It may be correct to disregard the incidence of capital gains tax in relation to the value to a party of shares in a family company where there is no evidence that an immediate sale was contemplated and the assets themselves were acquired prior to the coming into effect of the capital gains tax legislation: In the Marriage of Harrison (1996) 20 Fam LR 322; FLC 92– 682, applying In the Marriage of Bland (1994) 19 Fam LR 325.

[s 79.123] Preferred methods of valuing shares Introductory comments The most commonly used methods of valuation of shares are capitalisation of future maintainable earnings and net tangible assets. Certain principles as to which method is most appropriate can be deduced from the cases, although it should be emphasised that the court’s discretion to determine, in any one set of circumstances, what is the most appropriate method of valuation is unfettered. This is in line with the High Court’s reasoning in In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507. See the judgment of Gibbs CJ at Fam LR 456–7. Expert evidence may be adduced as to the proper method to be adopted in a particular case, but the court must reach its own independent conclusion as to the appropriate approach: In the Marriage of Georgeson (1995) 19 Fam LR 302; FLC 92–618. In offering opinions, experts should bear in mind that the purpose of valuation in family law proceedings is to arrive at a valuation based on the “realistic” value of the shares to the shareholder. This means that valuation methods used for taxation purposes may not be appropriate. However, although such a valuation may include a number of notional benefits that bear no relation to market value, any valuation ought also to include a recognition of what can be achieved on sale of the shares. In particular, experts [page 694] should establish the point at which a difference between “value to the shareholder” and “market value” becomes relevant: see the comments of Warnick J in Ramsay v Ramsay (1997) FLC 92–742 at 997–9. See also In the Marriage of Harrison (1996) 20 Fam LR 322; FLC 92–682. Capitalisation of future maintainable earnings This method of valuation is generally the most appropriate where the business is an ongoing concern. See In the Marriage of Mallet, above, at Fam LR 464 where the factors which determine the most appropriate method of valuation are considered. The

valuation is based on a determination of the likely future profits, after tax. This figure is then capitalised at the net rate of return which would be expected from an investment in such a venture. A valuation on this basis will take into account previous levels of profit (generally over a period of five years), and project those profit levels into the future. The valuation process should take into account any extraordinary factors which could have distorted those profit figures, anticipated levels of inflation, and trends in business expansion or contraction. The rate of capitalisation will be a question of fact, based on the valuers’ own expertise. It is open to the court to determine a rate of capitalisation if it does not accept the rates adduced in evidence by the expert witnesses. See Mallet, above, where the High Court endorsed the actions of Bell J in fixing the rate of capitalisation. See also In the Marriage of Lenehan (1987) 11 Fam LR 615; FLC 91–814. The valuation based on the capitalisation of future maintainable earnings will give the value of the entire company, and from it can be calculated the value of each share. Examples For instances where this method of valuation has been considered, see In the Marriage of Mallet, above; In the Marriage of Lenehan, above; In the Marriage of Gamer (1988) 12 Fam LR 73; FLC 91–932; In the Marriage of Dah and Hull (1983) 9 Fam LR 241; Sapir v Sapir (No 2) (1989) 13 Fam LR 362; FLC 92–047; In the Marriage of Elsey (1996) 21 Fam LR 249; FLC 92–727. Liquidation method In this method of valuation, the assets of the business will be valued as though the business is to be wound up. Thus assets, stock in trade and other assets will be valued at their market value, or the amount which a willing purchaser will pay. The value may be discounted to permit ready sale of the assets. It has been held proper to deduct the costs of liquidation from the net assets in reaching a value for the net assets which will be available for distribution to shareholders: see In the Marriage of Gamer (1988) 12 Fam LR 73; FLC 91–932. Valuation on this basis is generally the most appropriate method where there is a reasonable prospect that the company will go into liquidation, whether by choice of the controllers or by force of business circumstance, or where the earning capacity of an on-going enterprise gives no satisfactory measure of the real share value in the hands of the owner: see In the Marriage of Mallet, above,

at Fam LR 464; Sapir v Sapir (No 2) (1989) 13 Fam LR 362; FLC 92–047; In the Marriage of Turnbull (1990) 15 Fam LR 81; (1991) FLC 92–258. Thus it has been held that where the person who owned the shareholding was able to put the company into liquidation at will, then the real value of the shares would be likely determined a valuation on a liquidation basis: see Mallet, above. Similarly, the court has the discretion to hold that the profitability of the company is so low as to make liquidation a realistic possibility, in which event valuation on that basis will be more appropriate. An example of this approach can be found in In the Marriage of Reynolds (1984) 10 Fam LR 388; (1985) FLC 91–632. As to the relevance of realisation costs generally, see also [s 79.131]. Examples For instances where valuation on a liquidation basis has been considered by the court, see Mallet, above; In the Marriage of Gamer, above; In the Marriage of Dah and Hull (1983) 9 Fam LR 241. [s 79.125] Other methods of valuing shares Introductory comments Capitalisation of dividends, valuation of net tangible assets on a going concern basis, and valuation on a discounted cash flow are other methods available to an accountant to value a business, but are not widely used methods of valuation in family law. [page 695] Capitalisation of dividends Capitalisation of dividends will be appropriate where the private shareholding is in the hands of a minority shareholder with no control over the management of the company, and in particular, over the rate at which dividends are paid by the company. For an example of this method being used, see Ramsay v Ramsay (1997) FLC 92–742, where the lack of realisable value of the husband’s shares led to a discounting by 10% of the wife’s share of the total asset pool. Net tangible assets on an on-going basis Valuation on the basis of the net tangible assets is a simple method of valuation which subtracts the sum of all

liabilities from the sum of all the assets of the business to arrive at a value for the business on an on-going basis. It is not common practice to value shares on this basis either in family law or in the commercial jurisdiction: see In the Marriage of Gamer (1988) 12 Fam LR 73; FLC 91–932; Re Dalkeith Investments Pty Ltd (1985) 9 ACLR 247. Discounted cash flow This method of valuation is based on projected future cash flows for the company, with appropriate discounting of the forecast. It is not a preferred method of valuation for a company in the context of an application under the Act. [s 79.127] Goodwill Goodwill has been defined as the “benefit and advantage of the good name, reputation, and connection of a business”: Inland Revenue Commissioners v Muller & Co’s Margaring Ltd [1901] All ER 413 at 416. Valuation of goodwill is a difficult matter as the nature of the goodwill can be elusive and hence its value can be difficult to assess. In some instances it is not possible for a value of goodwill to be placed on an entity where the venture is so inextricably linked with one person as to make it impossible to give a real value to the entity which is independent of that person’s continuing in the venture. Examples of such ventures are the specialist professional practice of a sole practitioner. Goodwill is most readily valued by reference to the capitalisation of future net profits. [s 79.129] Partnerships In a number of cases, the court has been required to value the assets of a partnership in which the parties to a marriage (either alone or with other partners) have conducted their business interests. See generally In the Marriage of Dunbar (1987) 11 Fam LR 901; FLC 91–846; In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872. As in valuation of interests in other forms of assets, the object of the valuation exercise is to find the real value of the holding: see Spencer v Commonwealth (1907) 5 CLR 418; Commonwealth v Milledge (1953) 90 CLR 157. It is not open to the court when faced with two different valuations for the partnership interest to merely choose the mean or average figure between the two values. See In the Marriage of Dunbar, above. See also In the Marriage of Lenehan (1987) 11 Fam LR 615; FLC 91–814. Valuation on a liquidation basis is the most suitable approach to valuation

of an interest in a partnership, as the very nature of a partnership means that an interest in a partnership cannot readily be valued as a saleable asset. [s 79.131] Personalty In the valuation of personalty similar principles apply to the valuation of shares in real estate or in proprietary companies. The purpose of the valuation exercise is to ascertain the real value of the item being valued. There is no fixed method of valuation, and it will be a matter for the trial judge to make a finding of value where that is in dispute. As to whether it is more appropriate to determine the value of personalty by reference to its resale value or its replacement cost, see In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90–908 (FC); In the Marriage of Shaw (1989) 12 Fam LR 806; FLC 92–010. Where it is apparent that realisation of the assets will incur costs, then it will be reasonable to take those costs into account when fixing a value for the item: see In the Marriage of Shaw, above. [s 79.132] Realisation costs and capital gains tax Realisation costs Should realisation costs be taken into account in valuing property? The Full Court said in In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108 at 76,801. [page 696] “As regards the argument that liability for income tax should have been deducted, this argument is very hard to sustain … Secondly, the High Court has on several occasions declined to take liability to income tax or company tax into account in valuing a business since such liability is dependent on too many hypothetical factors … “Where it is anticipated that specific items of property be sold and the proceeds divided amongst the parties, it is appropriate to make deductions for costs of sale. However, where as here the amount payable is quantified as a lump sum which the husband may raise through a variety of methods in whole or in part, including the apportioning of liquid assets, the sale of assets

or by mortgage, costs of sale and realisation are not relevant.” A somewhat different approach was however taken by Holden J in In the Marriage of Rothwell (1993) 18 Fam LR 454; (1994) FLC 92–511 (notional capital gains tax liability taken into account in value of shares, though sale not contemplated). See discussion by Professor Dickey, (1994) 68 ALJ 223. Capital gains tax There are a number of authorities on the circumstances in which potential liability for capital gains tax should be taken into account. There is a very detailed discussion of the authorities, and differing approaches in In the Marriage of Rothwell (1993) 18 Fam LR 454; (1994) FLC 92–511 (Holden J). The question has been mentioned by the Full Court in In the Marriage of Bland (1994) 19 Fam LR 325 and In the Marriage of Harrison (1996) 20 Fam LR 322; FLC 92–682. In In the Marriage of Carruthers (1996) 21 Fam LR 12; FLC 92–707, Nicholson CJ held that these cases were no authority for the view that capital gains tax can only be calculated if an immediate sale is contemplated, but held that it was “of real relevance to consider the issue of when or if the relevant property is likely to be sold”. He referred to the changing nature of the tax, market fluctuations, and the possibility of reducing its incidence through tax minimisation schemes. Nicholson CJ concluded that the test propounded by Finlayson JA in McPherson v McPherson (1988) 13 RFL (3rd) 1 at 9 was “an appropriate one and suitable for application in this country.” The test referred to is contained in the following quotation from the judgment of Finlayson J: “The cases appear to turn on their own facts and, if I might hazard a broad distinction, an allowance should be made in the case where there is evidence that the disposition will involve a sale or transfer of property that attracts tax consequences, and it should not be made in the case where it is not clear when, if ever, the sale or transfer of property will be made and thus the tax consequences of such an occurrence are so speculative that they can be safely ignored.” The Full Court in In the Marriage of Rosati (1998) 23 Fam LR 288; FLC 92–804, without referring directly to Carruthers, identified the following general principles as emerging from the authorities at 314): “(a) Whether the incidence of capital gains tax should be taken into account in valuing a particular asset varies according to the circumstances of

the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset. “(b) If the court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable on such a sale in determining the value of that asset for the purpose of the proceedings. “(c) If none of the circumstances referred to in (b) applies to a particular asset, but the court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the court, while not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s 75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur. [page 697] “(d) There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset. In such a case, it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occuring and/or the length of time which is likely to elapse before that occurs.” [s 79.133] Liabilities Where an asset is encumbered with a secured liability, the asset will be valued net of that liability. Where there is a potential liability attaching to assets being distributed (for example, a tax liability), which has been proved to exist on the balance of probabilities, that liability should normally be deducted from the total pool of assets being distributed before the court considers contributions and the s 75(2) factors: see Campbell v

Kuskey (1998) 22 Fam LR 674; FLC 92–795. It would generally be inappropriate for a court to take potential liabilities of either party into account only by way of the s 75(2) factors, because that may work an injustice to one or other party: Campbell v Kuskey, above. In the case of capital gains tax liabilities, much will depend on the likelihood of the asset in question being sold and thereby incurring liability to tax: see commentary at [s 79.132], above. Unsecured debts will normally be deducted from the total pool of assets. Where the debt or liability is a contingent one, the court must assess the probability of the liability arising. In In the Marriage of Page (No 2) (1982) 8 Fam LR 316; FLC 91–241, Frederico J cited dicta of Lord Reid in Davies v Taylor [1974] AC 207; [1972] 3 All ER 836 to the effect that the court must decide whether the prospect of the liability arising is either “substantial” or “speculative”. Only the former should be evaluated. This approach was approved by the Full Court in In the Marriage of DJM and JLM (1998) 23 Fam LR 396 at 409–10; FLC 92–816. Liabilities that are vague or uncertain, which are unlikely to be enforced, or which have been incurred unreasonably, may be ignored: In the Marriage of Biltoft (1995) 19 Fam LR 82; FLC 92– 614; In the Marriage of Lun (1998) 23 Fam LR 154. However, it has also been said that liabilities that are neither sufficiently certain to be deducted in full, nor sufficiently vague to be ignored completely, should be taken into account and balanced against the right of the non-debtor spouse as part of the balancing exercise: Biltoft, above. In this context, there is no rule giving priority either to the creditor or to the non-debtor spouse: Biltoft, above.

Where the assets of a company have been included as assets of the parties, on the basis that the company is merely the “alter ego” of the parties or one of them, then the liabilities of the company should be deducted from the total asset pool: see In the Marriage of Foda (1997) 21 Fam LR 653; FLC 92–753. In In the Marriage of Bailey (1989) 13 Fam LR 652; (1990) FLC 92–117 (FC), it was held that the husband’s estate’s liability under common law actions for damages already commenced should be finalised before the extent of the parties’ property could be ascertained, and that the wife’s application for an alteration of property interests should therefore be postponed to enable the common law claims to be finalised. See also In the Marriage of Aldous (1996) 21 Fam LR 142; FLC 92–715, where a husband’s liability to a third party arising out of compromised court proceedings, as estimated by the court, was treated as a joint liability of the parties to be deducted from the total pool of assets. See also In the Marriage of Harris (1991) 15 Fam LR 26; FLC 92–254 (FC), where the court, in determining a question of property entitlement, had regard to the capital value of a trust without deducting the value of some, admittedly small, liabilities. GENERAL PRINCIPLES IN EXERCISING DISCRETION UNDER SECTION 79 [s 79.151] Introductory comments Under this heading we discuss the general principles applicable to the court’s determination of s 79 applications. More detailed treatment of the assessment of contributions and s 75(2) factors is given in the following sections. [page 698] [s 79.153] General approach to s 79 Four step approach A number of authorities have disclosed that the determination of an application under s 79 involves consideration of at least

three and probably four different sets of factors. The court should: (a) assess the extent of the property of the parties and determine its value; (b) consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as home-maker and parent (see s 79(4)(a), (b) and (c)); (c) consider the circumstances which relate to the present and future needs of the parties and to their means, resources and earning capacity, actual and potential; and (d) consider the effect of the above findings and resolve what order is just and equitable in all the circumstances of the particular case. See generally In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90–897 (FC); In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 (FC); In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335; In the Marriage of Waters and Jurek (1995) 20 Fam LR 190; FLC 92–635; Re McLay (1996) 20 Fam LR 239; FLC 92–667; In the Marriage of Hickey (2003) 30 Fam LR 355; FLC 93–143; [2003] FamCA 395. Contributions and s 75(2) factors The second set of factors is sometimes referred to as the “contribution component”. The third set of factors is sometimes referred to as the “maintenance component”. Other references to this third component are to the “needs component” or “s 75(2) factors”: see In the Marriage of Lee Steere, above. In this commentary the last phrase is preferred. Retrospective and prospective The contrast between the two is often stated as being that the contribution component is entirely retrospective, looking to what has happened in the past, while the third set of factors, in the main, is prospective: it looks to the future needs and resources of the parties. See for example ALRC 39, 1987, paras 58–61; Finlay, Bailey-Harris and Otlowski,

Family Law in Australia, 5th ed, p 275. Although some of the matters in s 75(2) refer to the past (for example s 75(2)(j)), this is generally a helpful analysis. It is common for the court to consider what percentage division of the net property is appropriate having regard to the contribution matters and then to consider what revision should be made to this division in the light of the s 75(2) factors. It is also often appropriate to make orders in terms of giving each party a percentage of the current value of the property rather than a fixed amount. However in In the Marriage of Joshua (1997) 22 Fam LR 203; FLC 92–767, Lindenmayer J held at Fam LR 214; FLC 84,443 that in so far as the cases of In the Marriage of Waters (1981) 6 Fam LR 871; FLC 91–019; In the Marriage of Docters van Leeuwen (1990) 14 Fam LR 130; FLC 92–148 and In the Marriage of Bell (1993) FLC 92–347 may be said to establish guidelines that the court should generally make orders giving each party a percentage of the current value of property rather than a fixed amount, the failure to follow which may render a trial judge’s decision liable to be overturned on appeal, “they do so only in circumstances where the appellate court considers that there is no adequate explanation for the departure from that guideline in the particular case.” [s 79.155] Discretion, precedent and appellate guidance Introductory comments The wider and more flexible the discretion, the more difficult it is for appellate benches to allow appeals, and to provide guidance for trial judges. This section considers the authorities on the extent to which the discretion under s 79 permits appellate benches to provide guidance and to correct errors. Wide discretion It is well settled that reported decisions in particular cases cannot fetter the wide discretionary power which the Parliament has left to the court. In In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507 at Fam LR 451, Gibbs CJ said: [page 699]

“It is proper, and indeed often necessary, for the Family Court, in dealing with the circumstances of a particular case, to discuss the weight which it considers should be given, in that case, to one factor rather than another. It is understandable that practitioners, desirous of finding rules, or even formulas, which may assist them in advising their clients as to the possible outcome of litigation, should treat the remarks of the court in such cases as expressing binding principles, and that judges, seeking certainty, or consistency, should sometimes do so. Decisions in particular cases of that kind can, however, do no more that provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.” It follows that it is wrong for trial judges, for example, to commence with a presumption that property should be divided equally (Mallet, above), or to add an arbitrary 10% to the share of the property of the spouse having the care of the children: In the Marriage of Miller (1984) FLC 91–542. Discretion controlled? Nevertheless, there are some signs of a reappearance of what may be, in effect, rules of thumb, especially in assessing the parties’ contributions. In Re McLay (1996) 20 Fam LR 239; FLC 92–667, for example, the Full Court said: “The importance of discussion from time to time by the Full Court of principles and guidelines is obvious. It avoids the appearance or actuality of a wilderness of single instances and at least the appearance of arbitrary and capricious adjudication, so that the task under s 79 is seen to be a disciplined exercise against the background of principles, concepts and guidance provided by the Full Court in aid of the exercise of that discretion in individual cases. The Full Court frequently discusses issues of principle and provides guidance to trial judges in the exercise of the wide discretionary powers which the Family Law Act gives to judges of this court.” In the context of measuring parties’ contributions under s 79(4)(a)–(c), the Full Court said that the case-law increasingly recognised:

“… the circumstance that in many marriages each party contributes in ways which might be described as the normal way in our society and that in any qualitative evaluation of those matters the likely outcome is one of equality. This is repeatedly recognised in the day to day experience of this court over many years in dealing with a very large number of s 79 cases. In many cases any assessment of the facts readily makes it clear that an outcome of equality within paras (a) to (c) is most likely and that a lengthy trial in which those facts are examined in detail will produce no different result. It will only mean significant extra costs to the parties and an unproductive use of the time of the court. Of course the other factors in s 79, especially the s 75(2) factors, may call for a different outcome but that is a separate matter.” While this may not entail use of the forbidden language of “starting point” or “presumption” of equality, it does indicate that a court may be entitled to assume that, in the “normal” run of things, parties’ contributions have been equal, thereby obviating the need for detailed consideration of respective financial and non-financial contributions. Yet, if McLay signals a return to rules of thumb in all but name, this is not a uniform feature of current Full Court jurisprudence. In other contexts, the Full Court has conspicuously avoided mechanical formulas or rules of thumb, and has been happy to cite Mallet in doing so: see, for example, In the Marriage of Harrison (1996) 20 Fam LR 322; FLC 92–682, where the Full Court expressed a preference for a discretionary approach over the so-called “West and Green” formula for dealing with superannuation: see commentary at [s 79.241]. In fact the “West and Green” approach now appears to have little judicial support: see M v M (2006) 36 Fam LR 12; FLC 93–298; [2006] FamCA 1453. Discretion and appeals In general the width of the discretion makes it difficult to succeed in an appeal against a judgment on the ground that the discretion has miscarried, unless (to put it very briefly) some specific fault can be found in the reasoning or the result is clearly unjust. However the difficulties facing appellants should not be overstated, since the Full Court has emphasised, [page 700]

especially in the 1990s, the need for judges to provide adequate reasons: see below. This emphasis provides the basis for a more searching analysis of the exercise of discretion than might have occurred in earlier periods. Principles It was said in Mallet, above, Fam LR at 451 per Gibbs CJ, that the court is required to give effect to two broad principles, namely: (a) that so far as practicable it will make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them (see s 81); and (b) that the parties to a marriage are equal in status. More importantly in practice, as noted above the Full Court has laid down the correct general approach to the exercise of discretion: see above [s 79.153]. Appellate guidelines In Mallet, above, Deane J had been more sympathetic than his colleagues to the Full Court’s attempt to create a consistent approach rather than a “wilderness of single instances”: see Fam LR at 473. This approach gained some support in the later decision of the High Court in Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; 10 Fam LR 819; FLC 91– 712, where several judges (Mason and Deane JJ at Fam LR 821–2; Brennan J at Fam LR 833–6; compare Wilson and Dawson JJ at Fam LR 831–2) showed a slightly more sympathetic attitude to the formulation of guidelines for the exercise of discretion by trial judges. Brennan J, however, expressly dissented from the proposition that breach of appellate guidelines would constitute an appealable error. In In the Marriage of Docters van Leeuwen (1990) 14 Fam LR 130 at 133; FLC 92–148, the Full Court (Fogarty, Nygh and Rowlands JJ) adopted the views of Mason and Deane JJ and said that the Full Court could issue guidelines that were binding in the sense that trial judges who failed to provide an adequate explanation for not following the guideline would have failed to exercise their discretion properly. This approach has been followed by differently constituted Full Courts in later decisions, for example In the Marriage of Davut and Raif (1994) 18 Fam LR 237; FLC 92–503; Re McLay (1996) 20 Fam LR 239; FLC 92–667. Court should state reasons There is in general an obligation on the trial

judge to state his or her reasons for making orders under s 79. The parties are entitled to know the basis of the decision and to determine whether there has been an appealable error: see In the Marriage of Gamer (1988) 12 Fam LR 73 at 82–3; FLC 91–932 (FC), where the extent of the obligation is considered in relation to valuations. See also In the Marriage of Horsley (1991) 14 Fam LR 550; FLC 92–205 (FC). The need to state reasons has been repeatedly emphasised in decisions of the Full Court especially during the 1990s; see for example In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92–191; In the Marriage of Bonnici (1991) 15 Fam LR 138; (1992) FLC 92–272; In the Marriage of Merriman (1993) 17 Fam LR 22; FLC 92– 422; In the Marriage of Davut and Raif (1994) 18 Fam LR 237; FLC 92–503. While it is generally appropriate to consider the matters of contribution before the s 75(2) factors, the Full Court has said that it is not necessary to do so provided that both are “adequately considered and seen to be considered”: In the Marriage of JEL and DDF (2000) 28 Fam LR 1; (2001) FLC 93–075. Use of precedents As in any discretionary area, precedents have a limited value, in that each new case must be decided on its own facts. This is particularly true in decisions under s 79, for at least the following reasons: the large number of reported decisions make it possible to find some support for a wide range of inconsistent propositions and approaches; the area is inherently complex, given the potentially vast range of domestic arrangements and forms of wealth, and the wide range of matters covered by the provisions of ss 79(4) and 75(2); there have been changes of direction and emphasis over the years that may involve some precedents losing value and importance without necessarily being expressly overruled. In particular, the 1983 amendments and the decision of the High Court in In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91– 507 have rendered many early decisions misleading if not actually wrong. It is wise to seek [page 701]

guidance first from recent Full Court decisions, resorting to older and first instance decisions for matters not covered by recent Full Court cases. For these reasons, this commentary will not attempt to cite all relevant decisions but will concentrate on more recent decisions, and those currently regarded as “leading”. It is, however, necessary to cite a number of earlier decisions which establish or provide a vivid example of some principle. Readers should be careful not to assume that cases cited for a particular proposition are necessarily correct in all other respects. Not accounting exercise Full Courts have often held that it is generally inappropriate to make specific adjustments for particular items of contribution or particular matters in s 75(2), saying, for example, that s 79 “empowers the court to make such an order as is appropriate after taking into consideration the totality of the factors set out in s 79. The exercise of the discretion is not generally an accounting exercise nor is it analogous to an award of damages or compensation which might call for a division into component parts”: In the Marriage of Brandt (1997) 22 Fam LR 97; FLC 92– 758, discussing Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; 10 Fam LR 819; FLC 91–712; In the Marriage of G (1984) FLC 91–582. [s 79.157] Just and equitable — s 79(2) Introductory comments Section 79(2) provides that the court shall not make an order under s 79 unless it is satisfied that in all the circumstances it is just and equitable to make the order. It has been held that the court must be affirmatively satisfied that it is just and equitable to make an order: see In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500 per Strauss J (dissenting); In the Marriage of Rogers (1980) FLC 90–874 at 75,539 (FC). This is the clear intent of the subsection, and is consistent with many judicial statements: for example see Nygh J’s judgment in Read and Read (1984) FLC 91–527 at 79,279. (For further discussion of the theoretical argument about the correct phraseology, see Dickey, Family Law, p 667.) The onus is on the applicant, who should place all relevant evidence before the court: see, for example, In the Marriage of Myerthall (1977) 3 Fam LR 11,324; FLC 90–273.

Does s 79(2) have an independent operation? The question arises how far s 79(2) is an independent guide to the making of orders, separate from the matters listed in s 79(4). On one hand, the listing of factors in s 79(4) would be considerably undermined if the court were to rely on general notions of what is just and equitable. On the other hand, the Act does not expressly provide that the factors mentioned are exclusive (compare s 75) and it can be argued that s 79(2) should be given some effect. Decisions limiting significance of s 79(2) A series of decisions suggests that s 79(2) should be interpreted cautiously. In In the Marriage of W (1980) 6 Fam LR 538 at 549; FLC 90–872, Nygh J said: “It must be stressed … that s 79(2) does not give this court an independent power to effect ‘palm tree justice’. What is just and equitable depends on a proper consideration of the factors set out in s 79(4) …” On this view, s 79(2) is read together with s 79(4) and is not a condition precedent to a consideration of s 79(4). The court does not first look to s 79(2) in order to ascertain whether an order should be made and then turn to s 79(4) in order to formulate its precise order. The court considers both subs (2) and (4) of s 79 in determining whether and how to exercise jurisdiction under s 79. See generally In the Marriage of Currie (1976) 2 Fam LR 11,307; FLC 90–101; In the Marriage of McDougall (1976) 1 Fam LR 11,581 at 11,586; FLC 90–076; In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500. Relevant decisions The issue appeared to be re-opened in In the Marriage of Schokker and Edwards (1986) 11 Fam LR 446; FLC 91–723 where a majority of the Full Court (Gun and Elliott JJ) relied on s 79(2) in holding that the trial judge should not have made an order under s 79. In [page 702] their view of s 79(2), it was unjust and inequitable to make any order because, after the parties had effected a property settlement between themselves, the wife had twice unequivocally declared that she would not

seek further property settlement and the husband had acted on that assurance. In In the Marriage of McIntyre and Malezer (1986) 11 Fam LR 597; (1987) FLC 91–816, however, a differently constituted court (Evatt CJ, Lindenmayer and Nygh JJ) was concerned to limit the decision in Schokker: it did not establish a principle that a claim under s 79 could be banned or estopped other than by an agreement approved under s 87 (McIntyre and Malezer at Fam LR 599). See also Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189; FLC 92–156 (FC), affirming McIntyre and Malezer. It may be that Schokker is now effectively overruled. See also In the Marriage of Abrecht (1984) 10 Fam LR 22; FLC 91–590, where Asche J relied on s 75(2) (o). The interaction between s 79(4) and s 79(2) has been given further attention in the context of applications where the balance between superannuation and non-superannuation assets is in issue: see for example: M v M (2006) 36 Fam LR 12; FLC 93–298; [2006] FamCA 1453. [s 79.159] A mathematical approach? On occasion judges have sought to use mathematics to give a measure of certainty and predictability to decisions under s 79. However it has been held that in determining the extent to which contributions are to be recognised in proceedings under s 79 the court should not adopt an excessively mathematical approach: see In the Marriage of Quinn (1979) FLC 90–677. The question also arises In the Marriage of Tuck (1979) 7 Fam LR 492; (1981) FLC 91–021. Such an approach has been seen as placing undue emphasis upon direct financial contributions. In In the Marriage of Garrett (1984) FLC 91–539 the Full Court said at 79,372: “The wide and indefinite terms of para (a) … suggest that where appropsriate … a broad estimate of the financial contribution of each party must be made. Under s 79(4)(b) non-financial contribution of each is to be taken into account. This must of necessity be a matter of judgment and not of computation. Similar indications can be found amongst the relevant matters in s 75(2). It is also worth noting that para (a) and (b) refer to the ‘contribution’ and not to the contributions of each party”; In the Marriage of Horsley (1991) 14 Fam LR 550; FLC 92–205 (FC). Mathematical errors Minor mathematical errors made in the application of appropriate principles will not necessarily afford grounds of appeal: see In the Marriage of Burke (1981) 7 Fam LR 121; FLC 91–055; In the Marriage

of Kelly (No 2) (1981) 7 Fam LR 762 at 768; FLC 91–108 (FC). [s 79.161] Consideration of contributions and s 75(2) factors Duty to evaluate In In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507 at Fam LR 462 (HC), Mason J pointed out that the requirement that the court “shall take into account” the factors set out in s 79(4)(a) to (e) imposes a duty on the court to evaluate them. It is wrong to consider s 75(2) factors only where financial “need” is shown; that narrow approach confuses the exercise under s 79 with proceedings for spousal maintenance: see In the Marriage of Collins (1990) 14 Fam LR 162; FLC 92–149 at Fam LR 565–7 (FC). No starting point of equal division In determining how the assets should be divided, the court should not commence with any presumptions of entitlement such as equal division: Mallet, above. Prior to this decision, the Family Court had developed a broad “rule of thumb”, at least in the context of marriages of reasonable length in which assets had been built up by joint efforts or used for joint purposes, that the starting point should be equal division, with adjustments made according to the respective means and needs of the parties. The High Court expressly disapproved that approach. However, as noted at [s 79.155], the more recent decision, Re McLay (1996) 20 Fam LR 239; FLC 92–667 suggests that, in the absence of unusual factors, a finding of equality of contributions is the most likely result. See, for example, In the Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC 92–652; In the Marriage of Gould (1995) 20 Fam LR 1; (1996) FLC 92–657; In the Marriage of VJ and CJ (1997) 22 Fam LR 166; FLC 92–772. [page 703] Order of consideration of factors There is authority for the view that the court should firstly consider the contribution components under s 79(4)(a), (b) and (c), and then consider the s 75(2) factors: see In the Marriage of Pastrikos (1979) 6 Fam LR 497 at 499; (1980) FLC 90–897. This approach is a natural one in the light of the order of the paragraphs of s 79(4). However in

In the Marriage of Shaw (1989) 12 Fam LR 806 at 814; FLC 92–010, the Full Court said that failure to deal with the two components in this order is not of itself an error of law, although it is grounds for “close scrutiny” of the decision arrived at. It may be, in the light of the Full Court’s remarks in In the Marriage of Docters van Leeuwen (1990) 14 Fam LR 130 at 133; FLC 92–148 that judges who without adequate explanation fail to follow the recommended order will risk having their decisions overturned on appeal. Section 75(2) factors do not limit contribution-based claim An obvious but important point is that a person’s contributions may entitle that person to an award greater than would result from a consideration of s 75(2) factors. In other words a s 79 application based on contributions cannot be resisted on the ground that the applicant has no “needs” that would justify an order: see In the Marriage of Ferraro (1992) 16 Fam LR 1 at 23–4; (1993) FLC 92–335 (FC); see also In the Marriage of Pastrikos, above. Contribution-based claim adjusted by s 75(2) factors In many cases, consideration of s 75(2) factors will result in an adjustment to the figure arrived at on the basis of contributions alone. An example is In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728 at 732; (1982) FLC 91–201 at 77,061 (FC). In that case, the trial judge made the mistake of considering the contribution component of the wife’s s 79 claim and then going on to consider her claim for maintenance. The Full Court pointed out that he should have considered the s 75(2) factors as part of the s 79 claim before going on to consider the separate question whether there should be a maintenance order. See also In the Marriage of Morris (1982) 8 Fam LR 740; FLC 91–271 (FC). Contribution-based claim may avoid need to rely on s 75(2) factors A party may have a substantial claim to a share in the property on the basis of contributions, even though the party may have no needs of the kind recognised under s 75(2). In some cases a party’s entitlement on the basis of contributions might mean that no outstanding needs or other factors under s 75(2) are left to be dealt with. See the discussion in In the Marriage of Albany (1980) 6 Fam LR 461 at 733; FLC 90–905 and In the Marriage of Anast and Anastopoulos, above.

[s 79.163] Application may be based on either contributions or s 75(2) factors alone Introductory comment It is not necessary for an applicant under s 79 to show both contributions and s 75(2) factors, although it is common for this to happen. A successful claim could be based solely on contributions; or solely on s 75(2) factors. Claim based on contributions A party may receive a share solely calculated on contributions, and the order, combined with other circumstances, may be such that there needs to be no further consideration of the maintenance component: see In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91–201 (FC). Lack of “need” is not a disqualifying factor: In the Marriage of Crawford (1979) 5 Fam LR 106 at 110; FLC 90–647 at 78,411. Claim based on s 75(2) factors A party may in principle receive a share based solely on s 75(2) factors, although it is difficult to identify a decision of this kind, no doubt because it would be rare for a spouse to have made no contributions of the kind mentioned in s 79. It is easy, however, to point to cases in which s 75(2) factors have played a major part: see, for example, In the Marriage of Dein (1989) 12 Fam LR 853; FLC 92–014 (FC). [s 79.165] Relationship between adjustment for s 75(2) factors and maintenance Distinction between maintenance and s 75(2) factors in property orders A distinction must be drawn between a party’s entitlement to a property order based on s 75(2) factors (whether or [page 704] not in addition to contributions), and on the other hand a party’s entitlement to receive maintenance within the meaning of s 72. Despite many decisions pointing out the difference between (i) the s 75(2) factors in assessing

property orders and (ii) the determination of spousal maintenance under s 74, the two are still sometimes confused. The authorities however clearly spell out the distinction: see In the Marriage of Clauson (1995) 18 Fam LR 693 704–5; FLC 92–595, and the authorities there cited. Property orders and maintenance orders The fact that a property order has included a component for s 75(2) factors does not preclude the person in whose favour the order has been made from obtaining a maintenance order. Further, the requirement that an applicant for maintenance must be unable to support herself or himself adequately (s 72) does not apply to the s 75(2) factors in a property application. Thus for example, a wife may obtain a s 79 order based on a combination of contributions and s 75(2) factors, even though she would not have been able to establish that she was eligible for a maintenance order. See In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90–897 (FC). See also In the Marriage of Lawler (1988) 12 Fam LR 319; FLC 91–927, where Gee J said that a property order based in part on s 75(2) factors is not necessarily made for the purpose of maintenance. Property application to be considered first Where there are applications for property alteration and maintenance before the court, it has been held that the proper approach is to deal first with the property application and then with the maintenance application: see [s 79.311]. [s 79.167] Distinguishing the contributions and s 75(2) factors in orders — s 77A Introductory comments Section 77A, inserted into the Act by the 1987 amendments, requires the court to identify the portion of payments and orders attributable to the provision of maintenance of a party. The purpose of the section is to assist in the application of the means test for social security purposes. See the commentary to s 77A. [s 79.169] Global or asset by asset approach to determining entitlement Introductory comments The Family Court has on occasion taken different approaches in fixing the entitlement of parties in proceedings under s 79. One approach, the “asset-by-asset” approach, was to fix the entitlement to

individual items of property. The other, the “global” approach, based the assessment on the totality of assets to be divided. This principle was applied in In the Marriage of McMahon (1995) 19 Fam LR 99; FLC 92–606, where an asset by asset approach was considered appropriate in view of the short and unhappy nature of the marriage, coupled with the parties’ strict separation of assets, and where the fluctuation in the values of those assets was not influenced by the other party. High Court — both approaches legitimate The question came before the High Court in the leading case Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; 10 Fam LR 819; FLC 91–712 (HC). The Full Court of the Family Court had upheld an appeal on the basis that the judge’s use of the asset-byasset approach was inappropriate in the great majority of cases, and certainly in the instant case (cf In the Marriage of Gill (1984) 9 Fam LR 969 at 981; FLC 91–582). The High Court held, however, that the adoption of the assetby-asset approach by the trial judge was within his discretion and therefore the Full Court was not entitled to set aside the decision as a matter of law. It held that both approaches are legitimate and which one is more convenient will depend on the circumstances of each case. Wilson and Dawson JJ said at Fam LR 831: “If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets …” [page 705] Post-Norbis decisions The question has been taken up in decisions since Norbis. In In the Marriage of Lenehan (1987) 11 Fam LR 615 at 626; FLC 91–814, the Full Court said that, while the judgment in Norbis demonstrated the very wide discretion which the trial judge had in adopting either the

global or asset-by-asset approach, the case “is not a carte blanche to adopt either view irrespective of the circumstances of the individual case. There are cases where one approach or the other is clearly appropriate and a failure by the trial judge to adopt that approach may demonstrate error”. They held that, in the case before them, the trial judge had erred in adopting the global approach. See also In the Marriage of Gill (1984) 9 Fam LR 969 at 981; FLC 91–582, where Nygh J said that both approaches are legitimate, “provided that those who favour the global approach heed the warning that the origin and nature of the different assets ought to be considered, and those who favour the more precise approach do not add up the individual items without standing back at the end to review the overall result in the light of the needs of the parties”. See also In the Marriage of Ahmad (1994) 18 Fam LR 514; (1995) FLC 92–571 (FC). An asset by asset approach may be of utility when approaching the question of assets acquired after separation: see Wilkinson v Wilkinson (2005) 33 Fam LR 373; FLC 93-222; [2005] FamCA 430 and Z v Z (FLC) (2005) 34 Fam LR 296; FLC 93-241; [2005] FamCA 996. [s 79.171] Prior maintenance agreements — relevance to subsequent proceedings under s 79 Introductory comments What is the effect on s 79 proceedings of a maintenance agreement between the parties? Much depends on whether the agreement is an agreement under s 86 or under s 87, and these two situations will be considered in turn. Maintenance agreements For the definition of “maintenance agreement” see s 4, and see generally commentary to ss 86 and 87. In brief, a maintenance agreement falls within s 87 if it purports to operate in substitution for the rights of the parties under the Act; all other maintenance agreements may be registered under s 86 and are conveniently called here “s 86 agreements” whether or not they have actually been registered. Other financial agreements The parties may have made arrangements or agreements relating to financial matters that do not fall within the Act’s definition of “maintenance agreement” for example because they are not in writing. Such agreements or arrangements have the same significance in s 79

proceedings as s 86 maintenance agreements: they are facts that the court may take into account in exercising its discretion but they do not limit the court’s jurisdiction. As in the case of s 86 maintenance agreements, their significance in the s 79 proceedings will greatly depend on the circumstances, for example whether they were made after each party had independent advice. [s 79.173] Section 86 maintenance agreements and s 79 proceedings Introductory comments The general picture is clear. As was stated by the Full Court in In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75 at 80; FLC 90–819 (FC): “As the deed is not an agreement coming within s 87, it does not preclude either party making an application for maintenance or for an alteration of property interests. When an application is made, as in this case, for an order under s 79, the issues to be determined are those arising under that section namely whether it is just and equitable to make the order, taking into account the matters set out in subs (4). The fact that the parties have entered into a deed relating to their financial affairs (whether or not it is registered) is a relevant factor for the court to consider under s 75(2)(o) and under s 79(2) and also on general principles, but it is not necessarily conclusive of the parties’ rights under s 79: cf Matthews v Matthews [1932] P 103; Hyman v Hyman [1929] AC 601.” Section 86 agreements do not exclude jurisdiction A maintenance agreement under s 86, whether or not registered, which includes provisions as to the settlement of property does not [page 706] prevent the court from hearing a subsequent application under s 79 or fetter the exercise of the court’s jurisdiction: see In the Marriage of Candlish and Pratt, above; In the Marriage of V and G (1982) 8 Fam LR 193; FLC 91– 207; In the Marriage of Naughton (1983) 9 Fam LR 47; FLC 91–327. The

court is free to make orders that depart from the terms of the agreement, even where the agreement has already been put into effect: see Candlish and Pratt. Effect of s 86 agreement on s 79 proceedings The circumstances of the agreement, such as whether the parties were independently advised, may well be relevant in assessing the weight to be given to it. See, for example, In the Marriage of Schefe (1978) 4 Fam LR 292; FLC 90–473. Whether a party has acted on the agreement to his or her detriment may also be relevant, although the court must consider what is just and equitable at the time of the hearing, not at the time of the agreement: In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819 above. See also In the Marriage of Dupont (No 3) (1981) 7 Fam LR 747; FLC 91–103. Compare In the Marriage of Faraone and Shabalah (1988) 12 Fam LR 577; FLC 91–956, where Ferrier J held that in that case the date of the agreement, not the date of the hearing, was the appropriate date for the valuation of the assets of the parties. [s 79.175] Section 87 maintenance agreements and s 79 proceedings Introductory comments A section 87 agreement is one that purports to operate in substitution for the rights of the parties under the Act. On approval by the court, an agreement under s 87 operates in substitution of any rights of the parties to the agreements under Pt VIII, including of course the right to seek an adjustment of property rights under s 79, provided that right is expressly excluded by the agreement: see s 87(4). Unapproved s 87 agreements generally of no effect A section 87 agreement that has not been approved, however, is of no effect. An unapproved s 87 agreement cannot stand in the way of a party’s subsequent application under s 79 seeking orders different from the provisions of the unapproved agreement: see In the Marriage of Bates (1976) 2 Fam LR 11,407; FLC 90–123; In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440; In the Marriage of Garrett (1984) FLC 91–539. In In the Marriage of Gardiner, above, the Full Court said: “… where an agreement under s 87 is not approved and has not been acted upon it may not subsequently be referred to or relied upon by either party in other proceedings under Pt VIII. It cannot, for example, be relied on as

evidence of the parties intentions.” Part-performed unapproved s 87 agreement It has been said that where the terms of the agreement have been fully implemented or one or both parties have acted in reliance upon the agreement, it becomes part of the financial history of the parties. See In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75 at 81; FLC 90–819 (FC). See also In the Marriage of P & P (1985) 9 Fam LR 1100 at 1103–4; FLC 91–605. Compare In the Marriage of Kenny (1983) 9 Fam LR 140 at 142; FLC 91–350 (where Lambert J held that evidence could not be given of the unapproved s 87 agreement, though it could be given of other facts). The court may therefore consider the extent to which an unapproved maintenance agreement has been acted upon. [s 79.177] Estoppel, maintenance agreements and s 79 proceedings The question whether an agreement or arrangement between the parties relating to property and maintenance claims either ousts or otherwise affects the court’s exercise of its powers under ss 74 and 79 has arisen on a number of occasions. The issue usually arises where the parties have been in negotiation over financial matters, and have reached and acted on an agreement, but where the agreement has never been formalised as a consent order or approved under s 87 as a maintenance agreement. The case law on this issue has not been wholly consistent, both as to whether the doctrine of estoppel may be invoked in such cases to oust the court’s jurisdiction, and whether, if the court’s jurisdiction remains, any weight should be attached to such arrangements and, if so, how much: see In the Marriage of Dupont (No 3) (1981) 7 Fam LR 747 at 754–5; FLC 91–103 (“something akin to an [page 707] estoppel” by way of s 75(2)(o)); In the Marriage of Schokker and Edwards (1986) 11 Fam LR 446; FLC 91–723 (unjust and inequitable to make any order); compare with In the Marriage of Plut (1987) 11 Fam LR 687; FLC 91–834 and In the Marriage of Neale (1991) 14 Fam LR 861; FLC 92–242. The case law has now been comprehensively reviewed by the Full Court in

In the Marriage of Woodcock (1997) 21 Fam LR 393; FLC 92–739. The Full Court held that it is the “dominant and unwavering thread” of that case law that parties cannot by their conduct or agreement oust the jurisdiction of the court, and that the doctrine of estoppel has no application in this context. The jurisdiction of the court can be ousted only by court order or by an agreement approved under s 87, and that remains the case even where the agreement between the parties was in writing, was drafted with the intent that it be registered under s 86 or approved under s 87, and has been wholly or partly implemented. In view of this, the court pointed to the illogicality of attaching more significant consequences to less formal arrangements. The court has reiterated that it is the law and the facts that exist at the time of hearing which are material and not those which existed at the time of the agreement. There is no threshold test to determine whether the earlier agreement was just and equitable before embarking on the s 79 analysis: Woodland v Todd (2005) 33 Fam LR 177; FLC 93-217; [2005] FamCA 161. However, the court also stated that the existence of an agreement between the parties, of whatever degree of formality, would be relevant at a number of points in the exercise by the court of its discretion: under s 74, in deciding whether it is “proper” to make an order for spousal maintenance; under s 79(1), in deciding whether it is “appropriate” to make a property order; under s 79(2), in deciding whether it is “just and equitable” to make an order; under s 80(1)(k), in deciding whether it is “necessary” to make an order to “do justice”; and under s 85A, whether it is “just and equitable” to make an order under that section. The court acknowledged that this created, in the words of Hoffman LJ in the English Court of Appeal (in Pounds v Pounds [1994] 4 All ER 777), the “worst of both worlds” in that it would be impossible to predict from case to case what weight a court would attach to the agreement. The case law referred to above bears this out. This issue should be distinguished from res judicata or cause of action estoppel, on which see In the Marriage of Miller and Caddy (1986) 10 Fam LR 858; FLC 91–720. [s 79.178] Estoppel and the principle in Elias In In the Marriage of Elias (1977) 3 Fam LR 11,496; FLC 90–267 and a series of decisions following it, including In the Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC 92–

108 and In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92– 335, the court appears to have formulated a principle which prevents parties from asserting facts contrary to representations they have previously given to third parties such as revenue authorities. For example, in In the Marriage of Dawes, above, the Full Court said: “If, during the course of the marriage, the party represents to the Commissioner of Taxation that his or her spouse is a partner in a business operated by that party, or is a bona fide employee of such a business and is paid a salary of such, that party cannot be heard to say, in subsequent proceedings in this court, that his or her spouse was not in fact a partner or was not in fact a bona fide employee, as the case may be. That point was made by Goldstein J in In the Marriage of Elias (1977) 3 Fam LR 11,496; FLC 90–267, drawing upon the authority of such cases as Tinker v Tinker [1970] 2 WLR 331, Gascoigne v Gascoigne [1918] 1 KB 223; and Re Emery’s Investment Trusts (1959) 1 Ch 410. We think that that is a very sound principle, and its enunciation by Goldstein J in Elias, above, was given at least tacit approval by the Full Court in In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 at 80,078. We are aware that it has received more explicit approval by other judges at first instance in unreported cases.” This principle was examined in In the Marriage of Jordan (1996) 21 Fam LR 382; (1997) FLC 92–736. Chisholm J there discussed the authorities in detail and held that the principle, which was binding on trial judges, was different from estoppel (in that it applied in cases where there was no relevant reliance on the earlier representation) and was more than an evidentiary presumption. [page 708] Chisholm J held that since there was no evident basis for the principle under the general law of estoppel, it must be based on some provision of the Family Law Act (although this assumption does not take into account the English authorities relied on in Elias). He concluded that it was not a rule that precluded the court from hearing evidence contrary to the previous

representation, but was a rule that gave the court a discretion to do so. He formulated the principle as follows: “When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.” On the facts of the case, Chisholm J held that the principle should not be applied to prevent the wife from giving evidence as to the true value of a piece of real property at a particular time, and rejected a submission that she should not be allowed to give evidence inconsistent with an implied previous representation to stamp duty authorities that it had a much lower value. An appeal against this part of the judgment was abandoned. Counsel in Elias did not make submissions about the way in which the decision of the High Court in Nelson v Nelson (1995) 184 CLR 538; 132 ALR 133, which had only recently been decided, should be applied, but it is submitted (SC) that the court must balance two public policy considerations, on the one hand discouraging unlawful acts, and on the other hand the prevention of injustice and the enrichment of one party at the expense of the other. In relation to cases it is generally a situation that either the two parties benefited from the illegality or, but for the fact that the relationship came to an end, both parties would have benefited from the illegality. In Nelson the party who had made the previous inconsistent representation, in that case, to the Defence Service Home Loans Scheme, was required to reimburse the Commonwealth those amounts which she received based on her false representation. Further reading: Chisholm, “Exclusion of evidence inconsistent with earlier statements: the rise and fall of the ‘Elias principle’” (2001) Aust J Fam L 1–25 and G Watts, “The Elias Principle — Dead or Alive?” (2000) 14 Australian Family Lawyer 21. ASSESSING CONTRIBUTIONS [s 79.191] Introductory comments As noted previously, in considering what order to make under s 79 the court will normally consider first the contributions made by or on behalf of the parties. This aspect is considered in this section.

This commentary first considers a number of general issues relevant to contributions. It then deals with the specific types of contributions mentioned in s 79(4). [s 79.193] Financial and non-financial contributions Characterisation of contributions The authorities do not always identify precisely which paragraph of s 79(4) applies to particular contributions. For example, in In the Marriage of Napthali (1988) 13 Fam LR 146 at Fam LR 151; (1989) FLC 92–021, the Full Court criticised the trial judge on the ground that she did not “consider the contribution of the wife to the business assets as a home-maker and parent”. This phrase could be criticised as confusing para (c), which refers to contributions to the welfare of the family including contributions made as home-maker or parent, and para (b), which refers to non-financial contributions to property, but does not refer to contributions as home-maker or parent. Such lack of precision is however neither surprising nor fatal to the correctness of a decision, since (i) many matters may be regarded as contributions under more than one paragraph of s 79(4); (ii) s 79(4) does not purport to be an exhaustive list; and (iii) s 79(4)(e) incorporates the list of matters in s 75(2), including the “catch-all” para (o). Thus many decisions will not require a precise analysis of the scope of each of the paragraphs of s 79(4). Qualitative assessment of contributions? In In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449 at 461; FLC 91–507, Wilson J said that the contribution of the parties will be equal “only if the quality of the respective contributions of husband and wife, each judged [page 709] by reference to their own sphere, are equal. The quality of the contribution made by a wife as home-maker or parent may vary enormously, from the inadequate to the exceptionally good. She may be an admirable housewife in every way, or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and

deserves to be evaluated in comparison with that of the other party … It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances …” In In the Marriage of Shewring (1988) 12 Fam LR 139; FLC 91–926 at Fam LR 141, the trial judge referred to the remarks of Wilson J and said that the court should not assess the qualities of the parties’ contributions by reference to some absolute standard. He drew attention to the value judgments involved in any such standard: “It is not the court’s task [to] give top marks to the Holmes à Courts of this world and bottom mark to the unemployed roustabout and, I suppose, in the home-maker and parenting stakes [to] give top marks to those ladies who in the age of the great dictators would have received the glorious motherhood medal, and bottom marks to those ladies, who it is alleged spend most of their time in the tennis club and the coffee klatsch and waste their precious time in idle pleasure.” The problem received a detailed analysis in In the Marriage of Ferraro (1992) 16 Fam LR 1 at 30–50; (1993) FLC 92–335 in which the Full Court considered the “undervaluation of unwaged domestic labour” (at Fam LR 35). The Full Court pointed out that it was difficult to compare contributions to property and contributions to the welfare of the family, these being “fundamentally different activities”. It also said that while the assessment of the breadwinner’s performance can be objectively assessed by reference to such things as employment record: “… an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and can not be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.” The Full Court suggested that in some cases the assessment might take into account “special” features such as where one party has responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or has the care of a handicapped or special needs child. Similarly, the breadwinner may be able to demonstrate “an outstanding

application of time and energy to producing income and the application of what some of the cases have referred to as “special skills”. At the other extreme, the evidence may demonstrate a neglect of responsibilities or a wasting of income or assets. The Full Court pointed out that conflicting opinions and judgments were involved in the application of the Act, but: “… it is, we think, legitimate to say that the concept, inherent in the Family Law Act 1975, namely that marriage is a social and economic unit between equals has in relation to property matters been strengthened by the 1983 amendments and contemporary social views which increasingly give greater recognition to the contribution of a homemaker and parent when compared to the more obvious and direct financial contributions of the breadwinner.” (at 40) The Full Court pointed out that the case law seems to suggest that in cases where a party has highly trained professional skills, and they result in a “medium range” of wealth, the contributions are likely to be regarded as equal, while where the application of the breadwinner’s skills produces “assets in the high range”, the distribution is likely to favour the breadwinner. While the Full Court indicated a willingness to follow these authorities, it pointed out that the activities of the breadwinner can also produce heavy losses, “although it never seems to be suggested in those cases that the losses should be shared other than equally” (at 48). On the facts of that case, the husband was entitled to recognition as having made an extra or special contribution by which he greatly increased the assets of the parties. The wife’s case, too, was “a strong one”; she “virtually conducted the homemaker and parent responsibilities without [page 710] assistance from the husband (other than financial)”, and her contributions under para (b) were also significant. In the result the Full Court set aside an award of 30% and awarded the wife 37.5% of the total property of the parties.

It is submitted with some hesitation (RC) that the following paragraphs briefly summarises the main themes of the Full Court’s decision: i. The assessment of contributions starts from the view that marriage is an economic unit between equals. The court should not generally attempt to engage in a fine-grain assessment of the respective merits of one party’s financial and the other’s domestic contributions. ii. However, the court should take into account exceptionally good and (it seems) exceptionally bad performances, although this last aspect is to be distinguished from investigating “fault or misconduct”. iii. Where the breadwinner’s special skills produce exceptionally high returns, this should be reflected in the assessment of the parties’ contributions, even where the domestic contribution is also strong. This approach is required by the existing case law, even though it may not be easy to reconcile it with the common result of an equal assessment of contributions in the case of a professionally qualified breadwinner and a strong domestic contribution, where the wealth produced is not exceptionally high. iv. Finally, it is important to note that this whole discussion relates to the assessment of contributions: the eventual adjustment may of course be affected by the impact of s 75(2) factors. The Full Court, without departing from the observations in Ferraro now offers a caution (see Kane v Kane (2013) FLC 93-569 and Hoffman v Hoffman (2014) FLC 93-591 that “special contribution is not a category reserved for high net worth cases. As they stated in Fields v Smith (2015) FLC 93-638: … the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being by virtue of that category or class, more valuable or more important than another. Gender neutrality The Family Law Act is expressly cast in gender-neutral

language (for example, “parties to a marriage”), and non-discrimination between spouses may be regarded (RC) as a theme of the legislation. And of course although the courts often speak of the contribution of “a housewife”, it is clear that either party’s efforts as breadwinner or home-maker will be acknowledged under s 79: see, for example, In the Marriage of Mahon (1982) 8 Fam LN 4; FLC 91–242 at FLC 77,333. Nevertheless, the translation of this principle into the real world, which includes unequal employment opportunities and sets of assumptions about what is “men’s work” and “women’s work”, can be difficult. For example, it has been argued that there is a danger that women’s work in the home will be undervalued, especially where a woman is also in employment, because it is assumed to be “natural” for her to do the housework; perhaps also a husband’s modest contribution to child care or domestic work might be seen as remarkable and given undue weight. Certainly the statistics presented by the well-known study of the Institute of Family Studies, Settling Up, discussed in the Australian Law Reform Commission’s report, Matrimonial Property, ALRC 39, 1987, indicate that in general women are much more likely than men to live below or near the poverty line after marriage breakdown, and that their economic situation is typically much worse, even after the Family Court has made orders or approved maintenance agreements. For discussions of such issues, see Nygh J, “Sexual Discrimination and the Family Court”, University of NSW Law Journal, Vol 8, 1985, pp 72–9; Hilary Charlesworth and Richard Ingleby, “The sexual division of labour and family property law”, Law in Context, Vol 6, 1988, pp 29–49. Equality of contributions? It is clear law that there is no presumption in favour of equality of presumptions: In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507. However the Full Court has noted on a number of occasions that in many cases this will be the common result of a consideration of the various contributions made during a substantial [page 711]

marriage, especially, perhaps, where there are children. See, for example, In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335; Re McLay (1996) 20 Fam LR 239; FLC 92–667; In the Marriage of Waters and Jurek (1995) 20 Fam LR 190; FLC 92–635. Exceptional contributions In a number of cases the court has considered whether contributions should be assessed in favour of a bread-winner who is spectacularly successful, where the assets are very great. These cases include In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335; Re McLay (1996) 20 Fam LR 239; FLC 92–667; In the Marriage of Whiteley (1992) FLC 92–304; In the Marriage of Stay (1997) 21 Fam LR 626; FLC 92–751. For an insightful discussion of the issues, see Lisa Young, “Sissinghurst, Sackville-West and ‘Special Skill’” (1997) 11 AJFL 268. On one reading, the court had in these cases tended to assess the contributions of persons seen as mainly responsible for acquiring the wealth — the husbands, in all the reported cases — as considerably above 50%. In one case, perhaps intending to limit the impact of these authorities, the Full Court indicated that it would be less likely to uphold such a result where the assets produced are in the “medium range” (perhaps around $3 million) rather than in the “high range” (for example $8–12 million): see In the Marriage of Stay (1997) 21 Fam LR 626; FLC 92–751 at 84,13 1. What of exceptional contributions by the homemaker? The Full Court has not accepted the argument that if a party who plays a full time parenting role might expect to be treated as making a 50% contribution, a party who is in paid employment as well is entitled to be credited with an additional percentage. Similarly there is no rule that a party who is the sole or main breadwinner and also plays a homemaker role to some extent must receive over 50%. It has long been recognised that the particular facts of a case may justify a finding of a greater contribution: see eg In the Marriage of Zdravkovic (1982) 8 Fam LR 97; FLC 91–220 (FC). (Although the language in this case relating to equality may have to be revised as the decision is preMallet, there seems no reason to doubt that Zdravkovic still represents the law on this point.) However, it is difficult to find examples of exceptional homemaker/parent contributions that have had an impact on the final distribution comparable to that of the high-earning husbands in the line of

cases mentioned in the last paragraph. The Full Court reconsidered the matter in In the Marriage of JEL and DDF (2000) 28 Fam LR 1; (2001) FLC 93–075. Having reviewed the case law in relation to “special” or “extra” contributions (including In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335; Re McLay (1996) 20 Fam LR 239; FLC 92–667; and In the Marriage of Stay (1997) 21 Fam LR 626; FLC 92–751) the Full Court concluded that the following general principles arise from the cases: (a) There is no presumption of equality of contribution or “partnership”. (b) There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife. (c) Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case. (d) In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them. (e) The court will recognise any such special factors as taking the contribution outside the “normal range” in the sense that the Full Court in McLay, above, understood that phrase. (f) The determination of an issue of whether or not a “special” or “extra” contribution is made by a party to a marriage is not necessarily dependant upon the size of the asset pool or the “financial product”. When considering such an issue, care must be taken to recognise and distinguish a “windfall” gain. (g) While decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles. [page 712]

(h) It is ultimately the exercise of the trial judge’s own discretion on the particular facts of the case that will regulate the outcome. (i) In the exercise of that discretion, the trial judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division. The court has had the opportunity to revisit these principles in In the Marriage of Figgins (2002) 29 Fam LR 544; FLC 93-122; [2002] FamCA 688, a decision wherein the matrimonial asset pool was comprised almost exclusively of a group of companies which had been inherited by the husband during the marriage. The joint judgment of Nicholson CJ and Buckley J raises the following matters questioning the decision in In the Marriage of JEL and DDF (2000) 28 Fam LR 1; (2001) FLC 93–075: 1. The doctrine of “special contribution” should, in an appropriate case, be reconsidered. 2. Marriage is a partnership and the party whose economic contributions are lesser should not be disadvantaged: at [134]; 3. The court should shy away from a needs based approach to property division in “big money cases” that provides for the needs of the spouse who has made the lesser financial contributions and reserves remaining capital and assets to the spouse who has made the greater financial contribution: at [89]. [s 79.195] Relevance of fault or conduct to contributions Background The Family Law Act 1975 introduced a single non-fault ground of divorce, based on one year’s separation, leading to the widespread use of the term “non-fault” to describe the new law in a more general sense. Proceedings under the Act were “non-fault” in the limited sense that applications relating to children and financial matters were not determined against the background of a finding of fault in connection with the marriage. Obviously, however, the legal relevance of fault, or conduct of various types, depends on the provisions governing particular matters. The relevance of conduct in proceedings relating to children, for example, would seem to be neither more nor less relevant than it was before the Act, since the Act, like the previous law, treated the child’s best interests (to use the current term) as

the paramount consideration. In relation to financial matters, the 1975 Act was remarkable in that while it specified the matters to be taken into account in more detail than the previous legislation had done, it did not include a reference to “the conduct of the parties”, although that had been of relevance under the previous law and was expressed, for example, in the then-current English legislation. On the other hand, it did use phrases like “just and equitable” (s 79(2)) and “the justice of the case” s 75(2)(o), and there were other provisions that could arguably be taken as making conduct relevant. So the scene was set for a fine battle over interpretation: to what extent was conduct to be relevant under the new Act? Trend of authorities After some early expressions of various opinions, the leading cases held, in effect, that conduct of itself was not generally relevant in financial matters. It was clear, in particular, that financial proceedings were not to be an occasion for trials about who was more at fault in bringing about the breakdown of the marriage. However, the decisions did not absolutely exclude the relevance of conduct. They tended to leave the door ajar by conceding the possibility that it might be relevant in rare and exceptional cases. And there were some cases where it was treated as relevant, as, for example, where a party destroyed or wasted matrimonial property, the most spectacular example being an unreported case in which a party bulldozed the former matrimonial home. It was often said that conduct might be relevant if it had financial consequences, although this helpful phrase did not precisely identify the extent of its relevance. In the 1990s, decisions of the Full Court held that conduct could be relevant, namely that family violence could be taken into account where it affected parties’ contributions. The leading case, In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118, is discussed below. This decision, which includes a detailed review of the authorities and issues, requires a re-assessment of some of the earlier decisions, since there is no basis in the Act for treating family violence as a separate legal category. The extent to which it will change the thrust of earlier decisions remains to be seen.

[page 713] Marital conduct as such not relevant The conduct of the parties is not specifically referred to in s 79, and it has been consistently held that the marital behaviour of parties is not of itself relevant to applications under s 79: see In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92–127 (FC), affirming a line of decisions including In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124 (FC); In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500 (FC). This probably remains true, as a general proposition, since In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92– 757; 139 FLR 118. Financial conduct may be relevant Several authorities appear to distinguish between misconduct in general and certain types of behaviour having a direct connection with financial matters. See, for example, In the Marriage of Fisher (1990) 13 Fam LR 806 at 808–9; FLC 92–127, where Nygh J said that conduct may be relevant, “if it has financial consequences, such as financial misbehaviour resulting in the waste or suspension of family assets…”, giving as an example In the Marriage of Cordell (1977) 3 Fam LR 11,588; FLC 90– 322. Other examples include In the Marriage of Mead (1983) 9 Fam LR 193; FLC 91–354 (husband’s drinking and betting led to business failure); and perhaps In the Marriage of Willmore (1988) 12 Fam LR 692; FLC 91–975 (financial contribution that over-capitalises property should be assessed by reference to the increase in value of the property, not the amount of the contribution); In the Marriage of Kowaliw (1981) 7 Fam LN N13; FLC 91– 092 (losses due to reckless etc acts relating to property may not be shared between the parties); In the Marriage of Spiteri (2005) 33 Fam LR 109; FLC 93-214 (excessive unexplained spending by the wife in the context of a small matrimonial asset pool); In the Marriage of P & P (1985) 9 Fam LR 1100; FLC 91–605 (court may take into account as a relevant factor under s 75(2) (o), that a party was guilty of complicity in tax evasion). See also In the Marriage of Prestwich (1984) 9 Fam LR 1069; FLC 91–569; In the Marriage of Browne and Green (1999) 25 Fam LR 482 (FC). Some kinds of fault or misconduct are more difficult to characterise and their relevance is accordingly more arguable. For example, see Barkley v

Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90–216, where the husband’s misconduct in causing wife’s physical disability was apparently treated as relevant, but arguably the decision merely takes into account the disability as such, rather than the misconduct. See also the much discussed decision In the Marriage of Issom (1977) 7 Fam LR 305; FLC 90–238 (relating to maintenance). Fault and contributions Apart from such cases as mentioned in the last paragraph, until In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92– 757; 139 FLR 118 the court had generally rejected arguments seeking to link notions of misconduct with the assessment of contributions under s 79(4), or with the phrase “just and equitable” in s 79(2), or with what the justice of the case requires to be taken into account (s 75(2)(o)). See especially In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500, and In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92–127 (FC), which was the leading case until Kennon. However in the context of family violence an apparently contrary position was hinted at in In the Marriage of Waters and Jurek (1995) 20 Fam LR 190 at 197–200; FLC 92–635, and taken, albeit with remarkable brevity, in In the Marriage of Doherty (1995) 20 Fam LR 137 at 141; (1996) FLC 92–652 per Baker J, with whom Fogarty and Hannon JJ agreed. Marriage of Kennon In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118 forms the basis of this and the following paragraphs. In it, both the majority (Nicholson CJ and Fogarty J) and the minority (Baker J) agreed that domestic violence may be relevant to the determination of proceedings under s 79. The majority noted that although early cases “appear to have rejected the relevance of domestic violence to a s 79 claim (except in cases where it was seen to have a direct financial consequence)”, more recently there had been “a significant re-agitation” of the issue in commentary and decisions, citing In the Marriage of Waters and Jurek (1995) 20 Fam LR 190; FLC 92–635 at 82–378 (FC); In the Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC 92–652; In the Marriage of Manna (unreported, Fam C of A, Coleman J, 20 May 1996); In the Marriage of Rosati (unreported, Fam C of A, Chisholm J, 14 February 1997),

[page 714] commenting: “Of the above cases, Doherty is a decision of the Full Court but the discussion of this issue is brief. Only in Rosati were the earlier cases discussed in detail. All, however, reached an affirmative answer to this question of the relevance of domestic violence within s 79”. Domestic violence not an exclusive category or relevant conduct The majority in In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118 identified some “preliminary points”, including the point that although in the discussion reference was made exclusively to domestic violence, it was not intended to be confined to that issue: “We do not consider that domestic violence is an exclusive category. It is the most obvious example of a wider and more general category of conduct which may be relevant within s 79 …” Recognition of relevance of domestic violence The majority referred to the recent recognition of “the pervasiveness and destructiveness of domestic violence”, saying that “until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the ‘private’ sphere of the home”, but that “the law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences”. Principle The majority expressed its conclusion in the following passage: “Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of ‘negative contributions’ which is sometimes referred to in this discussion. “In the above formulation, we have referred only to domestic violence, for

the reasons which we indicated earlier, but its application is not limited to that.” Earlier decisions The Full Court in In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118 made it clear that they intended to depart from any contrary statement of principles in earlier decisions (some of which were discussed in detail). The majority said: “We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those longstanding authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this court. There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears to be appropriate to give effect to them: see Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161; In the Marriage of Farnell (1996) 20 Fam LR 513; FLC 92–681, and In the Marriage of Ivanovic (1996) 20 Fam LR 445; FLC 92– 689.” Implications: the “floodgates” problem The Full Court in In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118 considered what it called the “floodgates” argument, namely that: “these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters — a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost. “It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in

[page 715] In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v Killick (1996) 21 Fam LR 331 at 341, in proceedings under the De Facto Relationships Act 1984 (NSW), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.” The Full Court expressed agreement with the following observations of Chisholm J in In the Marriage of Rosati (unreported, Fam C of A, Chisholm J, 14 February 1997): “… it would be unfortunate if practitioners saw In the Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC 92–652 as an indication that they should routinely include in property proceedings detailed evidence about the parties’ behaviour towards each other during the marriage. “There are three main reasons for this. First, in practice it will often be very difficult for the court to make an overall determination of whether overall one party is more wronged than the other. In many cases, a prolonged investigation of these matters would, in the end, prove fruitless, and would add immeasurably to the financial and emotional costs of the proceedings. “Second, these matters may sometimes be of marginal relevance. For example, if one party has assaulted and injured the other party, the injury and its consequences will be relevant, quite apart from conduct, if as a result the injured party has medical or other costs, or is in need of assistance, or is unable to obtain employment. Again, if the victim of the assault has a right of action for damages under the general law, in financial proceedings a court may perhaps find that ‘the justice of the case’ does not require the matter to be dealt with in the family court proceedings, since the right of action will remain available after the completion of the family law proceedings s… “Third, and most obviously, this sort of material will normally lead to extended trials of a particularly bitter kind, and will take a heavy toll on the parties in both financial and emotional terms. In some cases, this may be

disproportionate to its impact on the end result.” References Discussions of these issues can be found in all standard family law texts, and in the following: Australian Law Reform Commission, Matrimonial Property, ALRC 39, 1987, pp 76–81; J Behrens, “Domestic Violence and Property Adjustment: A Critique of No-Fault Disclosure” (1993) 7 AJFL 9; Chisholm and Jessep, “Fault and Financial Adjustment under the Family Law Act 1975”, UNSW Law Journal, Vol 4, 1981, p 43; Behrens, “Domestic Violence and Property Adjustment: A Critique of ‘No Fault’ Discourse” (1993) 7 AJFL 9; Behrens, “Violence in the Home and Family Law: An update” (1995) 9 AJFL 70; Justice Murray, “Domestic Violence and the Judicial Process: A Review of the Past Eighteen Years” (1995) 9 AJFL 26; Behrens, Recent Developments in Compensation for Violence in the Home, October 1996, 7th National Family Law Conference; Wiegers, “Compensation for Wife: Abuse: Empowering Victims?” (1994) 28 UBC Law Review 247; Justice Morgan, “Domestic Torts — Fertile Fields or Shifting Sands?”, Leo Cussen Institute, May 1997; Australian Law Reform Commission (1994) “Equity Before the Law: Justice for Women” Report No 69; Justice Chisholm, “Matrimonial Property Reform: Current Proposals and Issues”, March 1994; Justice Dessau, “Domestic Violence and Family Law Cases”, October 1995; Carp, “Beyond the Normal Ebb and Flow … Infliction of Emotional Distress in Domestic Violence Cases” (1994) 28 Family Law Quarterly 389. Family Law Council, Violence and the Family Law Act: Financial Remedies, Discussion Paper, August 1998; P Nygh, ‘Family violence and matrimonial property settlement’ (1999) 13 AJFL 10. [s 79.197] Contributions made prior to the marriage General principles The current law with respect to pre-marital contributions is stated in the Full Court’s decision in In the Marriage of Kowalski (1992) 16 Fam LR 235 at 243; (1993) FLC 92–342 at 79,630: “A more logical and consistent approach is one which is based on the proposition that once a marriage has been celebrated between the parties, the entire relationship between the parties

[page 716] whether arising out of contributions before, during or after the formal tie of marriage was entered into or dissolved, falls within the ambit of Pt VIII of the Family Law Act 1975. This principle explains why contributions made between cohabitants who later marry are judged according to the criteria set out in the Family Law Act 1975 and not according to those set out in the Property Law Act 1958 (Vic) or the De Facto Relationships Act 1984 (NSW). It is also consistent with the proposition that post separation and post divorce contributions continue to be taken into account. These parties are before the Family Court because they were once married and hence the proceedings can be said to arise out of the marital relationship, even if the property, the subject of such proceedings, does not.” This reasoning was subsequently approved by the Full Court in W v W (1997) 21 Fam LR 343; FLC 92–723. See also In the Marriage of Nemeth (1987) FLC 91–844 and G v G (2000) 26 Fam LR 592; FLC 93–043. Caring for children pre-cohabitation In W v W itself, the Full Court held that a wife who looked after the parties’ child for seven years before the parties began cohabiting, a total of eight years before they married, had made a contribution to the welfare of the family that fell “squarely” within s 79(4) (c). The fact that the contributions were not made during a period of premarital cohabitation did not prevent them being taken into account: the mere fact that the parents of a child subsequently marry was enough. Pre-marital contributions while parties married to others There has been some suggestion in the case law that where parties have made contributions before their marriage while married to, or cohabiting with others, those contributions cannot now taken into account because they are too “remote”: In the Marriage of Gill (1984) 9 Fam LR 969; FLC 91–582 per Nygh J. The Full Court in W v W expressed no concluded view on this matter. However, part of Nygh J’s reasoning in Gill was that the parties in that case had not formed an intention to marry at the relevant times; and in W v W the Full Court held that it was not necessary, in order to bring pre-marital contributions into account, that the parties had intended to marry: “the

intentions of the parties [as to marriage] are not a relevant consideration in the assessment of s 79(4)(c) contributions” (at Fam LR 352). This suggests that the status of the “remoteness” test may therefore warrant reconsideration in due course, at least to the extent that it prevents non-financial contributions being taken into account under s 79(4)(c). Pre-marital gifts between spouses In In the Marriage of Beneke (1996) 20 Fam LR 841; FLC 92–698, a gift of money by one spouse to another, paid after engagement but before marriage, and which enabled the recipient to pay off an overdraft, was considered a direct financial contribution within s 79(4) (a). [s 79.199] Assets acquired prior to the marriage Although a party cannot claim to have contributed to the acquisition of property obtained by the other before their relationship commenced (see, for example, In the Marriage of Albany (1980) 6 Fam LR 461; FLC 90–905), he or she may have contributed to the conservation or improvement of the property: see, for example, In the Marriage of McDougall (1976) 1 Fam LR 11,581; FLC 90–076. An asset which is acquired by a party prior to the marriage may be a significant factor, especially where the marriage is of short duration and there are few other contributions or s 75(2) factors: see, for example, In the Marriage of Hirst and Rosen (1982) 8 Fam LR 251; FLC 91–230 at Fam LR 254 per Nygh J. Its relative significance will diminish where other contributions or s 75(2) factors are substantial: see, for example, In the Marriage of White (1982) 8 Fam LR 512; FLC 91–246. See generally In the Marriage of Bremner (1994) 18 Fam LR 407; (1995) FLC 92–560 and In the Marriage of Way (1996) FLC 92–702; following In the Marriage of Money (1994) 17 Fam LR 814; FLC 92–485 (per Fogarty J, with whom Holden J agreed). “Erosion” of contributions over time In a well-known passage in In the Marriage of Money (1994) 17 Fam LR 814; FLC 92–485 Fogarty J dismissed criticism of comments by a trial judge [page 717]

to the effect that a wife’s contribution during the marriage had “reduced the significance” of the husband’s initial contribution and his contribution early in the marriage, but had not “fully eroded” it. Fogarty J said, at 17 Fam LR 816, that in an appropriate case, an initial substantial contribution could be “eroded” (Fogarty J’s quotation marks) to a greater or lesser extent by the later contributions of the other party, “even though those contributions do not necessarily outstrip those of the other party”. Although Fogarty J picked up the language of the trial judge, and although in that case it was an initial financial contribution that was under consideration, there may be no special significance in the timing of the respective contributions. A contribution once made does not disappear. “Erode” is just a metaphor that was convenient in that case. The point appears to be simply that in a long marriage the other contributions, of all kinds, are likely to outweigh a particular financial contribution. If this is correct, it follows that the same principle would apply to a particular financial contribution at the beginning, or in the middle, or at the end of the marriage: in each case it would be simply a matter of assessing the weight of that contribution in the light of the overall contributions. In a short marriage, because other contributions would be limited, a big financial contribution might be very important; in a longer marriage regardless of when it occurred, it might be less important, because of the weight of all the other contributions. In In the Marriage of Pierce (1998) 24 Fam LR 377; FLC 92– 844, the Full Court at Fam LR 385; FLC 85,881 appeared to disapprove of the use of the language of “erosion”: In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and wife. The Full Court went on to suggest that it was relevant to consider the use made by the parties of the initial contribution. In Pierce, the fact that the parties’ matrimonial home (the major asset on divorce) could not have been bought but for the husband’s initial contribution, was considered relevant in weighting his contribution. In In the Marriage of Way (1996) FLC 92–702, the Full Court (Barblett

DCJ, Finn and Butler JJ) expressly approved Justice Fogarty’s approach in Money as settling the law in this area (see also In the Marriage of Bremner (1994) 18 Fam LR 407; (1995) FLC 92–560; In the Marriage of MacGregor (1996) 21 Fam LR 57; FLC 92–710 and In the Marriage of Pierce (1998) 24 Fam LR 377; FLC 92–844, to the same effect). However, there are suggestions in In the Marriage of Aleksovski (1996) 20 Fam LR 894; FLC 92–705 of a different approach, since the Full Court (Baker and Rowlands JJ), without referring to Way, suggested that “the passage of time is the element which reduces the significance of initial or early contributions”. While this is not inconsistent with the analysis suggested above, it is equally suggestive of a slightly different principle at work: namely, that the passage of time is sufficient of itself to diminish the weight of a particular contribution, and that later contributions carry more weight than earlier ones. Fogarty J’s analysis in In the Marriage of Money (1994) 17 Fam LR 814; FLC 92–485, on the other hand, would suggest that substantial contributions made at any stage in the relationship would be “eroded” by other contributions made over the course of a marriage. The implied abandonment in Pierce of the language of “erosion” (see above) is consistent with this analysis, even though the Full Court was considering only an initial contribution in that case. It is suggested that the following passage in Kay J’s dissenting judgment in Aleksovski better expresses the relevant principle: “A party may enter a marriage with a gold bar which sits in a bank vault for the entirety of the marriage. For 20 years the parties strive for their mutual support and at the end of the 20 year marriage they have the gold bar. In another scenario they enter the marriage with nothing, they strive for 20 years and on the last day the wife inherits a gold bar. In my view it matters little when the gold bar entered the relationship. What is important is somehow to give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early [page 718] capital contribution is diminished by subsequent events during the marriage,

late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements.” Principle not limited to “eroding” husband’s contributions It is submitted (contrary to Dr Dickey’s suggestions in (1997) 71 ALJ 423–4) that the principle applies indifferently to contributions made by husbands and wives; that specific financial contributions can be outweighed by other contributions of all kinds; and that the principle is not a way of providing for wives’ loss of income-earning capacity in long marriages (which is covered by s 75). For a critical discussion of the ‘erosion’ principle, see P Parkinson, ‘The diminishing significance of initial contributions to property’ (1999) 13 AJFL 52. [s 79.201] Contributions made after separation Contributions made to the welfare of the family include contributions made after the parties have separated: see In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91– 541 (HC). See also In the Marriage of Jacobson (1988) 12 Fam LR 828; (1989) FLC 92–003 (FC); In the Marriage of Ferraro (1992) 16 Fam LR 1 at Fam LR 33; (1993) FLC 92–335; In the Marriage of Dadic (1987) 11 Fam LR 796; FLC 91–825; In the Marriage of Kowalski (1992) 16 Fam LR 235 at Fam LR 243; (1993) FLC 92–342. [s 79.203] Financial contribution made to property — s 79(4)(a) Introductory comment This section requires the court to take into account the “financial contribution” made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them. “financial contribution” This term is not defined in the Act. It has not proved a troublesome concept, probably because s 79(4)(b) includes contributions other than financial contributions, and thus it is normally of little consequence whether a contribution is characterised as “financial”. It includes such things as contributions to the purchase price of property, repayments of a mortgage, payment for repairs and renovations: see In the

Marriage of McDougall (1976) 1 Fam LR 11,581; FLC 90–076. Conservation or improvement An act of conservation protects the property from loss, injury or deterioration. An act of improvement results in some addition or change to the property which increases its value or utility. “Direct or indirect” A contribution to the capital value of the property is a direct financial contribution, while a contribution that increases the income from the property is indirect. Contributions to household expenses or entertainment of business associates are indirect financial contributions: see In the Marriage of Hellier (1976) 2 Fam LR 11,446 at 11,450. Income splitting Parties who have represented themselves for tax purposes as equal partners or otherwise equally entitled to income or property cannot expect the court to disregard such arrangements in s 79 proceedings: see above, [s 79.69]. In assessing the parties’ contributions, the courts have taken into account the contribution of the party running the business, but have also held that the other spouse in such cases can be properly seen as making a contribution because of the tax advantages resulting from the arrangement, and because of his or her personal liability as, for example, a director of companies, a liability which has become more onerous as a result of case developments and the Corporations Law: In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335 at Fam LR 32. As the Full Court has said, “it cannot be denied that the splitting of income tax is a direct and immediate financial benefit to the husband and to that extent a direct financial contribution on the part of the wife”: In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626. [page 719] [s 79.204] Lottery wins, “windfalls”, etc There are a number of cases in which the parties benefit from good luck of a kind that may have little to do with the skill or productive work of either party. Examples include benefits arising from rezoning of property and wins in lotteries or other competitions. The leading case appears to be In the Marriage of Zyk (1995) 19 Fam LR

797; FLC 92–644. In that case the husband had been consistently engaged in a ticket buying syndicate for some years prior to the marriage and prior to the win which occurred two years after the parties had married. The Full Court said at 808: “In our view, the critical question in such cases is — by whom is that contribution made? In the ordinary run of marriages a ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase in that context and would be treated accordingly: see Anastasio. Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties. The income of the working member is treated as joint in the same way as the domestic activities of the non-working partner I regard it as being for their joint benefit. In the essential sense this analysis is similar to that provided by the Full Court in In the Marriage of Hauff (1986) 10 Fam LR 1076; FLC 91–747 in discussing the rationale for treating superannuation benefits of one party, including contributions by the employer, as the product of joint contributions. “In the sort of case to which we have referred above the conclusion would be that the ticket was purchased by joint funds and the contribution of the prize would be seen as a contribution by the parties equally. There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion, but in the generality of cases with which this court would normally deal this appears to us to be the correct approach and the correct outcome.” The Full Court went on to say, in effect, that it would not normally take a case out of this general pattern that one party had purchased a ticket in syndicate with third persons or that the purchase was a continuance of a premarriage practice by one party. The Full Court preferred to treat these cases as contributions and saw this as consistent with the treatment of gifts from family of a party being treated as a contribution by or on behalf of that party: see In the Marriage of Kessey (1994) 18 Fam LR 149; FLC 92–495. Another

reported case dealing with lottery wins is In the Marriage of Mackie (1981) 7 Fam LR 365; FLC 91–069. In cases where property to which both parties have contributed appreciates as a result of re-zoning or for other causes unrelated to the specific contributions of either party, the court generally concludes that neither party has any special claim to the increase and they should share in the increased value to the extent of the proportional interest in the property awarded to each. See the analysis in Zyk, above, and In the Marriage of Zappacosta (1976) 2 Fam LR 11,214; FLC 90–089; In the Marriage of Wells (1977) 4 Fam LR 57; FLC 90–285; In the Marriage of Wardman and Hudson (1978) 5 Fam LR 889; (1978) 4 Fam LN 44; FLC 90–466; In the Marriage of Warne (1982) 8 Fam LR 388; FLC 91–247; In the Marriage of Mackie (1981) 7 Fam LR 365; FLC 91–069. See also In the Marriage of Brease (1997) 22 Fam LR 518; (1998) FLC 92–793. Cases to which Zyk does not apply: These principles may not apply where the windfall occurs either before or after the relationship commences or ends. Two cases illustrate the exception. The first, In the Marriage of Brease (1997) 22 Fam LR 518; (1998) FLC 92–793, was an example of a case in which a lottery win occurred before the parties had married, or even begun cohabitation. The lottery win was treated as a contribution made solely by the party whose money paid for the ticket. The trial judge’s finding that the case outside the “usual range of cases” covered by Zyk was upheld by the Full Court. The husband’s claim to the winnings therefore rested on any common law or equitable claim he might have. At common law, title to lottery winnings vests in [page 720] the person in whose name the ticket is issued: see Van Rassel v Kroon (1953) 87 CLR 298; while an equitable claim depends either on a claimant showing that they paid for the ticket, or that there was an agreement between the parties that the ticket was to be purchased jointly (to which the conduct of the parties immediately after the win would be evidentially relevant): Voulis v

Kozary (1975) 180 CLR 177; 7 ALR 126. In Brease itself, the husband was unable to establish either sort of claim. The second such case is In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93–060. The parties separated in 1995, and the husband won $5 million in a lottery in 1996. The wife made a property adjustment application in 1998 and was awarded about 15% of the lottery win. It was held by the trial judge, and accepted by the Full Court on appeal, that the husband owned the ticket and its proceeds, and was therefore to be treated as having contributed the amount of lottery winnings. The Full Court, by a majority, upheld the trial judge’s award to the wife, and in doing so asserted that there was nothing to prevent a party’s contributions made during a marriage being satisfied out of property not existing at the time the contributions in question were made. However, the fact that the lottery ticket belonged to the husband justified awarding the husband the lion’s share of the proceeds, on the basis of an analysis of contributions [s 79.205] Gifts — financial contributions made on behalf of a party Introductory comment Contributions under s 79 may be made “by or on behalf of” a party. Commonly, this phrase is important where a gift is made to one or both of the parties, and the question arises whether it should be regarded as a contribution on behalf of the party (or on behalf of both, where the gift is to both). Proper approach to gift by a third party There are many authorities on the correct approach in s 79 proceedings to a gift (for example by a relative) to one or both parties. They are reviewed at length by Fogarty J in a very helpful judgment in In the Marriage of Gosper (1987) 11 Fam LR 601 at 605–11; FLC 91–818. Unfortunately some of the Full Court decisions are not thoroughly argued, and the authorities, as Fogarty J says, are “far from consistent”. In particular, some cases treat such gifts as a contribution by the donee, while others say that they should be considered as a fact or circumstance under s 75(2)(o). However it is submitted that Fogarty J was correct in suggesting that the court should follow the following steps: “(1) Determining ownership [T]he first step is to determine the ownership of the benefaction (see Rainbird; Read, above).

Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the court to determine that it is a gift to one or other or both of the parties, that is an important finding. Normally, where title to property is transferred to one or both of the parties, that would be the strongest indicator of the intention of the donor. “(2) Applying section 79 The next step is to consider the application of s 79 to all of the property of the parties, including property received by one or both of them by way of benefaction from a third party. Traditionally this task is performed by firstly considering the question of contributions under s 79(4)(a) — and then, if relevant, the s 75(2) factors. There is no reason to apply a different approach in relation to property having this particular history.” In determining the weight to be given to a gift to only one party the court may: (a) Allow the party to whom the gift was given to be credited with the value to which the gift had increased at the date of the hearing: see In the Marriage of Freeman, below. However, this may only be appropriate if the marriage was of short duration or only lasted a short time after the gift was made: see In the Marriage of Crawford (1979) 5 Fam LR 106; FLC 90–647. (b) Give the party to whom the gift was given credit for the initial value of the gift: see In the Marriage of W, below. [page 721] (c) If the gift has been mixed with other contributions over a long period of time, not attempt to give any particular value to it and merely consider it as a factor to be taken into account along with other relevant factors: see In the Marriage of White (1982) 8 Fam LR 512; FLC 91–246. However, the longer the duration of the period of cohabitation, the less weight will be given to such a contribution: see In the Marriage of Crawford, above. The decision in

Gosper is considered and applied in In the Marriage of Pellegrino (1997) 22 Fam LR 474; FLC 92–789. Whether really a gift It will of course be necessary for the court to determine whether there was a gift, as distinct from a loan. It is not uncommon for disputes to arise as to whether the property was intended as a gift, or was merely made available to the parties, remaining the property of the “donor”. The determination of this question is a preliminary matter: see generally, above, under the major heading PROPERTY. Gift to both parties Even where the gift by a relative of a party is made to both parties, it is open to the court in appropriate circumstances to regard it as a contribution by the party to whom the donor is related, really made as a means of benefiting that party: Gosper, above, at Fam LR 611. An example is In the Marriage of Kessey (1994) 18 Fam LR 149; FLC 92–495, where the Full Court took into account the relationship between a spouse and the spouse’s parent in concluding that the gift from the parent should be regarded as the contribution of that spouse. If, however, the evidence suggests that the donor intended to benefit both parties, the gift will be regarded as an equal contribution by the parties. This question was further discussed by Chisholm J in In the Marriage of Pellegrino (1997) 22 Fam LR 474; FLC 92–789. Although Chisholm J took judicial notice of the fact that in making such gifts, or in providing benefits in kind, to their married children, parents do not normally have expressly formed intentions as to whom they intend to benefit, he held on the facts of the case (which he regarded as “not in any way untypical”) that the parents intended to benefit their daughter only, even though the husband derived direct and indirect factual benefit from the gift. This reflected his reading of the authorities (including In the Marriage of Kessey, above) which was to the effect that “it is normally appropriate to treat the provision as a contribution made by or on behalf of the spouse whose parents made it” (at Fam LR 483; FLC 84,728). However, there may be evidence pointing the other way: for example, where the parents’ gift is in recognition of some service made to them jointly by the parties. Gift by spouse A gift by one spouse to another which enables the other

spouse to acquire a particular asset may be considered a direct contribution by the spouse making the gift: see In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872 (Nygh J). Similarly, a gift of money by one spouse to another, enabling the recipient to discharge indebtedness, is a direct financial contribution: In the Marriage of Beneke (1996) 20 Fam LR 841; FLC 92– 698. Non-financial contributions made on parties’ behalf It has been held that a contribution of a non-financial sort made by a relative (for example, child care), may count as a contribution of the party on whose behalf it was made, but usually as a fact or circumstance under s 75(2)(o) rather than under s 79(4)(c): In the Marriage of Aleksovski (1996) 20 Fam LR 894; FLC 92–705. In such cases, the danger of double counting must be avoided (ibid). Gift in kind The provision of gifts in kind by third parties, such as rent-free accommodation by the parents of one of the spouses, may be treated as a contribution made on behalf of that spouse: In the Marriage of Pellegrino (1997) 22 Fam LR 474; FLC 92–789. The provision of such benefits is to be regarded as equivalent to a gift of property, since it enables the parties to invest their money to yield other property for division; and the question then becomes whether the provision is to be regarded as intended to benefit both spouses, or as a contribution on behalf of one of them, on which see above. Authorities The main authorities on this topic, apart from Gosper, above are: In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 at Fam LR 443 (FC); In the Marriage of White [page 722] (1982) 8 Fam LR 512; FLC 91–246 (FC); In the Marriage of Antmann (1980) 6 Fam LR 560; FLC 90–908 (FC); In the Marriage of Freeman (1979) 5 Fam LR 16; FLC 90–697 (FC); In the Marriage of James (1978) 4 Fam LR 401; FLC 90–487 (FC); Read and Read (1984) FLC 91–527 (Nygh J); In the Marriage of Abdullah (1981) 6 Fam LR 654; FLC 91–003 (Baker J); In the Marriage of Underwood (1981) 6 Fam LR 921; FLC 91–020 (Wood J); In

the Marriage of W, above; In the Marriage of Matthews (1980) 6 Fam LR 142; FLC 90–887 (Nygh J); In the Marriage of Rainbird (1977) 3 Fam LR 11,368; FLC 90–256 (Wood J); In the Marriage of de Mooy (1978) FLC 90– 411; In the Marriage of Cleary (1976) 27 FLR 280 (Bell J). [s 79.207] Weighing of financial contributions Direct financial contribution to acquisition of property A direct financial contribution will be of considerable importance, although of course its importance will depend on the court’s assessment of other kinds of contributions as well as s 75(2) factors. It will be of greatest importance in relation to a marriage of short duration where the other factors to be considered under s 79 are of little relevance: see In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073; see also In the Marriage of Quinn (1979) FLC 90–677. [s 79.209] Financial contributions leading to over-capitalisation Sometimes contributions involve over-capitalisation of property. In such cases extensive contributions may lead to small increases in value. It has been held that in such cases it is proper for the court to take into account the extent to which the contribution has resulted in an increase in value: see In the Marriage of Willmore (1988) 12 Fam LR 692; FLC 91–975 following the unreported Full Court decision In the Marriage of Chance and Bryant (unreported, Fam C of A, Joske, Butler and Nygh JJ, 20 March 1986). Compare In the Marriage of Vrebetic (1987) FLC 91–832. [s 79.211] Non-financial contributions to property — s 79(4)(b) Introductory comment Section 79(4)(b) was inserted in the Act by the Family Law Amendment Act 1983. It refers to contribution of a non-financial nature to the acquisition, conservation or improvement of any property of the parties. A direct non-financial contribution to the acquisition of property includes an act of creating property such as building a matrimonial home. It involves any act which conserves or improves the property: see, for example, In the Marriage of Zappacosta (1976) 2 Fam LR 11,214; FLC 90–089. Significance of paragraph (b) There is relatively little case law on the

precise scope of s 79(4)(b). The reason is perhaps that non-financial contributions which are only arguably within this para can normally be regarded as falling within paragraph (c) (contributions to the welfare of the family), or even within s 75(o), and therefore to be taken into account under s 79(4)(e). In practice, therefore, it may not often be important to determine whether a particular contribution falls within para (b). [s 79.213] Contributions to the welfare of family — s 79(4)(c) Introductory comment This important paragraph was inserted in the Act by the Family Law Amendment Act 1983. There had previously been a provision recognising the contribution of a party as a homemaker or parent, but the drafting left it open to argument that such contributions had to be related in some way to the property of the parties. In fact, this narrow interpretation had been largely discredited by the early 1980s. The 1983 amendment resolved any remaining doubt, making it clear that the contribution is to the welfare of the family and is not confined to a contribution to the acquisition, conservation or improvement of property. No connection with property required It is clear that there is no need to show any connection between contributions to the welfare of the family and the property of the parties or either of them: see especially In the Marriage of Shaw (1989) 12 Fam LR 806 at 817–820; FLC 92–010 (FC); In [page 723] the Marriage of Napthali (1988) 13 Fam LR 146; (1989) FLC 92–021; In the Marriage of Gill (1984) 9 Fam LR 969; FLC 91–582, Nygh J said that the purpose of the amendment was to meet the criticism “that there is no logical connection between the contribution of a housewife as home-maker and parent and the acquisition, preservation and maintenance of assets, especially assets other than the matrimonial home”. See also In the Marriage of Ashton (1986) 11 Fam LR 457 at 469; FLC 91–777 (FC). In particular, it is quite possible for the court to make an order in relation to a particular item of property on the basis of a party’s contributions to the welfare of the family,

even though the contributions had no connection to that item of property: see In the Marriage of Shaw, above. Contribution may be to “business” assets It is not the case that this type of contribution can be reflected only in orders relating to “domestic” items of property: see In the Marriage of Napthali, above; In the Marriage of Albany (1980) 6 Fam LR 461 at 471; FLC 90–905. It may lead to orders relating to “business” assets: see In the Marriage of Elias (1977) 3 Fam LR 11,496; FLC 90–267; In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709; In the Marriage of Albany, above; In the Marriage of Dupont (No 3) (1981) 7 Fam LR 747; FLC 91–103. Recognition of domestic services It has been frequently said that the main purpose of the section is to give recognition to the position of the housewife who, by her attention to the home and the children, frees her husband to earn income and acquire assets: see In the Marriage of Rolfe (1977) 5 Fam LR 146 at 148; (1979) FLC 90–629 approved in In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449 at 461; FLC 91–507 (HC). See also In the Marriage of Wardman and Hudson (1978) 5 Fam LR 889; (1978) 4 Fam LN 44; FLC 90–466; In the Marriage of Crawford (1979) 5 Fam LR 106; FLC 90–647; In the Marriage of Aroney, above at Fam LR 540; In the Marriage of Albany, above. See also In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335 discussed, above, [s 79.193]. Not limited to contributions as home-maker or parent The contribution is also not confined to a contribution in the capacity of home-maker and parent. It has been said that it includes all contributions to the welfare of the family, including financial contributions: see In the Marriage of Ashton, above, per Strauss J at Fam LR 469. Contribution by non-party While s 79(4)(a) and (b), which concern economic contributions, specifically include contributions by a person on behalf of one of the parties to the marriage, s 79(4)(c) does not. Accordingly, in the absence of evidence about the manner in which non-economic contributions rendered by a non-party have contributed to the property of the parties, such contributions will not be taken into account: In the Marriage of

Brew (2002) 30 Fam LR 591; (2003) FLC 93–140; [2002] Fam CA 1178. Meaning of “family” In In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91–541 (FC), Fogarty J said at 794 that the words “constituted by the parties to the marriage and any children of the marriage” are really descriptive of the word “family” and are not intended to be a qualification to the wording of the section. See also In the Marriage of Gill (1984) 9 Fam LR 969 at 977; FLC 91–582 (Nygh J). The question however remains as to what persons are included within the meaning of the word “family”. In In the Marriage of Mehmet (No 2) (1986) 11 Fam LR 322; (1987) FLC 91–801 (FC), Nygh J said at 326–7, that the word “family” referred to a contribution by a spouse to another spouse or by a mother or father towards his or her children. It did not include relatives and other members of the household but only refers to the parties to the marriage and the children of the marriage. In support of this view Nygh J relied upon the principles set out in s 43. Non-family members A contribution to the welfare of persons who do not fall within the meaning of “family”, may nevertheless be taken into account under s 75(2)(o): see In the Marriage of Mehmet (No 2), above, per Nygh J at Fam LR 327; In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555. [page 724] [s 79.215] Assessing contributions to the welfare of family Substantial recognition It is well settled that the contribution of a party as home-maker and parent must be assessed “not in a token way, but in a substantial way”: see In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507 at Fam LR 451 (HC) per Gibbs CJ; 461 per Mason J; 470 per Wilson J; see also In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 (FC); In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92–335 In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555.

In cases in which the applicant spouse’s contributions are made exclusively under this head, and where that spouse’s contributions under this head are as substantial as could be expected, the fact that the respondent spouse may have made equally significant contributions under para (c) will not “cancel out” those of the applicant spouse. To hold otherwise would result in the respondent spouse’s financial contributions being the only ones counted as significant: see In the Marriage of Kennon (1997) 22 Fam LR 1 at 29; FLC 92–757; 139 FLR 118. Similarly, the fact that the parties have lived to a very high standard, thanks to the wealth of one of them, will not diminish the weight to be attached to the contributions of the other under para (c), where those contributions were expected by the other party, and where those contributions lived up to expectations: “the standard of living which one party provides to the other is not to be seen as a down-payment on a subsequent property settlement” (Kennon, at Fam LR 29). Equality of contribution Although there is, since Mallet, no presumption of equal contribution, it is possible for the court to arrive at a conclusion that in a marriage there has been an equality of contribution by each of the parties within his or her own sphere; for example, that of a wife as a home-maker and parent and that of the husband as a breadwinner: see In the Marriage of Mallet, above; In the Marriage of Henderson (1987) 11 Fam LR 529 (FC); In the Marriage of Lee Steere, above; In the Marriage of Bates (1985) 10 Fam LR 420; FLC 91–627 (FC). Relevance of the duration of the marriage The duration of the marriage may be relevant to the question of contribution made in the capacity of homemaker and parent as, the shorter the duration of the marriage, the less significance may be attached to purely domestic contributions: see In the Marriage of Ramsey (1978) 4 Fam LN 20; FLC 90–449; In the Marriage of Doyle (1980) 6 Fam LR 14; FLC 90–845; In the Marriage of Hirst and Rosen (1982) 8 Fam LR 251; FLC 91–230; In the Marriage of El Kalza (1982) FLC 91–200; In the Marriage of Gerbino and Hsu (1982) 8 Fam LR 618. Conversely, where the marriage is of considerable duration, the greater the likelihood that contribution by one party in the capacity of homemaker and parent will be treated as equal to the financial contribution of the other party, even where that financial contribution has been considerable: see In the

Marriage of Harris (1991) 15 Fam LR 26; FLC 92–254 (FC). ASSESSING SECTION 75(2) FACTORS [s 79.231] Introductory comments Section 79(4)(e) requires the court to consider the matters referred to in s 75(2) so far as they are relevant. The 14 paras of s 75(2) refer to a wide range of matters, broadly speaking having to do with the present and anticipated needs and resources of the parties. In making its decision the court must distinguish between the contributions under s 79 and the s 75(2) factors. Failure to do so will constitute a miscarriage of discretion: In the Marriage of Horsley (1991) 14 Fam LR 550; FLC 92–205. Link with maintenance The cross reference to s 75(2) thus requires the court not only to look at the parties’ contributions (s 79(4)) but also their needs and resources. These matters are also to be taken into account in applications for spousal maintenance. Combination of maintenance and property orders The reference in s 79(4) to s 75(2), and the reference in s 75(2) to orders made under s 79, give the court power to make a set of orders that create a just resolution of the parties’ financial affairs, and one that as far as possible will avoid further litigation: see s 81. See also [s 79.311]. [page 725] [s 79.233] Distinction between maintenance order and “section 75(2) factors” in s 79 order Introductory comments Although maintenance and property orders may be considered as components of a total resolution of the financial affairs of the parties, it is important to distinguish between maintenance orders and the matters listed in s 75(2). See, for example, In the Marriage of Miller (1984) FLC 91–542 (FC). Courts and commentators have sometimes referred to “the maintenance component” of s 79 orders. This usage can be confusing,

however, and in this commentary the phrase “s 75(2) factors” is preferred. In making its decision the court must distinguish between the contributions under s 79 and the s 75(2) factors. Failure to do so will constitute a miscarriage of discretion: In the Marriage of Horsley (1991) 14 Fam LR 550; FLC 92–205 (FC). Maintenance and property orders distinguished A useful characterisation of the distinction between property orders and maintenance orders was offered in Weiss v Weiss referred to In the Marriage of Taylor (1977) 3 Fam LR 11,220 at s11,231; FLC 90–226. “A maintenance order is simply an order for the payment of money usually at regular intervals for the support of the person being maintained. The essential feature of such an order is that unless ordered to be paid in one lump sum, it rises and falls with the need of the person to be maintained, having regard also to the means of the person paying the maintenance …” By contrast, a property order: “… involves the transfer of property fixed in value, the payment of a fixed sum, or the assumption of a fixed liability. It does not vary with the needs of the person receiving its benefits and its effects are intended to survive the death of either party. It is meant to be a permanent adjustment of the capital assets and liabilities of the parties and of its essence it is based upon capital interests rather than on the income of the parties.” See also below, under the main heading, PROPERTY ORDERS. Section 75(2) factors in s 79 order do not preclude later maintenance order The inclusion of s 75(2) factors in a property order does not preclude a spouse from later claiming periodic or lump-sum maintenance: see In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91– 201; In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90– 897; In the Marriage of O’Brien (1982) 8 Fam LR 691; (1983) FLC 91–316. A maintenance component may be available in circumstances where a maintenance order is not available: see In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469. Section 72 “need” is not necessary for s 75(2) factors to be included A

person who does not have a “need” in the sense of being unable to support himself or herself adequately within the meaning of s 72 may nevertheless obtain a s 79 order which is enlarged by reference to s 75(2) factors. See for example, In the Marriage of Williams (1984) 9 Fam LR 789; FLC 91–541; In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469 (HC); In the Marriage of Beck (No 2) (1983) 8 Fam LR 1017; FLC 91–318. Neither is the application, within proceedings for property settlement, of the s 75(2) factors restricted to financial need. These factors have been held to have an existence within a s 79 application which is quite different from proceedings for spousal maintenance. See In the Marriage of Collins (1990) 14 Fam LR 162; FLC 92–149 (FC). [s 79.235] Assessment of s 75(2) factors Matters to be considered Section 79(4)(e) requires the court to consider all those circumstances which relate to the present and future needs and to the means, resources and earning capacity, actual and potential, of the parties. The Act does not indicate the relative weight which should be given to the different circumstances, or indicate how a conflict between opposing considerations should be resolved. Those things are left to the court’s discretion, which must, of course, be exercised judicially: see In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449 at 451; FLC 91–507 (Gibbs CJ). [page 726] All assets to be considered In reviewing the maintenance element the court is required to look at all of the assets of the parties, whenever and however acquired, and whether or not a party made any contribution to them. The court should look at all the income, property and financial resources of each party: see In the Marriage of Tuck (1979) 7 Fam LR 492 at 498; (1981) FLC 91–021 at 76,219. See further [s 79.65] and [s 79.69]. Weight to be attached to s 75(2) factors It is difficult to quantity what weight should be attached to s 75(2) factors, as distinct from contribution

factors: it varies greatly from one case to another. However in recent times it seems that Full Courts have tended to emphasise the importance of s 75(2) factors. In In the Marriage of Clauson (1995) 18 Fam LR 693 at 709; FLC 92–595, the Full Court held that in the circumstances of that case, where the wife had the care of four young children and there was an enormous disparity in income and income earning capacity of the parties, an allowance of 15% fell “well below the legitimate exercise of the wide discretion” of the trial judge. The Full Court also commented as follows (at Fam LR 710): “There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its [sic] real impact, and we think there is legitimacy in the views expressed in more recent times that the court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.” The suggestion in this passage that s 75(2) factors should be considered in money rather than percentage terms is illustrated by the Full Court’s decision in In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118, in which the trial judge’s award to the wife of $400,000 was increased by the Full Court by a further $300,000 in recognition of the s 75(2) factors, where the husband had assets of nearly $9m and an annual income of about $1m. The clearest explanation for the heightened significance of the s 75(2) factors is to be found in the Full Court’s decision in In the Marriage of Waters and Jurek (1995) 20 Fam LR 190; FLC 92–635, where Fogarty J said at Fam LR 200: “In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party, which were recognised until separation, and which largely determined or influenced the personal development of that party and the arrangements made between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home — in circumstances where it was the joint decision of the parties that that be the way in which they conduct their affairs …”

Thus, a disparity in earnings, both actual and potential, a disparity in superannuation entitlements and an imbalance in future child care responsibilities, will now, it seems, trigger a substantial adjustment for the s 75(2) factors. Despite the rationale offered in the quotation above, the financial disparities seemingly need not be attributable to the marriage, nor to the way in which the parties have arranged their lives during it: in Waters and Jurek itself, for example, there was no evidence that the wife’s lower income was in any way associated with her role as wife and mother. However, the Full Court has observed on a number of occasions that it is not the purpose of s 79 to enable the court to engage in “social engineering”, or to “even up” the parties’ financial positions on divorce, which suggests that some link between the economic disparities between the parties and the circumstances of the marriage must be shown: see Waters and Jurek above; In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118. In both these cases, the Full Court has employed a partnership analogy in order to explain the process taking place with respect to the s 75(2) factors — that where the parties have arranged their lives in a way that is mutually beneficial, but which harms the economic prospects of one more than the other, the court will not allow the gains and losses of the failed partnership to lie where they fall. To the extent that those gains and losses cannot be equalised through an [page 727] assessment of contributions, they will be dealt with under s 75(2). The exercise is governed by the factors in s 75(2) itself, and by the (perhaps uncertain) limits set by the self-imposed ban on “social engineering”. It has been said that the s 75(2) factors will be especially important where the pool of assets is very small, but that they must not dominate the court’s thinking to the exclusion of the contribution factors: In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555. Not an accounting exercise In assessing the weight to be given to the s 75(2) factors, a court should not attempt to give each factor an individual weighting

in isolation from each other. As the Full Court put it in In the Marriage of Brandt (1997) 22 Fam LR 97 at 107; FLC 92–758 at 84,343, the process of weighting the s 75(2) factors “is not generally an accounting exercise nor is it analogous to an award of damages or compensation which might call for a division into component parts”. Instead, it is a process of balancing all the factors specified in s 79 as a whole. [s 79.237] Responsibility for children Introductory comments There is no doubt that the fact that a party has the responsibility for children is a significant factor in s 79 proceedings. The court has frequently granted to a spouse who has an ongoing responsibility for the care of children and the accommodation of those children an additional percentage of marital assets. On the other hand, the courts have expressed caution about the extent to which this factor should affect the outcome of s 79 proceedings. The cases reflect considerable differences of emphasis. Responsibility for children to be given weight The fact that a spouse has the care of children and may be likely to retain that care has often been treated as a weighty factor to be placed on the scales in favour of that spouse. See In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90– 469 (HC); In the Marriage of Park (1978) 4 Fam LR 488; FLC 90–509; In the Marriage of Burdon and Nikou (1977) 3 Fam LN 44; FLC 90–293; In the Marriage of Mueller and Hegedues (1979) 5 Fam LN 14; FLC 90–708; In the Marriage of Lange and Moores (1979) FLC 90–651; In the Marriage of Menz (1980) 6 Fam LR 325; FLC 90–852; In the Marriage of Zdravkovic (1982) 8 Fam LR 97; FLC 91–220; In the Marriage of Howes (1981) 7 Fam LR 650; FLC 91–044; In the Marriage of Perry (1979) 5 Fam LR 454; FLC 90–701; In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92–569; In the Marriage of Georgeson (1995) 19 Fam LR 302; FLC 92–618. Sale deferred The court may make an order deferring the sale of a matrimonial home for the sake of a child’s accommodation: see In the Marriage of Pertsoulis (1979) 4 Fam LR 613; FLC 90–613; see also In the Marriage of Kemp (1976) 2 Fam LR 11,289; FLC 90–109; In the Marriage

of Petta (1979) FLC 90–608. Property orders should not substitute for child support In other authorities, courts have said that caution should be exercised when considering the future maintenance needs of children in relation to a property settlement for the benefit of a spouse. It has been said to be undesirable to make a greater settlement of property for the benefit of one of the spouses for the purpose of providing maintenance for children: see In the Marriage of V and G (1982) 8 Fam LR 193; FLC 91–207 (FC); see also In the Marriage of Zdravkovic (1982) 8 Fam LR 97 at 201; FLC 91–220. See also [s 79.313]. The court has generally been cautious about linking property orders with child maintenance because it is difficult to quantify the maintenance obligation especially when a child is young; it is not possible to make a maintenance order final or to preclude a further application or variation; and the liability to maintain children must relate to the resources of the party in question. It has been held that though there is a policy objection against making lump sum orders in relation to children for maintenance, it does not mean that such orders should never be made. It is basically a matter for the court to determine in the circumstances of each case and the court must [page 728] keep in mind in each such case the general undesirability of making such orders. A court should not make an order for lump sum maintenance as a back-door way of obtaining from a party’s capital assets what could not have been obtained out of that party’s income: see In the Marriage of Racine and Hemmett (1982) 8 Fam LR 716 at 718; FLC 91–277 (Nygh J). See also In the Marriage of Tomasetti (2000) 26 Fam LR 114; FLC 93–023, in which the Full Court said (at Fam LR 138) that “[I]n this context, the whole is not necessarily the sum of its component parts, and at the very least one has to stand back, at the end, and look at the final result to ensure that the cumulative process has not produced a manifestly unjust result”.

[s 79.239] Financial circumstances of each party — s 75(2)(b) Introductory comments The respective financial circumstances of the parties are clearly of great importance. The following authorities are examples. One party’s high income A court may provide a further amount in a property order if one spouse has greater income or assets or financial resources than the other. If, for example, a husband has a high income earning potential which is greater than that of the wife, then this may be a factor which indicates that justice requires that the wife receive an additional provision out of the existing assets: see In the Marriage of Matthews (1980) 6 Fam LR 142 at 145; FLC 90-887 at 75,601. It seems likely that, consistently with the ban on “social engineering”, there will need to be evidence that the income disparity is attributable to the marriage and to mutual decisions made by the parties to the marriage: In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92-757; 139 FLR 118. More recently, however, the Full Court (citing In the Marriage of Collins (1990) 14 Fam LR 162; FLC 92–149) has suggested that there need be no link between the financial disparity and the marriage before an applicant can be awarded a share of the other party’s significant wealth: see In the Marriage of Farmer and Bramley (2000) 27 Fam LR 316; FLC 93–060, per Kay J (a case involving a significant postseparation lottery win). The overriding question is what is “just and equitable in the circumstances”. One party’s future prospects Where a husband had sufficient resources in his own name which, though the use of his business and professional skills, he could be expected to build up, and the wife, on the other hand, had less opportunity to increase the value of her present investments, then the wife was entitled to receive an additional award: see In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872. Financial resources One very important aspect of s 75(2) in property cases is that it allows the court to have regard to the “financial resources” of the parties: see s 75(2)(b). This phrase has been widely defined. It includes expectations that fall outside the definition of property, such as expectations

arising under a discretionary trust. Although s 79 limits the court to making orders about property, in doing so the court may have regard to things that are not property. [s 79.240] Reasonable standard of living — s 75(2)(g) In cases where distribution based on contributions alone would lead to a wide disparity of shares received, it may be relevant to consider the length of the marriage and the standard of living enjoyed by the parties during it. In In the Marriage of Dickson (1999) 24 Fam LR 460; FLC 92–843, the Full Court held that after a long marriage (26 years), where both parties were towards the end of their working lives, a trial judge had been wrong to distribute the available assets on the basis of contributions alone (75:25), where this left the wife with three times as much capital as the husband. Such an outcome was not just and equitable, and the Full Court readjusted the shares to 70:30 on the basis of the s 75(2) factors. [s 79.240A] Contribution to the earning capacity of other spouse — para (j) The Full Court has emphasised the importance of giving this paragraph “realistic effect” in property adjustment cases: see In the Marriage of Mitchell (1995) 19 Fam LR 44; FLC 92–601; Re B and B (No 2) (2000) 26 Fam LR 437; FLC 93–031. It is likely to have particular effect where the [page 729] disparity in earning capacity of husband and wife is significant, where the marriage has been a long one, and where the wife has been out of the work force for a long time as a consequence of supporting the husband in his career. Paragraph (j) will often be considered together with para (k) (length of marriage and effect on applicant’s earning capacity): see Mitchell above. The language of “contribution” in this context should not be confused with the contributions envisaged by s 79(4)(a) to (c). The earning capacity to which the contributions are made is not itself an item of property, but is instead a “financial resource” falling to be considered under s 79(4)(e). [s 79.253] Long service leave A long service leave entitlement will count as

property where the employee has already been paid a capital sum in lieu of the entitlement. It may be regarded as a “financial resource” rather than property where there is a real likelihood that the employee will take a lump sum in lieu of the entitlement: see In the Marriage of Harrison (1996) 20 Fam LR 322; FLC 92–682. It may also be regarded as a financial resource if the employee intends to put the period of leave to some financially productive use: see In the Marriage of Gould (1995) 20 Fam LR 1; (1996) FLC 92–657; and see the discussion at [s 75.15]. It will not be a resource if the employee intends merely to enjoy a period of leave. See also In the Marriage of Whitehead (1979) 5 Fam LR 308; FLC 90–673; In the Marriage of Nolan and Ingram (1984) 9 Fam LR 808 at 818–820; FLC 91–585; In the Marriage of Burke (1992) 16 Fam LR 324; (1993) FLC 92–356. [s 79.255] Legal costs The question often arises how the court should treat legal costs (both paid and payable) relating to the s 79 proceedings. The question was considered by the Full Court in Chorn v Hopkins (2004) 186 FLR 240; 32 Fam LR 518; (2004) FLC 93-204; [2004] FamCA 633. Their Honours Finn, Kay and May JJ after reviewing the authorities stating: 56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds. 57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them. 58. If funds used to pay legal fees have been generated by a party postseparation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may

need to be looked at differently from other post-separation income or acquisitions. 59. Outstanding legal fees themselves are generally not taken into account as a liability. 60. If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account. For a discussion of adding back notional property generally see Bevan v Bevan (2013) 279 FLR 1; 49 Fam LR 387; [2013] FamCAFC 116; BC201350384; Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; [2012] HCA 52; BC201208691 and Vass v Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51; BC201550130 at 138–139. Kay J held, at Fam LR 536 and FLC 83,080, that this approach was “well within the discretion” of the trial judge. The Full Court overruled certain passages in In the Marriage of Lee Steere (1985) 10 Fam LR 431 at 441; FLC 91–626 and In the Marriage of Bates (1985) 10 Fam LR 420 at 427; FLC 91–627 to the extent that they are inconsistent with the decisions in Bland and Farnell. [page 730] [s 79.257] Any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account — s 75(2) (o) Family violence In In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92–757; 139 FLR 118 (discussed at [s 79.195]), the Full Court confirmed that questions of conduct are not to be taken into account in spousal maintenance applications, thereby confirming the earlier case law such as In the Marriage of Soblusky (1976) 2 Fam LR 11,528; FLC 90–124. In relation to s 79 applications, however, the Full Court appeared at least willing to accept that, in assessing the s 75(2) factors for s 79 purposes, it might be appropriate for a

court to have regard to conduct in the specific form of family violence. The court said (at Fam LR 23): “This is an important issue — whether conduct is relevant in the s 75(2) issues. The argument is that if the circumstance is that the claimant suffers from ill-health, either physical or psychological, or has a reduced earning capacity because of physical or psychological deficits, those matters would in any event be taken into account under the relevant paragraphs of s 75(2) and given full weight. The circumstance that that was brought about wholly or partly as a result of the other party’s conduct would therefore be irrelevant and in isolation would be seen as punishing the conduct itself, a role better left to the common law. Chisholm J in Matrimonial Property Reform: Current Proposals and Issues, March 1994, after referring to the decision in In the Marriage of Hack (1980) 6 Fam LR 425; FLC 90–886, where the wife’s capacity for employment had been adversely affected by an assault by the husband, said that: “‘Her position (that is, her incapacity to work) would be exactly the same if she had been knocked over not by her husband but by a bus. In each case it is her lack of employment and her inability to obtain employment that is relevant for the purposes of financial adjustment.’ “This view has attractions to it. But it seems to us to carry with it the assumption that any deficit, such as ill-health, unemployment, etcetera, will be given full effect within s 75(2) even if it arose from factors which were unconnected to the marriage, and may have occurred long after the marriage ceased. This gives rise to the ‘social engineering’ objection. We have some reservations about this approach and prefer to express no final view about it.” It may be some time before this issue is clarified. Assisting the other spouse to discharge obligations of support Also relevant under s 75(2)(o), but as a factor working in favour of, rather than against, a party, is the fact that a spouse may have contributed to the welfare of children whom he or she is not obliged to support (eg, the other spouse’s children from a former marriage). In In the Marriage of Robb (1994) 18 Fam LR 489; (1995) FLC 92–555, the Full Court upheld a trial judge’s decision to take account of such contributions made by a husband in the context of as 79 application, by way of s 75(2)(o). The contributions made by the husband

assisted the wife in that case to discharge her obligations to support her children. The Full Court justified this in part on the basis that, since the children in question were not “children of the marriage”, the husband’s contribution could not be taken into account under s 79(4)(c), but were properly taken into account under s 75(2)(o). Contributions on behalf of a party to the marriage A contribution made on behalf of a party to a marriage may count as a contribution of that party under s 79(4); it may also count as a relevant “fact or circumstance” under s 75(2)(o), provided that “double counting” of contributions already allowed for under s 79(4)(a)–(c) is avoided: see In the Marriage of Aleksovski (1996) 20 Fam LR 894; FLC 92–705 (grandparent undertaking child care). OTHER FACTORS TO BE CONSIDERED UNDER S 79(4) [s 79.271] Effect on party’s earning capacity — s 79(4)(d) Introductory comment Orders made under s 79, especially those that require the sale or transfer of income-producing property such as a farm or business, may have a profound effect on [page 731] the earning capacity of one or both parties. Subsection (4)d) accordingly requires the court to consider the effect of any proposed order upon the earning capacity of either party. Orders should if possible preserve earning capacity The main effect of subs (4)(d) is that in deciding what orders to make, the court should attempt to minimise any adverse effect on the earning capacity of a party, for example by avoiding if possible orders that require the sale of income-producing property, or orders requiring a party to give up his or her present employment. In many cases, it may be appropriate to make an order that allows a party considerable choice as to how the financial adjustment is to be made. For example, if a respondent has several income-earning properties,

the court may be inclined to make an order for a lump sum payment (leaving it to the respondent to choose how to raise the money) rather than to order the respondent to sell or transfer a particular property. For general statements to this effect, and examples, see In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626; In the Marriage of Bates (1985) 10 Fam LR 420; FLC 91–627; In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011; In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872; In the Marriage of Aroney (1979) 5 Fam LR 535; FLC 90–709; In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,491; FLC 90–056. Damage to earning capacity may be unavoidable Where there is one main income-producing item of property, such as a farm, the court may in effect have to choose between preserving the income-producing asset and effecting a proper alteration of the parties’ interests. It is submitted that despite some statements in the authorities apparently to the contrary, subs (4)(d) does not mean that the court should necessarily preserve the income-producing asset. In such cases, the court must do the best it can in all the circumstances, having regard both to the appropriate alteration of the parties’ interests and to the consequences of making orders relating to income-earning property. See especially In the Marriage of Magas (1980) FLC 90–885 (FC), quoted below. General principle stated The general principle, which is not in doubt, was conveniently stated by the Full Court (Fogarty, Maxwell and Nygh JJ) in In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 at Fam LR 441–2: “Section 79(4)(d) directs the court to consider the effect of any proposed order on the earning capacity of either party to the marriage. This is clearly a relevant consideration where the only or major asset available for division between the parties is the asset from which one of the parties derives his or her livelihood, whether it be a business, a professional practice [or] a farm. But it is not an absolute factor: it is one of several factors to be considered in arriving at an order which in all the circumstances is just and equitable: s 79(2). An order which would deprive a party substantially of what he or she is entitled to by reason of contribution would not normally be considered just and equitable.”

Farms The problem is often particularly most acute where the principal asset and source of income is a farm which includes the matrimonial home. In at least one early decision it was suggested that there might be a special rule to the effect that an order requiring the sale of the farm should never be made: In the Marriage of Scott (1977) 3 Fam LN 19; FLC 90–251 (Demack J). This is not so. There is no separate rule relating to farms, and such an order may be required to avoid injustice. In In the Marriage of Magas, above the Full Court said at (1980) FLC 75,591: “If arrangements can be made which would relieve the spouse (who is working a farm as a farmer) from selling the farm, but at the same time doing justice to the claim of the spouse who is not living on the farm, then of course those arrangements should be made … If there is no other way to do that which is just and equitable then a sale must take place. It becomes an incident of the sad fact that, when 2 persons separate, property which might have given them together a reasonable competence will not be sufficient for each when divided. That is an inescapable situation which cannot be used as an argument to deprive one party of that to which he or she is otherwise properly entitled.” [page 732] This passage was approved by the Full Court In the Marriage of Lee Steere, above, (1985) 10 Fam LR 431; FLC 91–626 at 10 Fam LR 440 and In the Marriage of Bates, above. Methods of avoiding sale It was said in In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 at 10 Fam LR 442, that para (d) is mainly relevant to the question of the ways and means in which the entitlement of a party can be met, without causing the destruction of a business or other income-earning asset. Methods include: Where possible making orders relating to non-income earning property, or for lump sum payments. Examples include In the Marriage of Hayne (1977) 3 Fam LN 25; FLC 90–265 (lump sum); In the Marriage of James (1978) 4 Fam LR 401; FLC 90–487 (lump

sum); In the Marriage of Talbot (1979) 5 Fam LR 766; FLC 90–696 (other land settled on wife). The court may postpone the sale for a time: see In the Marriage of Magas, above. But the payment cannot be postponed for too long, unless the amount earns interest or is expressed as a percentage on sale, and adequate arrangements are made for the support of the applicant and any child in the meanwhile: In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91–626 at 10 Fam LR 442. See also In the Marriage of Way (1996) FLC 92–702, where the trial judge allowed the husband the opportunity to purchase a farm from the wife (a share of which would otherwise have gone to her on a property distribution), and made allowances for the additional liabilities the husband would incur in making that purchase when assessing the s 75(2) factors. [s 79.273] Any other order made under the Act affecting a party to the marriage or a child of the marriage — s 79(4)(f) Paragraph (f) provides that the court should take into account any other order made under the Act, affecting a party or a child of the marriage. Such orders would include injunctions, custody and access orders, and spousal maintenance orders. Child maintenance orders made under the Family Law Act would also be included. Child support Child support (as to which see Vol 2 under the guide card, CHILD SUPPORT) support legislation would not be included, but could be taken into account under other provisions, such as s 75(2)(o). PROPERTY ORDERS [s 79.291] Introductory comments Wide terms of s 79(1) Section 79(1) provides that “… the court may make such order as it considers appropriate altering the interests of the parties in the property, including …”. The words that follow are words of extension, not limitation: “Section 79 is obviously aimed at conferring on the court the power to make a wider variety of orders than those specifically expressed as being included therein …”: In the Marriage of Collins (1977) 3 Fam LR

11,424 at 11,434; FLC 90–286 (FC). This is therefore a wide and flexible power. Its scope is examined in the following paragraphs. Section 80 Section 80 sets out a list of specific orders that can be made by the court “in exercising its powers under this Part”. It should be read together with s 79. “Settlement” The word “settlement” was used in the corresponding provision of the Matrimonial Causes Act 1959: s 86. It was of great importance in that Act, because the section allowed the court only “to make such a settlement of property …”. By contrast, the wide words of the first part of s 79(1) “such order as it considers appropriate …” make it unnecessary in most (perhaps all) cases to base orders expressly on the reference to “settlement”. In any case, the Family Court has interpreted the term widely. It includes transfers of property to or for the benefit of spouses and children of the marriage. See In the Marriage of Mullane (1980) 5 Fam LR 801; [page 733] FLC 90–826 at Fam LR 806 (FC), where authorities under the previous legislation are cited. The subsequent High Court appeal casts no doubt on this part of the judgment, and indeed the High Court referred to the “wide denotation” of the term: Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777 at Fam LR 780; FLC 91–303. Conveyancing practice Compliance with ordinary conveyancing practice is no excuse for disobeying the terms of an order. Thus if an order provides that one party should do all things necessary to transfer the property to the other, that party must deliver a registrable form of transfer, even where normal conveyancing practice is for the purchaser to provide the form of transfer: In the Marriage of Bugg (1989) 13 Fam LR 471; (1990) FLC 91–110 (FC). [s 79.293] Nature of orders under s 79

Characterising s 79 orders It is sometimes difficult to know whether a particular order has been made under s 79 or under some other section, as there is a close connection in practice between orders under s 79 and other orders under Pt VIII. Certain provisions, such as ss 80 and 81, apply both to maintenance orders and orders under s 79. Some orders, such as an order for lump sum payment, can be made either under s 74 (maintenance) or s 79. Again, at least at one time it was not clear whether an order for exclusive occupation of property was made under s 74, s 79 or even s 114 (injunctions). Why it matters It is nevertheless important to be able to identify what kind of order was made. Orders under s 79 can be altered only in the limited circumstances of s 79A, while alteration of orders under ss 114 and 74 may be more readily obtained, the latter being subject to variation under s 83. See Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303. General principle — Mullane v Mullane In Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303, the High Court held that the expression “alteration of property interests” should be confined to the stricter meaning it bears in the law of real and personal property. As such, s 79 does not authorise the mere modification of a liberty or personal right to enjoy property. In particular an occupation order relating to the matrimonial home, which merely excludes one spouse from the enjoyment by the other party, does not alter the interests in that property. The court (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ) said at Fam LR 782, that s 79 on its proper construction “refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right”. However it could include interests of a kind that are not assignable or transferable: “an order under s 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring”. In so holding, the High Court considered a number of earlier Family Court authorities and overruled In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299, which had held that an order for occupation could be an order altering the interests of parties in property and thus could be made under s 79.

Importance of characterisation before 1983 Prior to 1983, there was additional significance in the characterisation of orders. Because of constitutional difficulties, the jurisdiction under s 79 was not usually available until one party had filed an application for dissolution, at the earliest 12 months after the parties had separated. It was often necessary to make orders relating to property, if only of an interim nature, within that time. Various devices were used in attempts to plug the jurisdictional gap, including the use of orders under s 114. Thus before 1983 the characterisation of orders affected the question whether the court had jurisdiction to make them during the 12 months separation period. Since the insertion of para (ca) (i) of “matrimonial cause” in 1983 this problem has disappeared: the court may now exercise jurisdiction under s 79 whether or not proceedings for principal relief (for example, dissolution) have been instituted. [page 734] [s 79.295] Orders which can be made under s 79 Introductory comments We consider here authorities illustrating the kinds of orders that can be made under s 79. It is not intended to be comprehensive: other types of orders might well fall within the wide words of s 79. Lump sum payments These are discussed at [s 79.301]. Transfer of interest in property Most obviously, the court may order that one party transfer to the other his or her right, title and interest in property. Such an order need not of course refer only to land but can be made with reference to other assets such as furniture or shares: see In the Marriage of Evans (1978) 4 Fam LN 13; 30 FLR 566n; FLC 90–435; or an interest in a partnership: see In the Marriage of Hayne (1977) 3 Fam LN 25; FLC 90– 265. Transfer or order subject to conditions The court may order that a transfer of property be made subject to conditions, such as the payment of a fixed amount to the divested party: see for example In the Marriage of O’Shea

(1977) 3 Fam LN 23; In the Marriage of Hayne, above; In the Marriage of Forrest (1977) 3 Fam LN 41; In the Marriage of Evans, above. See also In the Marriage of Garside (1978) 4 Fam LN 53; FLC 90–488, where the court made an order that, as a condition precedent to the payment of a sum of money, the recipient of such sum should make an irrevocable will under the terms of which such a party will leave all his or her estate of whatsoever nature to the children of the marriage. Indemnity The court may make an indemnity order: see In the Marriage of Anderson (1981) 8 Fam LR 161; FLC 91–104. If an order is made relating to the transfer of property the court may and often will order that the party who is so divested is entitled to an indemnity in respect of any rates, charges and outgoings for which he or she might otherwise be liable: In the Marriage of Zappacosta (1976) 2 Fam LR 11,214; FLC 90–089. Charge The court may order that a charge be created upon the property in favour of the party divested, and expressed either as a fixed percentage of its value or as a fixed charge to become payable upon the occurrence of certain specified events: see Barker v Barker (1976) 13 ALR 123; 2 Fam LR 11,453 (Crawford J) (FC). Trust for sale The court may order property to be held in trust for sale in proportions specified by the court: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483; FLC 90–056; see also In the Marriage of Bourne (1977) 3 Fam LR 11,114; In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90–294; Velterop v Velterop (1977) 3 Fam LN 3. Option to purchase In an appropriate case one party may be given the first option to buy the other out: see In the Marriage of Frew (1977) 4 Fam LN 2; (1978) FLC 90–422. Reimbursement for outgoings Provision may be made for reimbursing a party for outgoings and improvements paid for by him or her: see for example, Velterop v Velterop, above. Sale of jointly-owned property The court may order the sale of jointlyowned property together with the division of the proceeds. The court may

order the sale of a property jointly held even if the interests of the parties in that property were not otherwise changed: see In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90–294; contra, In the Marriage of McDougall (1976) 1 Fam LR 11,581 at 11,589; FLC 90–076: Asche J. Creating a new right In In the Marriage of Parker (1983) 9 Fam LR 323; FLC 91–364 at 9 Fam LR 362, Nygh J said that the order need not be one for the transfer of an existing right: it may give rise to a new one. [page 735] [s 79.297] Orders which cannot be made under s 79 Introductory comments We here consider decisions which hold that certain orders cannot be made under s 79. Occupation orders An order or injunction granting a party the right to occupy property may be made under ss 114, or 74, but is not an order under s 79: Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303 (HC). Not mere suspension of right Mullane v Mullane, above, is clear authority for the proposition that a temporary suspension of a party’s right to deal with his or her property does not so affect his or her interest in the property as to alter it within the meaning of s 79. Not merely personal rights See In the Marriage of Parker (1983) 9 Fam LR 323 at 326; FLC 91–364, where Nygh J said that an order under s 79 must not be “mere personal right”. See also In the Marriage of Hughes (1984) 9 Fam LR 610; FLC 91–549. [s 79.299] Should the court award a fixed sum or a percentage interest in property? Introductory comment The court sometimes has to choose between making

orders in terms of shares of property (for example, an order dividing the property in favour of the wife 60:40) and orders in terms of specific amounts (for example, an order that the matrimonial home be transferred to the wife on payment of a specific sum). In determining the form of the order, the court should take into account the circumstances of high inflation in the community and, in particular, fluctuations in the value of real estate. Preference for ordering a percentage rather than fixed sum The Full Court has held in In the Marriage of Waters (1981) 6 Fam LR 871; FLC 91– 019 at Fam LR 875 that although each case should be considered on its merits, in general a proper approach is: “(a) Generally it is preferable to make order which give to each party a percentage of the current value of the property rather than a fixed amount. This is especially so where a future sale is proposed as there may be delays in carrying into effect such an order. “(b) It may well be proper to order a fixed amount in a particular case provided there is available a proper and recent valuation and it is clear from the orders that such an amount is to be paid within a relatively short period of time. If a later sale is provided in default of payment the considerations referred to in (a) above would ordinarily apply in relation to an order for sale. “(c) In any event it is usually reasonable to include an order for interest at current rates to operate at least from the due date of payment.” See also In the Marriage of Nolan and Ingram (1984) 9 Fam LR 808 at 823; FLC 91–585; In the Marriage of Tiley (1980) 6 Fam LR 528 at 533–4; FLC 90–898 (FC). Binding guideline The above quotation from Waters was re-affirmed In the Marriage of Docters van Leeuwen (1990) 14 Fam LR 130 at 133; FLC 92– 148. The Full Court (Fogarty, Nygh and Rowlands JJ) said that it represented a guideline that was binding on trial judges in the sense that if the guideline is not followed and there is no adequate explanation, the trial judge’s discretion will have miscarried: see 14 Fam LR 130 at 134. See also [s 79.155]. [s 79.301] Lump sum payments

Introductory comments It is clear that the court can provide spousal maintenance by making an order for a lump sum payment under s 72, and can make orders relating to specific items of property under s 79. But can the court make orders for payment of a lump sum under s 79? On the one hand such orders may often be a desirable way of adjusting the parties’ financial affairs: unlike orders for the transfer of specific items of property, an order for a lump sum payment leaves the party free to make whatever arrangements are most convenient to provide the money: see the [page 736] discussion in In the Marriage of Collins (1977) 3 Fam LR 11,424 at 11,433– 4; FLC 90–286. On the other hand it may be thought that an order for a simple lump sum payment falls outside the words of s 79(1), being neither a settlement nor an order altering the interests of a party in property. Examples Examples of orders involving lump sums include In the Marriage of Powell (1978) 4 Fam LN 22; FLC 90–443; In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90–898; In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027. A wide view of s 79 — Collins In In the Marriage of Collins, above, the Full Court (Asche, Fogarty and McGovern JJ) took a wide view of s 79. Following remarks in In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90–217 and Lansell v Lansell (1964) 110 CLR 353 at 361 the Full Court held at Fam LR 432–4 that the section should be given a wide and generous interpretation to allow the Act to function effectively. Under s 79: “[T]he court is empowered to make an order in any form that it thinks is appropriate in the way of readjusting the property of the parties up to and including the point of extinguishing the interests of one or both of the parties in all of their property … the intention of s 79 is to enable the court not only to make orders altering the interests of the parties in particular items of property, but also to take into account all the property of the parties and make an order in any form that it considers will best meet the justice and equity of

the case. This includes, of course, an order for the payment of a lump sum which having already been given the power by s 79(1), the court may in any case exercise under s 80(a).” This decision appears to overrule In the Marriage of Slattery (1976) 2 Fam LR 11,251 at 11,254; FLC 90–110 (FC). Other authorities Other relevant decisions, which do not however clearly settle the question, include In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90–310; In the Marriage of Lyons (1978) 4 Fam LN 37; FLC 90–459. Must there be a link with property? In the Marriage of Collins, above, appears to hold that there can be under s 79 a simple order for the payment of a lump sum. This must no doubt be qualified by the requirement that there must be in existence property of the parties or either of them, since otherwise there would be no jurisdiction under s 79: see [s 79.63]. Is there any further requirement that there be some connection between the lump sum order and property? It appears not. In In the Marriage of Stowe (1980) 6 Fam LR 757 at 779; (1981) FLC 91–027, the Full Court (citing Collins, above, and In the Marriage of Kaljo (1978) 4 Fam LR 190; FLC 90–445) pointed out that an order under s 79 does not have to be directed to a specific item of property. It said that under s 79 the court could “order the settlement of a lump sum ascertained in relation to an interest in the property of either party … the court can provide that its order may be satisfied by the transfer or settlement of such other property which may be under the control of a party (for example, property of a company in which a party has a controlling interest)”. It seems therefore that providing there is property of the parties, and the order is based on considerations set out in s 79, an order for a lump sum payment need have no other specific link with any item of property. It must be admitted, however, that although this result is very convenient it stretches the language of s 79(1) considerably, and Dickey A, Family Law, pp 399 and 527, suggests that some closer link may be necessary. Existing authorities leave the question in some doubt. Characterisation of lump sum order As noted earlier, where a lump sum order is made, it may be important to determine whether it is made under s 79 or s 74 (maintenance), since (for example) in the former case a further

property order can only be made under s 79A, whereas maintenance orders can be more easily modified: s 83. Determining this question may in some cases be difficult, but it is submitted that it is relevant (a) whether the court expressly relies on s 74 or 79; and (b) whether the reasons for the order appear to be based on the criteria in s 79. [page 737] [s 79.303] Joint tenancy — when is it severed? Introductory comments In several cases the courts have considered whether steps associated with s 79 proceedings, such as the filing of an application or the making of an order, have the effect of severing a joint tenancy in the subject property General principles A joint tenancy can be severed at common law in three ways, namely by disposal of one of the interests, by mutual agreement, and by a course of dealing that indicates that the parties treat their interests as interests in common: see In the Marriage of Pfeiffle (1989) 13 Fam LR 692 at 695; (1990) FLC 92–123. A mere declaration of intention does not effect a severance: see Patzak v Lytton and Registrar of Titles (1984) 9 Fam LR 737; FLC 91–550; Slater v Slater (1987) 12 Fam LR 1. Filing application It has been held that the mere filing of an application under s 79 does not effect a severance of a joint tenancy, even if both parties file an application. No inference of mutuality can be drawn from the filing of an application under s 79, as an application may be withdrawn at any time: see In the Marriage of Pertsoulis (1979) 4 Fam LR 613; FLC 90–613; Patzak v Lytton and Registrar of Titles, above. It is conceivable however that in combination with other circumstances the filing of an application (like any other behaviour) might constitute evidence showing, under ordinary principles, that severance had been effected. Agreement leading to consent order may effect severance In the case of a consent order the parties’ agreement, as distinct from the court’s order, may

(depending on its terms) effect a severance. If the agreement shows a common intention to effect a severance, the failure of consequential arrangements for example, for sale, will not prevent the severance from occurring. See generally In the Marriage of Pfeiffle, above, in which there is an extensive discussion of the authorities. See also Slater v Slater, above. Whether s 79 orders itself effects severance Most authorities deal with consent orders, and consider whether the parties’ agreement effected a severance. In principle, it would seem that the court has power under s 79(1) to sever a joint tenancy. If this is so, the question whether a s 79 order effects severance turns on whether the order is inconsistent with a continuance of the joint tenancy. The authorities suggest that this is the correct analysis: Public Trustee v Grivas [1974] 2 NSWLR 316; McVey v Denis (1984) 9 Fam LR 580; FLC 91–521; McKee v McKee (1986) 10 Fam LR 754 (Waddell J). In practice, difficulties arise when orders are expressed to take effect at some future time, and it is necessary to determine whether severance occurs at the time of the order or on the occurrence of a future event. Everything turns on the terms of the order, but it is clear that an order may effect severance immediately notwithstanding that its complete operation lies in the future: McKee, above. [s 79.305] Orders for the benefit of a child — s 79(1) Introductory comments The court has power to settle or transfer some of the property of the parties directly upon the children: see for example, In the Marriage of Groutsch (1978) 4 Fam LN 35; FLC 90–461; In the Marriage of James (1977) 3 Fam LN 28; FLC 90–260. See [s 79.237]. Where child has acquired an interest Such orders are likely to be made where the child has made a contribution to the property. In such situations it is necessary to consider carefully whether such contributions result in the child acquiring an interest in the property under ordinary equitable principles. The s 79 order cannot apply to such an interest, since that interest is not part of “the property of the parties or either of them”. The court may however take advantage of cross-vesting legislation in such matters: see Vol 2, guide card RELATED COMMONWEALTH LEGISLATION.

[page 738] [s 79.307] Machinery or consequential orders Introductory comments The court has power to make what is termed a “machinery order” or a “consequential order”. In In the Marriage of Ravasini (1982) 8 Fam LR 903 at 906; (1983) FLC 91–312, the Full Court said that consequential order would include an order following logically or of necessity from a prior substantive order. It is not an order which varies the prior order. The court has power to enforce an order and to modify the machinery provisions of the order to effect enforcement, provided that by so doing it does not affect the substantive rights of a party. The power can be used to spell out the effect of the order where it is not clear. The Full Court said at 8 Fam LR 903 at 907: “In determining whether or not an order may be varied as a machinery order, the inquiry must be firstly as to what part of the order is the substantive order and what part or parts of it merely follow that order as a necessary consequence. A court in making a property order might do no more than order that the property be sold and the proceeds equally divided. That is the substantive order. If the court, at that time, has before it sufficient evidence of the facts and circumstances it may go on and make appropriate ‘consequential’ orders providing the machinery whereby the substantive order is to be carried out. If the court at the time does not have evidence of the necessary facts and circumstances then it may reserve liberty to apply to allow the parties to come back to the court for consequential relief if they are unable to agree as to how the substantive order should be made operative.” See also In the Marriage of McDonald (1976) 1 Fam LR 11,391; FLC 90– 047; In the Marriage of Kaljo (1978) 4 Fam LR 190; FLC 90–445; In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911; In the Marriage of Warwick (1983) 9 Fam LR 112; FLC 91–342; In the Marriage of Daff (1984) 9 Fam LR 546; FLC 91–516. Implied liberty to apply In In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91–243, the Full Court said that the failure to reserve a liberty to apply does not prevent the invocation of the machinery jurisdiction of the

court. Liberty to apply can be implied where it is necessary to enable the court to exercise its power in respect of the construction, working out or enforcement of an order. See also In the Marriage of Warwick (1983) 9 Fam LR 112 at 113; FLC 91–342. Default provisions Another question that commonly arises is whether an order making provision for default by a party is a machinery order. A good example is In the Marriage of Bray (1988) 12 Fam LR 563; FLC 91–568 (FC). Section 79 orders provided that the wife should pay a certain sum within a period, in default of which the property was to be sold and the proceeds divided between the parties in a certain proportion. The wife, unable to pay, sought an extension of time. The Full Court held that the order created substantive rights and could not be said to be a machinery provision. The nature of the order, not of the variation sought by the wife, was decisive: see especially 12 Fam LR 563 at 566–7 (Nygh J). Nygh J also held at 567, that the test was whether the order “vests a right in a party”. See also In the Marriage of Slapp (1989) 13 Fam LR 158; FLC 92–022; In the Marriage of Ravasini (1982) 8 Fam LR 903; (1983) FLC 91–312 (FC). Use of s 79A where order is not “machinery” Where the order to be corrected is not a machinery order, resort may have to be made to s 79A to set aside the original order and substitute a new one: see for example, In the Marriage of Monticone (1989) 13 Fam LR 592; (1990) FLC 92–114 (FC); In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC 91–576. [s 79.309] Distribution of furniture etc Introductory comments Sometimes it is appropriate to divide a collection of items, such as furniture, which it is not practicable or desirable to sell. The items may be of different kinds and different values. Where no agreement can be reached the court may approach the question of the alteration of interests in furniture in various ways: [page 739]

(a) The court may make a declaration that each party retain ownership of such items as are currently in his or her possession. Where appropriate a financial adjustment can be made to compensate a party who has possession of the least furniture. This approach is perhaps the most common, and has the great merit of not requiring any detailed re-allocation of the items. (b) The court may find a particular or special reason why one of the parties should have the benefit of all or part of the items: see In the Marriage of Tuck (1979) 7 Fam LR 492; (1981) FLC 91–021 at FLC 76,225. The court may effect a division of the items between the parties by a method which has been called “the pick a pile method”: see In the Marriage of W (1980) 6 Fam LR 538 at 551; FLC 90–872. This method requires that one of the parties prepares two schedules of the items. The two lists include items of roughly equal value. The other party is then permitted to pick which of the piles he or she will take. This approach, however, can be manipulated in a vindictive manner and has therefore become less popular. [s 79.311] Relationship between s 79 and maintenance proceedings Introductory comments The authorities indicate that difficulties have sometimes arisen in determining the relationship between maintenance and property orders. This is understandable since (i) the two are often made in the same proceedings; (ii) the Act encourages the court to link maintenance and property orders so that they combine to form a proper resolution of the parties’ financial affairs; (iii) some orders, notably a lump sum payment, may be made either as maintenance or property orders; and (iv) confusion may result from using the term “maintenance component” to describe the adjustment of s 79 orders due to the matters listed in s 75(2). As Evatt CJ and Opas J have remarked: “The distinction between maintenance and property orders is often blurred … because property orders frequently have a substantial maintenance component”: In the Marriage of Branchflower (1979) 6 Fam LR 188 at 198; (1980) FLC 90–857. However, it is important to avoid confusion of the different orders, both to avoid applying inappropriate principles, and to ensure that the order is not based on misunderstanding about the extent to which the orders can later be varied. Close connection The power to make an order for maintenance and the

power to order a settlement of property are not mutually exclusive. They overlap and may be exercised separately or in combination to produce a total result which, in the circumstances of the case, is just and equitable: see Sanders v Sanders (1967) 116 CLR 366 at 380; [1968] ALR 43 per Windeyer J, a passage often cited in later Family Court authorities for example, In the Marriage of Ferguson (1978) 4 Fam LR 312 at 323; FLC 90–500. This is very clear from the provisions of the Act. Close links between maintenance and property are established in ss 75(2)(n), 79(4)(e) and (f), and s 81 (the “clean break policy”) and s 80 (available orders under both ss 74 and 79). Differences Despite the important links between them, maintenance orders and property orders are distinct. A maintenance order alone is based primarily on need and economic resources (see ss 72, 74 and 75) whereas a property order is based on contributions as well as need and economic resources: see ss 79 and 75. A s 79 order is not an order for maintenance, even if the circumstances are such that it may be said to reflect in part an obligation of a spouse to maintain the other: see Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674. As noted earlier in this commentary, as 79 order can be made even where the provision of maintenance is not in question: see for example, In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90–897. It is not necessary for s 79 to establish that the applicant is unable to support himself or herself adequately, while this is a requirement for spousal maintenance: s 72.

Later application for maintenance It is very clear that the inclusion of a “maintenance” or s 75(2) component in a property order does not preclude a party from later claiming periodic or lump sum maintenance, subject only to the provisions of s 44(3): see In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91–201. [page 740] Order of consideration — property first, then maintenance There is considerable authority that (at least in general) a court should reach a decision on the property application, taking into account all matters under s 79 (including those under s 75(2)), before considering an application for maintenance. The court should then consider any application for maintenance in the light of the impact of the property order on the parties’ financial circumstances: In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728 at 734; (1982) FLC 91–201 at 77,062. This principle has often been restated and acted upon: see, for example, In the Marriage of Morris (1982) 8 Fam LR 740 at 753–4; FLC 91–271; In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90–897; see also In the Marriage of W (1980) 6 Fam LR 538; FLC 90–872; In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011; In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027. This view is confirmed by the Full Court’s decision in In the Marriage of Clauson (1995) 18 Fam LR 693; FLC 92–595: see commentary at [s 72.20]. [s 79.313] Child maintenance and s 79 orders Introductory comments Although s 79 contemplates that orders might be made for the benefit of the child of a marriage, children are not able to make applications under s 79 and their interests are almost never separately represented in property proceedings. Further, there may be a danger that claims on children’s behalf may conceal what are in effect adult claims. Perhaps for these reasons the case law indicates a general reluctance to make

substantial orders for children under s 79. Nevertheless authorities indicate that at least in limited cases the court is willing to mould s 79 orders with a view to children’s welfare: see [s 79.237]. Property orders not generally to be used for child maintenance The courts have been cautious in considering the future maintenance needs of children in relation to a property settlement for the benefit of a spouse. It has been said that it is undesirable to make a greater settlement of property for the benefit of one of the spouses for the purpose of providing maintenance for children: see In the Marriage of V and G (1982) 8 Fam LR 193; FLC 91–207 at 77,092 (FC: Evatt CJ and Strauss J; Watson J dissenting); see also In the Marriage of Zdravkovic (1982) 8 Fam LR 97; FLC 91–220. Child maintenance may sometimes be taken into account Although there is a policy objection against making lump sum orders or property transfers with a view to providing child maintenance, it does not mean that such orders should never be made. See In the Marriage of Racine and Hemmett (1982) 8 Fam LR 716 at 718; FLC 91–277; In the Marriage of Park (1978) 4 Fam LR 488; FLC 90–509; In the Marriage of Howes (1981) 7 Fam LR 650; FLC 91– 044; In the Marriage of P (1979) 5 Fam LR 454; FLC 90–701. [s 79.320] Child support and s 79 orders Child support legislation The child support legislation is set out, with commentary, in Vol 2, under the guide card CHILD SUPPORT. Child support payments should not require readjustment of s 79 orders It has been held that provision of child support, being a discharge of the parent’s proper obligations to the child, should not lead to a readjustment of property orders; nor should failure to meet child support obligations: In the Marriage of Borg (1991) 14 Fam LR 706 at 709; FLC 92–215 (Kay J). See also In the Marriage of Bolton (1992) 15 Fam LR 615; FLC 92–309. Concurrent applications for departure from child support formula and 79 orders In the Marriage of Borg, above, also holds that, in determining concurrent applications for alteration of property interests and departure from administrative assessment of child support, a s 79 order may be taken into

account under the Child Support (Assessment) Act. [page 741] DEATH OF A PARTY TO THE MARRIAGE [s 79.321] Introductory comments Section 79 makes provision for proceedings to be continued after the death of a party, and for orders to be enforced against the estate of a deceased party: s 79(8), 79(1A). These provisions are the subject of the following commentary. Whether specific provision required to continue s 79 proceedings after death of party Apart from the specific provisions of s 79(8), it has been generally considered that the doctrine of abatement would apply to s 79 proceedings, with the result that pending proceedings would abate on the death of a party. In In the Marriage of Sims (1981) 7 Fam LR 667; FLC 91– 072, the Full Court (Evatt CJ, Emery and Strauss JJ) said at Fam LR 674: “The jurisdiction of this court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this court to entertain proceedings against or by the legal personal representative of a deceased party nor is there power to continue proceedings after the death of a party by substituting that party’s personal representative as a party in lieu of the deceased party.” This view may need reconsideration, however, in the light of Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125 (FC). Proceedings completed Section 79(8) applies “where … before proceedings with respect to the property of the parties or either of them are completed”. When are proceedings “completed” for this purpose? In Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125, the Full Court (Lindenmayer, Strauss and Baker JJ) said: “In our view both the content and the wording of s 79(8) make it clear that the phrase ‘before proceedings with respect to the property of the parties or

either of them are completed’ refers to proceedings commenced under s 79(1) in which no order has been made before one of the parties to the marriage has died. If an order is made under s 79(1) the proceedings are completed. Section 79(8) does not refer to further proceedings such as an appeal or an application for an extension of time in which to appeal.” In this passage, “order” obviously refers to a final as distinct from an interlocutory order. As Professor Dickey has pointed out in (1994) 68 ALJ 223, there are two first instance decisions, respectively before and after Gilbert indicating a wider view of s 79(8), namely that it applies up to the end of the time for appeal as of right (or the determination of an appeal): In the Marriage of Kenny and Parker (1984) 9 Fam LR 749; FLC 91–546; In the Marriage of O’Toole (1991) 15 Fam LR 265; (1992) FLC 92–285. Presumably, first instance judges will follow Gilbert, although the issue may be open for reconsideration by the Full Court, as the point was not strictly raised by the case stated in Gilbert, and the quoted passage, like the opinions in Kenny and Parker and O’Toole, may be regarded as obiter dicta. Family provision (TFM) laws may be available Where a party to a marriage has died, the survivor may have a claim against the estate under state and territory legislation relating to family provision (also known as testator’s family maintenance): see the State Legislation Service. Survivorship of property held as joint tenants Property held by the deceased as a joint tenant with the surviving partner will of course become the survivor’s property under the doctrine of survivorship unless the joint tenancy has been severed. Enforcement Section 79(8)(c) makes provision for the enforcement of orders made in proceedings continued pursuant to s 79(8) on behalf of or against the estate of the deceased party. [s 79.322] Property of the parties The words “property of the parties or either of them” in s 79(8) include property which is part of the estate of the deceased and is not limited to assets vested in the deceased immediately prior to his or her death: Evans v Public Trustee (WA) (1991) 14 Fam LR 646 at

657–8; FLC 92–223 (FC). [page 742] Superannuation If a party to s 79 proceedings dies and the proceedings are continued under s 79(8) any superannuation payment that accrues to the respondent’s estate (including that part not attributable to the spouse’s contributions) constitutes “property of the parties or either of them” within s 79(8): Evans v Public Trustee (WA), above. An allowance might have to be made for tax liability on the superannuation entitlements if they were withdrawn: In the Marriage of Gartner [2000] FamCA 793. Commencement of proceedings Service on the respondent is not necessary for there to be proceedings for the purpose of s 79(8): In the Marriage of Love (1989) 17 Fam LR 263; (1994) FLC 92–441 (FC); In the Marriage of Mason (1993) 17 Fam LR 269 (FC). [s 79.323] No institution of proceedings after death of party Proceedings cannot be instituted after party’s death Proceedings under s 79 cannot be instituted (as distinct from continued) after the death of a party to the marriage. After one party’s death, the fresh proceedings cannot be characterised as proceedings between the parties to a marriage, as required by para (ca) of the definition of “matrimonial cause” in s 4. See In the Marriage of Sims (1981) 7 Fam LR 667; FLC 91–072 at Fam LR 672; In the Marriage of Rampling (1987) 12 Fam LR 33; (1988) FLC 91–902; In the Marriage of Slater (1985) 10 Fam LR 381; FLC 91–641; In the Marriage of Phillips (1985) 10 Fam LR 310; FLC 91–634. This is true whether it is the potential applicant (for example, Slater) or respondent (for example, Rampling), who has died. Section 44(3) application does not found jurisdiction The fact that an application has been made under s 44(3), before the death of the party, for leave to bring proceedings, does not ground jurisdiction: In the Marriage of Rampling, above; In the Marriage of Phillips, above. This is so even if the

parties consent to leave being granted, since jurisdiction cannot be created by consent or estoppel: In the Marriage of Slater, above. [s 79.325] Continuation of property proceedings after death of a party — general Purpose and history of subs (8) This subsection was inserted in the Act by the Family Law Amendment Act 1983. It enables the continuation of s 79 proceedings, and the making of an order, where either party to the proceedings dies before the proceedings are completed. A similar provision is incorporated in s 79A. General effect of s 79(8) The effect of s 79(8) may be summarised as follows: (1) The s 79 proceedings may be continued by the legal personal representative of the deceased applicant against the surviving respondent, or may be continued against the legal personal representative of the deceased respondent against the surviving applicant. (2) The court may make an order if it considers: (a) that it would have been appropriate to have made an order if the deceased had not died; and (b) that it is still appropriate to make an order with respect to the property. (3) The power to make an order and the type of order to be made is in similar terms as the existing s 79(1). The section therefore does not merely prevent abatement, but also permits the court to make an order which takes into account the fact of death and circumstances which follow death. “Proceedings” In some cases, where only the initial steps have been taken in the proceedings when one party dies, the question has arisen whether it is necessary for example that a cross application had been filed before the death. It has been held that once “proceedings” are before the court, that is enough, and the taking of further steps cannot be resisted. The question is, strictly, whether there is at the time of the death a proceeding of the kind

indicated in para (ca) of the [page 743] definition of “matrimonial cause” in s 4. See In the Marriage of Jacobsen (1987) 11 Fam LR 990; (1988) FLC 91–901, following the analysis of In the Marriage of Shaw (1982) 8 Fam LR 432; (1984) FLC 91–540 (FC). Party to a marriage “Party to a marriage” is defined in s 4(2) to include a person who is a party to a marriage which has been terminated by the death of the other party. Proceedings may not be continued where both parties die As presently drafted s 79 does not provide for the continuation of proceedings after the death of both parties: see the discussion in In the Marriage of Fisher (1986) 57 ALR 513; 11 Fam LR 11; FLC 91–767. Constitutional validity In In the Marriage of Fisher, the High Court held that s 79(8) is constitutionally valid, as was the relevant provision of the rules (formerly O 14 r 6 of the Family Law Rules 1984, now r 10.17 of the Family Law Rules 2004), being within the “marriage” power conferred by s 51(xxi) of the Constitution. Some members of the High Court referred to (but did not decide) the hypothetical question whether the constitutional “marriage” power would be capable of supporting provisions which allowed s 79 proceedings to be continued after the death of both parties. Wide discretion It has been said that the discretion is not more fettered under s 79(8) than in other s 79 proceedings: In the Marriage of Doyle (1989) 13 Fam LR 200 at 202; FLC 92–027 per Lindenmayer J. See also Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189; FLC 92–156 (FC). Onus on applicant The onus is on the applicant for the order, as in other s 79 proceedings: Tasmanian Trustees Ltd. Relevant considerations In proceedings continued under s 79(8) the contest

will be between the surviving spouse and the estate of the deceased spouse. It is submitted that the following considerations will often be taken into account: The deceased spouse of course has no further needs of the kind listed in s 75(2), while the survivor may well have such needs. For this reason, the order in continued proceedings might well be more favourable to the survivor than the order that would have been made had both parties survived to the hearing. To the extent that the deceased spouse has a claim under s 79 arising from his or her contributions during the marriage, that claim should be recognised, even though the result of so doing is that third parties might benefit under his or her estate. It seems that the court will not be influenced by the identity of the beneficiaries of the deceased’s estate, except that where the children of the marriage are beneficiaries the court may take their interests into account, as in other cases under s 79(1). For a detailed discussion, see Mason v Hannaford (1993) 16 Fam LR 648; FLC 92–398. In that case Moss J held that having taken into account all the relevant matters under s 79, including relevant matters arising after the death of the deceased, the court should not take account of factors relevant to the persons who would take the property under the will of the deceased party or upon his or her intestacy. Moss J held that this conclusion followed from the analysis of the High Court in Smith v Smith (1986) 161 CLR 217; 10 Fam LR 769; FLC 91–732, and that the significance of Smith’s case had been overlooked or given insufficient attention in some later decisions, namely Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125; In the Marriage of Strelys (1988) 12 Fam LR 437; FLC 91–961 and Evans v Public Trustee (WA) (1991) 14 Fam LR 646; FLC 92–223. In Stanford v Stanford (2012) 293 ALR 70; [2012] HCA 52; BC201208691, the High Court (French CJ, Hayne, Kiefel, Bell JJ) dealing with an application for adjustment brought by the case guardian of a wife who had not legally separated from her husband (but who died during [page 744]

proceedings) differentiated between a moral recognition of the deceased contributions by court ordered property adjustment and the need to do “justice and equity” as between both parties in accordance with s 79(2). [s 79.327] Whether the court would have made an order had the deceased not died — s 79(8)(b)(i) Introductory comments In proceedings continued under s 79 after the death of a party, the court may make an order only if it is of the opinion that it would have made an order with respect to property if the deceased party had not died: s 79(8)(b)(i). Specific order need not be identified It is sufficient that the court would have made some order relating to property. It is not necessary to consider what particular order would have been made: see In the Marriage of North (1987) 11 Fam LR 735; FLC 91–831; In the Marriage of Doyle (1989) 13 Fam LR 200; FLC 92–027 at Fam LR 202; Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189; FLC 92–156 (FC). Relevant time What is the relevant time for the purpose of s 79(8)(b)(i)? In In the Marriage of North, above Gee J said that the question was whether, at the time immediately before the deceased’s death, the court would have made an order. In In the Marriage of Doyle at 13 Fam LR 201 however, Lindenmayer J considered that the relevant date was the date of the hearing. See also the discussion in Mason v Hannaford (1993) 16 Fam LR 648 at 653; FLC 92–398 (Moss J). It may be that, since it is not necessary under s 79(8) (b)(i) to identify what order the court would have made, this difficulty of interpretation will cause limited practical difficulty. [s 79.329] Proceedings continued where respondent dies Introductory comments The court is required to consider first whether it would have made an order if the deceased had not died, and then whether it is still appropriate to make an order. Both issues require the court to apply the guidelines in s 79(2) and (4). Not all the factors, however, will apply to the situation arising following the respondent’s death. See Stanford v Stanford (2012) 293 ALR 70; [2012] HCA 52; BC201208691.

Respondent’s estate may continue proceedings One would think that it will normally be the surviving applicant who wishes to continue the proceedings against the respondent’s estate. However, where some or all of the property is owned by the parties as joint tenants, on the respondent’s death the applicant will take by survivorship. It may then be in the interests of the respondent’s estate to continue the proceedings, and obtain an order for property alteration to avoid the whole of the property going to the applicant spouse. In such a case, it has been held that the legal personal representative of the respondent may continue the proceedings, against the wishes of the applicant: In the Marriage of Strelys (1988) 12 Fam LR 437; FLC 91–961 (FC: Simpson and Nygh JJ; Graham J dissenting). Exercise of discretion The court in such proceedings will first consider whether the court would have made an order in favour of the applicant if the respondent had not died: “it is essential to turn to s 79(4) to ascertain whether the considerations which are required to be taken into account in proceedings for alteration of property interests between spouses inter vivos would have required an order to be made” per Treyvaud J in In the Marriage of Berry (1989) 13 Fam LR 680; (1990) FLC 92–118. That decision provides a rare example of the exercise of discretion in such cases. It also illustrates the value of the cross-vesting legislation in such situations: the surviving wife’s claim under the Victorian Administration and Probate Act 1958 (for family provision) was transferred to the Family Court, which, having made an order under s 79, held that her claim under the Victorian Act then “became a non issue”. [page 745] Relation to family provision claims On the death of the respondent, the applicant may have both a claim under s 79 and a potential claim under the family provision legislation of the relevant state or territory. In the Marriage of Berry suggests that a convenient resolution of the entire matter is for the applicant’s claim for family provision to be combined, using the crossvesting legislation, with the continued s 79 proceedings. Moss J has held,

however, that the High Court decision in Smith’s case requires a clear distinction to be drawn between applications under s 79(8) and family provision applications, different criteria applying to each: Mason v Hannaford (1993) 16 Fam LR 648; FLC 92–398. Adjournment to allow determination of third party claims Where the respondent to s 79 proceedings dies and there are unresolved third party claims against the estate, it may be appropriate to adjourn the s 79 proceedings to allow these claims to be determined: In the Marriage of Bailey (1989) 13 Fam LR 652; (1990) FLC 92–117. [s 79.331] Proceedings continued where applicant dies Introductory comments The effect of s 79(8) is that where the applicant dies the application may be continued for the benefit of the applicant’s estate. Exercise of discretion As noted above, the exercise of jurisdiction under s 79(8) is as unfettered as in other s 79 proceedings. The following are examples of discretionary orders made under s 79(8) in proceedings continued after the death of the applicant: Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189; FLC 92–156 (FC); In the Marriage of North (1987) 11 Fam LR 735; FLC 91–831; In the Marriage of Randle (1987) 11 Fam LR 753; FLC 91–828; Menzies v Evans (1988) 12 Fam LR 519; FLC 91–969; In the Marriage of Doyle (1989) 13 Fam LR 200; FLC 92–027. Moral claims Some judges have spoken of “moral claims” being satisfied by orders under s 79(8): In the Marriage of Fisher (1986) 57 ALR 513; 11 Fam LR 11; FLC 91–767 per Brennan J; In the Marriage of North at 11 Fam LR 745. It is submitted that it is preferable to use the language of ss 79(4) and 75(2) in exercising the discretion. Such terms as “moral claims” may have the effect of erecting a barrier or guideline that has no legislative basis under the Family Law Act (as distinct from family provision legislation). Unlike family provision legislation, s 79 does not make the conduct of the parties as such a relevant factor: see In the Marriage of North at 11 Fam LR 751. It is now beyond doubt that moral claims have no place in the court’s determination: Stanford v Stanford (2012) 293 ALR 70; [2012] HCA 52; BC201208691.

Children’s interests For a decision in which children’s interests were taken into account in exercising discretion, see In the Marriage of Randle (1987) 11 Fam LR 753; FLC 91–828. Beneficiary may be third party It has been held that there is no requirement that the proceedings must be for the benefit of the parties or a child of the marriage. The person to benefit may be, for example, a grandchild. See Menzies v Evans especially at 12 Fam LR 525–6, citing passages from In the Marriage of Fisher (1986) 57 ALR 513; 11 Fam LR 11; FLC 91–767 (HC). See also Tasmanian Trustees Ltd v Gleeson (1990) 14 Fam LR 189; FLC 92– 156. Needs of surviving spouse The decision of the Full Court in Tasmanian Trustees Ltd indicates that the needs of the surviving spouse may have a decisive impact. In that case, the only substantial item of property was the jointly owned matrimonial home, and the parties lived together for 20 years. There were no children. At the time of the hearing both parties were pensioners. The applicant husband died just before judgment was delivered, and he left all his property to a third party. The Full Court upheld the trial judge’s decision to allow the surviving wife the full benefit of the property (which she took by survivorship); she had made the greater contribution and the available property was no more than what was reasonably required to meet her needs. [page 746] [s 79.333] Appeal rights survive after death of party It has been held by the Full Court that where a party dies after s 79 proceedings have been completed, the surviving party may appeal, and if necessary apply for leave to appeal out of time. Jurisdiction derives from para (f) of the definition of “matrimonial cause” in s 4. See Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632 at 13 Fam LR 644; (1990) FLC 92–125 (FC). In this respect, the Full Court appeared to overrule the decision in In the Marriage of Kenny and Parker (1984) 9 Fam LR 749; FLC 91–546. The Full Court also held that the surviving party could also bring an application under s 79A: see

commentary to that section. Moss J has, however, suggested that the decision in Gilbert should be reconsidered: see Mason v Hannaford (1993) 16 Fam LR 648; FLC 92–398. [s 79.335] Enforcement of property orders after death of party — s 79(1A) Introductory comments Subsection (1A) was inserted in the Act by the Family Law Amendment Act 1983. It enables a property order, made in proceedings under s 79, to be enforced after the death of a party to those proceedings, either against or for the benefit of the estate of the deceased. Enforcement of orders under s 79(8) Note that the enforcement of orders made in proceedings continued under s 79(8) is governed by s 79(8)(c). Final order The order has to be a final property order. An order is not a final order if some further step must be taken, other than a procedural step, before such order can be enforced or the party required to comply with its terms: see In the Marriage of Corry (1983) 9 Fam LR 201; FLC 91–343. Previous law The insertion of subs (1A) represents a legislative endorsement of the reasoning of the Full Court in In the Marriage of Sims (1981) 7 Fam LR 667; FLC 91–072; see In the Marriage of Kenny and Parker (1984) 9 Fam LR 749 at 751; FLC 91–546 at 79,416 per Nygh J. Other decisions on the previous law include: In the Marriage of Pertsoulis (1979) 4 Fam LR 613; FLC 90–613; In the Marriage of Corry (1983) 9 Fam LR 201; FLC 91– 343; In the Marriage of Rafter (1982) FLC 91–261. BANKRUPTCY OF A PARTY [s 79.351] Introductory comments Either party to a marriage may become a bankrupt while s 79 proceedings are pending, or before s 79 proceedings have been commenced. This commentary deals with the consequences of such bankruptcies for the s 79 proceedings. Effect on other matters The bankruptcy of a spouse has other effects, for example on the significance of maintenance agreements under ss 86 and 87.

These matters are discussed under the appropriate sections. Cross-vesting For an unsuccessful attempt to transfer certain bankruptcy proceedings from the Federal Court to the Family Court see Re Sellen; Ex parte Shirlaw (1989) 13 Fam LR 324; FLC 92–034. However, bankruptcy proceedings may successfully be transferred to the Family Court and heard by a Judge of that court as a separate proceeding. [s 79.353] Bankruptcy of actual or potential respondent to s 79 proceedings Introductory comments Formerly, the bankruptcy of a spouse effectively prevented the other spouse from bringing an application under s 79, since the bankrupt party’s property vested in the trustee, and there was no property that could be the subject of the s 79 order. From 15 September 2005, amendments to the Act allow for an application by a non-bankrupt spouse which names the trustee of the estate of the bankrupt spouse as the respondent. [page 747] Involvement of bankruptcy trustee in property proceedings If the nonbankrupt spouse seeks orders against a bankrupt spouse (or a spouse who becomes bankrupt during the currency of property proceedings) or is or becomes subject to a personal insolvency agreement then provided the orders sought by the non-bankrupt spouse have the potential to effect the claims of creditors the court must join the trustee in bankruptcy as a party to proceedings. The trustee will remain a party unless discharged until the conclusion of the proceedings and may be replaced by any subsequent bankruptcy trustee appointed in his/her place. The bankrupt spouse is not entitled to make submissions in respect of property which has vested in the trustee in bankruptcy except with leave of the court. Leave will only be granted in exceptional circumstances. The bankrupt spouse would be entitled without leave to make submissions about exempt property, superannuation or financial resources.

Bankruptcy of respondent means respondent not a party to the proceedings If the respondent is a bankrupt at the time of the hearing of the s 79 application, he or she will have no property that can be the subject of an order under s 79, since under the Bankruptcy Act his or her property will have vested in the Official Trustee in Bankruptcy: see ss 58 and 116 Bankruptcy Act. Subsequent orders under s 79 do not affect the title of the Trustee: see In the Marriage of Holley (1982) FLC 91–257 (FC); In the Marriage of Page (No 2) (1982) 8 Fam LR 316; FLC 91–241; Re Baxter (1986) 10 Fam LR 758; FLC 91–715 (Northrop J); In the Marriage of Garmonsway (1986) 10 Fam LR 1026; FLC 91–746; Official Trustee in Bankruptcy and Bassola (1986) 11 Fam LR 557; FLC 91–760. Application for surplus It has been held that if the respondent has become bankrupt after the other party has commenced proceedings under s 79, the non-bankrupt applicant may be able to seek an order under s 79 at least in relation to any surplus due to the bankrupt party under s 148 of the Bankruptcy Act 1966 (Cth): In the Marriage of Wallmann (1981) 7 Fam LR 945 at Fam LR 949–50; (1982) FLC 91–204 at FLC 77,076. It is suggested that to the extent that there is any surplus the the bankrupt spouse might be permitted to be a party to the proceedings whose submissions would be limited to the disposition of the surplus. [s 79.355] Effect of respondent’s bankruptcy after s 79 order If a respondent becomes bankrupt after property has been transferred to the applicant under a s 79 order, the applicant may be stripped of the property under the doctrine of “relation back”, unless perhaps it can be said that there is valuable consideration for the transfer of the property: see Bankruptcy Act ss 58, 115, 123; Re Tapp Ex parte Official Trustee in Bankruptcy (1987) FLC 91–835; Barton v Official Receiver (1986) 66 ALR 355. See note, “Bankruptcy and the Family Law Act”, Australian Journal of Family Law, Vol 3, 1989 (by Nygh J). This question was considered at length by Chisholm J in Sabri v ANZ Banking Group Ltd (1996) 21 Fam LR 213; (1997) FLC 92–732. In this case, the s 79 order had been made at a time when the relation-back provisions of the Bankruptcy Act 1966 applied. It was held that the relation-back provisions took precedence, so that the Family Court orders were ineffective

to transfer any interest of the husband’s to the wife, and that the wife was not protected by any of the statutory exceptions to the relation-back doctrine contained in s 123 of the Bankruptcy Act 1966. However, Chisholm J went on to hold that, on the facts of the case, the wife had acquired an equitable interest of her own in the property in question (a house), before the property vested in the trustee in bankruptcy. This equitable interest arose under a constructive trust, and was binding on the trustee as a result of the rule in Ex parte James; Re Condon (1874) 9 Ch App 609. Since the wife gave valuable consideration for the transfer under the terms of the court order, and since she did not know of the husband’s bankruptcy, she fell outside the anti-avoidance provisions contained in ss 120 and 121 of the Bankruptcy Act 1966. The wife was therefore able to resist the trustee’s application for a declaration that he was the sole owner of the house in equity. [page 748] It should be noted that the wife’s success in this case depended on her being able to show that she had acquired an equitable interest in the property under a constructive trust, and that she was ignorant of the husband’s bankruptcy. The court order under s 79 operated to convey nothing to her she did not, in that sense, already have. The judgment of Chisholm J contains a discussion of the anomalous state of the current law, under which equitable interests under trusts and transfers made under s 86 maintenance agreements may be protected from the consequences of the transferor’s bankruptcy (the latter under s 123(6) Bankruptcy Act 1966), while transfers made under s 87 maintenance agreements or consent orders under s 79 are not: “[t]hese are consequences which seem to me to have little or no sensible connection to what might be considered a reasonable accommodation between the legitimate interests of creditors and those of the non-bankrupt spouse” (at Fam LR 235). See also the Family Law Council’s report, The interaction of bankruptcy and Family Law (June 1992). See also the discussion in Lopatinsky v Official Trustee in Bankruptcy (2002) 29 Fam LR 274; FLC 93– 119 (Moore J, exercising jurisdiction under the Bankruptcy Act).

[s 79.357] Bankruptcy of applicant Bankrupt party may bring s 79 proceedings In In the Marriage of Page (No 2) (1982) 8 Fam LR 316; FLC 91–241, Frederico J said (at Fam LR 319) that although s 60 of the Bankruptcy Act provides that any action commenced by the bankrupt prior to the bankruptcy is stayed until the trustee elects to either prosecute or discontinue, that does not preclude the bankrupt from bringing or continuing an application under s 79. A claim for settlement of property is not a right which vests in the trustee. There is nothing in the amendments (which came into force in 2005) to the Family Law Act which explicitly provides to a trustee in bankruptcy the right to bring s 79 proceedings against the non-bankrupt spouse. Consequences of s 79 orders in favour of bankrupt applicant An order under s 79 that involved the transfer of property to a bankrupt applicant spouse would have the effect that the property would, under the provisions of the Bankruptcy Act, vest in the trustee. It has been held that nevertheless such an order might be made. Such an order could be regarded as being for the benefit of the applicant in that the application of such proceeds towards bankruptcy may assist in an early discharge from bankruptcy. See In the Marriage of Page (No 2), above. In any case, it is submitted that the wording of s 79(1) does not require that such an order be for the benefit of a party, since the words following “including” do not limit the opening words of the subsection. Bankrupt appellants A party who is bankrupt does not have a sufficient interest in the property to lodge an appeal against orders dealing with that property. Any property obtained as a result of a successful appeal would vest in the trustee in bankruptcy, depriving the appellant of the interest necessary to launch an appeal: see In the Marriage of O’Neill (1998) 23 Fam LR 326. The fact that a successful appeal may increase the surplus property in which the bankrupt may have a contingent interest is not a sufficient interest to form the basis of an appeal. The Full Court in O’Neill described this as “anomalous” and “unsatisfactory”, particularly in view of the fact that a bankrupt may bring an application for a s 79 order, but felt compelled by authority (Cummings v Claremont Petroleum NL (1996) 185 CLR 124; 137

ALR 1; Guirguis v Guirguis and Official Trustee (1997) 21 Fam LR 356; FLC 92–726) to reach that conclusion. ASPECTS OF PROCEDURE [s 79.371] Time limit for bringing proceedings — s 44(3) Proceedings under s 79 must be brought within 12 months of the granting of a decree of dissolution of the marriage, or with leave after that time. For further details, including the grounds on which the court will grant leave, see s 44(3) and commentary thereto. [page 749] [s 79.373] Conferences required — s 79(9) Conferences compulsory This section was inserted in the Act by the Family Law Amendment Act 1983. The purpose of the section is to make conferences compulsory in all property cases unless the court is satisfied that: (a) having regard to the need to make an order urgently; or (b) to any other special circumstance; or (c) the court is satisfied it is not practicable to require the parties to attend a conference; (d) it is appropriate to make an order notwithstanding the parties have not attended the conference. Detailed provision is contained in the Family Law Rules 2004 relating to conciliation conferences and related matters: see especially Ch 12. Consent order The court does not require the parties to attend such a conference in circumstances where a consent order is made. Interim order The court is empowered to make “an order until further order” without the parties having attended a conference. Effect of no conference In In the Marriage of Schokker and Edwards (1986)

11 Fam LR 446; FLC 91–723, Elliott and Gun JJ said (at Fam LR 449) that although the section is mandatory in its terms, it is not necessary for a judge to make a positive finding or declaration as to being satisfied as to the existence of special circumstances or of impracticability, but may do so by implication. Strauss J said (at Fam LR 450) that in any event if both parties argue the case on the basis that a judge is entitled to adjudicate upon the property claim and do not raise the holding or not holding of a conference as an issue, the fact that no conference was held does not affect the validity of the judge’s order. [s 79.375] Adjournment of property proceedings where no divorce — s 79(1B), (1C) Subsection (1B), inserted in the Act by the Family Law Amendment Act 1983, permits the court to adjourn property settlement proceedings brought prior to dissolution of marriage, to enable the parties to the proceedings to consider the likely effects of the proceedings on the marriage or on a child of the marriage. Subsection (1C) provides for applications to continue the proceedings. [s 79.377] Adjournment of proceedings — change in financial circumstances — s 79(5) Introductory comments This subsection was inserted in the Act by the Family Law Amendment Act 1983. The court can adjourn s 79 proceedings to defer the making of an order, in respect of contingent interests of a party in property until those interests vest in a party. It enables the court to adjourn matters if the court, in the exercise of its discretion, finds that there are appropriate reasons for doing so. The court can adjourn proceedings if there is likely to be a significant change in the financial circumstances of one or both of the parties to the marriage and if it seems that making an order after the right has accrued is more likely to do justice than attempting to estimate the appropriate amount in advance: see [s 79.241]–[s 79.251]. The Full Court has pointed out that an adjournment under s 79(5) is different from other adjournments, and might be better referred to as a deferral; consequently appeal benches may be more willing to interfere with trial judges’ exercise of discretion than they are in the case of ordinary adjournments: In the Marriage of Grace (1997) 22 Fam LR 442; (1998) FLC

92–792. For a good example of the use of the power to adjourn in cases where the superannuation asset is by far the single most important asset, see Carson v Carson (1999) 24 Fam LR 360; FLC 92–835. History and purpose This section was inserted in the Act to overcome the problems which had arisen in the case of superannuation entitlements and also in relation to family trusts. The court had developed two approaches to the situation: [page 750] (a) The court developed a practice of adjourning proceedings until the assets fell into possession and became vested property; for example, where the retirement of a contributor to a superannuation fund or scheme was to occur in the near future: see In the Marriage of Finnis (1978) 4 Fam LN 15; FLC 90–437. This approach was unsatisfactory where the asset would not vest for a number of years. (b) The court considered future superannuation entitlements and other expectations from a discretionary trust as a financial resource under s 75(2) (b) and reflected these in the quantum of an order made under s 79 in relation to property or under s 74 in relation to maintenance: see In the Marriage of Crapp (1979) 5 Fam LR 47; FLC 90–615: see also In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108. This approach was impracticable in circumstances where there was no other property or income in the name of a party against which an order could be directed. (The above paragraphs were approved by the Full Court in In the Marriage of Grace (1997) 22 Fam LR 442 at 447; (1998) FLC 92–792 at 84,887). Preconditions The Full Court has said, in Grace, above, at Fam LR 448–9; FLC 84,888, that the preconditions which cumulatively must be found to exist in order to invoke the power to adjourn under s 79(5) are: “(a) that there is likely to be a change in the financial circumstances; (b) that the likely change is a significant one; (c) that having regard to the likely and significant change, it is

reasonable to adjourn the proceedings; and (d) that an order made if that significant change occurs is more likely to do justice and equity as between the parties than an immediate order.” Although the provision was, prior to the introduction of Pt VIIIB, of particular value in superannuation cases, the circumstances referred to are not limited to expected superannuation benefits. See for example, In the Marriage of Saba (1984) 9 Fam LR 780; FLC 91–579, where Gee J adjourned the property proceedings till after the husband’s proceedings against the wife for damages as a result of an assault occasioning actual bodily harm because, he said, he could not consider in full the possible monetary consequences of the husband’s action. Refusal of adjournment An application for an adjournment may be refused if the period of the adjournment will be considerable and it is not possible to conclude that a party has any claim at the end of the period of the adjournment. The court should have before it evidence which would enable it to be satisfied that at the end of the period of the adjournment a party would have a prima facie case for a claim: see In the Marriage of Turner (1984) 9 Fam LR 559; FLC 91–528. Proceedings in another court Proceedings may be adjourned in circumstances where there will be a significant change in the financial circumstances of a party once another court has ruled on what equity (if any) a party may have in an asset: see In the Marriage of Carvill (1984) 9 Fam LR 1055; FLC 91–586. Adjournment of property proceedings and bankruptcy When the court is to consider an application for adjournment of property proceedings pursuant to s 79(5), the wording of the section provides that the court is empowered to take into consideration the interests of both spouses (but not those of the trustee in bankruptcy or creditors). [s 79.379] Adjournment of proceedings — interim order s 79(6) This subsection was inserted in the Act by the Family Law Amendment Act 1983. The court, where it proposes to adjourn proceedings, may make such interim

order or orders, or other order or orders, as it considers appropriate, in respect to any of the property of the parties to the marriage or either of them. This enables the court to make partial or interim property orders in relation to the property of the parties while at the same time adjourning the proceedings in order to take into account property which either of the parties may thereafter receive. [page 751] Are compelling circumstances required? The Full Court has affirmed that the court has power to make an interim order dealing with part of the property of the parties pending the final hearing: In the Marriage of Harris (1993) 16 Fam LR 579 at 586; FLC 92–378; 113 FLR 472. The Full Court there also made the following points. Orders may be made by consent but the power is not limited to making consent orders. The interests of the parties and the court are generally better served by there being one final hearing. The court should be satisfied that the remaining property will be sufficient to meet the legitimate expectations of the parties at the final hearing or the order is capable of being reversed or adjusted if necessary. It is doubtful whether it is necessary or desirable to distinguish between “partial” and “interim” orders: cf Nygh J in In the Marriage of Burridge (1980) 6 Fam LR 513; FLC 90– 902. Following the decisions in Gabel v Yardley (2008) 40 Fam LR 66; 221 FLR 270; [2008] FamCAFC 162; BC200850031 and Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203; 241 FLR 1; [2009] FamCAFC 166; BC200950822 it is clear that compelling circumstances are not required before the court can make an interim or partial property settlement order and on that point Harris is no longer good law. While it remains the case that: there is only one exercise of the power under s 79 of the Act, that power may “be exercised by a succession of orders until the power … is exhausted” and the power is exhausted “when there remains no property … with respect to which orders by way of alteration of interests in

property could be or have been made”: Gabel per Bryant CJ and Coleman J at [57]. An earlier order whether made under s 79(6) or s 80(1)(h) is capable of alteration at any time prior to, or as part of the final exercise of the s 79 power: Gabel per Bryant CJ and Coleman J at [69]–[73] and Finn J at [126]. (emphasis added) Former law The previous position was that an interim property order could not be made because a property order, once made, could not be altered except in limited circumstances. The court could however make partial property orders, using s 79 and s 80(1)(k). See In the Marriage of Burridge (1980) 6 Fam LR 513; FLC 90–902. [s 79.381] Adjournment of proceedings — matters which court may take into account — s 79(7) This subsection was inserted in the Act by the Family Law Amendment Act 1983. The court, under s 79(5), has to consider whether there is likely to be a significant change in the financial circumstances of the parties or either of them. Section 79(7) refers to specific situations which may call for the application of s 79(5). It provides that the court may, in forming an opinion as to whether there is likely to be a significant change in financial circumstances of either or both of the parties, have regard to any change in financial circumstances that may occur because a party may be entitled to benefits which, for example, may accrue under a discretionary trust. The power of adjournment is not, however, limited to the circumstances referred to in s 79(7)(a) and (b). [s 79.385] Referral of papers to the Attorney-General It is not uncommon that the evidence in s 79 proceedings reveals that one or both parties, or other persons, may have been guilty of some fraud, tax evasion, or the like. In such cases, the question has arisen whether the court should of its own motion draw the evidence to the attention of the relevant authorities. The normal mechanism for this is for the court to refer the relevant documents — which may be affidavits, exhibits, or transcript — to the Attorney-General. It is then a matter for the Attorney-General whether to take some further action. There is considerable authority on the subject. It is accepted that the court

is entitled to refer the papers; but the cases differ to some extent on whether the court has a duty to do so, and if so in what circumstances. One view is that the court has a duty to protect the revenue of the Commonwealth and should take such steps as it is able to take to ensure that the revenue laws are not evaded. In general, this view means that the papers will be referred to the Attorney-General. [page 752] Authorities supporting this view include In the Marriage of P & P (1985) 9 Fam LR 1100; FLC 91–605 (Lindenmayer J); In the Marriage of Tingley (1984) 10 Fam LR 707; FLC 91–588 per Simpson and Barblett SJJ (“It might even be suggested, if his Honour had not brought such blatant tax evasion to the notice of the authorities, that he had failed in his public duty”); Georginis v Kastrati (1988) 49 SASR 371 (Full Court of SA Supreme Court); Page v Vanker (BC9001673, 7/12/90, SC NSW, Handley JA, unreported), quoted in Malpass, below; Durieu and Wiggins (14/2/97, Halligan JR, unreported), quoted in Malpass, below. However some cases discuss whether referring the papers might be contrary to other public interests, notably the interest in full and frank disclosure in litigation. In In the Marriage of Radwan (1985) 11 Fam LR 1; (1986) FLC 91–755, Frederico J, referring to this policy issue, commented that “it would be unfortunate were the Taxation Commissioner to rely on judges reporting all and sundry transgressions thus absolving him from his duty to protect the revenue. Such a situation would be demeaning to the court.” In an English case, however, it was concluded in effect that such considerations should not lead the court to refrain from taking action: AVA v BVB [2000] 1 FLR 701 (UK). The Full Court considered the matter is some detail in Malpass v Mayson (2000) 27 Fam LR 288; FLC 93–061. The Full Court expressed no final conclusions on the issue, but said it did not necessarily follow that the court is always under a duty to report the fact of commission of possible offences. Questions of degree are relevant, and it would be “unreasonable for the court to burden itself with a duty to report all these matters. Different considerations may apply in relation to more blatant and substantial

irregularities.” It might be suggested that referring the papers is an administrative act. However whether or not this is so, it is submitted that the court should give the parties affected an opportunity to make submissions as to whether the papers should be referred. The law may be summarised: Where there is evidence of tax evasion, fraud or (presumably) perjury, the court may refer the papers to the Attorney-General. The court should allow submissions before taking such action. The seriousness of the possible evasions or breaches (and no doubt the cogency of the evidence), are relevant to whether the papers should be referred. There is a conflict of authority on whether it is appropriate for the court to consider refraining from taking action to encourage full and frank disclosure in litigation. [s 79.389] Certificate under s 128 of the Evidence Act 1995 (Cth) On the question of granting a certificate under s 128 of the Evidence Act 1995 (Cth), see Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93–054 (FC).

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[s 79A] Setting aside of orders altering property interests 79A (1) [Grounds on which order set aside, varied] Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that: (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or (c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or [page 753] (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or (e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage; the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. [subs (1) am Act 181 of 1987 s 63 and Sch; Act 167 of 1995 s 32; Act 143 of 2000 s 3 and Sch 2 item 6 opn 27 Dec 2000; Act 86 of 2002 s 3 and Sch 5 items 6, 7 opn 1 Jan 2003; Act 20 of 2005 s 3 and Sch 1 cl 48, opn 18 Sep 2005]

(1A) [Application with all parties’ consent] A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. [subs (1A) am Act 181 of 1987 s 63 and Sch; Act 20 of 2005 s 3 and Sch 1 cl 48, opn 18 Sep 2005]

(1AA) [Definition of “caring responsibility”] For the purposes of paragraph (1)(d), a person has caring responsibility for a child if: (a) the person is a parent of the child with whom the child lives; or (b) a parenting order provides that: (i) the child is to live with the person; or (ii) the person has parental responsibility for the child. (c) [repealed] [subs (1AA) insrt Act 167 of 1995 s 32; am Act 46 of 2006 s 3 and Sch 8 item 92, opn 1 July 2006]

(1B) [Order enforceable by or against estate] An order varied or made under subsection (1) or (1A) may, after the death of a party to the marriage in which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. [subs (1B) am Act 20 of 2005 s 3 and Sch 1 cl 49, opn 18 Sep 2005]

(1C) [Proceedings in relation to deceased estates] Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may

make provision in relation to the substitution of the legal personal representative as a party to the proceedings; (b) if the court is of the opinion: (i) that it would have exercised its powers under subsection (1) or (1A) in relation to the order if the deceased party had not died; and [page 754] (ii) that it is still appropriate to exercise its powers under subsection (1) or (1A) in relation to the order; the court may vary the order, set the order aside, or set the order aside and make another order under section 79 in substitution for the order so set aside; and (c) an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. [subs (1C) am Act 194 of 1999 s 3 and Sch 11[67]; Act 20 of 2005 s 3 Sch 1 and cl 50, opn 18 Sep 2005]

(2) [Interested persons to be considered] In the exercise of its powers under subsection (1), (1A) or (1C), a court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. (3) [Orders under s 86 of repealed Act] In this section, a reference to an order made by a court under section 79 includes a reference to an order made by a court under section 86 of the repealed Act. (4) [Creditors] For the purposes of this section, a creditor of a

party to the proceedings in which the order under section 79 was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made. [subs (4) insrt Act 20 of 2005 s 3 and Sch 5, opn 15 Apr 2005]

(5) [Property — Bankruptcy] For the purposes of this section, if: (a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and (b) either of the following subparagraphs apply to a party to the marriage: (i) when the order was made, the party was a bankrupt; (ii) after the order was made, the party became a bankrupt; the bankruptcy trustee is taken to be a person whose interests are affected by the order. [subs (5) insrt Act 20 of 2005 s 3 and Sch 1 cl 51, opn 18 Sep 2005]

(6) [Vested bankruptcy property] For the purposes of this section, if: (a) a party to a marriage is a bankrupt; and (b) an order is made by a court under section 79 in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party; the bankruptcy trustee is taken to be a person whose interests are affected by the order. [subs (6) insrt Act 20 of 2005 s 3 and Sch 1 cl 51, opn 18 Sep 2005]

(7) [Personal insolvency agreement] For the purposes of this section, if: (a) an order is made by a court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them; and (b) either of the following subparagraphs apply to a party to the marriage: (i) when the order was made, the party was a debtor subject to a personal insolvency agreement; (ii) after the order was made, the party became a debtor subject to a personal insolvency agreement; the trustee of the agreement is taken to be a person whose interests are affected by the order. [subs (7) insrt Act 20 of 2005 s 3 and Sch 1 cl 51, opn 18 Sep 2005]

[page 755] COMMENTARY ON SECTION 79A General …. History of the section …. Order setting the order aside …. Order varying the order …. Set aside or vary the order …. Effect of death of a party before s 79A application made …. General discretion to set aside or vary …. Inherent jurisdiction …. Relationship between s 79A and an appeal …. Purpose of the section — s 79A(1)(a) ….

[s 79A.0] [s 79A.1] [s 79A.2] [s 79A.3] [s 79A.4] [s 79A.5] [s 79A.6] [s 79A.7] [s 79A.8] [s 79A.9]

Miscarriage of justice …. Fraud …. Duress …. Giving of false evidence …. Suppression of evidence — s 79A(1)(a) …. Any other circumstance …. Examples of any other circumstance …. Consent order …. Increase in value of property prior to order …. Withholding facts …. Impracticable for order to be carried out — s 79A(1)(b) …. Default in carrying out an obligation imposed by original order — s 79A(1)(c) …. Order in respect of which there is a default — s 79A(1) (c) …. Just and equitable — s 79A(1)(c) …. Circumstances of an exceptional nature relating to the care, welfare and development of a child — s 79A(1) (d) …. Exceptional circumstances — s 79A(1)(d) …. Hardship — s 79A(1)(d) …. Varying or setting aside orders by consent — s 79A(1A) …. Extent of power to set aside or vary …. Power of variation in original order …. Enforcement of an order against the estate of a deceased party — s 79A(1B) …. Effect of the death of a party to proceedings under s 79A — s 79A(1C) …. Bona fide purchaser or other person interested — s 79A(2) …. Order under s 86 of the repealed Matrimonial Causes Act 1959 — s 79A(3) …. Leave to bring proceedings under s 79A ….

[s 79A.10] [s 79A.11] [s 79A.12] [s 79A.13] [s 79A.14] [s 79A.15] [s 79A.17] [s 79A.18] [s 79A.19] [s 79A.20] [s 79A.21] [s 79A.25] [s 79A.26] [s 79A.27]

[s 79A.28] [s 79A.29] [s 79A.30] [s 79A.31] [s 79A.32] [s 79A.33] [s 79A.34] [s 79A.35] [s 79A.36] [s 79A.37] [s 79A.38]

One proceeding, not two ….

[s 79A.39]

[s 79A.0] General Section 79A is a remedial section intended to overcome miscarriages of justice and certain other specific difficulties or hardships and should be construed liberally to effect its intended purpose: Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125 (FC). At the same time, section “79A cannot be used to circumvent the basic principle that there can only be one property settlement between parties to a marriage”: In the Marriage of Kowalski (1992) 16 Fam LR 235; (1993) FLC 92–342 at 79,627. It is generally wrong to divide the proceedings into two parts, the first being to consider whether there was a miscarriage of justice and the second to consider what orders to make: see In the Marriage of Oastler (1989) 16 Fam LR 674; (1993) FLC 92–390. An application under s 79A(1)(a) involves four steps: whether there was fraud, duress, etc; whether that amounted to a miscarriage of justice; whether the court in its discretion should vary or set aside the order; and [page 756] whether it should make another order under s 79: In the Marriage of Patching (1995) 18 Fam LR 675; FLC 92–585 (FC). It was there said that recent decisions have emphasised the importance of considering separately the exercise of discretion; there may well be cases in which a ground exists but the discretion should not be exercised so as to vary or set aside the orders: see In the Marriage of Prowse (1994) 18 Fam LR 348; (1995) FLC 92–557; In the Marriage of Morrison (1994) 18 Fam LR 519; (1995) FLC 92–573. See also as to the correct approach, In the Marriage of Fickling (1996) 20 Fam LR 258 (FC). In In the Marriage of B (1985) 10 Fam LR 8; FLC 91–610, the Full Court said that s 79A does not apply where the court is not really being asked to set aside or vary an original order, but to make a further property order in circumstances where connection between the original order and the relief being sought by a party is far too remote. If what a party is seeking has really

nothing to do with the original order, then s 79A does not apply. Section 79A does not apply when what is being sought relates to a new relationship, a different status and an after acquired property. Standing of third parties Proceedings under s 79A are not limited to proceedings between the parties; the section “does not require that an applicant either be a party to the marriage or a party to the original proceedings.” See for example, Deputy Federal Commissioner of Taxation (WA) v Spanjich (1988) 12 Fam LR 541; FLC 91–974 (application by Deputy Commissioner of Taxation); Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632 at Fam LR 632–40; (1990) FLC 92–125. The question whether a third party is a “person affected” for the purposes of s 79A is one that should be considered on the whole of the evidence: Spanjich. Section 79A(4) makes explicit that a creditor who may not be able to recover his or debt because of the making of a s 79 order is taken to be a person effected. If, however, the trustee in bankruptcy has taken proceedings in the Family Court under s 79A on behalf of creditors, a creditor so represented does not have the right to be a party. A creditor whose interests were represented in proceedings for s 79 relief by a trustee in bankruptcy cannot bring s 79A proceedings because he or she is dissatisfied with the outcome. The Family Court will usually be the most appropriate forum for creditors to pursue s 79A claims (as opposed, say, to the Federal Court as the court of bankruptcy), although there is no hard and fast rule to this effect: see Fraser v Deputy Commissioner of Taxation and Official Trustee (1996) 138 ALR 689; 20 Fam LR 914. A Deputy Commissioner of Taxation seeking to recover a judgment debt, or an Official Trustee acting on behalf of creditors, may be “persons affected” for these purposes: see Fraser v DCT; Official Trustee in Bankruptcy v Donovan (1996) 20 Fam LR 802; FLC 92–703; In the Marriage of McCauley (1996) 22 Fam LR 538; (1997) FLC 92–780 The Full Court in Donovan also raised, but expressed no view on, the issue of whether a right to bring proceedings under s 79A was a chose in action vesting in the Official Trustee or other trustee in bankruptcy: on which see also In the Marriage of Audet; Official Trustee in Bankruptcy (Intervener) (1994) 19 Fam LR 291; (1995) FLC 92–607.

Specific standing for the trustee of a bankrupt estate or trustee of assets subject to a personal insolvency agreement, is created by the provisions of s 79A(5)–(7). These provision make it clear their interest in any application to set aside orders. [s 79A.1] History of the section Under the Matrimonial Causes Act 1959 the court had power to discharge or revoke a property settlement if the party in whose favour it was made married again, or if there was any other just cause in so doing. There was also power under the repealed Act to modify, suspend, revive or vary a property or maintenance order. The Family Law Act did not originally contain any power to vary an order made under s 79 which altered property interests. Section 79A was originally inserted in the Act by the Family Law Amendment Act No 63 of 1976. In its original form, s 79A gave the court a discretion to set aside an order altering property interests made under s 79 and to make a substitute order under s 79, only where the court was satisfied that the original order was obtained by fraud, by duress, by the giving of false evidence, or by the suppression of evidence. [page 757] Section 79A was then amended by the Family Law Amendment Act 1979 to broaden its application to allow the setting aside of an s 79 order where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance”. The effect of the 1979 amendment was to give the court power to set aside an order for settlement of property which arose as a result of a miscarriage of justice by reason not only of the specific grounds referred to in the section, but which may also have arisen as a result of “any other circumstance”. There was, however, even by the amended section, no provision for alteration of an order for settlement of property on account of changes in the circumstances of the parties after the making of the order. The Family Law Amendment Act 1983 substantially altered the provisions

of s 79A. It not only increased the grounds upon which a property order could be set aside, but also empowered the court exercising jurisdiction under the Act to vary property orders upon the same grounds. It did not, however, alter the nature of orders under s 79 as orders which cannot normally be altered. The importance of bringing an end to litigation remains an important consideration: see In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC 91–576. [s 79A.2] Order setting the order aside The power of the court to set aside an order is a power to discharge the order in its entirety, not necessarily from the beginning but just from the time an order is made under this section, if this is considered appropriate: see In the Marriage of Parker (1983) 9 Fam LR 323 at 329; FLC 91–364. Order dismissing property application An order dismissing an application for orders altering interests in property can be held to be “an order made … under section 79” for the purposes of s 79A: In the Marriage of Robson [2003] Fam CA 217. [s 79A.3] Order varying the order Prior to the Family Law Amendment Act 1983, s 79A did not give the court power to vary an order under s 79, but only to set it aside. The power to vary an order is the power to change only part of the existing order: see In the Marriage of Parker (1983) 9 Fam LR 323 at 329; FLC 91–364. [s 79A.4] Set aside or vary the order If the court sets the order aside and proceeds to make a fresh order under s 79, it is required to consider all factors which must be considered under s 79(4) and, so far as they are relevant, under s 75(2): see In the Marriage of Parker (1983) 9 Fam LR 323 at 329; FLC 91–364; see also In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC 91–576. The choice between setting aside and variation depends on the degree of intervention to be made: see In the Marriage of Simpson and Hamlin, above. If the intervention consists of a realignment of the distribution of the property of the parties, say from one-third and two-thirds respectively to an approximately equal division, then it is a matter which goes beyond mere

variation and would require the formal setting aside of the order and the making of a new order with all the consequences of that under s 79: see In the Marriage of Simpson and Hamlin, above. In considering what new order is appropriate, the court, first of all, considers the existing asset position of the parties and this should be done at the time of the hearing: see In the Marriage of Parker, above. [s 79A.5] Effect of death of a party before s 79A application made Section 79A does not specifically provide for the situation where a s 79 order has been made, and a party then dies. However the Full Court has held that in such cases an application under s 79A may be made by the survivor (or, it would seem, by the estate of the deceased party): Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125. In that case after s 79 orders had been made by consent, but before they could be put into effect, the husband committed suicide. The wife applied under s 79A to have the s 79 orders set aside. In answer to a stated case, the Full [page 758] Court (Lindenmayer, Strauss and Baker JJ) held that “the Family Court has jurisdiction to hear and determine an application under s 79A after the death of the other party to the proceedings in which the original order under s 79 was made”. This holding included disapproval of the following decisions: Parker v Arcus and Castiglione (1984) FLC 91–581; In the Marriage of Kenny and Parker (1984) 9 Fam LR 749; FLC 91–546; and In the Marriage of Phillips (1985) 10 Fam LR 310; FLC 91–634. Significant points in the reasoning of the Full Court in Gilbert included the following. The Full Court held, at Fam LR 639, that as a result of amendments in 1983 there was a “much wider general jurisdiction to deal with property matters after the death of one of the parties to the marriage”, and that the death of a party “does not necessarily cause an abatement of property proceedings, and that whether there is to be any abatement of particular proceedings will depend on the nature of the proceedings and the

relevant legislation”. It seems inappropriate to refer to the doctrine of abatement at all: see at Fam LR 642, approving statements in Barder v Caluori [1988] AC 20, and at Fam LR 654. Section 79A(1) appears to apply to an order made under s 79(1) or 79(8). “If, as we think, it does apply to an order made under s 79(8) then the legal personal representative of the deceased party to the marriage will be either the applicant or respondent. The result that after the death of a party to the marriage an order made under s 79(8) may be the subject of proceedings under s 79A(1), whereas an order made under s 79(1) cannot be the subject of such proceedings, would be an anomaly which can and should be avoided.” Leave to appeal out of time If a party dies after s 79 orders have been made and the time for appeal has elapsed, can the other party then obtain an order granting leave to appeal out of time? In In the Marriage of Kenny and Parker (1984) 9 Fam LR 749; FLC 91–546, Nygh J held that the answer was no, since there were no uncompleted proceedings to which s 79(8) could apply. However this was disapproved in Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125. The Full Court there said, at Fam LR 644, that s 79(8) refers to the situation where no orders have been made when the person dies, and does not refer to further proceedings such as an appeal or an application to extend the time in which to appeal; it does not limit the rights of people to bring proceedings within para (f) of “matrimonial cause”. Since there are rights of enforcement after the death of a party — s 79(1A) — “elementary considerations of justice” require that there should also be rights of appeal, including the right to extend time for appeal. Enforcement of s 79A order after death of a party See below, [s 79A.34]. Effect of death of party where s 79A proceedings pending This is covered by s 79A(1C): see below, [79A.35]. [s 79A.6] General discretion to set aside or vary It is a matter for the court, in the exercise of its discretion, even if it finds one or other of the grounds in s 79A(1) established, whether it will proceed to set the order aside. It is not simply an appeal on the merits of the original decision. See In the Marriage of Arpas (1989) 13 Fam LR 314; FLC 92-042. The applicant for relief under

s 79A bears the onus of satisfying the court that it is appropriate to exercise the jurisdiction to vary or set aside the order: see Official Trustee in Bankruptcy v Donovan (1996) 20 Fam LR 802; FLC 92–703. In the exercise of the discretion the court is bound to take into account the following matters: (a) It is in the public interest, and also in the interest of the parties, that litigation be final: see s 81; see also Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674 at 78,595 and 78,599. (b) It is in the public interest, that parties who have been the primary contributors to their own financial troubles should not be able to seek to set aside an order on the basis of those financial troubles: see In the Marriage of Rohde (1984) 10 Fam LR 56; FLC 91– 592. [page 759] (c) The circumstances giving rise to the application must not be rectifiable by other means: see In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC 91–576. See also In the Marriage of Prowse (1994) 18 Fam LR 348; (1995) FLC 92– 557. This would not appear to have been a consideration when the Court has dealt with applications where they have found consent implied by conduct, see below [s 79A.31]. In recent cases the court has emphasised that once a miscarriage of justice under s 79A is established it is not axiomatic that an application to set aside property orders must succeed: see In the Marriage of Prowse (1994) 18 Fam LR 348; (1995) FLC 92–557; In the Marriage of Morrison (1994) 18 Fam LR 519; (1995) FLC 92–573. [s 79A.7] Inherent jurisdiction Prior to the enactment of s 79A, there was authority to the effect that the court had inherent jurisdiction to set aside an order where a denial of natural justice has occurred: Taylor v Taylor (1979) 5 Fam LR 289; FLC 90-674; In the Marriage of Liu (1984) 9 Fam LR 1060 at

1066; FLC 91–572 (Nygh J). The question was considered again in Allesch v Maunz (2000) 26 Fam LR 237; FLC 93–033. The majority (Gaudron, McHugh, Gummow, and Hayne JJ) said that there was no doubt that the expression “any other circumstances” is wide enough to encompass the situation in which an order has been made in the absence of a party, and thus s 79A applies to that situation. They said that “it may be doubted whether there is any longer and scope for the exercise of inherent power in that regard”. Kirby J made a similar comment. It appears, therefore, that in cases where a party seeks to re-open property orders, s 79A in effect provides the sole basis (other than appeal, of course). It does not seem that any wider inherent jurisdiction exists, or that any different approach could be taken based on inherent jurisdiction. [s 79A.8] Relationship between s 79A and an appeal Section 79A is not an option to be invoked once all avenues for appeal have been exhausted. The two avenues are mutually exclusive and s 79A must be read subject to the provisions for appeal. It is not open to the court to make a substantive variation to orders previously made under s 79 other than on appeal or pursuant to s 79A: see In the Marriage of Slapp (1989) 13 Fam LR 158; FLC 92–022. The fields covered by ss 79A and 94 are different. Section 94 provides for an appeal where it is established that the trial judge fell into error. Where no error appears on the part of the trial judge, but there has been a miscarriage of justice by reason of some element beyond what appeared on the record or in the evidence so that a judge cannot have been aware of all relevant circumstances, then s 79A may apply. Section 79A(1)(a) is intended to be used where there has occurred a miscarriage of justice by reason, not of the trial judge arriving at a wrong conclusion on the materials before him, but because of some fact or circumstance which was not before him and which may not at the time have been within the knowledge of the applicant: see In the Marriage of Fagan (1984) 9 Fam LR 1140; (1985) FLC 91–607. [s 79A.9] Purpose of the section — s 79A(1)(a) This section provides that the court may vary or set aside an order made under s 79 if it is satisfied that

there has been a miscarriage of justice by reason of: (a) fraud; (b) duress; (c) the giving of false evidence; (d) the suppression of evidence; or (e) any other circumstance. The provisions of this section only apply to circumstances in existence at the time when the original order was made or before the original order was made and not to circumstances occurring afterwards: see In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911; see [page 760] also In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91–243 at 77,339; In the Marriage of Ramsey (1982) 8 Fam LR 863; (1983) FLC 91– 301; In the Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005; FLC 91–323; In the Marriage of Kerr (1983) 8 Fam LR 1023; FLC 91–329; In the Marriage of Liu (1984) 9 Fam LR 1060; FLC 91–572; Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC 92–211 (FC). In In the Marriage of Liu Nygh J said that this explains the insertion of paras (b), (c) and (d) which refer to circumstances arising since the order was made. [s 79A.10] Miscarriage of justice The court can only vary or set aside an order made under s 79, pursuant to s 79A(1)(a), if it is satisfied that there has been a “miscarriage of justice”. It must be established that the original orders should be varied or set aside as a consequence of a miscarriage of justice. It will not suffice that fraud or some other ground can be established. It must be established that a miscarriage of justice has occurred by reason of fraud or some other ground. The decision in In the Marriage of Suiker (1993) 17 Fam LR 236; FLC 92–436 appears to indicate that the Full Court is inclined to take a generous view of s 79A, and earlier authorities may need to be reconsidered in the light

of this decision. The Full Court emphasised the relevance of authorities requiring full disclosure of financial information, and said that if a consent order is based on misleading or inadequate information, then there may be a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”. In appropriate cases, the order itself in the light of the true facts may bear upon the question whether there has been a miscarriage of justice. The Full Court indicated, at Fam LR 243; FLC 80,472, that the view expressed in In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92–194 may suggest too narrow an approach, saying that when the Full Court there had referred to “the integrity of the judicial process”, it should not be taken to have referred only to the hearing in the Family Court; the phrase could “refer to a variety of matters and circumstances which had an influence on the outcome of the litigation”. The Full Court has said, in In the Marriage of Morrison (1994) 18 Fam LR 519 at 525; (1995) FLC 92–573: “The constant emphasis of the cases is that in order for there to be a just and equitable and an appropriate order altering the interests of parties in their property there must be a full and frank disclosure between them of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future … we take this opportunity once again to reinforce the view that the duty of disclosure is a basic duty. Ordinarily, a failure to comply with that duty will amount to a miscarriage of justice.” The Full Court went on, however, to say, quoting Lord Brandon in Livesey & Jenkins [1985] 1 All ER 106 at 119 that the failure to disclose relatively minor matters, the disclosure of which would not have made any substantial difference to the order which the court would have made, does not justify an order under s 79A. The expression “miscarriage of justice” is not limited to vitiating elements in the procedure followed in the court, but extends to any situation which sufficiently indicates that the decree or order was obtained contrary to the justice of the case: see In the Marriage of Holland (1982) 8 Fam LR 233 at 236; FLC 91–243; see also Taylor v Taylor (1979) 5 Fam LR 289; FLC 90– 674; In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90– 911 at 75,767. The expression is very wide: see In the Marriage of Spratley

(No 2) (1978) 4 Fam LR 52; FLC 90–414. Legal advice or representation Miscarriage of justice will not apply to a situation where an adult party who is in full knowledge of the circumstances deliberately refrains from seeking legal advice as to the consequence of an agreement which is freely entered into, even if the terms of that agreement reflect a more substantial allowance to the other party than would normally result from an order of the court: see In the Marriage of Gebert (1990) 14 Fam LR 62; FLC 92–137 (FC). This will be the case even in circumstances where a party suggests that he or she did not understand the orders or did not understand the financial evidence: In the Marriage of Prior (2002) 30 Fam LR 72; FLC 93–105. Nor is it likely that a miscarriage of justice will arise simply because a spouse [page 761] against whom property proceedings are brought fails to defend those proceedings for the purpose of protecting other claimants against his or her estate: Donovan v Official Trustee in Bankruptcy (1991) 15 Fam LR 253 at 259; FLC 92–276. Incompetence of the legal representative will not constitute a miscarriage of justice unless it amounts to no representation at all, or of itself affects the judicial process or the fairness of trial: In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92–194. See also In the Marriage of La Rocca (1991) 14 Fam LR 715; FLC 92–222, where the court held that the section was concerned with an unfair trial rather than an unfair result. The appellant in Clifton and Stuart asserted that the advice she had received was inadequate and unprofessional if not incompetent. The court noted that her remedy lay in the law of negligence. Notice to third parties As to whether a miscarriage of justice could arise where property orders had been made in favour of the wife of a bankrupt without the opposition of the bankrupt husband see the obiter comments of Cohen J in Donovan v Official Trustee in Bankruptcy (1991) 15 Fam LR 253 at 259; FLC 92–276. The failure of a spouse to notify a third party judgment creditor of the institution of s 79 proceedings will be a “miscarriage of

justice” for the purposes of s 79A, enabling that third party to bring an application under s 79A (subject to leave and other requirements: see Standing of third parties, above): see Official Trustee in Bankruptcy v Donovan (1996) 20 Fam LR 802; FLC 92–703. The expression “miscarriage of justice” itself means no more than that, in a particular case, justice has miscarried; that there has been a failure by a court to attain justice: see In the Marriage of Simpson (1982) 8 Fam LR 467; (1983) FLC 91–349 at 78,351; see also In the Marriage of Kokl (1981) 7 Fam LR 591 at 598; FLC 91–078; Wilson v Wilson (1967) 10 FLR 203; McKenna v McKenna (1971) 18 FLR 15; Williamson v Williamson (1974) 24 FLR 226. A miscarriage of justice will have occurred if it cannot be said that the order was “justly and regularly procured”: see Wilson v Wilson (1967) 10 FLR 203 at 206. If something had occurred which materially vitiated the determination of the original proceedings, it is enough to show that what is done is not justice according to law: see Wilson v Wilson, above. It is not necessary for the applicant to show that the decision impugned was actually incorrect, nor for the court to review the merits of that decision: see Wilson v Wilson. Clearly, however, these are matters which may influence the court in its decision to exercise its discretion to vary or set aside. It cannot be used as a substitute for an appeal: see In the Marriage of Fagan (1984) 9 Fam LR 1140; (1985) FLC 91–607. While a miscarriage of justice is not established by referring simply to the merits of the original claim, the merits of the case may assume significance where the original order was by consent: see In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91–243 and where the order consented to is far outside the ambit of what is just and equitable. The fact that one party is under a unilateral mistake of fact that has not been induced by, and is not known to, the other at the time a consent order is made, will not amount to a “miscarriage of justice”: see Bigg v Suzi (1998) 22 Fam LR 700; FLC 92– 799. However, if a mistake is known to the other party, and the other party does nothing to correct it, then there may be grounds to set the order aside: see Lowe and Harrington (1997) 21 Fam LR 583; FLC 92–747. In this context, the principles of contract law regarding unilateral mistake may be a guide to judges in deciding whether particular circumstances amount to a “miscarriage of justice”: Lowe and Harrington.

The phrase “or any other circumstance” in s 79A(1)(a) is not to be read as ejusdem generis (Lat: things of the same type) with fraud, duress, suppression of evidence or the giving of false evidence. It encompasses any procedural irregularities occurring in the course of the proceedings which give rise to a miscarriage of justice: see In the Marriage of Elliott and Willcox (1996) 20 Fam LR 567; FLC 92–687. [s 79A.11] Fraud Fraud, for the purposes of the provisions of s 79A, means “conscious wrongdoing or some form of deceit”: see In the Marriage of Kokl (1981) 7 Fam LR 591 at 598; FLC 91–078 at 76,557; see also Byrne v Byrne (1965) 7 FLR 342 at 343; Taylor v Taylor (1979) 5 Fam LR 289; FLC 90– 674 at 78,589. [page 762] The word may therefore require the existence of conscious wrongdoing or some form of dishonesty and may not include mere recklessness: see the classical definition of fraud in Derry v Peek (1889) 14 App Cas 337 at 374. The fraud need only be an inducing factor, it need not amount to a substantial or overriding inducement: see In the Marriage of Green and Kwiatek (1982) 8 Fam LR 419; FLC 91–259; see also Wilson v Wilson (1967) 10 FLR 203 at 208. If the fraud had a material bearing on the issues to be decided, then the court would generally hold that there has been a miscarriage of justice: see Wilson v Wilson, above. [s 79A.12] Duress The word as used in the provision may mean “the compulsion of a person by physical or mental harm”: see In the Marriage of Kokl (1981) 7 Fam LR 591 at 598; FLC 91–078; see also In the Marriage of S (1980) 5 Fam LR 831; FLC 90–820. As to the degree of materiality of particular duress: see Barton v Armstrong [1976] AC 104. [s 79A.13] Giving of false evidence The giving of false evidence need not

involve any statement of dishonesty or wrongdoing. It does not necessarily mean only wilfully false, particularly since fraud is separately mentioned: see Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674. That case, however, involved the original s 79A. It is not sufficient to merely raise doubt or suspicion about the respondent’s conduct in the original proceedings. In respect of s 75 of the repealed Matrimonial Causes Act 1959, it was held that the applicant should produce material which is such that the court can find affirmatively, if the application is based on the alleged giving of false evidence, that some of the relevant evidence at the hearing on which the decree or order under challenge was based, was false: see Wilson v Wilson (1967) 10 FLR 203 at 208. As to the degree of materiality: see In the Marriage of Green and Kwiatek (1982) 8 Fam LR 419; FLC 91–259. As false evidence may be given innocently the court may be slower in finding a miscarriage of justice than, say, with fraud: see Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674. Even where false evidence has been given, the court retains a discretion as to whether it should set aside orders already made: In the Marriage of Arpas (1989) 13 Fam LR 314; FLC 92– 042. [s 79A.14] Suppression of evidence — s 79A(1)(a) Suppression of evidence is the giving of one-sided evidence amounting to the wilful concealment of matters which it is the duty of the party to put before the court: see In the Marriage of Kokl (1981) 7 Fam LR 591 at 599; FLC 91–078; see also In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226. The duty, whether in contested proceedings or those concluded by consent, arises under the Family Law Rules 2004, especially Ch 13, and may include declaration of expectancies as well assets and resources: see, for example, In the Marriage of Bonser (1988) 12 Fam LR 299, where consent orders were made on the basis that property belonging to a husband was of little value, the husband concealing the fact that he had received an indication that a buyer would pay a substantial price for it. The suppression of evidence may mean a failure to adduce available

evidence of facts to the court by the party who succeeded on the issue to which those facts were material: see Birkbeck v Birkbeck (1970) 16 FLR 78 at 92; see also In the Marriage of Rohde (1984) 10 Fam LR 56; FLC 91–592. However, failure simply to give relevant evidence either by choice or inadvertence may not amount to a suppression of evidence: see Re Harris; Ex parte Hasluck [1899] 2 QB 97 at 100–1; see also Birkbeck v Birkbeck, above; In the Marriage of Rohde, above. Following the decision in In the Marriage of Anderson (1999) 26 Fam LR 348; (2000) FLC 93-016; [1999] FamCA 1026 it is clear that there is no duty on a party to disclose valuations obtained for the purpose of the proceedings, as they attract the provisions of s 119 of the Evidence Act 1995 (Cth). [page 763] Suppression of evidence does not mean merely giving one-sided evidence or a failure to put the case for the other side. However, in undefended proceedings an applicant is duty bound to make full disclosure and to deal with the court in good faith: see In the Marriage of Krebs (1976) 2 Fam LR 11,341; FLC 90–117. The applicant must not, by withholding evidence, knowingly create a false impression or allow the court to draw a false inference. [s 79A.15] Any other circumstance These words were inserted by the Family Law Amendment Act 1979. It has been said that they are not to be read ejusdem generis (Lat: things of the same type) with the previously mentioned factors in s 79A(1)(a): In the Marriage of Rhode (1984) 10 Fam LR 56; FLC 91–592. It has also been said that they should be given their wide natural meaning: see In the Marriage of Kokl (1981) 7 Fam LR 591 at 599; FLC 91–078; see also Byrne v Byrne (1965) 7 FLR 342; Gilpin v Gilpin (1969) 17 FLR 131; McKenna v McKenna (1971) 18 FLR 15 at 18; In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911 at 75,767; Beasley v Beasley [1968] 1 NSWR 741. See also McKenna v McKenna (1971) 18 FLR 15 at 18; Wilson v Wilson (1967) 10 FLR 203; In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91–243; In the

Marriage of Liu (1984) 9 Fam LR 1060; FLC 91–572. Procedural irregularities, which may amount to a denial of natural justice such as the failure to give notice to a third party who may be adversely affected by an order sought by the parties, or by an agreement, is very likely to constitute a “miscarriage of justice”: Semmens v Commonwealth (1989) 13 Fam LR 715; (1990) FLC 92–116. The words are nevertheless not of unlimited scope, being governed by the words “miscarriage of justice”: In the Marriage of Gebert (1990) 14 Fam LR 62; FLC 92–137 (FC) (no miscarriage where party of full age, with full knowledge, choosing not to take legal advice, makes a more than usually substantial allowance in a consent order); Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC 92–211 (FC) (death of spouse shortly after s 79 consent orders: no miscarriage). Further, miscarriage of justice is limited to the integrity of the judicial process, and does not include, for example, the mishandling of a party’s case at the trial: In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92–194 (FC). These authorities may require some caution in light of comments in Suiker, above, taking miscarriage of justice outside the realm of the judicial process. A failure by a party to disclose their financial circumstances in accordance with rules of court may fall under this head, even where a consent order has been signed by a court registrar: In the Marriage of Pelerman (2000) 26 Fam LR 505; FLC 93–037. [s 79A.17] Examples of any other circumstance Non-appearance at hearing The non-appearance of a party at a hearing may constitute a miscarriage of justice by reason of “any other circumstance”: see Williamson v Williamson (1974) 24 FLR 226 at 237. In order to establish such a ground, it is necessary to show that: (a) the respondent did not choose not to be heard; (b) the respondent had material to put before the court which might have made a difference if the respondent had been heard; (c) the respondent’s inability to appear at the hearing involved some circumstance outside his or her control.

See Moore v Moore [1962] NSWR 522; see also Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674; In the Marriage of Callow (1976) 2 Fam LR 11,167; FLC 90–093; Gilpin v Gilpin (1969) 17 FLR 131; McKenna v McKenna (1971) 18 FLR 15; In the Marriage of Wilkes (1981) 7 Fam LR 58; FLC 91–060. It will not be decisive that the aggrieved party received no notice of the proceedings: see Williamson v Williamson (1974) 24 FLR 226 at 229. It will be sufficient for the aggrieved party to show that his or her absence was due, not to any failure on the part of the applicant to give [page 764] notice, but to some genuine and excusable mistake or misapprehension induced by the legal advisers or by the applicant: see Moore v Moore [1962] NSWR 522; see also Gilpin v Gilpin (1969) 17 FLR 131. Fault It was suggested that the aggrieved party ought not to be at fault: see Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674. However, it has now been suggested that fault would not necessarily deprive a court of jurisdiction, and that is a factor which the court will consider in the circumstances of the case: see Taylor v Taylor, above, per Murphy J; see also In the Marriage of Wilkes (1981) 7 Fam LR 58; FLC 91–060. Capacity A party may argue that one or both of them did not have capacity to enter into the final orders. The party alleging incapacity should be in a position to demonstrate same by admissible evidence. As a caution it should be noted that any application to set aside orders which invokes the status and nature of instructions given to solicitors may well have the effect of waiving legal professional privilege: see Stamp v Stamp (2007) 37 Fam LR 235; FLC 93–314; [2007] FamCA 420. Procedural irregularity If a decree nisi was inadvertently made when the parties had not been separated for 12 months, this may amount to a miscarriage of justice by reason of “any other circumstance”: see In the

Marriage of Spratley (No 2) (1978) 4 Fam LR 52; FLC 90-414. [s 79A.18] Consent order Consent orders can be the subject of appeal as much as other orders, although it seems that they cannot be challenged on the ground of correctness, as distinct from being challenged on grounds such as fraud, mistake, fresh evidence, and absence of jurisdiction: In the Marriage of Robinson and Willis (1982) 8 Fam LR 131; FLC 91–215, approved in Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632 at 646; (1990) FLC 92–125. It seems that they will be set aside readily where there has been incomplete disclosure: see In the Marriage of Suiker (1993) 17 Fam LR 236; FLC 92–436. A party may be able to establish a miscarriage of justice in respect of a consent order, if a party’s consent was for any reason not a true consent: see In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91–243. If a consent property order contained an unseverable provision which was void for uncertainty, this may be a circumstance by reason of which there has been a miscarriage of justice: see In the Marriage of Simpson (1982) 8 Fam LR 467; (1983) FLC 91–349 at 78,351. [s 79A.19] Increase in value of property prior to order A substantial increase in the value of a property before the property order was finally made may, on the facts of a particular case, be a circumstance which constitutes a miscarriage of justice: see In the Marriage of Kokl (1981) 7 Fam LR 591; FLC 91–078. But a court may not take judicial notice of particular increases in the value of land in a particular suburb: see In the Marriage of Monticone (1989) 13 Fam LR 592; (1990) FLC 92–114 at Fam LR 597 (FC). [s 79A.20] Withholding facts However, it would be contrary to justice if a party withheld facts from the court which would have been material to the determination of the order; they being facts which it was open to a party through his or her legal advisers to have brought to the attention of the court by seeking leave to reopen during the period that judgment is reserved, to allege that the orders made were unjust, when he or she, by his or her conduct, was the material and prime contributor to the alleged injustice: see In the Marriage of Rohde (1984) 10 Fam LR 56; FLC 91–592. But see also In the Marriage of Arpas (1989) 13 Fam LR 314; FLC 92–042 where the

court confirmed that it retained a discretion as to whether it should set aside the orders previously made even where false evidence and non-disclosures had led to a miscarriage of justice. [s 79A.21] Impracticable for order to be carried out — s 79A(1)(b) This subsection, inserted in 1983, enables the court to take account of events since the order was made. In recent years, courts have increasingly drawn on the analogy of the doctrine of frustration in contract law: [page 765] see In the Marriage of La Rocca (1991) 14 Fam LR 715; FLC 92–222. Thus, evidence is required of “the happening of events which cannot reasonably be foreseen” at the date of making the order. See also In the Marriage of Franklin and McLeod (1993) 17 Fam LR 793; (1994) FLC 92–481. However, although the frustration analogy has been said to be “of assistance”, it has also been said that “it must remain at all times in the forefront of the court’s deliberations that the task before the court is to interpret and administer a section of the Act”: see In the Marriage of Cawthorn (1998) 23 Fam LR 86; FLC 92–805. “Impracticable” is not the same as “impossible”: see In the Marriage of Rohde (1984) 10 Fam LR 56; FLC 91–592. It is necessary to distinguish between post-order events which merely create problems of enforcement of an order on the one hand, and those which make fulfillment of the order “impracticable” on the other. Only the latter will provide grounds for setting the order aside. So, for example, a case in which a mother killed herself and the children after the order would clearly satisfy this ground (see, for example, the English case of Barder v Barder [1987] 2 All ER 440, cited by Kay J in La Rocca, above). However, the “commercial failure” of one of the parties would not. The mere fact that a party may not be able to meet their obligations under an order in full does not provide a basis for setting the order itself aside. The liberty to apply for “machinery orders”, implied into all property orders, is clearly relevant in applying this distinction between enforcement problems and genuine impracticability: see In the Marriage of Molier and Van Wyk (1980) 7 Fam

LR 18; FLC 90–911. Underlying this strict interpretation of the subsection is the importance of preserving the dichotomy, fundamental to the Family Law Act, between property distribution orders, which are basically permanent in nature, and orders for spousal maintenance, which are variable: In the Marriage of La Rocca; In the Marriage of Cawthorn. [s 79A.25] Default in carrying out an obligation imposed by original order — s 79A(1)(c) This section was inserted in the Act by the Family Law Amendment Act 1983. Where a court is satisfied that a person has defaulted in carrying out an obligation imposed upon him or her by an order made under s 79, and in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or set it aside and make another order in substitution for the order, the court may, in its discretion, vary the order or set the order aside and, if it thinks fit, make another order under s 79 in substitution for the order varied or set aside: see In the Marriage of Liu (1984) 9 Fam LR 1060; FLC 91–572. Of particular relevance in this context is the general principle that a party cannot successfully seek an order under s 79A(1) as a result of that party’s own default unless such default was due to circumstances quite beyond that party’s control. This is related to the general principle that no one should profit from their own wrong, a principle that includes an obligation to carry out the provisions of a court order: In the Marriage of Cawthorn (1998) 23 Fam LR 86; FLC 92–805. To obtain relief, the applicant must establish “clean hands”. It would not normally be “just and equitable” to grant an order if these conditions are not satisfied. Both the person who defaults under the order and the person who benefits by the default are persons affected by the original order and either of them may set forth the circumstances that have arisen as a result of that default. The court retains a discretion to vary or set aside the order and make another order under s 79. Where the court ordered the sale of a property and the division of the proceeds, and then one party demolished the house, reducing the value, a Federal Magistrate applied s 79A(c), finding, it seems (paragraph [17] of the

judgment does not expressly say so) that this was a breach of the order, and, unsurprisingly, that it was just and equitable to made orders under s 79A adjusting the distribution of proceeds of sale: Marriage of Gaudry (2004) 33 Fam LR 342; FLC 93-202 (Scarlett FM). [s 79A.26] Order in respect of which there is a default — s 79A(1)(c) In considering s 79A(1)(c), the default must be in respect of an order made under s 79. It is not sufficient if the default is in respect of an order for maintenance: see In the Marriage of Marras (1984) 10 Fam LR 47; (1985) FLC 91–635. [page 766] [s 79A.27] Just and equitable — s 79A(1)(c) The phrase “just and equitable” does not necessarily have the same meaning in s 79A(1)(c) as it does in s 79(2). What the court has to do in considering what is “just and equitable” under s 79A(1)(c), is to exercise a judicial discretion and one exercisable after a consideration of all the circumstances that have arisen as a result of the default referred to in s 79A(1)(c): see Cominos v Cominos (1972) 46 ALJR 593 at 601; see also In the Marriage of Rohde, above If a party has materially and primarily contributed to his or her difficulties in complying with an order, by his or her conduct prior to the order, which conduct could have been disclosed to the court, then it would not be just and equitable to set aside the order: see In the Marriage of Rohde, above. By way of contrast, where a party has been attempting to comply with the order, and paid some money by way of satisfaction of part of the order, then it may be just and equitable to set aside orders obtained for the enforcement of the original order: see In the Marriage of Monticone (1989) 13 Fam LR 592; (1990) FLC 92–114. [s 79A.28] Circumstances of an exceptional nature relating to the care, welfare and development of a child — s 79A(1)(d) This section was inserted in the Act by the Family Law Amendment Act 1983. The section

refers to the circumstances of a child of a marriage. The court must be satisfied that the child or the applicant who has caring responsibility for the child as defined in subsection 1AA will suffer hardship if the court does not vary or set aside the order and make another order. It allows the court to act where there has been a change of personal circumstances provided such circumstances: (a) are of an exceptional nature; and (b) relate to the care, welfare and development of a child of the marriage. [s 79A.29] Exceptional circumstances — s 79A(1)(d) What amounts to exceptional circumstances is very much a question of fact and degree: see In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC 91–576. The occurrence of a change in the responsibility for the daily care, welfare and development of children of a marriage, after the making of an order under s 79, could not be held of itself to be an unusual circumstance. The ordinary vicissitudes of life, coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following upon the dissolution of their marriage and the division of their assets, and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable, having regard to the children’s welfare, that such a change occurs: see In the Marriage of Simpson and Hamlin, above. See also In the Marriage of Sandrk (1991) 15 Fam LR 197; FLC 92–260. The question is whether the change which occurred was such as to take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur: see In the Marriage of Simpson and Hamlin, above. A change in caring arrangements must be so exceptional as to take it out of the normal vicissitudes of life (SO’R). Such an exceptional change would be one which occurred as a result of a spouse’s death, such as in Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC 92–211 (FC), where a change of custody occurred because of the death of the husband not long after property orders had been made. A change of custody which occurred, at the instigation of the children of the marriage, unexpectedly and quickly after the making of the property order, and which was not within the reasonable

contemplation of the parties nor a situation to which either party had consciously contributed was held to amount to exceptional circumstances in In the Marriage of Sandrk (1991) 15 Fam LR 197; FLC 92–260. Original order In In the Marriage of Liu (1984) 9 Fam LR 1060 at 1066; FLC 91–572 at 79,624, Nygh J said “… the exceptional circumstances need not by themselves relate to the original property order. An obvious example would be a serious chronic illness of a child which causes a need for remodelling of the house in which he or she lives which cannot be met out of increased maintenance but only out of an increased share of capital”. [page 767] Failure to comply with an order In In the Marriage of Marras (1984) 10 Fam LR 47; (1985) FLC 91–635, Purdy J held that a failure to pay maintenance may amount to a circumstance of an exceptional nature that might justify setting aside the original property order. However, number of years did not amount to circumstances of an exceptional nature that might justify setting aside the original property order. However, In the Marriage of Liu, above, Nygh J held that a failure by a husband to pay maintenance over a number of years did not amount to circumstances of an exceptional nature that might justify the setting aside of the original property order. Welfare of the child The child whose care, welfare and development is affected by the order must be a child of the marriage as defined by the Act (s 60F): see Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC 92–211 (FC). [s 79A.30] Hardship — s 79A(1)(d) It is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant. The court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by setting aside or varying an existing order of the court: see In the Marriage of Simpson and Hamlin (1984) 9 Fam LR 1040; FLC 91–576.

If, by reason of the change of care arrangements, there is an imbalance, the court should also consider whether such imbalance could not be corrected by other means; such as the making of maintenance orders: see In the Marriage of Simpson and Hamlin, above. [s 79A.31] Varying or setting aside orders by consent — s 79A(1A) This section was inserted in the Act by the Family Law Amendment Act 1983. It enables a court to vary or set aside an order made under s 79 where all parties to the s 79 proceedings consent: see In the Marriage of Parker (1983) 9 Fam LR 323 at 326; FLC 91–364. See also In the Marriage of Slapp (1989) 13 Fam LR 158; FLC 92–022. Any new order may be made by consent pursuant to s 80(j): see In the Marriage of Scarborough (1978) FLC 90–501. The operation of the section may not be limited to a defended case in which a judge makes a decision and gives reasons for the decision. It may also apply to an order by consent: see In the Marriage of Scarborough (1978) FLC 90–501 at 77,623; see also In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91–243. Resumption of cohabitation or reconciliation It is clear following the decisions in In the Marriage of McCabe (1995) 19 Fam LR 579; FLC 92634, In the Marriage of Sommerville (1999) 27 Fam LR 233; (2000) FLC 93042 that consent to set aside orders pursuant to s 79A(1) need not be express but may be implied from conduct. The conduct in each of these cases was a reconciliation between the parties. However, reconciliation in and of itself will not necessarily be sufficient, it is a question of fact and degree and assessment of the parties’ contributions during any period of reconciliation. A reconciliation, without remarriage, may also give rise to rights under state legislation dealing with de facto relationship. Given the court’s previous reluctance to exercise jurisdiction under s 79A where the parties had available to them alternate relief, the extension of the law to cover couples whose marriages have been dissolved and whose property has been the subject of orders under s 79 is a curious extension of the court’s jurisdiction (SC).

[s 79A.32] Extent of power to set aside or vary An order under s 79A(1) need not be set aside as from the date of the original order but as from the date of the order under s 79A. It covers, not merely a reopening of the original proceedings, but a variation of obligations occurring at a later stage: see In the Marriage of Parker (1983) 9 Fam LR 323 at 329; FLC 91–364. [s 79A.33] Power of variation in original order The court may act upon any power of variation reserved by the terms of the original order: see In the Marriage of Fowler (1980) 5 Fam LR 750; FLC 90–808; see also In the Marriage of Hawkins (1979) 5 Fam LR 364; FLC 90–663. [page 768] The phrase “until further order” does not allow a total variation of the order. It only permits a curtailment of the order: see In the Marriage of Hawkins, above; see also In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90-299. It only allows an early termination of its effect. The phrase “liberty to apply” is only a device by which further orders may be made when necessary for the purpose of implementing and giving effect to the principal relief already pronounced: see In the Marriage of Kaljo (1978) 4 Fam LR 190; FLC 90-445; see also In the Marriage of Holland (1982) 8 Fam LR 233; FLC 91-243. See also In the Marriage of Hawkins (1979) 5 Fam LR 364; FLC 90-663. [s 79A.34] Enforcement of an order against the estate of a deceased party — s 79A(1B) This section was inserted in the Act by the Family Law Amendment Act 1983. An order which is varied or made under s 79A(1) or (1A) may, after the death of a party to the proceedings, be enforced on behalf of, or against, the estate of the deceased, as the case may be: see Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92-125. [s 79A.35] Effect of the death of a party to proceedings under s 79A — s 79A(1C) This section was inserted in the Act by the Family Law Amendment Act 1983. If a party to proceedings under s 79A dies before the proceedings

are completed, this section provides that the proceedings may be continued by or against the legal personal representative of the deceased. The court may then vary the original order, set it aside, or set it aside and make a substitution order under s 79, if it is of the opinion: (a) that it would have exercised its powers if the deceased party had not died; and (b) that it is still appropriate to exercise its powers in relation to the order. By subs (1C), if an order is varied or made by a court under subs (1B), this order may then be enforced on behalf of or against the estate of the deceased party, as the case may be. Commencement of proceedings In In the Marriage of Phillips (1985) 10 Fam LR 310; FLC 91-634, Elliot J held that proceedings under s 79A cannot be commenced after the death of a party. [s 79A.36] Bona fide purchaser or other person interested — s 79A(2) This section was inserted in the Act by the Family Law Amendment Act 1983. It requires the court in the exercise of its powers under the section to have regard to the interests of and make any order proper for the protection of a bona fide purchaser or other person interested. [s 79A.37] Order under s 86 of the repealed Matrimonial Causes Act 1959 — s 79A(3) This section was inserted in the Act by the Family Law Amendment Act 1983. For some time after the inclusion of s 79A, it was thought that the section did not apply to property orders made under the repealed Matrimonial Causes Act 1959: see In the Marriage of Taylor (1977) 3 Fam LR 11,220 at 11,237; FLC 90-226; see also In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90-299. See, however, Taylor v Taylor (1979) 5 Fam LR 289; FLC 90-674, in which the High Court held that s 79A did apply to property orders made under the repealed Act, and In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90-911. This has now been confirmed by this section: see In the Marriage of Parker (1983) 9 Fam LR 323 at 325; FLC 91-364. In Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91—303,

the High Court held that not every order made under s 86 of the repealed Act was to be treated as the equivalent of an order under s 79 of the Family Law Act. In particular, the High Court held that orders made under s 86 for the exclusive use and occupation of a matrimonial home could not be treated under the Family Law Act as if made under s 79: see, however, In the Marriage of Parker (1983) 9 Fam LR 323 at 326; FLC 91-364, where Nygh J expressed the view that s 79A(3) may have the effect that all orders made under s 86 of the repealed Act are within the ambit of s 79A. [page 769] [s 79A.38] Leave to bring proceedings under s 79A Where a party against whom property orders have been made has been declared bankrupt leave, under s 58(3)(6) of the Bankruptcy Act, to bring proceedings under s 79A to have the property orders set aside is likely to be required as the proposed application under s 79A would be an application in relation to a provable debt. In Re McMaster; Ex parte McMaster (1991) 15 Fam LR 215 the amount payable by the husband under property orders exceeded the husband’s assets and he became bankrupt on his own petition. The wife sought leave to institute proceedings under s 79A to have the property orders set aside but leave was refused on the grounds that to give leave in this case would defeat one of the purposes of the bankruptcy legislation, that is to enable the bankrupt to discharge any future liability for existing debts. [s 79A.39] One proceeding, not two The Full Court has held that prima facie at least the court should not divide proceedings under s 79A into two separate hearings, the first being limited to whether the order should be set aside. Normally there should be one hearing in which the court should consider whether there has been a miscarriage of justice in the relevant sense and if so, whether the order should be varied or set aside and whether any order should be made in lieu of the original order. See In the Marriage of Oastler (1989) 16 Fam LR 674; (1993) FLC 92-390.

____________________

[s 79B] etc

Notification of proceeds of crime orders

79B (1) If: (a) a person makes an application for an order, under this Part, with respect to: (i) the property of the parties to a marriage or either of them; or (ii) the maintenance of a party to a marriage; and (b) the person knows that the property of the parties to the marriage or either of them is covered by: (i) a proceeds of crime order; or (ii) a forfeiture application; the person must: (c) disclose in the application the proceeds of crime order or forfeiture application; and (d) give to the court a sealed copy of that order or application. (2) A person who does not comply with subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units. (3) If: (a) a person is a party to property settlement or spousal maintenance proceedings under this Part; and (b) the person is notified by the proceeds of crime authority that the property of the parties to the marriage or either of them is covered by: (i) a proceeds of crime order; or

(ii) a forfeiture application; the person must: (c) notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and (d) give the Registry Manager: (i) a copy of the notification referred to in paragraph (b) (if the notification is in writing); and (ii) a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application). [subs (3) am Act 174 of 2011 s 3 and Sch 2 items 164 and 165, opn 6 June 2012]

[page 770] (4) A person who does not comply with subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units. [s 79B insrt Act 86 of 2002 s 3 and Sch 5 item 8 opn 1 Jan 2003]

[s 79C] Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc 79C (1) A court in which property settlement or spousal maintenance proceedings are pending must stay those proceedings if notified under section 79B in relation to the proceedings. (1A) The court may, before staying proceedings under subsection (1), invite or require the proceeds of crime authority to make submissions relating to staying the proceedings.

[subs (1A) am Act 174 of 2011 s 3 and Sch 2 item 166, opn 6 June 2012]

(2) A court must, on the application of the proceeds of crime authority, stay property settlement or spousal maintenance proceedings under this Part if the property of the parties to the marriage or either of them is covered by: (a) a proceeds of crime order; or (b) a forfeiture application. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 166, opn 6 June 2012]

(3) A court must notify the proceeds of crime authority if the court stays property settlement or spousal maintenance proceedings under subsection (1) or (2). [subs (3) am Act 174 of 2011 s 3 and Sch 2 item 166, opn 6 June 2012]

(4) The proceeds of crime authority must notify the Registry Manager if: (a) a proceeds of crime order ceases to be in force; or (b) a forfeiture application is finally determined. [subs (4) am Act 174 of 2011 s 3 and Sch 2 item 166, opn 6 June 2012]

(5) For the purposes of subsection (4), a forfeiture application is taken to be finally determined when: (a) the application is withdrawn; or (b) if the application is successful — the resulting forfeiture order comes into force; or (c) if the application is unsuccessful — the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of. [s 79C insrt Act 86 of 2002 s 3 and Sch 5 item 8 opn 1 Jan 2003]

[s 79D] 79D

Lifting a stay (1) A court that stayed the property settlement or spousal

maintenance proceedings under section 79C must wholly or partially lift the stay if: (a) either party to the proceedings makes an application for the stay to be lifted and the proceeds of crime authority consents to such an application; or (b) the proceeds of crime authority makes an application for the stay to be lifted. [subs (1) am Act 174 of 2011 s 3 and Sch 2 item 167, opn 6 June 2012]

(2) A court that stayed the property settlement or spousal maintenance proceedings under section 79C may, on its own motion, wholly or partially lift the stay if the proceeds of crime authority consents to such a motion. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 168, opn 6 June 2012]

[page 771] (3) Giving the Registry Manager written notice of the proceeds of crime authority’s consent under this section is taken to be the giving of that consent, unless the court requires the authority to appear in the proceedings. The notice may be given by the authority or by a party to the proceedings. [subs (3) am Act 174 of 2011 s 3 and Sch 2 items 169 and 170, opn 6 June 2012] [s 79D insrt Act 86 of 2002 s 3 and Sch 5 item 8 opn 1 Jan 2003]

[s 79E] Intervention by proceeds of crime authority 79E (1) The proceeds of crime authority may intervene in any property settlement or spousal maintenance proceedings in relation to which a court is notified under section 79B, or in any

proceedings under section 79C or 79D in which the authority is not already a party. [subs (1) am Act 174 of 2011 s 3 and Sch 2 items 171 and 172, opn 6 June 2012]

(2) If the proceeds of crime authority intervenes, the authority is taken to be a party to the proceedings with all the rights, duties and liabilities of a party. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 173, opn 6 June 2012] [s 79E insrt Act 86 of 2002 s 3 and Sch 5 item 8 opn 1 Jan 2003]

[s 79F]

Notifying third parties about application

79F The applicable Rules of Court may specify the circumstances in which a person who: (a) applies for an order under this Part; or (b) is a party to proceedings for an order under this Part; is to give notice of the application to a person who is not a party to the proceedings. Note: The applicable Rules of Court may, for example, require notice to be given to persons referred to in subsection 79(10) whose interests could be affected by proceedings for an order under section 79. [s 79F insrt Act 20 of 2005 s 3 and Sch 5, opn 15 Apr 2005; am Act 115 of 2008 s 3 and Sch 1[47], opn 1 Mar 2009]

[s 79G] Notifying bankruptcy trustee etc about application under section 74, 78, 79 or 79A 79G (1) The applicable Rules of Court may make provision for a bankrupt who becomes a party to a proceeding for an application under section 74, 78, 79 or 79A to give notice of the application to the bankruptcy trustee. (2) The applicable Rules of Court may make provision for a debtor subject to a personal insolvency agreement who becomes a party to a proceeding for an application under section 74, 78, 79 or 79A to give notice of the application to the trustee of the agreement. [s 79G insrt Act 20 of 2005 s 3 and Sch 1 cl 52, opn 18 Sep 2005]

[s 79H]

Notifying court about bankruptcy etc.

79H (1) Bankruptcy The applicable Rules of Court may make provision for a person who: (a) is a party to a marriage; and (b) is a party to a proceeding for an application under section 74, 78, 79 or 79A; and [page 772] (c) before that application is finally determined, becomes a bankrupt; to notify a court exercising jurisdiction under this Act that the person has become a bankrupt. (2) Debtor subject to a personal insolvency agreement The

applicable Rules of Court may make provision for a person who: (a) is a party to a marriage; and (b) is a party to a proceeding for an application under section 74, 78, 79 or 79A; and (c) before that application is finally determined, becomes a debtor subject to a personal insolvency agreement; to notify a court exercising jurisdiction under this Act that the person has become a debtor subject to a personal insolvency agreement. (3) Institution of proceeding under the Bankruptcy Act 1966 The applicable Rules of Court may make provision for a person who: (a) is a party to a marriage; and (b) is a party to a proceeding for an application under section 74, 78, 79 or 79A; and (c) before that application is finally determined, becomes a party to a proceeding before the Federal Court or the Federal Circuit Court of Australia under the Bankruptcy Act 1966 that relates to: (i) the bankruptcy of the person; or (ii) the person’s capacity as a debtor subject to a personal insolvency agreement; to notify a court exercising jurisdiction under this Act of the institution of the proceeding under the Bankruptcy Act 1966. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(4) The applicable Rules of Court may make provision for a person who: (a) is the bankruptcy trustee of a bankrupt party to a

marriage; and (b) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act; to notify a court exercising jurisdiction under this Act of the making of the application. (5) When application finally determined For the purposes of this section, an application for an order under section 74, 79 or 79A is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. (6) For the purposes of this section, an application for a declaration under section 78 is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) a declaration is made as a result of the application. [s 79H insrt Act 20 of 2005 s 3 and Sch 1 cl 52, opn 18 Sep 2005]

[s 79J] Notifying non-bankrupt spouse about application under section 139A of the Bankruptcy Act 1966 79J The applicable Rules of Court may make provision for a person who: (a) is the bankruptcy trustee of a bankrupt party to a marriage; and [page 773] (b) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act in relation to an entity (other than the other party to the marriage); to notify the other party to the marriage of the making of the application. [s 79J insrt Act 20 of 2005 s 3 and Sch 1 cl 52, opn 18 Sep 2005]

[s 80]

General powers of court

80 (1) The court, in exercising its powers under this Part, may do any or all of the following: (a) order payment of a lump sum, whether in one amount or by instalments; (b) order payment of a weekly, monthly, yearly or other periodic sum; (ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs; (d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order; (e) appoint or remove trustees; (f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage; (g) [repealed] (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order; (i) impose terms and conditions; (j) make an order by consent; (k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and (l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part. [subs (1) am Act 181 of 1987 s 43; Act 194 of 1999 s 3 and Sch 11[68]]

(2) The making of an order of a kind referred to in paragraph (1) (ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from

making a subsequent order in relation to the maintenance of the party. [subs (2) insrt Act 181 of 1987 s 43]

(3) The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them. [subs (3) insrt Act 181 of 1987 s 43; am Act 194 of 1999 s 3 and Sch 11[69]]

(4) If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt. [subs (4) insrt Act 20 of 2005 s 3 and Sch 1 cl 53, opn 18 Sep 2005]

[page 774] (5) If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement. [subs (5) insrt Act 20 of 2005 s 3 and Sch 1 cl 53, opn 18 Sep 2005]

(6) Subsections (4) and (5) do not limit paragraph (1)(d). [subs (6) insrt Act 20 of 2005 s 3 and Sch 1 cl 53, opn 18 Sep 2005]

COMMENTARY ON SECTION 80 PRELIMINARY Introductory comment ….

[s 80.1]

LUMP SUM Order for payment of a lump sum — s 80(1)(a) …. Section 81 and lump sum order — s 80(1)(a) …. Lump sum orders — general principles ….

[s 80.2] [s 80.3] [s 80.4]

Calculation of amount of lump sum …. Method of payment of lump sum — s 80(1)(a) ….

[s 80.5] [s 80.6]

PERIODIC SUM Order for payment of periodic sum — s 80(1)(b) ….

[s 80.7]

TRANSFER OF PROPERTY Transfer or settlement of property — s 80(1)(ba) ….

[s 80.8]

SECURITY Order that payment of a sum be secured — s 80(1)(c) ….

[s 80.9]

EXECUTION OF DOCUMENTS Order for execution of a necessary deed or instrument — s 80(1)(d) ….

[s 80.10]

TRUSTEES Power to appoint or remove trustees — s 80(1)(e) ….

[s 80.11]

PAYMENT TO PARTICULAR AUTHORITY Order for payments to a party, to a trustee or into court, or to a public authority — s 80(1)(f) ….

[s 80.12]

TYPE OF ORDER Permanent order or order pending disposal of proceedings or order for fixed term, etc — s 80(1)(h) …. Interim maintenance — s 80(1)(h) …. Interlocutory order to cover costs — s 80(1)(h) ….

[s 80.13] [s 80.14] [s 80.15]

TERMS Power to impose terms and conditions — s 80(1)(i) ….

[s 80.16]

CONSENT ORDERS Orders by consent — s 80(1)(j) ….

[s 80.17]

ORDER TO DO JUSTICE

An order necessary to do justice — s 80(1)(k) …. Order to attend psychiatrist …. Partial property order — s 80(1)(k) …. Appoint a receiver — s 80(1)(k) …. Injunctions …. Other uses — s 80(1)(k) ….

[s 80.18] [s 81.18A] [s 80.19] [s 80.20] [s 80.20A] [s 80.20B] [page 775]

ORDER AT ANY TIME Make an order at any time — s 80(1)(l) ….

[s 80.21]

EFFECT OF ORDER FOR MAINTENANCE Introductory comment — s 80(2) …. Rules — s 80(3) ….

[s 80.22] [s 80.23]

PRELIMINARY [s 80.1] Introductory comment This section sets out the range of powers that the court may exercise in proceedings for property settlement and spousal maintenance. It does not apply to proceedings for child maintenance. An authoritative general statement was made in relation to this section in In the Marriage of Davidson (1994) 17 Fam LR 656 at 667; FLC 92–469. There, the Full Court (Nicholson CJ, Fogarty and Treyvaud JJ) said: “For purposes relevant to these proceedings the terms of s 80(1) itself and the authorities in relation to it and its predecessors indicate that: “Section 80(1) is limited by its introductory words, namely that ‘[t]he court, in exercising its powers under this Part, may do any or all of the following …’. That is, s 80(1) is activated by the exercise by the court of some other of the powers in Pt VIII. For example, a proceeding which sought a lump sum payment would not be within power unless it was connected to an existing or previous proceeding for orders for maintenance or property settlement; similarly with proceedings seeking a secured payment, the

execution of a document, the transfer of property, consent orders, etcetera, as enumerated in s 80(1). “However, once s 80(1) is activated there is no basis for reading down its powers or scope (other than the limitations to which we have referred generally, above). It is an enabling provision and the court in exercising its powers may do so in ways which are suitable and appropriate to meet the varying circumstances which arise in individual cases. “A relevant connection or relationship is required between a primary power within Pt VIII and the exercise of any of the powers in s 80(1). That is, it is not sufficient in order to attract the powers under s 80(1) that the court is exercising or has exercised one or more of the other powers in Pt VIII; there must be some connection or relationship between those two circumstances. “The circumstance that the powers under s 80(1) may be exercised from time to time and in relation to previous orders is demonstrated by the terms of the subsection itself and by a number of the decisions over the years: see, for example, In the Marriage of Kaljo (1978) 4 Fam LR 190; FLC 90–445; In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911; In the Marriage of Chernischoff (1979) 6 Fam LR 155; (1980) FLC 90–848; In the Marriage of Collins (1977) 3 Fam LR 11,424; FLC 90–286; In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90–310 and the cases referred to, above.” Section 80 is not an independent source of jurisdiction for the Family Court, but arises only where the court is exercising its powers under Pt VIII: Yunghanns v Yunghanns (1999) 24 Fam LR 400; FLC 92–836. A court is obliged to satisfy itself that the proceedings in which it is sought to invoke s 80 are truly of that character: Yunghanns v Yunghanns, above. LUMP SUM [s 80.2] Order for payment of a lump sum — s 80(1)(a) The court may order that a lump sum be paid either by way of maintenance under s 74 or by way of settlement of property under s 79. Section 80(1)(a), however, does not confer a general discretion to order payment of a lump sum. Any claim for a lump sum must be a claim based on ss 72 or 73 or on s 79: see In the Marriage of Slattery (1976) 2 Fam LR

11,251; FLC 90–110; see also In the Marriage of Collins (1977) 3 Fam LR 11,424; FLC 90–286; In the Marriage of Rowan (1977) 3 Fam LN 76; FLC 90–310. [page 776] The court may not be deterred from making an order for payment of a lump sum where there are sufficient assets in the respondent’s name, solely because his beneficial interest or ownership in those assets is in doubt: see Lynch v Lynch (1977) 3 Fam LR 11,110. The court is not required to specify the property or fund out of which the lump sum is to be paid. It will normally not do so, in order that the respondent can arrange for payment in the way he or she considers most appropriate: see In the Marriage of Collins, above; see also In the Marriage of Van der Kreek (1977) 3 Fam LN 51; In the Marriage of Groutsch (1978) 4 Fam LN 35; FLC 90–461; In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027; In the Marriage of Kaljo (1978) 4 Fam LR 190; FLC 90–445. The court is not required to specify the way the money is to be paid or how it is to be raised: see In the Marriage of Hendrikse (1976) 1 Fam LN 18; FLC 90–069. An order for payment of a lump sum may be preferred as it is more calculated to finally determine the financial relationship between the parties than an order for a periodic sum: see In the Marriage of Sharari (1977) 3 Fam LN 84; see also In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469. Periodical payments generally preferred Especially in recent decisions, the Full Court has urged caution in making orders for maintenance by way of lump sum awards, especially because of the capacity of such orders to work injustice because of uncertainty about future events: see, for example, In the Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC 92–600, where the husband’s ill-health and uncertainty as to his continuing earning capacity were cited as reasons for preferring periodical payments over a lump sum. It

has been said that “capitalisation of maintenance would rarely be justified where there was no genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order”: In the Marriage of Clauson (1995) 18 Fam LR 693 706; FLC 92–595 and the authorities there cited. However, it has been suggested in subsequent Full Court authority that lump sum spousal maintenance may be ordered in a wider range of circumstances than envisaged by the Full Court in Clauson: see the discussion at [s 72.18] of the “narrow” and “broad” views of lump sum spousal maintenance. [s 80.3] Section 81 and lump sum order — s 80(1)(a) Section 81 provides that the court is required, as far as it is practicable “to make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”. Although it has been said that s 81 appears to encourage orders for lump sums or the transfer of property (for example, In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,487; FLC 90–056 at 75,232), it has also been said that s 81 does not mandate the making of a lump sum order or preclude the making of orders for ongoing spousal maintenance: In the Marriage of DJM and JLM (1998) 23 Fam LR 396 at 428; FLC 92–816. Section 81 requires a court only to take such steps as are “practicable” to end financial relations between the parties; if it is not practicable to make orders that are “proper” under s 74, then the requirements of s 81 will be met by making orders for ongoing spousal maintenance: DJM. See also In the Marriage of Dench (1978) 6 Fam LR 105 at 107; 4 Fam LN 39; FLC 90–469. [s 80.4] Lump sum orders — general principles Capacity to pay No lump sum should be ordered unless there is a capacity to pay. The court will not order payment of a lump sum if the respondent does not have the funds available to satisfy the order: see In the Marriage of Puls (1976) 1 Fam LR 11,252; FLC 90–036; see also In the Marriage of Mottee (1976) 2 Fam LR 11,177; FLC 90–099; In the Marriage of Groutsch (1978) 4 Fam LN 35; FLC 90–461; In the Marriage of Spano (1979) 5 Fam LR 506; FLC 90–707; In the Marriage of Branchflower (1979) 6 Fam LR 188; (1980)

FLC 90–857. See, however, In the Marriage of Hack (1980) 6 Fam LR 425; FLC 90–886 in which case the option of method of payment was given to the respondent: see also In the Marriage of Mapstone (1979) 5 Fam LR 205; FLC 90–681; Sharp v Sharp (1978) 4 Fam LN 38; FLC 90–470. [page 777] Order not to impair earning capacity The court will not usually make a lump sum order which will substantially impair the respondent’s earning capacity: see In the Marriage of Puls (1976) 1 Fam LR 11,252; FLC 90–036, see also In the Marriage of Groutsch (1978) 4 Fam LN 35; FLC 90–461; In the Marriage of Mapstone (1979) 5 Fam LR 205; FLC 90–681; In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469. Dependence on recipient of order A lump sum maintenance order should not be made unless it is possible to assess with some certainty the limits of dependency of the recipient of the order: see In the Marriage of Branchflower (1979) 6 Fam LR 188; (1980) FLC 90–857; see also In the Marriage of Olliver (1978) 4 Fam LR 360; FLC 90–499; In the Marriage of Vaughan (1981) 7 Fam LR 379; FLC 91–066; In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91–201; In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073; In the Marriage of O’Brien (1982) 8 Fam LR 691; (1983) FLC 91–316. Order to meet specific need An order for a lump sum payment may be made to meet a specific need: see In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90–513; see also In the Marriage of Ferguson (1978) 4 Fam LR 312; FLC 90–500; In the Marriage of James (1977) 3 Fam LN 28; FLC 90–260; In the Marriage of Bailey (1978) 4 Fam LR 86; FLC 90–424; In the Marriage of Wilson (1980) 6 Fam LR 566; FLC 90–880; In the Marriage of Ramsey (1978) 4 Fam LN 20; FLC 90–449; In the Marriage of Matthews (1980) 6 Fam LR 142; FLC 90–887; In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90–294; In the Marriage of Thomas (1981) 6 Fam LN N20; FLC 91–018; In the Marriage of Tye (No 2) (1976) 2 Fam LR 11,205; FLC 90– 048.

Failure to pay A lump sum maintenance order may be appropriate where the respondent has, in the past, made irregular maintenance payments or the applicant has had difficulty in enforcing orders: see In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911; see also In the Marriage of Spano (1979) 5 Fam LR 506; FLC 90–707; In the Marriage of Perry (1979) 5 Fam LR 454; FLC 90–701; In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91–334; In the Marriage of Racine and Hemmett (1982) 8 Fam LR 716; FLC 91–277. The decision of the Full Court in In the Marriage of Spano, above, lays down — not as a principle of law, but as a general rule of practice — that lump sum maintenance is not normally appropriate in a situation where it is not suggested that the party liable to pay maintenance is unlikely to pay: see In the Marriage of Prestwich (1984) 9 Fam LR 1069 at 1072; FLC 91–569 at 79,602. Does not preclude application for variation or discharge The making of a lump sum order for maintenance will not preclude a later application for variation under s 83, or extinguish a future obligation to provide support: see In the Marriage of Vaughan (1981) 7 Fam LR 379; FLC 91–066; see also In the Marriage of Anderson (1981) 8 Fam LR 161; FLC 91–104; In the Marriage of Zdravkovic (1982) 8 Fam LR 97; FLC 91–220. The fact that a lump sum order was intended to provide for future maintenance and determine the financial relationship of the parties would be given considerable weight in any later proceedings: see In the Marriage of Vaughan (1981) 7 Fam LR 379; FLC 91–066; see also In the Marriage of Ramsey (1978) 4 Fam LN 20; FLC 90–449; In the Marriage of Park (1978) 4 Fam LR 488; FLC 90–509; In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469. Not generally appropriate for child maintenance Although there is no absolute rule, lump sum orders should not normally be made to provide for child maintenance: see In the Marriage of Racine and Hemmett (1982) 8 Fam LR 716; FLC 91–277; see also In the Marriage of Vaughan (1981) 7 Fam LR 379; FLC 91–066; In the Marriage of V and G (1982) 8 Fam LR 193; FLC 91–207.

[page 778] It is difficult to quantify a maintenance obligation when a child is young, and it is impossible to make a child maintenance order final or preclude a further application for variation and the liability to maintain children must relate to the resources of the party in question. Remarriage The court will not normally order lump sum maintenance if the applicant proposes to marry in the future. In appropriate circumstances periodic maintenance may be ordered up until the remarriage: see In the Marriage of James (1984) FLC 91–537. [s 80.5] Calculation of amount of lump sum A lump sum maintenance order may represent the capitalisation of the whole or part of a periodic sum: see In the Marriage of Nutting (1978) 4 Fam LN 7; FLC 90–410; see also In the Marriage of Olliver (1978) 4 Fam LR 360; FLC 90–499; In the Marriage of Petterson (1979) 5 Fam LR 628; FLC 90–717; In the Marriage of Puls (1976) 1 Fam LR 11,252; FLC 90–036; In the Marriage of Bird (1979) 5 Fam LR 370; FLC 90–678. Where it is likely that the lump sum provided for the applicant will be simply invested and drawn on by way of income over the intended period of the benefit, a 3% interest rate should be adopted: see In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91–334 at 79,741 (Gee J, referring to Barrell Insurance Pty Ltd v Pennant Hills Restaurants Pty Ltd (1981) 34 ALR 162; Todorovic v Waller (1981) 37 ALR 481; In the Marriage of Racine and Hemmett (1982) 8 Fam LR 716; FLC 91–277, where Nygh J calculated the lump sum by reference to the 3% tables). [s 80.6] Method of payment of lump sum — s 80(1)(a) In proceedings under s 79 the court may order the payment of a lump sum instead of a transfer of other property: see In the Marriage of Collins (1977) 3 Fam LR 11,424; FLC 90–286. The court may direct that a lump sum order shall be satisfied by the payment of one amount or by the payment of instalments: see

In the Marriage of Powell (1978) 4 Fam LN 22; FLC 90–443. PERIODIC SUM [s 80.7] Order for payment of periodic sum — s 80(1)(b) This provision is more appropriate to orders for maintenance. TRANSFER OF PROPERTY [s 80.8] Transfer or settlement of property — s 80(1)(ba) This provision was inserted in the Act by the 1987 Amendment Act. It clarifies the power of the court to order a transfer of property by way of spousal maintenance. It would appear to enable the court in property settlement and maintenance proceedings to order that the order for settlement of property shall also be in respect of maintenance. Subject to s 80(2) The making of an order under this provision is subject to s 80(2): see [s 80.22]. The maintenance component of such orders must be specified by virtue of s 77A. SECURITY [s 80.9] Order that payment of a sum be secured — s 80(1)(c) The power of the court under this provision is a wide one. The power can be used in relation to applications for maintenance under s 74, applications for variation of a maintenance order under s 83 and in relation to orders under ss 78 and 79: see In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911. If a party neglects or refuses to pay maintenance whilst having an asset from which appropriate maintenance could be obtained if the asset were realised, the court may secure the maintenance by a charge or transfer of property. [page 779]

The power under s 80(1)(c) includes a power to order the realisation of property against which the order is secured: see In the Marriage of Molier and Van Wyk, above. However, the court should also protect the respondent’s interest in the balance of the fund: see In the Marriage of Chernischoff (1979) 6 Fam LR 155; (1980) FLC 90–848. An order for the transfer of property may be a proper way of providing security for maintenance: see In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050; see also In the Marriage of Abood (1981) 7 Fam LN 21; FLC 91–081. An order for payment of money which is secured by an order pursuant to this section will put the person entitled to those moneys in the position of a secured creditor if the payer becomes bankrupt. The security cannot be surrendered except by a further order of the court. This has the effect of making invalid any bankruptcy notice which is issued in respect of unpaid moneys secured by an order under the section: see Re Bunn; Ex parte Bunn (1989) 14 Fam LR 69. EXECUTION OF DOCUMENTS [s 80.10] Order for execution of a necessary deed or instrument — s 80(1)(d) This provision enables the court to order that any necessary deed or instrument be executed or such other things done as are necessary to enable an order to be carried out effectively. If a party refuses to obey an order for the execution of a deed or instrument, the court may appoint an officer of the court or other person to execute the instrument under s 84(1). The Family Court, however, does not have authority to order a state official, such as a Registrar of Titles, to register a transfer of title: see In the Marriage of Harrison (1978) 4 Fam LR 18; FLC 90–407. TRUSTEES [s 80.11] Power to appoint or remove trustees — s 80(1)(e) The appointment of trustees is often a necessary part of an order under s 79. Trustees already appointed under s 79 may be removed by the Family Court

under s 80(1)(e). If assets are property within the meaning of s 79, then presumably the powers under this provision can be exercised in relation thereto. If it is not possible to treat the assets of a trust as disposable property of a party to the proceedings, then it follows that the implementing powers of this provision are also not available and no trustee could be removed or new ones appointed in respect of the trust by the court. The power is only to appoint or remove trustees. The court cannot vary the terms of an existing trust. PAYMENT TO PARTICULAR AUTHORITY [s 80.12] Order for payments to a party, to a trustee or into court, or to a public authority — s 80(1)(f) Where parties are geographically separated or difficulty in enforcing payment of an order can be anticipated, an appropriate order may be to pay moneys into court or to a public official, such as the collector of maintenance for the state in which the respondent resides: see Gallienne v Gallienne (1965) 83 WN (Pt 1) (NSW) 5. “Public authority” refers to any public authority of the Commonwealth, a state or a territory: see Re Humby; Ex parte Rooney (1973) 129 CLR 231. TYPE OF ORDER [s 80.13] Permanent order or order pending disposal of proceedings or order for fixed term, etc — s 80(1)(h) Under this provision the court may make: (a) a permanent order; (b) an order pending the disposal of proceedings; [page 780] (c) an order for a fixed term, or (d) for a life;

(e) during joint lives, or (f) until further order. See In the Marriage of Burton (1978) 4 Fam LR 783; (1979) FLC 90–622; see also In the Marriage of Patterson (1979) FLC 90–705; In the Marriage of Hope (1977) 3 Fam LN 61; FLC 90–294. The court is authorised to make orders, whether a maintenance order or of some other kind, which are limited in duration, such as until further order, or pending disposal of proceedings and those proceedings need not be the same as the maintenance proceedings. Thus a maintenance order can be made pending disposal of proceedings for property settlement: see In the Marriage of Pritchard (1982) 8 Fam LR 805 at 806; FLC 91–286; see also In the Marriage of Ashton (1982) 8 Fam LR 675; FLC 91–285. On the relationship between s 80(1)(h) and the power to make interim orders under s 79(6), and for the distinction between ‘partial’ and interim property orders, see In the Marriage of Burridge (1980) 6 Fam LR 513; FLC 90–902 and In the Marriage of Harris (1993) 16 Fam LR 579; FLC 92–378; 113 FLR 472. [s 80.14] Interim maintenance — s 80(1)(h) It is important to distinguish between an order for maintenance pending the disposal of proceedings or until further order and an order for urgent maintenance pursuant to s 77: see In the Marriage of Pritchard (1982) 8 Fam LR 805; FLC 91–286; see also In the Marriage of Williamson (1978) 4 Fam LR 355 at 357, 359; FLC 90–505. This section empowers the court to make what are sometimes referred to as “interim maintenance” orders. Such an order differs from an urgent maintenance order under s 77 in that it involves no element of urgency and is only made after the normal procedures for filing affidavits and financial statements have been complied with. It differs from a normal maintenance order in that it is limited in duration: see In the Marriage of Ashton (1982) 8 Fam LR 675; FLC 91–285; see also In the Marriage of Pritchard (1982) 8 Fam LR 805; FLC 91–286. [s 80.15] Interlocutory order to cover costs — s 80(1)(h) The court may make orders under s 80(1)(h) requiring the payment of money to provide funds for one party to pursue claims for property settlement. The payment or transfer of property will be taken into account when the court finally

determines the property application. Such orders are sometimes called orders for “interim costs”, and may indeed be based on s 117(2), but are really orders under which a party who does not have control of assets obtains an interlocutory order for a transfer of property or payment of money so that the party will have a fair opportunity of presenting his or her case. See In the Marriage of Poletti (1990) 15 Fam LR 794 (FC). TERMS [s 80.16] Power to impose terms and conditions — s 80(1)(i) This provision permits the court to impose terms and conditions; however, the terms and conditions must be part of an order which the court can make under Pt VIII. CONSENT ORDERS [s 80.17] Orders by consent — s 80(1)(j) This provision authorises the court to make orders by consent. The court could not, by consent, make an order under s 80(j) which it had no jurisdiction to make in a contested application: see In the Marriage of Burridge (1980) 6 Fam LR 513 at 516; FLC 90–902; see also In the Marriage of Schreiber and Dixon (1977) 3 Fam LR 11,379 at 11,387; FLC 90–274; In the Marriage of Marko (1977) 3 Fam LN 42. ORDER TO DO JUSTICE [s 80.18] An order necessary to do justice — s 80(1)(k) This provision enables the court to make any further order which the court thinks necessary to do justice. It repeats the language of [page 781] s 87(1)(i) of the repealed Matrimonial Causes Act 1959. The repealed section was not wide enough to allow a court, in making orders, to ignore the law and impose any burden upon a party which the court thought should be imposed,

irrespective of the rights of that party according to the established principles which were applicable: see Fawcett v Fawcett [1973] 1 NSWLR 585 at 589; see also Weston v Weston [1964] ALR 713; Fleming v Fleming (1963) 4 FLR 493; Jones v Jones [1968] 1 NSWR 206; Zafiropoulos v Zafiropoulos [1972] 2 NSWLR 606 at 615–16. It does not provide a source of independent power and therefore does not enable the court to vary an order made under s 79: see In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226. [s 81.18A] Order to attend psychiatrist In In the Marriage of Gilbert (1988) 12 Fam LR 503; FLC 91–966 Nicholson CJ ordered a party to financial proceedings to attend a psychiatrist. His Honour relied partly on cross-vested jurisdiction but also found there was inherent power to make the order. This decision was followed in In the Marriage of Hunt (2001) 27 Fam LR 422; FLC 93–064, where Barlow J held that the Court had power to make an interlocutory order in connection with property and spouse maintenance proceedings that the applicant attend a medical practitioner. There may be some difficulty in reconciling these decisions with L v T (1999) 25 Fam LR 590; FLC 92–875, in which the Full Court held, in a children’s matter, that there was no power to make an unconditional order of this type, as distinct from an order requiring some such action as a condition of further participation in the proceedings. However, since the report does not disclose the final form of the orders in Gilbert or in Hunt, it may be that those orders were of this type, and thus consistent with L v T, above. [s 80.19] Partial property order — s 80(1)(k) There is nothing in s 79 which prevents the court making a partial property order (that is an order relating to only a part of the property) under this provision if it is necessary to do justice: In the Marriage of Harris (1993) 16 Fam LR 579; FLC 92–378; 113 FLR 472; In the Marriage of Burridge (1980) 6 Fam LR 513 at 516; FLC 90–902. In Strahan v Strahan (Interim Property Orders) (2009) 42 Fam LR 203; 241 FLR 1; [2009] FamCAFC 166; BC200950822 establishes that the power to make partial property orders does not require “compelling circumstances” but rather appropriate circumstances and that provided it is “just and

equitable” the court may make (and vary) as many interim or partial orders as is necessary until the power is exhausted upon the final exercise of same. See also In the Marriage of Bearup (1993) 16 Fam LR 797; FLC 92–412 (applications for sale to be approached with “the utmost caution”). [s 80.20] Appoint a receiver — s 80(1)(k) The court may, pursuant to this provision, appoint a receiver of property belonging to either party to a marriage. It can also order accounts of such property; and it can order the parties to yield up both the property and the relevant books of account so that those duties may be properly discharged: see R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90–606. The court cannot appoint a receiver for a partnership. [s 80.20A] Injunctions The terms of s 80(1)(k) are wide enough to include the granting of injunctions. It is unclear whether s 80 is a source of power for issuing injunctions in proceedings for enforcement of an order under Pt VIII, or whether enforcement powers arise only under Pt XIII and therefore fall outside Pt VIII and s 80: see Yunghanns v Yunghanns (1999) 24 Fam LR 400 at 435; FLC 92–836 at 85,725. s 80.20B] Other uses — s 80(1)(k) The Full Court approved the use of this section as one of two alternate bases upon which to require a party to withdraw a disclaimer of interest in a deceased estate: Seggio v Durante (2012) FLC ¶93-498; [2012] FamCAFC 27; BC201250085. ORDER AT ANY TIME [s 80.21] Make an order at any time — s 80(1)(l) This provision provides that the court may, subject to the Act, make an order under Pt VIII at any time before or after the making of a decree. [page 782] An order for permanent maintenance or of settlement of property need not wait until after the dissolution of marriage; however, it must be read subject

to any other limitations laid down in the Act, such as the limitation in s 44(3). EFFECT OF ORDER FOR MAINTENANCE [s 80.22] Introductory comment — s 80(2) This provision was inserted in the Act by the 1987 Amendment Act. It makes it clear that the making of an order of a kind referred to in para (ba) does not prevent subsequent orders for spousal maintenance. [s 80.23] Rules — s 80(3) This provision was inserted in the Act by the 1987 Amendment Act. It provides for the making of Rules of Court to facilitate the collection and enforcement of spousal maintenance orders.

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[s 81]

Duty of court to end financial relations

81 In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. COMMENTARY ON SECTION 81 Introductory comment …. “as far as practicable” …. Application of s 81 …. Variation of orders — s 81 ….

[s 81.1] [s 81.2] [s 81.3] [s 81.4]

[s 81.1] Introductory comment This section directs the court in proceedings under Pt VIII other than proceedings under s 87 or proceedings with respect to maintenance payable during the subsistence of a marriage, to make such orders as will finally determine the financial relationships between the parties to the marriage.

Section 81 contains a direction as to how the powers of the court under Pt VIII should be exercised, but it does not, by itself, confer an independent power upon the court to make an order otherwise than in accordance with ss 74 and 79: see In the Marriage of Slattery (1976) 2 Fam LR 11,251; FLC 90– 110; see also In the Marriage of Apathy (1977) 3 Fam LN 22; FLC 90–250. Section 81 only comes into play once it is decided that ss 72, 73 or 79 is applicable. It then has a bearing on the final form of the order. It is to be read subject to s 83 in the case of maintenance orders and s 79A in the case of orders under s 79. [s 81.2] “as far as practicable” The court’s duty is qualified by the words “as far as practicable”. It has been said that the effect of this is to make the duty imposed in s 81 subordinate to other duties imposed on the court, such as the duty to make orders for spousal maintenance that are “proper” under s 74. Thus, if it is not possible for a court to effect a clean break while complying with s 74, the requirements of s 81 will be met by making an order for continuing periodic payments: see In the Marriage of DJM and JLM (1998) 23 Fam LR 396 at 427–8; FLC 92–816. [s 81.3] Application of s 81 Section 81 may be used to avoid parties being left as joint owners of property. It may be used to order a lump sum payment rather than a periodical obligation. It may prompt a court to capitalise a maintenance obligation: see In the Marriage of Dench (1978) 6 Fam LR 105; 4 Fam LN 39; FLC 90–469 (see [s 80.3] and [s 80.4]). It may prompt a court not to defer making an order under s 79 pending the realisation of future financial benefits. [page 783] The court may, in proceedings for settlement of property, take into account claims for periodic maintenance and subsume them or merge them into a lump sum payment: see In the Marriage of Fong (1977) 3 Fam LN 67; see also In the Marriage of Sahari (1976) 2 Fam LR 11,126; FLC 90–086; In the Marriage of Nutting (1978) 4 Fam LN 7; FLC 90–410.

[s 81.4] Variation of orders — s 81 This section does not, by itself, authorise the making of an order which is incapable of variation: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,487; FLC 90–056. In deciding whether an order should be made under s 74 (which is capable of variation) or under s 79 (which is not, except under s 79A), the court should keep the direction in s 81 in mind: see Willett v Willett (1976) 1 Fam LR 11,242 at 11,246; FLC 90–022; see also In the Marriage of Cantarella, above.

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[s 82]

Cessation of spousal maintenance orders

82 (1) [Death of maintenance beneficiary] An order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of the party. [subs (1) am Act 181 of 1987 s 44]

(2) [Death of person liable to pay] Subject to subsection (3), an order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of the person liable to make payments under the order. [subs (2) am Act 181 of 1987 s 44]

(3) [Orders before 25 November 1983] Subsection (2) does not apply in relation to an order made before the date of commencement of section 38 of the Family Law Amendment Act 1983 if the order is expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the time of the death of the person liable to make payments under the order and, in that case, the order is binding upon the legal personal representative of the deceased person. [subs (3) am Act 72 of 1983 s 38]

(4) [Effect of re-marriage] An order with respect to the

maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders. [sub (4) am Act 181 of 1987 s 63 and Sch]

(5) [subs (5) rep Act 181 of 1987 s 44] (6) [Duty to inform person liable] Where a re-marriage referred to in subsection (4) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the re-marriage. [subs (6) am Act 181 of 1987 s 44]

(7) [Recovery of moneys paid] Any moneys paid in respect of a period after the event referred to in subsection (4) may be recovered in a court having jurisdiction under this Act. [subs (7) am Act 181 of 1987 s 44]

(8) [Recovery of arrears unaffected] Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.

[page 784] COMMENTARY ON SECTION 82 PRELIMINARY Introductory comment …. DEATH Cessation of order upon death of beneficiary of an order — s 82(1) …. Cessation of order upon death of person liable to make payments — s 82(2) …. Order made before the Family Law Amendment Act 1983 — s 82(3) …. REMARRIAGE Cessation of order upon remarriage — s 82(4) …. Remarriage prior to application for maintenance …. Prospect of remarriage …. Notification on remarriage to person liable to make payments — s 82(6) …. Moneys paid after remarriage — s 82(7) ….

[s 82.1]

[s 82.2] [s 82.3] [s 82.4]

[s 82.5] [s 82.6] [s 82.7] [s 82.8] [s 82.9]

ARREARS Recovery of arrears — s 82(8) ….

[s 82.10]

CONSENT Termination of order by agreement ….

[s 82.11]

PRELIMINARY [s 82.1] Introductory comment This section provides for the circumstances in which orders for maintenance will cease.

Child maintenance In consequence of the 1987 Amendment Act, s 82 no longer applies to child maintenance orders. Child maintenance is dealt with in Pt VII. DEATH [s 82.2] Cessation of order upon death of beneficiary of an order — s 82(1) This provision provides that an order for maintenance ceases to have effect upon the death of the beneficiary of that order. Apart from the recovery of arrears outstanding at the date of death of the beneficiary of an order which is specifically provided for in s 82(8), there is no way in which the benefit of a maintenance order can be preserved for the estate of the deceased beneficiary. Section 105(3) has no application when it is the beneficiary of the order that has died. [s 82.3] Cessation of order upon death of person liable to make payments — s 82(2) Section 82(2) provides that an order with respect to the maintenance of a party to a marriage ceases to have effect upon the death of a person liable to make payments under the order. It is, however, subject to the provisions of s 82(3). [s 82.4] Order made before the Family Law Amendment Act 1983 — s 82(3) The previous s 82(3) provided that the rule about maintenance ceasing upon the death of the person liable to make payments under the order did not apply in relation to an order which was expressed to continue in force for a period beyond the death of the person liable to pay. This provision was amended by the Family Law Amendment Act 1983 to limit its operation to orders made prior to the coming into effect of the Family Law Amendment Act 1983. The general provisions of s 82(2) do not apply in relation to an order made before 25 November 1983 which is expressed to continue for a period beyond the death of a person liable to make payments under the order. [page 785]

There are two types of orders made before 25 November 1983 referred to in s 82(3), namely: (a) an order expressed to continue in force throughout the life of the beneficiary of the order; or (b) an order expressed to continue for a period that has not expired at the date of the death of the person liable to make the payments. In those circumstances this provision purports to make the order binding upon the legal personal representative of the deceased person. As to arrears of maintenance due and payable at the time of the death of the person liable to make payments: see ss 82(8) and 105(3). Upon the death of the person liable to pay maintenance, rights may arise under state legislation or Testator’s Family Maintenance (or “family provision”). In respect of orders made after 25 November 1983, no matter what the terms of the order as to continuing beyond death, any maintenance order ceases to have effect upon the death of the party ordered to pay. If it is desired to obtain an order for periodic maintenance which is to survive the death of the person liable to pay, then the order must be secured in some way so that the order may be enforced against the security after the person’s death. The legal personal representative may seek a variation of the order if the circumstances of the estate are such as to justify variations: see s 83(2)(a)(iii). As to enforcement after death of amounts due under a maintenance order up to date of death of party ordered to pay: see s 105(3). REMARRIAGE [s 82.5] Cessation of order upon remarriage — s 82(4) This provision provides that an order with respect to the maintenance of a party to a marriage will, generally speaking, cease to have effect upon the remarriage of that party unless in special circumstances the court otherwise orders. The cessation of an order for maintenance is automatic in the circumstances contemplated by the provision unless a special order is sought

and obtained. The provision was inserted in the Act because of the decision of O’Regan v Douglass [1969] ALR 836; (1969) 13 FLR 417. Section 87(1)(j)(i) of the repealed Matrimonial Causes Act 1959 gave the court a discretion to discharge an order upon the remarriage of a party. The order continued until discharge. The situation now is that a party seeking a continuation of maintenance, despite remarriage, must establish the existence of “special circumstances”. It was held, in relation to the repealed legislation, that where a woman who had previously been married to a man of considerable means and had received handsome maintenance upon her divorce from him, who remarried a man of much more modest substance who could not continue to maintain her at the same level as her first husband, there was no justification for an order discharging the maintenance order: see O’Regan v Douglass, above. However, the mere fact that a party receiving maintenance has to adjust himself or herself to the more modest style of living of the second spouse he or she has voluntarily chosen, can hardly amount to “special circumstances”. “Special circumstances” might arise if the second spouse is an invalid or is unable to provide for the partner’s basic needs. Remarriage will not prevent the recovery of arrears of maintenance: see s 82(8). [s 82.6] Remarriage prior to application for maintenance Section 82(4) has no application where the remarriage has occurred prior to the application for maintenance being made. However, s 75(2)(m) would be relevant in such a circumstance. If the remarriage ended prior to the application for maintenance, then the fact of the remarriage would be of no significance at all in circumstances where the wife had no financial claims against the second husband. [page 786] [s 82.7] Prospect of remarriage The provisions of s 82(4) make it necessary to take a wife’s prospect of remarriage into consideration when making

provision by way of lump sum maintenance in favour of the wife: see In the Marriage of Rouse (1981) 7 Fam LR 780 at 785; FLC 91–073. The prospects of remarriage should be considered as a general statistical factor. If there is any definite relationship this should be considered as well. However, a wife should not be subjected to a personal assessment of her likelihood of remarriage: see In the Marriage of Rouse (No 2) (1981) 7 Fam LN 22; (1982) FLC 91–226. If it is inappropriate to compensate a wife for the loss of her career as a wife and mother, it must be equally inappropriate to reduce her future maintenance on the ground that she should seek a fresh husband. In appropriate circumstances the more or less definite prospect of remarriage might influence the choice between making an order for periodic maintenance as against an order for lump sum maintenance, having regard to the operation of s 82(4). However, it is inappropriate for the court to reduce future maintenance on the ground that the wife should remarry: see In the Marriage of Woolley (1981) 6 Fam LR 577; FLC 91–011. [s 82.8] Notification on remarriage to person liable to make payments — s 82(6) This provision requires that where a party to a marriage remarries, then the party who married must inform the person liable to make payments of the date of the remarriage or marriage. There is no similar obligation upon a woman to advise a husband who is paying maintenance, of her forming a de facto marital relationship. However, such an event would provide grounds for variation under s 83. [s 82.9] Moneys paid after remarriage — s 82(7) Any money paid after a remarriage or marriage may be recovered in a court having jurisdiction under the Act. ARREARS [s 82.10] Recovery of arrears — s 82(8) Nothing in s 82 affects the recovery of arrears due under an order at the time when the order ceases to have effect. The court has a wide discretion as to whether, and to what extent, it will allow recovery.

CONSENT [s 82.11] Termination of order by agreement It has been held that spouses have the right, by agreement, to set aside the terms of an order for maintenance: In the Marriage of Pietkowski (1981) 7 Fam LR 292; FLC 91– 032. It is submitted (SO’R, RC) that it is difficult to reconcile this view with the Act, especially in view of the lack of such a provision in s 82, although of course such an agreement would be very relevant to an application to vary under s 83. If spouses resume cohabitation then the only proper inference which can be drawn is that they no longer intend the continued application of an order: see In the Marriage of Pietkowski, above.

____________________

[s 83]

Modification of spousal maintenance orders

83 (1) [Court may vary etc maintenance orders] If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage: (a) made by the court; or (b) made by another court and registered in the firstmentioned court in accordance with the applicable Rules of Court; [page 787] the court may, subject to section 111AA: (c) discharge the order if there is any just cause for so doing; (d) suspend its operation wholly or in part and either until

further order or until a fixed time or the happening of some future event; (e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner. [subs (1) am Act 72 of 1983 s 76 and Sch; Act 181 of 1987 s 45; Act 194 of 1999 s 3 and Sch 11[70]; Act 20 of 2005 s 3 and Sch 1 cl 54, opn 18 Sep 2005; Act 82 of 2007 s 3 and Sch 2[109], opn 19 July 2007]

(1A) [Court’s jurisdiction] The court’s jurisdiction under subsection (1) may be exercised: (a) in any case — in proceedings with respect to the maintenance of a party to the marriage; or (b) if there is a bankrupt party to the marriage — on the application of the bankruptcy trustee; or (c) if a party to the marriage is a debtor subject to a personal insolvency agreement — on the application of the trustee of the agreement. [subs (1A) insrt Act 20 of 2005 s 3 and Sch 1 cl 55, opn 18 Sep 2005]

(2) [Requirements for variation] The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied: (a) that, since the order was made or last varied: (i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship); (ii) the circumstances of the person liable to make payments under the order have so changed; or

(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative — the circumstances of the estate are such; as to justify its so doing; (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; (ba) in a case where the order was made by consent — that the amount ordered to be paid is not proper or adequate; or (c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false. [subs (2) am Act 72 of 1983 s 39; Act 181 of 1987 s 45; Act 115 of 2008 s 3 and Sch 1[48], opn 1 Mar 2009]

(3) [Order giving effect to this part] Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part. (4) [CPI changes to be considered] In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician. [subs (4) am Act 181 of 1987 s 63 and Sch]

[page 788] (5) [Period since last relevant order] The court shall not, in considering the variation of an order, have regard to a change in the

cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living. (5A) [Satisfying the requirements of (2)(ba)] In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to: (a) the other party; or (b) any other person for the benefit of the other party. [subs (5A) insrt Act 181 of 1987 s 45; am Act 20 of 2005 s 3 and Sch 1 cl 56, opn 18 Sep 2005]

(6) [Variation may be retrospective] An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate. [subs (6) subst Act 23 of 1979 s 14; am Act 181 of 1987 s 63 and Sch]

(6A) [Moneys recoverable where retrospective decrease] Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the secondmentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act. [subs (6A) insrt Act 72 of 1983 s 39]

(6B) [Moneys recoverable where discharge] Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

[subs (6B) insrt Act 72 of 1983 s 39]

(7) [Sections 72 and 75 relevant] For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75. [subs (7) am Act 63 of 1976 s 27; Act 181 of 1987 s 45]

(8) [Recovery of arrears] The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect. COMMENTARY ON SECTION 83 PRELIMINARY Introductory comment …. When can an application for modification be made? …. What orders can be modified? …. MODIFICATION General approach to modification …. Date of hearing not date of consent orders …. Discharge the order if there is just cause for so doing — s 83(1)(c) …. Onus of proof …. Effect of the discharge of an order …. Suspend its operation — s 83(1)(d) …. Revival of an order suspended under s 83(1)(d), (e) …. Variation of order by increasing or decreasing amount to be paid — s 83(1)(f) ….

[s 83.1] [s 83.2] [s 83.3]

[s 83.4] [s 83.4A] [s 83.5] [s 83.6] [s 83.7] [s 83.8] [s 83.9] [s 83.10] [page 789]

Onus of proof — variation …. “or in any other manner” — s 83(1)(f) …. CHANGE IN CIRCUMSTANCES

[s 83.11] [s 83.12]

Introductory comment — s 83(2)(a) …. Change in currency exchange rate …. Circumstances of estate have changed — s 83(2)(a)(iii) ….

[s 83.13] [s 83.13A] [s 83.14]

COST OF LIVING Introductory comment — s 83(2)(b) ….

[s 83.15]

INADEQUACY OF AMOUNT Introductory comment — s 83(2)(ba) …. Proper or adequate ….

[s 83.16] [s 83.17]

MISLEADING OR FALSE EVIDENCE Material facts were withheld from court or material evidence was false — s 83(2)(c) ….

[s 83.18]

PRE-1975 ORDER Order varying an order for purpose of giving effect to this Part — s 83(3) ….

[s 83.19]

CONSUMER PRICE INDEX Introductory comment — s 83(4) …. Consumer Price Index 12 months rule — s 83(5) ….

[s 83.20] [s 83.21]

RETROSPECTIVE ORDER Order decreasing amount payable or discharging an order may be retrospective — s 83(6) …. Recovery of overpayments after retrospective reduction of maintenance — s 83(6A) …. Recovery of overpayments after retrospective discharge of maintenance — s 83(6B) …. OTHER RELEVANT PROVISIONS Provisions of ss 72 and 75 — s 83(7) …. PRELIMINARY

[s 83.22] [s 83.23] [s 83.24]

[s 83.25]

[s 83.1] Introductory comment This provision deals with modification or variation of maintenance orders. An order for maintenance, with respect to a party to a marriage can be varied by the court. It can be: (a) discharged if there is any just cause for so doing; (b) suspended wholly or in part, either until a further order is made or for a fixed time or until some future event happens; (c) revived wholly or in part (if previously suspended); (d) varied by increasing or decreasing the amount to be paid or in any other manner. Order for child maintenance In consequence of the 1987 Amendment Act s 83 does not apply in relation to orders for child maintenance. [s 83.2] When can an application for modification be made? An application for modification or variation may be instituted before or after the marriage between the parties has been dissolved: see In the Marriage of Crossan (1976) 2 Fam LR 11,374; FLC 90–116. The restriction imposed in s 44(3) does not apply to proceedings for the modification of a maintenance order previously made. Proceedings for a fresh maintenance order, the former order having been discharged under s 83, do not fall within s 83 and are subject to s 44(3): see In the Marriage of Skinner (1977) FLC [page 790] 90–237; see also In the Marriage of Lusby (1977) 3 Fam LN 85; FLC 90– 311; In the Marriage of Henry (1977) 5 Fam LN 8; (1979) FLC 90–653. [s 83.3] What orders can be modified? Section 83 does not apply to orders for property settlement made under s 79: see In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226; see also In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299; Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674; In the Marriage of Branchflower (1979) 6 Fam LR 188;

(1980) FLC 90–857; In the Marriage of Fowler (1980) 5 Fam LR 750; FLC 90–808 at 75,091; In the Marriage of Warnock (1979) 5 Fam LR 668; FLC 90–726 at 78,909. Despite s 81, it is not possible to make an order for maintenance which is not capable of modification if circumstances change: see In the Marriage of Park (1978) 4 Fam LR 488; FLC 90–509. An order for lump sum maintenance may be modified pursuant to s 83: see In the Marriage of Kaljo (1978) 4 Fam LR 190; FLC 90–445; see also In the Marriage of Warnock (1979) 5 Fam LR 668; FLC 90–726; In the Marriage of Fowler (1980) 5 Fam LR 750; FLC 90–808; In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728; (1982) FLC 91–201. However, the Full Court has held that an order for lump sum maintenance that has been complied with is not “in force” and therefore cannot be varied under s 83: In the Marriage of Caska (2001) 28 Fam LR 307; (2002) FLC 93-092. The court can modify, under s 83, those parts of a maintenance agreement registered under s 86 which relate to the maintenance of a party, but not those parts of the agreement which relate to the property of the party (as to which see s 79A): see In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299; see also In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467; Cummins v Cummins (1977) 2 Fam LR 11,621; FLC 90–209; In the Marriage of Thomas and Wood (1982) 8 Fam LR 381. Section 83 applies to orders made before the commencement of the Family Law Act under either the repealed Matrimonial Causes Act 1959 or under the provisions of the Maintenance Acts of the states and territories (provided they are made as between parties to a marriage). It applies to orders made by a court having jurisdiction under the Act. It applies also to orders registered in the court pursuant to reg 17 of the Family Law Regulations 1984 and to overseas maintenance orders registered in an Australian court: see In the Marriage of Johnston (1979) FLC 90–693. It may not apply to an overseas maintenance agreement registered in compliance with the regulations: see In the Marriage of Johnston, above. A court can modify an order made before the commencement of the Act to make it consistent with orders under the Act despite the fact that the requirements of s 82(2), normally applicable where an increase or a decrease

in the order is sought, are not satisfied: see In the Marriage of Astbury (1978) 4 Fam LR 395; FLC 90–494. MODIFICATION [s 83.4] General approach to modification The general approach to modification is laid down in s 83(7). The general principles embodied in s 43 must be taken into account in any exercise of jurisdiction under s 83: see In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714. Misconduct is also irrelevant to the issue of modification of an order under s 83: see In the Marriage of Lyall (1977) FLC 90–223. [s 83.4A] Date of hearing not date of consent orders It has been held in relation to similar provisions relating to child mainenance that the proper interpretation of the provisions is that the appropriate time at which to determine the statutory criteria is the time of the hearing, not the time of the consent orders. See In the Marriage of Kelly (1996) 20 Fam LR 502 at 510; FLC 92–680, following In the Marriage of Carpenter (1994) 18 Fam LR 542; (1995) FLC 92–583. The reasoning would appear to apply equally to s 83. [page 791] [s 83.5] Discharge the order if there is just cause for so doing — s 83(1) (c) The Act does not define what may constitute “just cause” for the discharge of an order. The words are not used in any broad general sense, nor are they intended to import any abstract notions of justice, palm tree or otherwise, into the determination of applications for discharge. The words must be interpreted in the context of the Act as a whole and, in particular, with regard to the other specific provisions of the Act which relate to maintenance. Thus, a cause for the discharge of an existing maintenance order will be a just cause only if, having regard to the other provisions of the Act particularly those relating to maintenance, it can be said that it is right or proper that the orders be discharged: see In the Marriage of Lutzke (1979) 5

Fam LR 553 at 559; FLC 90–714 at 78,832. See also In the Marriage of Vakil (1997) 21 Fam LR 508; FLC 92–743, which contains a comprehensive review of some older authorities on variation of maintenance. Subject to the last paragraph, there is no limit upon the nature and variety of circumstances which the court may be called upon to consider as providing a just and proper ground for the discharge of a maintenance order. Resumption of cohabitation If the parties have resumed cohabitation, it has been held that such resumption may be inconsistent with the continuance of a maintenance order in existence and the order may therefore be discharged: see In the Marriage of Pietkowski (1981) 7 Fam LR 292; FLC 91–032; but see comments at [s 82.11], above. No longer in need If the applicant is no longer in need of maintenance within the meaning of s 72, the court may discharge any order for maintenance previously made: see In the Marriage of Crossan (1976) 2 Fam LR 11,374; FLC 90–116; see also In the Marriage of Corner (1978) 4 Fam LN 1; FLC 90–438; In the Marriage of Astbury (1978) 4 Fam LR 395 at 397; FLC 90– 494. Impossible to pay An order may be discharged if the financial circumstances of the party obliged to pay under the order have changed to such an extent as to make it impossible for him or her to pay any maintenance in the future: see Cooper v Cooper and Rogers (1976) 2 Fam LN 24. False or misleading evidence A discharge of an order may be made on the ground that the original order should not have been made as it was made on false or misleading evidence: see s 83(2)(c); see also Peer v Peer (1968) 11 FLR 329. By agreement The court may discharge an order which the parties have brought to an end by agreement: see In the Marriage of Pietkowski (1981) 7 Fam LR 292; FLC 91–032. [s 83.6] Onus of proof If the original order was made under the Family Law Act, the onus is on the applicant for discharge to establish a “just cause” by

showing that s 72 no longer applies: see In the Marriage of Astbury (1978) 4 Fam LR 395; FLC 90–494; see also In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714; In the Marriage of Lawrie (1981) 7 Fam LR 560; FLC 91–102. It has been suggested, however, that if the order was made under the repealed legislation, the party seeking a continuation of the order may have to show that s 72 is satisfied: see In the Marriage of Astbury, above. [s 83.7] Effect of the discharge of an order The discharge of an existing order does not deprive a party of the right to seek further maintenance. Despite such discharge, subject to s 44(3) a party may, if changed circumstances warrant it, obtain a fresh order: see In the Marriage of Lusby (1977) 3 Fam LN 85; FLC 90–311; see also In the Marriage of Skinner (1977) FLC 90–237. No nominal order If the court is of the opinion that an order should be discharged, it should not make a nominal order in view of the needs principle set out in s 72: see In the Marriage of Crossan (1976) 2 Fam LR 11,374; FLC 90–116; see also In the Marriage of Lusby (1977) 3 Fam LN 85; FLC 90– 311; In the Marriage of Skinner (1977) FLC 90–237. [page 792] No revival of discharged order An order which has been discharged may not be revived. The court can only revive suspended orders: see In the Marriage of Crossan, above; see also In the Marriage of Lusby, above, and In the Marriage of Skinner, above. Discharge may be retrospective The discharge of an order may be expressed to be retrospective to such date as the court thinks fit: see In the Marriage of Pietkowski (1981) 7 Fam LR 292; FLC 91–032. The effect of such an order is to render irrecoverable arrears of maintenance accrued in the intervening period. Maintenance paid in the intervening period may be recovered.

[s 83.8] Suspend its operation — s 83(1)(d) An order may be suspended where it is appropriate because the inability to pay, or lack of need, is of temporary nature: see Cooper v Cooper and Rogers (1976) 2 Fam LN 24; see also In the Marriage of Crossan (1976) 2 Fam LR 11,374; FLC 90–116. The circumstances leading to a discharge of an order are also applicable to a suspension of an order; however, a suspension will be more appropriate where there is a reasonable likelihood that the terms of s 72 will again be satisfied: see In the Marriage of Crossan, above. A suspended order may be revived wholly or in part. [s 83.9] Revival of an order suspended under s 83(1)(d), (e) This provision confers on the court the power to revive wholly or in part an order previously suspended. It does not apply to an order discharged. On the revival of a suspended order, amounts payable may be varied in accordance with s 83(1)(f). [s 83.10] Variation of order by increasing or decreasing amount to be paid — s 83(1)(f) This provision confers on the court the power to vary an order so as to increase or decrease any amount ordered to be paid or in any other manner. This provision is expressly subject to s 83(2) which sets out grounds for variation of amounts of maintenance payable. The effect is that the court can only make an order increasing or decreasing the amount of the maintenance order if it is satisfied that, since the order was made or last varied, it is justified because: (a) the circumstances of a person for whose benefit the order was made have changed; or (b) the circumstances of the person liable to make payments under the order have changed; or (c) the circumstances of the estate are such as to justify its so doing; or (d) the cost of living has changed to an extent that justifies variation; or (e) material facts were withheld from the court in question or that material evidence previously given before such a court was false.

[s 83.11] Onus of proof — variation The onus is on the applicant for variation to establish a change having regard to the provisions of ss 72, 73, 75 and 76 and the requirements of s 83(2): see In the Marriage of Holmes (1976) 2 Fam LN 14; FLC 90–129; see also In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90–714; In the Marriage of Warnock (1979) 5 Fam LR 668; FLC 90–726. [s 83.12] “or in any other manner” — s 83(1)(f) The words “or in any other manner” relate to subsidiary aspects, such as variations in the method of payment, the frequency of payment, the place of payment or person to whom the payment is to be made: see In the Marriage of Van Dongen (1976) 1 Fam LR 11,290 at 11,292; FLC 90–071; see also In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226. In In the Marriage of Vakil (1997) 21 Fam LR 508; FLC 92–743, the Full Court emphasised that these words give the court “a very wide discretion” to vary a maintenance order in whatever manner it considers appropriate, having regard to the circumstances of the case and to the other relevant provisions of the Act (that is, ss 72 and 75, s 81 [page 793] and, in the case of increases or decreases in amount, to s 83(2)). Section 83(1)(f) does not simply permit variations by way of an increase or decrease of amounts payable. The words “or in any other manner” are an indication that the power of variation extends to such matters referred to in s 80 as the ordering of security for payment of arrears and of future payments of maintenance and changes in trustees, etc: see In the Marriage of King (1976) 2 Fam LR 11,398 at 11,404; FLC 90–113; In the Marriage of King (No 2) (1977) 3 Fam LR 11,564 at 11,571; FLC 90–299; see also In the Marriage of Murphy and Armstrong (1978) 4 Fam LN 66; (1979) FLC 90–623; In the Marriage of Chernischoff (1979) 6 Fam LR 155; (1980) FLC 90–848. The words “or in any other manner” are wide enough to allow the making of a lump sum order to replace an order for periodical maintenance: see In the Marriage of Warnock (1979) 5 Fam LR 668; FLC 90–726; see also In the Marriage of

Henry (1977) 5 Fam LN 8; (1979) FLC 90–653; In the Marriage of Fowler (1980) 5 Fam LR 750; FLC 90–808; In the Marriage of Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90–911. However, in order to fall within s 83(1)(f), a change must amount to a variation and not bring about a totally different type of order: see In the Marriage of Branchflower (1979) 6 Fam LR 188; (1980) FLC 90–857. CHANGE IN CIRCUMSTANCES [s 83.13] Introductory comment — s 83(2)(a) The applicant must demonstrate a change of circumstances to such an extent as to justify variation: see In the Marriage of Holmes (1976) 2 Fam LN 14; FLC 90–129; see also Hampson v Hampson (1974) 5 ALR 359 at 360. The circumstances that the court should consider must relate to the financial needs and capacity of the parties and not to their conduct since the order was originally made: see In the Marriage of Grabar (1976) 2 Fam LR 11,581; FLC 90–147. The circumstances mentioned are those comprehended by s 75(2). Once a sufficient change in circumstances has been demonstrated, the court is then at large and should consider the whole situation and make such variation, if any, as is appropriate: see In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90–513. [s 83.13A] Change in currency exchange rate It was argued in In the Marriage of May (1987) 11 Fam LR 847 that circumstances such as a fall in the exchange rate which do not relate to the personal circumstances of the parties concerned, but are of a general nature, could not fall within s 83(2)(a). Nygh J held that such a currency variation can constitute a change in the circumstances of the person liable to pay but only if, as a result, “the increased cost is such as to impose a burden which is beyond the capacity of the party obliged to pay or severely strains that capacity to such an extent that it is no longer proper or just to hold that party to it”. [s 83.14] Circumstances of estate have changed — s 83(2)(a)(iii) This section was amended by the Family Law Amendment Act 1983, so that it now covers both the party liable to pay and the party entitled to receive. The section may, however, have little relevance and be restricted to maintenance

orders binding upon an estate made prior to the commencement of the Family Law Amendment Act 1983. In any event most of the considerations in s 75 would be inappropriate except possibly s 75(2)(o): see Cummins v Cummins (1977) 2 Fam LR 11,621; FLC 90–209. COST OF LIVING [s 83.15] Introductory comment — s 83(2)(b) This provision enables the court to vary an order when there have been changes in the Consumer Price Index. It is, however, subject to s 83(5). [page 794] INADEQUACY OF AMOUNT [s 83.16] Introductory comment — s 83(2)(ba) This ground was inserted in the Act by the 1987 Amendment Act. It provides for modification if the amount to be paid under the order (where the order was made by consent) is not proper or adequate. This ground is an additional ground where it is sought to vary a consent order; it is not the only ground on which a maintenance order made by consent may be varied, nor an essential prerequisite for the variation of such an order: see In the Marriage of Caska (1998) 23 Fam LR 659; FLC 92–826. [s 83.17] Proper or adequate Section 83(5A), which was also inserted in the Act by the 1987 Amendment Act, provides that in satisfying itself that the order is not proper or adequate the court must have regard to any payments or transfers of property previously made to or for the benefit of the party by the other party. MISLEADING OR FALSE EVIDENCE [s 83.18] Material facts were withheld from court or material evidence was false — s 83(2)(c) This provision provides that a court may increase or

decrease an amount ordered to be paid if it is satisfied that material facts were withheld from the court which made or varied the order in question, or that material evidence previously given was false. PRE-1975 ORDER [s 83.19] Order varying an order for purpose of giving effect to this Part — s 83(3) The change of circumstances referred to in s 83(2) must relate to the period after the order was originally made. This provision is an important exception, in that it permits a court to vary an order made before the commencement of the Family Law Act in the absence of a change in circumstances as defined in s 83(2), if the variation is made for the purpose of giving effect to the maintenance provisions of the Family Law Act. This provision can be used to vary an order which was made under the previous law on the basis that an “innocent wife” is entitled to maintenance from the “guilty husband”. CONSUMER PRICE INDEX [s 83.20] Introductory comment — s 83(4) If the ground referred to in s 83(2)(b) is relied on, that is, that the cost of living has changed to such an extent as to justify a variation of the previous order, the court is to have regard to any changes that have occurred in the Consumer Price Index published by the Commonwealth Statistician. The Consumer Price Index measures quarterly changes in the price of a number of goods and services which account for a high proportion of expenditures by metropolitan wage and salary earner households. The necessary information may be found in the quarterly CPI catalogue put out by the Australian Bureau of Statistics. The method of compiling the Consumer Price Index was substantially altered in the March quarter 1992 and the base year of calculation of the CPI is now the year 1989–1990. It may also be necessary to have regard to other factors such as any corresponding rise in the relevant pension being received by a party and the

statistics for average weekly earnings as an indication of the general level of wages. [s 83.21] Consumer Price Index 12 months rule — s 83(5) In considering the variation of an order, the court is not to have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied, on the basis of a change in the cost of living: see In the Marriage of Brady (1978) 4 Fam LN 54; FLC 90–513. [page 795] RETROSPECTIVE ORDER [s 83.22] Order decreasing amount payable or discharging an order may be retrospective — s 83(6) An order for the discharge or the reduction of an order can be made with retrospective effect to such date as the court thinks fit: see In the Marriage of Corner (1978) 4 Fam LN 1; FLC 90–438. Originally, the Act provided (in s 83(6)) that such an order could not be made retrospective to a date earlier than 12 months before the date of the application for the discharge of the order. The courts were, however, reluctant as a matter of practice to make an order enforcing arrears which were more than 12 months old: see Tingle v Tingle (1947) 65 WN (NSW) 43; see also Biggs v Dienes [1976] 2 NSWLR 463; (1975) 2 Fam LR 11,273. The effect of retrospectivity is to limit the extent to which arrears payable as at the date of the modification order may be recovered. This provision also applies to the modification of an interim order for maintenance. [s 83.23] Recovery of overpayments after retrospective reduction of maintenance — s 83(6A) This provision was inserted in the Act by the Family Law Amendment Act 1983. It permits the recovery in the event of a modification of a maintenance order decreasing the amount payable and expressed to be retrospective of any moneys paid under the order since the

date of its retrospective commencement. [s 83.24] Recovery of overpayments after retrospective discharge of maintenance — s 83(6B) This provision was inserted in the Act by the Family Law Amendment Act 1983. It permits recovery in the event of modification of a maintenance order by discharge of the order and expressed to be retrospective from a specified date of any moneys paid under the order since the specified date. This provision also applies to the modification of an interim order for maintenance. OTHER RELEVANT PROVISIONS [s 83.25] Provisions of ss 72 and 75 — s 83(7) In determining whether an order should be discharged, suspended or varied, the court must have regard to the principles laid down in ss 72 and 75, with respect to the making of a maintenance order: see In the Marriage of Astbury (1978) 4 Fam LR 395; FLC 90–494. The circumstances which the court should consider relate to the financial needs and capacities of the parties.

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[s 84] *84 [s 84 rep Act 143 of 2000 s 3 and Sch 3 item 74 opn 27 Dec 2000] COMMENTARY ON SECTION 84 Execution of instruments by order of court — s 84(1) …. Family Law Amendment Act 1983 …. General principles …. Power of court to order a state or Commonwealth official to do some act or thing …. Execution of maintenance agreement instruments — s 84(1A) …. Effect of execution of deed or instrument by person appointed — s 84(2) ….

[s 84.1] [s 84.2] [s 84.3] [s 84.4] [s 84.5] [s 84.6]

Order as to payment of costs — s 84(3) …. Transfer of shares ….

[s 84.7] [s 84.8] [page 796]

[s 84.1] Execution of instruments by order of court — s 84(1) The court has the power to appoint an officer of the court or other person to execute a deed or instrument in the name of the person to whom such direction was given (and do all other necessary acts to give validity and operation to the deed or instrument) where such direction has been given by the court and the person directed: (a) has refused to comply with the direction; (b) has neglected to comply with the direction; or (c) for any other reason the court thinks it necessary to exercise this power. This power has proved very useful in practice. [s 84.2] Family Law Amendment Act 1983 Section 84(1)(a) was amended by the Family Law Amendment Act 1983 by omitting from the previous s 84(1)(a) the words “this part” and substituting the words “this Act or under the Regulations”. The court now has power to appoint an officer of the court or other person to execute a deed or instrument in the name of the person to whom such direction was given (and do all other necessary acts to give validity and operation to the deed or instrument) where such direction was given by the court under the Act or under the Rules or Regulations, and not under Pt VIII only. The power to order a party to execute a deed or instrument is given by s 80(d) of the Act. [s 84.3] General principles Specific order There must be a specific order directing the party in question

to execute a deed or instrument. It may not be sufficient to attract s 84, if there is only a general order requiring the transfer of property: see In the Marriage of Maddocks (1981) 6 Fam LR 877; FLC 91–031. Not automatically available The provision is not automatically available: see In the Marriage of Ramsey (1982) 8 Fam LR 863; (1983) FLC 91–301. Deceased person There is no power to execute a document on behalf of a deceased person: see In the Marriage of Corry (1983) 9 Fam LR 201 at 206; FLC 91–343. Other methods The existence of s 84 does not prevent the court from dealing with a refusal to comply with an order under s 80(d) by other means such as punishment for contempt under s 108: see Leach v Leach (1965) 7 FLR 195 at 202. In name of party A transfer to be signed by a registrar under s 84 should not be in the name of the registrar, but rather in the name of the party against whom the order has been made. [s 84.4] Power of court to order a state or Commonwealth official to do some act or thing The Family Court has no power to interfere with a state official carrying out his duties in accordance with a state Act or to direct him as to how his discretionary powers under state legislation should be exercised: see In the Marriage of Harrison (1978) 4 Fam LR 18; FLC 90– 407; see, however, Casella v Casella [1969] ALR 103. The court may also have no power to order the Director of Defence Service Homes to do an act or thing or to constrain or control him in the exercise of his functions: see Leach v Leach (1965) 7 FLR 195 at 204. The Family Court does, however, have the power to change the beneficial title in property even if there may be difficulties in transferring the legal title: see In the Marriage of Harrison, above. *Editor’s Note: Section 84 was repealed by Sch 3 item 74 of the Family Law Amendment Act 2000 No 143 of 2000. The Note to that item provides: “Those sections are effectively being moved to Part XIII (Enforcement of Decrees): see also item 77.” Consequently, the commentary on these sections has been retained for reference purposes.

[page 797] [s 84.5] Execution of maintenance agreement instruments — s 84(1A) This provision was inserted in the Act by the Family Law Amendment Act 1983. The court now has power to appoint an officer of the court or other person to execute a deed or instrument in the name of a person required by a provision of a maintenance agreement registered under s 86 or approved under s 87 to execute the deed or instrument (and do all other necessary acts to give validity and operation to the deed or instrument) where such a provision is contained in a maintenance agreement and the person required by the provision of the maintenance agreement to execute a deed or instrument: (a) has refused to comply with the provision; (b) has neglected to comply with the provision; or (c) for any other reason the court thinks it necessary to exercise this power. Precise covenant There must, however, be a precisely framed covenant requiring one of the parties to execute a deed or instrument before an order can be made under s 84 by way of enforcement of it: see In the Marriage of Maddocks (1981) 6 Fam LR 877; FLC 91–031. Enforcement of undertakings Section 84 may be used in the enforcement of undertakings to transfer property contained in a registered or approved maintenance agreement: see In the Marriage of Dupont (No 2) (1981) 7 Fam LR 147; FLC 91–037; see also In the Marriage of Harding and Gibson (1979) 5 Fam LN 10; FLC 90–665. [s 84.6] Effect of execution of deed or instrument by person appointed — s 84(2) This provision provides that the execution of the deed or instrument has the same force or validity as if the deed or instrument were executed by the person originally ordered to execute it. The section was amended by the Family Law Amendment Act 1983. It is an enabling section to give also the same force or validity to the execution of a deed or instrument by a person appointed by an order pursuant to s 84(1A).

[s 84.7] Order as to payment of costs — s 84(3) The court can make whatever order it thinks just as to costs and expenses of and incidental to the preparation of the deed or instrument and its execution. [s 84.8] Transfer of shares Section 84 does permit the court to order the execution of a transfer of shares on behalf of a party. However, the court has no power under s 114(3) to direct a registration of the transfer of shares unless it can be established that the company is completely controlled by one party to a marriage so that in reality an order against the company is an order against the party: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000.

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[s 85] Transactions to defeat claims 85† [s 85 rep Act 143 of 2000 s 3 and Sch 3 item 74 opn 27 Dec 2000]

[s 85A] Ante-nuptial and post-nuptial settlements 85A (1) The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements made in relation to the marriage. [page 798] (2) In considering what order (if any) should be made under subsection (1), the court shall take into account the matters referred to in subsection 79(4) so far as they are relevant. (3) A court cannot make an order under this section in respect of

matters that are included in a financial agreement. [subs (3) insrt Act 143 of 2000 s 3 and Sch 2 item 6A opn 27 Dec 2000] [s 85A insrt Act 72 of 1983] Editor’s Note: Section 85 was repealed by Sch 3 item 74 of the Family Law Amendment Act 2000 No 143 of 2000. The Note to that item provides: “Those sections are effectively being moved to Part XIII (Enforcement of Decrees): see also item 77.” The repealed s 85 has been re-enacted as s 106B. See the commentary to that section. †

COMMENTARY ON SECTION 85A Introductory comment …. In proceedings under this Act …. What is a settlement? …. Ante-nuptial or post-nuptial …. A proprietary company — A settlement …. Marriage settlements …. Are loans settlements? …. Property dealt with by the settlement …. “in relation to the marriage” …. What orders can be made? …. Third parties …. Principles to be applied …. Matters referred to in s 79(4) …. Abatement on death …. Power of variation of s 85A order …. Further reference …. Binding financial agreements — s 85A(3) ….

[s 85A.1] [s 85A.2] [s 85A.3] [s 85A.4] [s 85A.5] [s 85A.6] [s 85A.7] [s 85A.8] [s 85A.9] [s 85A.10] [s 85A.11] [s 85A.12] [s 85A.13] [s 85A.14] [s 85A.15] [s 85A.16] [s 85A.17]

[s 85A.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1983. It is similar to s 86(2) of the repealed Matrimonial Causes Act 1959: see also s 56 of the Matrimonial Causes Act 1899 (NSW) and 24(1)(c) of the Matrimonial Causes Act 1973 (UK). The section enables the court to make property settlement orders with respect to property dealt with by ante-nuptial or post-nuptial settlements made in relation to the marriage. In making such orders the court shall take

into account the matters referred to in s 79(4) so far as they are relevant. Because marriage settlements were frequently in the form of trusts, which created interests outside the power of the Family Court, s 79 did not cover the situation. Section 85A extends the type of assets over which the court has power and therefore to which the parties to proceedings may have access. The original purpose of the legislation was to allow the court to vary existing marriage settlements in the traditional sense, especially the protective clauses usually imposed by a party’s family which prevented the other party from obtaining control over the assets of the trust. The making of formal marriage settlements has been a common aspect of marriages until the early years of the present century. No provision was made in the Family Law Act, when first passed, because it had been felt that s 79 was sufficiently wide in relation to property to deal with any situation which might arise including dealing with assets included in the marriage settlement. However, because marriage settlements are sometimes in the form of trusts creating discretionary and other interests which are not within the Family Court’s present power, the section has been reintroduced. The real purpose of s 85A may be to permit the court to deal with assets settled by way of a discretionary trust which is designed to defeat the effective operation of jurisdiction under s 79 and recast the terms of such a trust. [page 799] For a court to exercise the power conferred by the section there must be: (a) a settlement; and (b) the settlement must be nuptial in character. The commentary to this section also includes a discussion of the distinct concept of the pre-marital agreement — that is, agreements made between parties before or at the time of their marriage governing the parties’ financial obligations to each other on divorce: see s 85A.17.

[s 85A.2] In proceedings under this Act The section permits the court to act “in proceedings under this Act”. The words “in proceedings under this Act” can mean either ancillary to proceedings already instituted under the Act or by way of proceedings instituted under the Act. If the words mean “by way of proceedings instituted under the Act” then proceedings under this section could be instituted separately from any other proceedings for property or otherwise, but the proceedings to be under the Act would have to fall within para (ca) of the definition of matrimonial cause in s 4(1). The proceedings then could only be between parties to a marriage subject to intervention by children of the marriage under s 92. The other view is that proceedings under s 85A must be ancillary to other proceedings under the Act. The proceedings could, however, be ancillary to any proceedings under the Act including proceedings for custody, although in practice it is likely to be ancillary to proceedings under s 79. As with s 85(1) such proceedings would have to be in existence or instituted conjointly with the proceedings under s 85A: see In the Marriage of Page (1978) 4 Fam LR 663 at 666; FLC 90–525. The proceedings would then fall within para (f) of the definition of matrimonial cause in s 4(1). In that event, a child or its guardian, or indeed any person with sufficient interest to have standing, such as a remainderman, or a party to an earlier marriage could initiate proceedings, but in the latter case not with a view to obtaining a direct benefit for oneself. The English view is that a trustee cannot initiate an application, but certainly can be heard in opposition: see Smith v Smith and Graves (1887) 12 PD 102; see also Rayden on Divorce, 12th ed, para 92. [s 85A.3] What is a settlement? What constitutes a settlement for matrimonial purposes is a question of fact depending on the construction of the documents or agreement concerned: see Prinsep v Prinsep [1929] P 225 at 232–5. In construing a settlement, regard should be had only to the terms of the

agreement and not who the settlor is and what his motive is: see Melvill v Melvill [1930] P 159; see also Young v Young [1962] P 27 at 32; Meller v Meller (1967) 10 FLR 12 at 14. The word “settlement” is to be given a wide and liberal interpretation: see Garratt v Garratt [1922] P 230; see also Prinsep v Prinsep [1929] P 225. It means any disposition which makes future or continuing provision for either or both spouses or for their children. However, it only refers to settlements inter vivos: see Garratt v Garratt, above. It refers to any obligation to make continuing payments which still exist at the time of the application, such as an obligation to pay an annuity: see Bosworthick v Bosworthick [1927] P 64. An absolute and unqualified transfer of property by one spouse to the other cannot be regarded as a settlement of that property for any purpose whatever: see Prescott v Fellowes [1958] P 260. The position will be different if the disposition makes continuing for periodical payments: see Bosworthick v Bosworthick, above. To constitute a settlement the disposition must always make continuing or future provision for a spouse who is not the settlor: see Bosworthick v Bosworthick [1927] P 64 at 72; see also Brown v Brown [1959] P 86 at 89; Smith v Smith [1945] 1 All ER 584. [page 800] A settlement may exist even though there are no trusts, no successive interests and no express limitations tending against mere alienation: see Dewar v Dewar (1960) 106 CLR 170 at 174. The concept does, however, connote a disposition imposing a fetter upon the alienation of the entirety. A settlement may be created orally or arise by operation of law: see Cook v Cook [1962] P 235. There is a settlement on parties to a marriage when they are named as objects of a discretionary trust: see Prinsep v Prinsep [1929] P 225; see also Janion v Janion [1929] P 237; Howard v Howard [1945] P 1; [1945] 1 All ER 91; Vallance v Vallance (1907) 77 LJ (P) 33. A settlement on parties may exist where, without being given any interest

under the settlement, the parties are given power over the disposal of the settled property: see Compton v Compton [1960] P 201 at 210. [s 85A.4] Ante-nuptial or post-nuptial Nuptial For a settlement to come within the scope of the section it must have a nuptial element: see Young v Young [1962] P 27 at 32; see also Prinsep v Prinsep [1929] P 225; Meller v Meller (1967) 10 FLR 12 at 14. Ante-nuptial An ante-nuptial settlement must be made in contemplation of a specific marriage: see Burnett v Burnett [1936] P 1. See also Hargreaves v Hargreaves [1926] P 42. It will not be enough merely that the settlement was made before the parties’ marriage. Post-nuptial A post-nuptial settlement is a settlement entered into at any time after the marriage, provided it contemplates the continuation of the specific marriage: see Young v Young [1962] P 27. See also Melvill v Melvill [1930] P 159. The court may have difficulty in saying that any deed which is a settlement of property, made after marriage, and on the parties to the marriage, is not a post-nuptial settlement: see Worsley v Worsley (1869) LR 1 P & D 648 at 651. However, the settlement must not be entered into in contemplation of the termination; rather than the continuance of the marriage. Hence where a settlement is entered into because of the probability of the breakdown of a marriage, it will not be a post-nuptual settlement: In the Marriage of Turnbull (1990) 15 Fam LR 81; (1991) FLC 92–258. A maintenance agreement which contemplates that the parties will separate but continue to remain married to each other is a post-nuptial settlement: see Lockett v Lockett (No 2) (1920) 37 WN (NSW) 272. See also Burnett v Burnett [1936] P 1 at 15; Tomkins v Tomkins [1948] P 170; Jeffrey v Jeffrey (No 2) [1952] P 122. A settlement entered into after a decree nisi of dissolution is not postnuptial: see Young v Young [1962] P 27. [s 85A.5] A proprietary company — A settlement The articles of association of a proprietary company cannot be treated as a settlement. The

allotment of shares in a company to various members of a family would normally be by absolute assignment and consequently not qualify as a settlement. If each transaction is considered separately the section would have no application. However, if the court should look at the practical effect of the entirety of the transaction rather than its individual parts, then the articles of association may be a settlement within the meaning of the section: see MJH Pty Ltd v Hannes (1990) 14 Fam LR 231, where the question as to whether allotment of shares could constitute a post-nuptial settlement was considered in an application for relief under the former provisions governing oppression, s 320 of the Companies Code. [s 85A.6] Marriage settlements A marriage settlement is a settlement of money or property in trust for one or both spouses and/or their issue in consideration of the act of the parties in marrying each other. The settlement may be effected before the marriage (ante-nuptial settlement) or after it (postnuptial settlement). For the latter to constitute a marriage settlement proper, the act of marriage must have been the effective consideration and hence the settlement must have been effective pursuant to an ante-nuptial agreement to settle.

[page 801] The underlying aim of the marriage settlement is to give material security to the family unit by maintaining the husband and wife during their lives while preserving for the issue of the marriage, the land or capital brought into the settlement. Commonly, one or more settlors drawn from the couple, and their parents, settle property on trust on the spouses jointly for life with remainder to their issues. During the joint lives of the spouses each normally takes to the exclusion of the other, the income from the property settled by or on behalf of that particular spouse. The surviving spouse then takes the income of all the

settled property. On the death of both spouses, the issue take the remainder in shares which are either predetermined in the deed or settlement or subsequently appointed. [s 85A.7] Are loans settlements? Continuing and outstanding loans may be settlements. A loan is property in the hands of the creditor and could be dealt with under s 85A by transfer order or a repayment or even extinction. [s 85A.8] Property dealt with by the settlement The words “dealt with” should be read as meaning “included in”. The section applies not merely to property which was actually settled upon the trustee by the deed or instrument or trust, but any property which at the relevant time forms part of the trust whether it was part of the original settlement or not: see Prinsep v Prinsep [1929] P 225. The section would apply to a discretionary trust. It does not matter that the trustees have a very wide discretion to apply the income of the trust, at their discretion, to the benefit of any or all of a number of persons: see Prinsep v Prinsep, above. It is also not confined to the interests of the parties under the settlement: see Vallance v Vallance (1907) 77 LJ (P) 33; see also Marsh v Marsh (1878) 47 LJ (P) 78; Prinsep v Prinsep, above. [s 85A.9] “in relation to the marriage” A settlement upon a party or a child of the marriage will fall within that description. The nexus between the marriage and the settlement must be clear and substantial: In the Marriage of Spellson and George (1989) 13 Fam LR 242; FLC 92–046. The fact that other persons may be included in the range of possible beneficiaries such as a possible future wife and child who do not belong to the marriage will not deprive the settlement of its nuptial character: see Meller v Meller (1967) 10 FLR 12. Where, however, persons outside the marriage are substantial potential beneficiaries the settlement will not be able to be described as a settlement in relation to a marriage: see In the Marriage of Knight (1987) 11 Fam LR 890; FLC 91–854; In the Marriage of Toohey (1991) 14 Fam LR 843; FLC 92–244. Persons other than the parties may be entitled or eligible to benefit, but if

the primary purpose is to benefit persons other than the parties to and children of the marriage, then it will be difficult to say that the settlement was made in relation to the marriage. It is also relevant who is the settlor of the trust: see Prinsep v Prinsep [1929] P 225. A maintenance agreement can constitute a nuptial settlement provided one or more payments are still to fall due. However, a maintenance agreement can constitute a nuptial settlement only if it makes provisions for a spouse on the basis that the marriage is to continue and not on the basis that it is to be terminated by dissolution. An agreement, however, by one spouse to provide for the other spouse will not constitute a marriage settlement, if it is intended on an interpretation of the agreement to provide for the spouse and any children of the marriage after the marriage has been terminated by dissolution. The agreement will, however, constitute a settlement if its primary effect is to provide for a spouse on the basis that the marriage is to continue, notwithstanding that it may also be intended to provide for the spouse if the marriage has been dissolved. [s 85A.10] What orders can be made? The power can be exercised to direct a trustee to apply any or part of the income of a trust for the benefit of one or more of the children or a spouse: see Vallance v Vallance (1907) 77 LJ (P) 33; see also Marsh v Marsh (1878) 47 LJ (P) 78. [page 802] It could also be used to vest assets standing in the name of the trustee absolutely to one or more of the parties to a marriage or their children. Although the terms of a trust cannot be varied under the provision, the trust could effectively be dissolved by distributing all its assets. Non-fiduciary powers, such as powers of revocation or appointment, may be suspended or overridden: see Compton v Compton [1960] P 201; see also Purnell v Purnell [1961] P 141.

[s 85A.11] Third parties It has been held that in making orders for the application of all or part of the property dealt with by a settlement, the court may adversely affect the rights and entitlements of third parties provided that those rights and entitlements are remote and contingent: see Prinsep v Prinsep [1929] P 225. Objects of a widely drafted discretionary trust may be considered to have remote and contingent interests. The power should not be used to deprive a third party of an interest which is vested in him or her: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000; see also Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555. However, the fact that a third party may have a contingent interest in the income or capital of a trust should not prevent an order being made, even if an order would extinguish the contingent interest: see Wynne v Wynne (1898) 78 LT 796; see also Prinsep v Prinsep, above. [s 85A.12] Principles to be applied The power must be exercised for the benefit of all or any of the parties to the marriage and the children of the marriage in directing the application of the property dealt with by the settlement. An order may be made for the benefit of one or more members of a family group at the cost of other members of the family group: see Smith v Smith [1970] 1 WLR 155. The court may withdraw rights accorded to children under the settlement: see Meller v Meller (1967) 10 FLR 12; see also Whitton v Whitton [1901] P 348; Purnell v Purnell [1961] P 141. These rights may be vested: see [s 85A.11], above. However, the children must then be compensated by some additional advantage which, at the minimum, leaves them substantially as well secured and protected as they were under the original settlement: see Meller v Meller (1967) 10 FLR 12 at 18. [s 85A.13] Matters referred to in s 79(4) By s 85A(2) the court, in considering what order if any should be made, should take into account the matters referred to in s 79(4), so far as they are relevant. The Family Court, therefore, in exercising its powers under s 85A(1) should do so in the same

way as it does under s 79. The parties cannot contract out of the provisions of the Act, nor can they, or either of them, be estopped from relying on the provisions of the Act where a settlement has been entered into: see In the Marriage of Plut (1987) 11 Fam LR 687; FLC 91–834. Section 85A can therefore be used as a means of altering the financial resources of the parties upon the breakdown of the marriage in a manner which is just and equitable, taking into account both their past contribution to property and the marriage, and their future financial security. [s 85A.14] Abatement on death There is no general doctrine of abatement in family law proceedings. Whether pending s 85A proceedings will abate on death will depend upon the nature of the proceedings, and whether the application may be continued under s 79(8): see In the Marriage of Greval (1990) 13 Fam LR 829; FLC 92–132 (FC). See also Re Gilbert and the Estate of Gilbert (dec’d) (1989) 13 Fam LR 632; (1990) FLC 92–125. [s 85A.15] Power of variation of s 85A order There is no power such as s 79 to vary an order made under s 85A. [s 85A.16] Further reference Mr Justice Nygh, “Section 85A: Is it of much use?”, (1986) 1 AJFL 10. [page 803] [s 85A.17] Binding financial agreements — s 85A(3) The powers contained in this section have no application to matters included in a financial agreement that is binding under the provisions of Pt VIIIA. If parties, or their advisers, wish to ensure that the powers in s 85A are preserved, it will be necessary to ensure that the settlement is structured or worded in such a way that does not also make it a binding financial agreement under Pt VIIIA. This ought to be simple enough, given that an agreement will only be a financial agreement if it is clearly expressed to have been made under the sections in Pt VIIIA: see, for example, s 90B(1)(b).

____________________

[s 86A] Certain maintenance agreements ineffective 86A A maintenance agreement made after the commencement of this section that is not a financial agreement does not have any effect and is not enforceable in any way. [s 86A insrt Act 143 of 2000 s 3 and Sch 2 item 1 opn 27 Dec 2000] COMMENTARY ON SECTION 86A Maintenance agreements of limited significance ….

[s 86A.1]

[s 86A.1] Maintenance agreements of limited significance The concept of a maintenance agreement has in effect now been superseded by that of a binding financial agreement under Pt VIIIA. As from 27 December 2000 (the date of the coming into force of the Family Law Amendment Act 2000), a maintenance agreement cannot be registered under s 86 and is not enforceable in any way unless it complies with the requirements of a financial agreement under Pt VIIIA. This does not affect the validity of maintenance agreements made before that date. The ensuing commentary on s 86 should therefore be regarded as relevant only to maintenance agreements entered into and registered before that date.

____________________ GENERAL INTRODUCTION TO SECTIONS 86 AND 87 [ss 86-87.0.1] Maintenance agreements — History At common law a distinction had to be drawn between separation agreements entered into between spouses who agreed to live apart, but did not contemplate divorce, and agreements for the maintenance of a party after divorce. It had been settled since the decision of the House of Lords in Wilson v Wilson (1848) 1 HL Cas 538 that a separation agreement entered into

between spouses whose marriage had already broken down and which made provision for the maintenance of the wife and children and the division of the matrimonial property, was not contrary to public policy and hence was enforceable as an ordinary contract at common law. If the financial provisions of the agreement were as a matter of construction, dependent upon the continuance of the state of separation, they would be discharged upon the parties resuming cohabitation, or upon proceedings being taken for dissolution, or any other reason occurring which discharged a party from the obligation to cohabit independently of the separation agreement: see O’Malley v Blease (1869) 20 LT 899. If, however, as a matter of construction, the financial provisions were not so dependent, the provisions would survive a resumption of cohabitation: see Ruffles v Alston (1875) LR 19 Eq 539, or even a dissolution of the marriage: see May v May [1929] 2 KB 386. If the agreement stipulated that the husband would pay a periodical sum until the death of the wife, the obligation survived his death and could be enforced against his estate: see Re Rules of the Supreme Court; Re Masterson (1978) 4 Fam LR 660. If, however, there was a clause in the separation agreement which excluded the right of a party to apply to a court for maintenance, beyond the amount specified in the agreement, then the clause was void as being contrary to public policy: see Hyman v Hyman [1929] AC 601. The maintenance of a wife or former wife and of the children of the marriage was a matter in which the State had an interest, for if adequate provision was not made for them they may become [page 804] a charge on public funds. It was, therefore, a matter of public policy that the jurisdiction of the court should not be ousted by the private agreement of the parties. A covenant by a wife in a separation agreement that she would not take proceedings for her maintenance or for the maintenance of her children was therefore held to be unenforceable: see Bennett v Bennett [1952] 1 KB

249 at 262. The invalidity applied even if the promise to pay maintenance was made by deed: see Bennett v Bennett, above. This approach was accepted by the High Court in Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432; see also Davies v Davies (1919) 26 CLR 348; In the Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221. If, however, an agreement provided for an ouster of a court’s jurisdiction, and if the court sanctioned the agreement, then the question of maintenance was then regulated by the agreement: see L v L [1961] 3 All ER 834. [ss 86-87.0.2] The Matrimonial Causes Act 1959 Section 87(1)(k) of the repealed Matrimonial Causes Act 1959 provided that the court could “sanction an agreement for the acceptance of a lump sum or periodic sums or other benefits in lieu of rights under an order made in respect of a matter referred to in any of the last three preceding sections or any right to seek such an order”. The sections referred to were ss 84, 85 and 86 which dealt with maintenance and property settlements. The sanctioning of an agreement pursuant to s 87(1)(k) had the effect of giving validity and force to an agreement whereby one party contracted him or herself out of the rights conferred by the Act, since the Act precluded such a binding agreement, unless the provisions of the Act were attracted and complied with: see Felton v Mulligan (1971) 45 ALJR 525 at 528; see also In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248. The agreement as sanctioned, however, would be subject to the application of the ordinary law of contract and substituted its provisions for any claims or rights excluded by its terms. The purpose of s 87(1)(k) was to give the court statutory power to sanction an agreement not to invoke the jurisdiction of the court at some future time, which was otherwise a void agreement, as being contrary to public policy: see Shaw v Shaw (1965) 113 CLR 545. The court, however, when asked to sanction such an agreement, was required to consider closely its provisions, realising not merely that the parties were foregoing rights to the court’s immediate intervention, but that they thereafter were relying upon the contractual rights which the agreement

gave them: see Shaw v Shaw, above. The effect of the sanction of the agreement was that once the court gave its sanction to such an agreement, it became an agreement, the validity of which could not be challenged upon the ground of public policy expanded in Hyman v Hyman [1929] AC 601 because it was an agreement to which Parliament, through the statute, had envisaged that the court may give a validity to which otherwise it would not have. The extent to which the jurisdiction of the court was ousted depended upon the terms of each individual agreement: see Shaw v Shaw (1965) 6 FLR 455; 66 SR(NSW) 30; see also Gipps v Gipps [1974] 1 NSWLR 259; Vandyke v Vandyke (1976) 12 ALR 621; 2 Fam LR 11,469; FLC 90–139. [ss 86-87.0.3] The Family Law Act 1975 The Family Law Act, like the repealed Matrimonial Causes Act 1959, specifically contemplates ratification by the court of an agreement between the parties to a marriage. The Family Law Act, however, has gone a step further, as it makes provision for two kinds of agreement. Section 86 provides for the registration of certain maintenance agreements, whilst s 87 allows for certain other maintenance agreements (namely those expressed to operate in substitution for rights under the Act) to be approved by the court. [page 805] Statutory approval was thus given to the making by parties of a maintenance agreement which provided that the agreement operated in relation to financial matters dealt with in the agreement in substitution for any rights of the parties to the agreement under Pt VIII of the Act, provided the agreement was approved by the court. Sections 87 and 86 agreements A s 87 agreement is an agreement which is in substitution of the rights of the parties to the agreement, to apply to the court under the Act. A s 86 agreement is one which leaves the rights of the parties under the

Act intact. It is important that the agreement should specify which type of agreement it is. The agreement should make clear whether it is one to which s 87 or s 86 applies. If the agreement is intended to be governed by s 87 then it should be confined to that section: see In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440. Source of Commonwealth power The law regulating the right of spouses to make maintenance agreements with each other is referable to the Commonwealth marriage power (Constitution s 51(xxi)), not the divorce power (Constitution s 51(xxii)): see Russell v Russel; Farrelly v Farrelly (1976) 1 Fam LR 11,133; FLC 90–039. It is for this reason that the court may deal with maintenance agreements even though there are no divorce proceedings instituted: see In the Marriage of Macsok (1976) 1 Fam LR 11,264; FLC 90–045. [ss 86-87.0.4] Definition of maintenance agreement Section 4(1) of the Act defines a “maintenance agreement”. A maintenance agreement, in order to qualify under the Act must be in writing, must have been made between the parties to a marriage (but it does not matter that there are also other parties to the agreement) and must make provision with respect to “financial matters”. It does not matter whether it is made within or outside Australia but it has been held that it does not include an agreement entered into in and governed by the law of a non-prescribed overseas jurisdiction: see In the Marriage of Hannema (1981) 7 Fam LR 542 at 549. [ss 86-87.0.5] Makes provision with respect to financial matters An essential characteristic of a maintenance agreement is that it makes provision with respect to financial matters. The concept of “financial matters” is defined in s 4(1) of the Act to mean matters with respect to: (a) the maintenance of one of the parties; (b) the property of those parties or of either of them; or (c) the maintenance of children of the marriage. The agreement, however, need not be confined to “financial matters”. It can deal with other matters as well: see In the Marriage of Gibb (1979) 5

Fam LR 694; FLC 90–694. A maintenance agreement need not entail provision for the settlement of property or payment of maintenance, but may purport to waive, on a mutual basis, the rights of the parties under the Act: see In the Marriage of Sabbagh (1982) 8 Fam LR 88; FLC 91–224: see also Re Pozzi (1982) 8 Fam LR 157; FLC 91–262. [ss 86-87.0.6] Matrimonial cause Proceedings between the parties to a marriage for the registration or approval of a maintenance agreement, or for the revocation of approval, are a “matrimonial cause” within para (d) of s 4(1). Paragraph (d) of s 4(1) is a valid exercise of the marriage power and, as such, jurisdiction in respect of maintenance agreements exists independently of jurisdiction to grant principal relief: see Russell v Russel; Farrelly v Farrelly (1976) 1 Fam LR 11,133; FLC 90–039. Proceedings for the enforcement of a maintenance agreement fall within para (ea) of the definition of “matrimonial cause” in s 4(1). [ss 86-87.0.7] Source of power The source of power for the registration of a maintenance agreement is contained in s 86(b). The source of power for the approval of a maintenance agreement is contained in s 87. [page 806] [ss 86-87.0.8] Time limit — s 44(3) No time limit is imposed upon the institution of a matrimonial cause under para (d) of s 4(1) in respect of a maintenance agreement. However, proceedings following the revocation of a maintenance agreement approved under s 87 would rely upon paras (c) and (ca) of s 4(1) and therefore be subject to s 44(3). [ss 86-87.0.9] Void marriage The provisions of the Act concerning maintenance agreements may be used by parties to a void marriage: see In the Marriage of Barriga (1979) 5 Fam LR 488; FLC 90–690. For the purposes of Pt VIII of the Act, a marriage is deemed to include a void marriage.

[ss 86-87.0.10] Section 86 agreements — General principles Section 86 provides that a maintenance agreement may be registered in a court exercising jurisdiction under the Act. An agreement under this section leaves intact the parties’ rights to seek court orders. It is an agreement to which s 87 does not apply. It is similar to a consent order, but is not in fact an order at all as there is no formal approach to the court which registers it, except for the purposes of ensuring that it is not in substitution for future rights, in which case registration would be refused. The formal requirements are minimal and registration is automatic. Once registered, the agreement, under s 88, may be enforced as if it were an order of the court in which it is registered. Section 84 may be used in the enforcement of undertakings to transfer property contained in a registered agreement: see In the Marriage of Dupont (No 2) (1981) 7 Fam LR 147; FLC 91–037; see also In the Marriage of Maddocks (1981) 6 Fam LR 877; FLC 91–031. An agreement may be registered under s 86, notwithstanding that such registration was not contemplated when the agreement was made. It may be registered by one party without the knowledge or consent of the other party. [ss 86-87.0.11] Section 87 agreements — General principles An agreement to which s 87 applies in one which is in substitution for the rights of the parties to apply to the court for maintenance and property orders. It enables the parties to contract out of the scheme which the legislation sets up, to protect the parties and to draw up their own agreement in substitution for any rights of the parties to the agreement under Pt VIII. It is intended to be a final agreement. It requires the approval of the court for it to operate at all. An agreement which has not been approved by the court has no effect. The agreement may be set aside on the grounds set out in s 87. [ss 86-87.0.12] Agreements made in contemplation of a divorce abroad The principle in Hyman v Hyman [1929] AC 601 does not apply to an agreement to pay maintenance, made in contemplation of a foreign divorce: see Addison v Brown [1954] 2 All ER 213; see also McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90–655.

[ss 86-87.0.13] Separation agreements which do not exclude rights of parties under the Family Law Act and premarital agreements Premarital agreements relating to how parties propose to deal with each other in relation to financial matters have been commonplace since at least the 19th century. Such an agreement, however, does not preclude the court from exercising jurisdiction under the Act and in particular under s 79: see In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90–652; see also In the Marriage of Hannema (1981) 7 Fam LR 542. Section 79 specifically authorizes the court to alter the interests of parties in property where it is just and equitable to do so. It cannot be assumed that, whenever there exists an ante-nuptial agreement, it is never just and equitable to alter the parties’ interests in property covered by the agreement. No agreement can preclude the court from considering the matters set out in s 79(4). [ss 86-87.0.14] Are agreements not registered under s 86 or approved under s 87 enforceable at common law? A proceeding to enforce an agreement at common law which has not been sanctioned under the repealed Matrimonial Causes Act, or registered or approved under [page 807] the Family Law Act, may not be a matrimonial cause: see McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90–655; see also Calabrese v Miuccio (1984) 9 Fam LR 526; FLC 91–548. Such an agreement, however, would not stand in the way of any applications under Pt VIII of the Act. [ss 86-87.0.15] Agreements not registered under s 86 Such agreements do not oust the jurisdiction of the court to make orders concerning the financial matters, with which the agreement deals: see In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819; see also In the Marriage of V and G (1982) 8 Fam LR 193; FLC 91–207; In the Marriage of Naughton (1983) 9 Fam LR 47; FLC 91–327; In the Marriage of Schefe (1978) 4 Fam LR 292; FLC 90–473. However, the fact that the parties

have entered into a deed relating to their financial affairs (whether or not it is registered) is a relevant factor for the court to consider under s 75(2)(o): see In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819 above. As to the weight to be given to such an agreement, the court must consider the issues relevant to the application under s 74 or s 79 at the time the application is before it: see In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819 above; see also In the Marriage of Dupont (No 3) (1981) 7 Fam LR 747; FLC 91–103. The existence of the agreement is a relevant factor, as is the fact that the parties have accepted it and acted upon it. The agreement is only one of a number of factors to be considered, but it is not an overriding factor. [ss 86-87.0.16] Agreement not approved under s 87 An agreement to which s 87 applies has no effect and is not enforceable until it is approved (see s 87(2)). An unapproved s 87 agreement does not prevent the court from determining proceedings for maintenance or property settlement: see In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440; see also In the Marriage of Bates (1976) 2 Fam LR 11,407; FLC 90–123. Where an agreement to which s 87 applies has not been approved, and has not been acted upon, it may not be subsequently referred to or relied upon in proceedings under Pt VIII: see In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440; see also In the Marriage of Slater (1979) 4 Fam LR 704; FLC 90–621. [ss 86-87.0.17] Bankruptcy Under s 123(b) of the Bankruptcy Act 1966 “a conveyance, transfer, charge, disposition, assignment, payment or obligation” made or executed prior to bankruptcy pursuant to a maintenance agreement, is protected from creditors. If, however, the conveyance etc was made with the intention of defrauding creditors, it is void as against the trustee in bankruptcy: s 45 of the Bankruptcy Amendment Act 1987: see Re Chemaisse and Commissioner of Taxation (1990) 13 Fam LR 724; FLC 92– 133. Prior to the 1987 amendment, fraudulent dispositions were protected if they were made pursuant to a maintenance agreement: see [s 86.14].

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[s 86]

Registered maintenance agreements

86 (1) [Registration] A maintenance agreement other than an agreement to which section 87 applies may be registered, as prescribed by the applicable Rules of Court, in any court having jurisdiction under this Act. [subs (1) am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[71]]

(1A) A maintenance agreement made after the commencement of this subsection cannot be registered. [subs (1A) insrt Act 143 of 2000 s 3 and Sch 2 item 8 opn 27 Dec 2000]

(2) Section 66S applies in relation to the variation of a maintenance agreement registered under subsection (1), in so far as the agreement makes provision for the maintenance of a child of the relevant marriage, as if the agreement were an order made by consent under Part VII by the court in which the agreement is registered. [subs (2) subst Act 181 of 1987 s 46; Act 167 of 1995 s 33]

[page 808] (2A) Section 83 applies in relation to the variation of a maintenance agreement registered under subsection (1), in so far as the agreement makes provision for the maintenance of a party to the relevant marriage, as if the agreement were an order made by consent under this Act by the court in which the agreement is registered. [subs (2A) insrt Act 181 of 1987 s 46]

(3) [Agreement set aside for fraud etc] The court in which a maintenance agreement is registered under subsection (1) may set aside the agreement if, and only if, the court is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside. (3A) [Operation of registered agreement] Where a maintenance agreement has been registered under subsection (1), then: (a) unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and (b) if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments. [subs (3A) insrt Act 72 of 1983 s 43]

(3B) Where: (a) a maintenance agreement is, at any time, registered under subsection (1); and (b) the maintenance agreement makes provision for the

maintenance of a child; and (c) an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 by one of the parties to the agreement for the other party to the agreement to be assessed in respect of the costs of the child (whether or not such an application has in fact been made by the party or by another person); the maintenance agreement, so far as it makes provision for the maintenance of the child, has no effect and is not enforceable in any way. [subs (3B) insrt Act 124 of 1989 s 194]

(4) [Overseas maintenance agreements] Subject to section 89, this section does not apply to overseas maintenance agreements. COMMENTARY ON SECTION 86 Maintenance agreements made after 27 December 2000 cannot be registered under s 86: subs (1A) …. General principles …. Registration of maintenance agreement …. Effect of registration — s 86(2A) …. Effect of property provisions in a s 86 agreement …. Enforcement …. Power to set aside agreement — s 86(3) …. Fraud ….

[s 86.1] [s 86.2] [s 86.3] [s 86.4] [s 86.5] [s 86.6] [s 86.7] [s 86.8] [page 809]

Undue influence …. Fraud — s 87 agreements …. Maintenance agreement set aside by consent …. Effect of death on certain provisions in maintenance

[s 86.9] [s 86.10] [s 86.11]

agreements — s 86(3A) …. Overseas maintenance agreements — s 86(4) …. Bankruptcy …. Protection of operation of Child Support (Assessment) Act — subs (3B) ….

[s 86.12] [s 86.13] [s 86.14] [s 86.15]

[s 86.1] Maintenance agreements made after 27 December 2000 cannot be registered under s 86: subs (1A) Amendments that came into effect on 27 December 2000 created Pt VIIIA, dealing with financial agreements. Those provisions have effectively superseded s 86 maintenance agreements (and s 87 maintenance agreements). This is achieved by subs (1A): the court can not register agreements made after that date. However, s 86 agreements made before 27 December 2000, whether registered before or after that date, remain in force. It follows that the following commentary is now largely only of historical interest in relation to the future agreements. However, it remains relevant to questions of enforcement of agreements registered before 27 December 2000. [s 86.2] General principles The agreement may relate to other matters which do not fall within the meaning of “financial matters”. There must, however, be some relationship between the agreement and the financial matters of the parties: see In the Marriage of Gibb (1979) 5 Fam LR 694 at 700; FLC 90– 694. The agreement to be registrable under s 86 must not purport to oust the jurisdiction of the Family Court to deal with the property or maintenance of the parties or be expressed to be in substitution for any rights of the parties to the agreement under Pt VIII: see In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440. An agreement registered under s 87(1)(k) of the Matrimonial Causes Act 1959 cannot be registered under s 86: see In the Marriage of Lakajev (1978) 4 Fam LR 228; FLC 90–448: see also Vandyke v Vandyke (1976) 12 ALR 621; 2 Fam LR 11,469; FLC 90–139. There is no restriction on the time at which such an agreement may be made: see In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90– 652.

The fact that an agreement has been registered in a court of summary jurisdiction does not prevent the further registration of the same agreement in the Family Court of Australia: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467. Relationship of parties It may not be necessary for parties to be estranged at the time of their entering into a maintenance agreement under this section, provided it can be said to arise out of the marital relationship. See Liveris v Commissioner of Taxes (1989) 13 Fam LR 65 at 70 per Asche CJ. The situation would be different (SO’R) if spouses who are not estranged seek to have a maintenance agreement approved under s 87. [s 86.3] Registration of maintenance agreement As noted at the commencement of this commentary, maintenance agreements can no longer be registered under this section. As to the previous law, see the former Family Law Rules 1984, O 31 r 7. Under the previous law, registration could be obtained on the initiative of one party to the agreement: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467; see also Cummins v Cummins (1977) 2 Fam LR 11,621; FLC 90–209. Registration may be obtained at any time: see In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819. In order to be registrable an agreement need not have been entered into in the expectation that it would be registered: see In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90–652. [page 810] [s 86.4] Effect of registration — s 86(2A) This section enables the court to exercise powers under s 83, as if the agreement were an order of the court. Section 83 sets out the powers of the court to modify maintenance orders. There is, however, no power to vary property provisions in a maintenance agreement, except under s 79A. Section 83 does not authorise the variation of orders made under s 79: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467; see also In the Marriage of Maddocks (1981) 6 Fam LR

877; FLC 91–031. Section 83 can only apply to those parts of a maintenance agreement which can be regarded as being in respect of the maintenance of the party: see In the Marriage of Burgoyne, above. Consequently s 86(2) is only applicable to those provisions of the maintenance agreement to which s 83 can be applied, that is to say, those provisions which provide for the payment of periodic maintenance: see In the Marriage of Maddocks (1981) 6 Fam LR 877 at 878; FLC 91–031; see also In the Marriage of Thomas and Wood (1982) 8 Fam LR 381. Where a court is dealing with an application for a discharge of a maintenance order under s 83, it must grant that relief pursuant to s 82(4) in circumstances where the recipient of the order has remarried, unless there are special circumstances where the court, in the exercise of its discretion, would not regard it as just and equitable to do so. The onus of establishing special circumstances is upon the recipient of the order: see In the Marriage of Thomas and Wood, above. The provisions of s 82(4) apply, when the court is asked to discharge the maintenance component of a registered maintenance agreement, in circumstances where the recipient of the maintenance benefit under that agreement has remarried: see In the Marriage of Thomas and Wood, above. Thus s 86(2), in addition to the power of variation in s 83, also attracts the provisions of s 82(4). However, those powers are only applicable to those parts of the agreement which make provision for maintenance. Provision for child maintenance — s 86(2) This provision was inserted in the Act by the 1987 Amendment Act. It provides that in relation to a maintenance agreement registered under s 86(1) which contains provision for child maintenance, s 66S and not s 83 applies to any application to vary those parts of the agreement. [s 86.5] Effect of property provisions in a s 86 agreement It is a characteristic of property orders made under s 79 that they are not variable, except under s 79A: see In the Marriage of Taylor (1977) 3 Fam LR 11,220; FLC 90–226.

Property clauses in s 86 agreements are not capable of variation under s 83, as it only applies to those parts of the agreement which can be regarded as being in respect of maintenance. The registration of an agreement pursuant to s 86, however, does not create the effect of an order under s 79 and consequently does not stand in the way of a subsequent application under s 79: an order may be made under that section which makes a different disposition to the provisions of the agreement: see In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90–652; see also In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467. It does not matter that the agreement has been put into effect and whether or not it has been enforced by an order under s 86, neither party is nor can be precluded from seeking an order under s 79: see In the Marriage of Burgoyne, above. Hence the effect of an agreement registered under s 86 is not that of a “final order” as to property, and failure to advise a client accordingly may render a solicitor liable in negligence: Entsch v Smith and Kerr (1992) 15 Fam LR 387. Where there has been an agreement between the parties (other than an agreement prepared for approval by the court under s 87) whether registered under s 86 or not, and an application is made subsequently under s 79 seeking orders inconsistent with the terms of such agreement, the court must determine that later application on its own merits, having regard to the factors set out in s 79(4) as they exist at the time of the application under s 79 and not at the time of making the agreement: see In the Marriage of Dupont (No 3) (1981) 7 Fam LR 747; FLC 91–103; see also In the Marriage of Candlish and Pratt (1980) 6 Fam LR 75; FLC 90–819. [page 811] An agreement which provides for a division of property, whether registered under s 86 or not, will normally have some relevance to proceedings under s 79. The agreement between the parties is relevant as a matter of financial history and is an indication of what the parties at the time

considered to be just and equitable between them. The court can take into account the fact that a maintenance agreement has been entered into, its terms and effect, and the extent to which it has been acted upon: see In the Marriage of Hannema (1981) 7 Fam LR 542 at 549. If the parties, or either of them, has put it into effect, then this will be a factor for the court to consider: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467. The property provisions of a registered maintenance agreement may be varied by order under s 79, without the necessity of the agreement being set aside under s 86(3): see In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90–652; see also In the Marriage of Dupont (No 3) (1981) 7 Fam LR 747; FLC 91–103. If an application for enforcement under s 88 is before the court at the same time as an application for an order under s 79, then the court may defer enforcement under s 88 until it has considered the application under s 79: see In the Marriage of Burgoyne, above. ss 86 and 88 must be read subject to s 79. [s 86.6] Enforcement A maintenance agreement registered pursuant to s 86 may be enforced as if it were an order of the court (see s 88). But it may not be so enforced if it is void on the ground that it purports to oust the jurisdiction of the court to deal with the property of the parties to the marriage: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90– 467; see also In the Marriage of Sykes (1978) 4 Fam LN 49; (1979) FLC 90– 652; In the Marriage of Thomas and Wood (1982) 8 Fam LR 381. [s 86.7] Power to set aside agreement — s 86(3) The court may set aside a maintenance agreement registered under s 86 if the court is satisfied that: (a) the concurrence of a party was obtained by fraud or undue influence; or (b) the parties desire the agreement to be set aside. [s 86.8] Fraud The court in which the agreement is registered may set aside the agreement, if the court is satisfied that the concurrence of a party was obtained by fraud.

At common law a false statement made knowingly or without belief in its truth, or recklessly careless of whether it be true or false, is fraud: see Derry v Peek (1889) 14 App Cas 337; see also Dutton v Gorton (1917) 23 CLR 362 at 371. An absence of honest belief is essential to constitute fraud. Fraud is dishonesty, and if a representor honestly believes the statement to be true, he or she cannot be liable in fraud no matter how negligent he or she may have been. In determining the honesty of the representor’s belief, his or her statement must be considered by the test of whether the representor honestly believes his or her statement to be true according to its meaning as understood by him or her. Carelessness is not dishonesty. Motive is irrelevant. However, it is unnecessary to prove intention to cheat or injure the representee provided, of course, that absence of honest belief on the part of the representor is established. Equity, in the exercise of its exclusive jurisdiction, gave a more extended meaning to the word “fraud” and developed a doctrine of “constructive fraud”: see Nocton v Lord Ashburton [1914] AC 932; [1914–15] All ER Rep 45; see also Hudson v Gray (1927) 39 CLR 473 at 490. Fraud in s 86(3) may be limited to fraud as recognised by the common law: see In the Marriage of Dupont (1980) 6 Fam LR 395 at 398; FLC 90–881. See however, In the Marriage of Green and Kwiatek (1982) 8 Fam LR 419; FLC 91–259, in which the Full Court suggested that “fraud” in s 87(6) includes equitable fraud: see also In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058. These decisions concerned the revocation of approval of a s 87 agreement. [page 812] Where an applicant alleges fraud, then he or she will bear the onus of proving fraud; then the onus will shift to the misrepresentor to prove that the applicant, having a comprehensive knowledge of the facts, was not induced by the fraud to concur in the agreement: see In the Marriage of Green and

Kwiatek, above. The fraud need only be an inducing factor; it need not constitute an overriding or predominant factor: see In the Marriage of Green and Kwiatek, above. Under s 86, fraud as a reason for setting aside a registered agreement is limited to the fraudulent obtaining of a party’s concurrence to the agreement. There is no provision for setting aside an agreement where any other sort of fraud is involved, for example, where the spouses enter an agreement in order to put assets beyond the reach of creditors. It has been suggested, however, that registration of a maintenance agreement in such circumstances would be an abuse of the Family Court’s process and, as such, the registration could be set aside by the court: see remarks of Davies J in Re Caruana and Fenech; Ex parte DCT (1988) FLC 91–903 at 76,562, discussed below at [s 86.14]. [s 86.9] Undue influence There are two situations in which the doctrine of undue influence may arise: (a) out of the special relationship of the parties to the contract, for example: solicitor and client; doctor and patient; parent and child; or (b) by reason of external circumstances which place one party in a position of power over another where, for instance, there is some threat to the person influenced or to their property: see In the Marriage of Dupont (1980) 6 Fam LR 395 at 398; FLC 90–881. The relationship of husband and wife is not usually a special relationship from which undue influence may be inferred or presumed: see In the Marriage of Dupont, above; see also In the Marriage of O’Brien (1981) 7 Fam LR 919; FLC 91–094. Undue influence under s 86(3) may, therefore, only arise by reason of external circumstances which place one party in a position of power over another unless there exists circumstances in a particular case which would cause a special relationship to arise otherwise. Partial non-disclosure could only amount to a misrepresentation where there is a special relationship between the parties: see In the Marriage of Dupont (1980) 6 Fam LR 395 at 398–9; FLC 90–881.

A party alleging undue influence must prove to the satisfaction of the court: (a) that some illegitimate means of persuasion was used by the other party; (b) that the illegitimate means used was a reason (although not necessarily the sole reason, nor the predominant reason, nor the clinching reason) why the party entered into the agreement: see In the Marriage of O’Brien (1981) 7 Fam LR 919; FLC 91–094; see also Barton v Armstrong [1976] AC 104. If a person is in receipt of legal advice concerning the agreement, he or she would bear a heavy onus and would need to produce evidence of a cogent kind, perhaps including psychiatric evidence as to his or her state of mind at the relevant time: see In the Marriage of O’Brien, above. [s 86.10] Fraud — s 87 agreements Subsequent cases have extended the definition of fraud and undue influence in relation to s 87, especially with respect to partial non-disclosure. However, it is suggested that these extensions may not apply to the same words as used in s 86(3) because those cases based their findings on the disclosure contained in the repealed reg 97 and that such requirements do not apply in respect of registration of a maintenance agreement under s 86. [s 86.11] Maintenance agreement set aside by consent The court may set aside a maintenance agreement registered under s 86(1) if the parties desire the agreement to be set aside. [s 86.12] Effect of death on certain provisions in maintenance agreements — s 86(3A) This section was inserted in the Act by the Family Law Amendment Act 1983. It is similar to s 87(10) which deals with the effect of death upon an agreement approved under s 87. An agreement registered under s 86 (other than a provision providing for periodic maintenance), unless it provides otherwise, continues to operate notwithstanding the death of a party to the agreement.

[page 813] In the case of provisions providing for periodic maintenance payments, if the agreement so provides, the provisions continue to operate, notwithstanding the death of the party liable to make payment, but (notwithstanding any provision in the agreement) the provision does not continue to operate after the death of a party to the agreement entitled to receive those payments. The section reflects the position that maintenance is a right inter vivos of the recipient, although it may be an obligation which continues beyond the death of the party liable to make the payment. [s 86.13] Overseas maintenance agreements — s 86(4) Section 86 applies to “overseas maintenance agreements” only in so far as regulations made pursuant to s 89 permit: see s 89 and reg 33 of the Family Law Regulations. The term “overseas maintenance agreement” is limited by definition in s 4(1) to maintenance agreement which have force and effect in a prescribed overseas jurisdiction under the law of that jurisdiction. It has been argued that, as the restriction contained in s 86(4) applies only to prescribed overseas jurisdictions, maintenance agreements governed by the law of non-prescribed overseas jurisdictions can be registered under s 86. This argument was rejected by McCall J in In the Marriage of Duncan (1978) 4 Fam LR 282; FLC 90–479. He held that to apply the restrictive definition of “overseas maintenance agreement” contained in s 4(1) to the term as used in s 86(4) would produce a strange result which would be contrary to legislative intent. It followed that, in his opinion, the opening words of s 4(1) (“In this Act, unless a contrary … intention appears …”), which qualified the definitions contained in the provision, had been satisfied. In other words, in relation to s 86(4), a sufficient contrary intention to depart from the meaning given to the term “overseas maintenance agreement” had been demonstrated. Therefore, maintenance agreements with force and effect in non-prescribed jurisdictions could not be registered under s 86. In In the Marriage of Hannema (1981) 7 Fam LR 542 at 549, Nygh J reached the same conclusion by a different route. He held, contrary to McCall

J, that s 86(4) refers only to maintenance agreements governed by the law of a prescribed overseas jurisdiction. However, he held that agreements with force and effect under the law of non-prescribed jurisdictions cannot be registered under s 86 because they are not agreements falling within the definition of “maintenance agreement” in s 4(1). It is submitted (BG) that the reasoning in Hannema is more persuasive than that in Duncan. [s 86.14] Bankruptcy Introductory comments Under the Bankruptcy Act 1966, “a conveyance, transfer, charge, disposition, assignment, payment or obligation”, made or executed prior to bankruptcy pursuant to a maintenance agreement, is protected from creditors: s 123(6). Prior to a 1987 amendment of s 123(6), a transaction made pursuant to a maintenance agreement was even protected, if it was intended to defraud creditors. “Maintenance agreement” is defined in s 5 of the Bankruptcy Act as “… a maintenance agreement, within the meaning of the Family Law Act 1975, that has been registered in or approved by a court in Australia or an external territory or any other agreement with respect to the maintenance of a person that has been so registered or approved”. Amendment of Bankruptcy Act Section 123(6) of the Bankruptcy Act 1966 was amended in 1987, effective from 13 January 1988, to ensure that a disposition made pursuant to a maintenance agreement which was intended to defraud creditors would be void as against the trustee in bankruptcy: Bankruptcy Amendment Act 1987 s 45. The amendment applies only to transactions made or executed after the commencement of the section on 13 January 1988. Transactions made or executed prior to 13 January 1988 Prior to the 1987 amendment, s 121(1) of the Bankruptcy Act 1966, which renders fraudulent dispositions void as against the trustee in bankruptcy, was, by virtue of s 123(6) of that Act, not applicable to conveyances on transfers made pursuant to a registered or approved maintenance agreement. Consequently, the Supreme Court of Western Australia in Melsom v Mullen (1985) 10 Fam LR 481; FLC 91–611,

[page 814] held that a disposition in a registered maintenance agreement intended to defraud creditors was not void as against the trustee in bankruptcy. See also In the Marriage of Chemaisse (1988) 12 Fam LR 48 at 53; FLC 91–915 (FC). Other options It seems, however, that there may be other options available for dealing with fraudulent transactions made pursuant to maintenance agreements or orders prior to 13 January 1988. In Re Caruana and Fenech; Ex parte DCT (1988) FLC 91–903 at 76,562 (FCA), Davies J suggested that, if the Federal Court was satisfied that creditors were prejudiced by a maintenance agreement which had been entered into in fraud of them, it would be entitled in its discretion to make an order under s 239 of the Bankruptcy Act 1966 setting aside any composition arrived at. His Honour also expressed the view that the Family Court could set aside the registration of such an agreement as an abuse of process: a possibility referred to approvingly in obiter of the Full Court of the Family Court in Chemaisse, above. If, indeed, the Family Court could set aside the registration of a s 86 agreement for abuse of process (for example, on the application of the trustee in bankruptcy), the agreement would no longer fall within the definition of “maintenance agreement” under s 5 of the Bankruptcy Act 1966 and consequently would not be protected by s 123(6). This approach has now been adopted: see Re Chemaisse and Commissioner of Taxation (1990) 13 Fam LR 724; FLC 92–133. In that case the application of the Commissioner of Taxation to have the approval of the maintenance agreement set aside was granted by the Full Court, confirming the finding by the trial judge of fraud on the court by the husband and a substantial level of involvement by the wife in that fraud. The protection of the Bankruptcy Act may also extend to pre-nuptial settlements, including settlements in the form of a maintenance agreement which are registered in accordance with the section. For a transfer of property by the bankrupt to be prevented by the provisions of s 120(1)(a) of the Bankruptcy Act from falling into the bankrupt’s estate it must be demonstrated that the transfer took place pursuant to the terms of a settlement

made before and in consideration of the marriage. In Re Mitchell; Ex parte Official Trustee v Mitchell (1992) 15 Fam LR 375 it was held that there were three tests for determining whether a settlement was one which had been made in consideration of marriage: (a) it must be made on the occasion of the marriage; (b) it must be conditioned only to take effect on the marriage taking place; and (c) it must be made by a person for the purpose of or with a view to facilitating the marriage. Where the transferee of property pursuant to a maintenance agreement registered under the section acts in good faith and gives valuable consideration then, notwithstanding that the transferor has acted with the fraudulent intention of defeating his creditors, the transfer of property pursuant to the terms of the registered maintenance will be protected by the operation of ss 120 and 121 of the Bankruptcy Act Re Mitchell; Ex parte Official Trustee v Mitchell, above. In another Federal Court case, Re Moor; Ex parte Sonenco (No 77) Pty Ltd and Trustee in Bankruptcy (1989) 13 Fam LR 27; FLC 92–028. Enderby J suggested that it might be possible to set aside a fraudulent disposition under s 30(1) of the Bankruptcy Act. He did not, however, express any view about the appropriateness of an order under that subsection in the case before him (although he had found the registered maintenance agreement to be a fraudulent attempt to defraud creditors) because he was able to dispose of the matter on another ground. This was that, because the memorandum of transfer of the property, being unregistered, had not been “executed” within the meaning of s 123(6) and consequently was not protected by that subsection. In his Honour’s view, the clear intent of s 123(6) is to protect the final or binding act in relation to each of the transactions covered by it. The “execution” of a transfer therefore refers to the effective legal transfer and in the case before him that could only be achieved by registration: Real Property Act 1900 (NSW) s 41. On appeal, the orders of Enderby J were upheld: see Sonenco (No 77) Pty Ltd v Silvia (1989) 13 Fam LR 511; FLC 92–051. The memorandum of transfer was held not to confer either a legal or an equitable estate in the land: the transfer was unregisterable because of the restraining order, there were pre-existing encumbrances not registered on the transfer, no

[page 815] consideration had moved to the husband for the transfer of the land. The Full Court of the Federal Court confirmed that the position at equity was unaffected by the existence of the s 86 maintenance agreement as any rights arising under s 86 are “inchoate” until the court exercises its rights under s 84(1A). [s 86.15] Protection of operation of Child Support (Assessment) Act — subs (3B) Subsection (3B), inserted in 1989, protects the operation of the Child Support (Assessment) Act 1989, by providing that child maintenance provisions in s 86 maintenance agreement have no effect, and are not enforceable, where one of the parties is entitled to make application for administrative assessment of child support under the Child Support (Assessment) Act. See generally under guide card CHILD SUPPORT, in Volume 2.

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[s 87] Operation of maintenance agreements entered into in substitution for rights under Act 87 (1) [Agreement in substitution] Subject to this section, a maintenance agreement may make provision to the effect that the agreement shall operate, in relation to the financial matters dealt within the agreement, in substitution for any rights of the parties to the agreement under this Part. (1A) Subsection (1) does not apply to a maintenance agreement made after the commencement of this subsection. [subs (1A) insrt Act 143 of 2000 s 3 and Sch 2 item 9 opn 27 Dec 2000]

(2) [Unapproved agreement of no effect] Where a maintenance agreement makes provision as mentioned in subsection (1), the maintenance agreement has no effect, and is

not enforceable in any way, unless it has been approved by the court. (3) [Approval of proper agreements] In proceedings for the approval of a maintenance agreement, if the court is satisfied that the provisions of the agreement with respect to financial matters are proper, the court shall, by order, approve the agreement, but if the court is not so satisfied, it shall, by order, refuse to approve the agreement. (4) [Effect of approval] Where a maintenance agreement that makes provision as mentioned in subsection (1) is approved by the court: (a) any order having effect under this Part or any order made under Part VIII of the repealed Act and continued in effect by virtue of paragraph 3(2)(c) ceases to have effect in so far as it relates to the financial matters dealt with in the agreement and, whether or not the approval of the agreement is revoked, has no further effect; and (b) subject to subsections (4A) to (4C) (inclusive), no court having jurisdiction under this Act may make an order (other than an order under this section or an order in connection with the enforcement of the agreement) with respect to those financial matters unless the approval of the agreement is revoked. [subs (4) am Act 181 of 1987 s 47]

(4A) The approval, after the commencement of this subsection, of a maintenance agreement under this section does not exclude or limit the power of a court having jurisdiction under this Act to make an order in relation to the maintenance of a party to the relevant marriage if the court is satisfied that, at the time the agreement was approved, the circumstances of the party were such

that, taking into account the terms and effect of the agreement, the party would have been unable to support himself or herself without an income tested pension, allowance or benefit. [subs (4A) insrt Act 181 of 1987 s 47]

[page 816] (4B) Where subsection (4A) applies in relation to an approved maintenance agreement, section 83 applies in relation to the variation of the agreement, in so far as the agreement makes provision for the maintenance of a party to the marriage, as if the agreement were an order made by consent under this Act by a court in which the agreement is registered or deemed to be registered. [subs (4B) insrt Act 181 of 1987 s 47]

(4C) The approval, whether before or after the commencement of this subsection, of a maintenance agreement under this section does not exclude or limit the power of a court having jurisdiction under Part VII to make any order under that Part in relation to a child of the relevant marriage and, where the agreement makes provision for the maintenance of a child of the marriage, section 66S applies in relation to the variation of the agreement, in so far as it makes that provision, as if the agreement were an order made by consent under that Part by a court in which the agreement is registered or deemed to be registered. [subs (4C) insrt Act 181 of 1987 s 47; am Act 167 of 1995 s 34]

(4D) Where: (a) a maintenance agreement that makes provision as mentioned in subsection (1) is, at any time, approved by

the court; and (b) the maintenance agreement makes provision for the maintenance of a child; and (c) an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 by one of the parties to the agreement for the other party to the agreement to be assessed in respect of the costs of the child (whether or not such an application has in fact been made by the party or by another person); the maintenance agreement, so far as it makes provision for the maintenance of the child, has no effect and is not enforceable in any way. [subs (4D) insrt Act 124 of 1989 s 195]

(5) [Approved agreement not invalid] Notwithstanding any rule of law or equity, an approved maintenance agreement shall not be taken to be void, voidable or unenforceable by reason that it makes provision as mentioned in subsection (1). (6) [Deemed registration] Where a court has approved a maintenance agreement, the agreement shall be deemed to be registered in that court. (7) [Registration in another court] An agreement that is by virtue of subsection (6) deemed to be registered in a court may be registered, as prescribed by the applicable Rules of Court, in another court having jurisdiction under this Act. [subs (7) am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[72]]

(8) [Grounds for revocation] A court may, by order, revoke the approval of a maintenance agreement under this section if, and only if, the agreement is registered or deemed to be registered in that court and the court is satisfied that:

(a) the approval was obtained by fraud; (b) the parties to the agreement desire the revocation of the approval; (c) the agreement is void, voidable or unenforceable; or (d) in the circumstances that have arisen since the agreement was approved it is impracticable for the agreement to be carried out or impracticable for a part of the agreement to be carried out. [page 817] (9) [Effect of revocation] Where the approval of a maintenance agreement under this section is revoked by a court: (a) the agreement ceases, for all purposes, to be in force; and (b) the court may, in proceedings for the revocation of the approval or on application by a party to the agreement or any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of the parties to the agreement and any other interested persons; and, in exercising its powers under paragraph (b), the court shall have regard to the ground on which it revoked the approval of the agreement. (10) [Operation of approved agreement] Where a maintenance agreement has been approved by a court as provided by this section, then:

(a) unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and (b) if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments. [subs (10) am Act 72 of 1984 s 3 and Sch]

(11) [Additional powers of court] Apart from the provision made by subsections (2), (4A), (4C), (5), (9) and (10), the validity, enforceability and effect of an approved maintenance agreement shall be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings of the kind referred to in subparagraph (ea)(iii) of the definition of matrimonial cause in subsection 4(1), being proceedings instituted in a court in which the approved maintenance agreement is registered or deemed to be registered, the court: (a) subject to paragraph (b), has the same powers, may grant the same remedies and shall have the same regard to the

rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; (b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable pursuant to the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the Rules of the Court; and (c) in addition to, or instead of, making an order or orders pursuant to paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court. [subs (11) am Act 72 of 1983 s 76 and Sch; Act 181 of 1987 s 47]

[page 818] (12) [Relevant considerations where agreement revoked] Where the approval of a maintenance agreement under this section has been revoked, a court shall, in considering whether, and if so, how, to exercise any powers under this Part, have regard to: (a) anything done or omitted to be done by a party to the agreement pursuant to the agreement; (b) any change in the circumstances of a party to the agreement arising out of the doing of any act by a person, or the failure of a person to do an act, pursuant to the agreement; (c) any order made by that court or another court exercising

jurisdiction under this Act in connection with the agreement while the agreement was in force; and (d) any order made under paragraph (9)(b) in connection with the revocation of the approval of the agreement. (13) [subs (13) rep Act 181 of 1987 s 47] (14) [subs (14) rep Act 181 of 1987 s 47] (15) [“Approved maintenance agreement”] In this section, approved maintenance agreement means a maintenance agreement that has been approved under this section and the approval of which has not been revoked. (16) [Operation of agreement under repealed Act] Nothing in this Act affects the operation of an agreement sanctioned under paragraph 87(1)(k) of the repealed Act or the rights and obligations of a person under such an agreement. (17) [Overseas maintenance agreements] Subject to section 89, this section does not apply to overseas maintenance agreements. [s 87 subst Act 72 of 1983 s 44] COMMENTARY ON SECTION 87 Maintenance agreements under s 87 cannot be approved after 27 December 2000: subs (1A) …. Agreement sanctioned under s 87(1)(k) of repealed Matrimonial Causes Act 1959 …. Rights under Part VIII to which s 87(1) refers …. Rights under future Acts …. Protection of operation of Child Support (Assessment) Act …. Matters dealt with in agreement …. Benefits under agreement …. Rights of one party only ….

[s 87.1] [s 87.2] [s 87.3] [s 87.4] [s 87.4A] [s 87.5] [s 87.6] [s 87.7]

Property dealt with in the agreement …. Rights dealt with by the agreement …. Clause excluding rights under the Act …. Exclusion of right to seek revocation …. Provisions in respect of parental responsibility …. Agreement must be approved — s 87(2) …. Effect of approval …. Proceedings for approval of a maintenance agreement — s 87(3) …. Approval before divorce — Repealed Act …. Approval before divorce — Family Law Act …. Resumption of cohabitation …. Court must be satisfied that provisions of agreement are proper — s 87(3) ….

[s 87.8] [s 87.9] [s 87.10] [s 87.11] [s 87.12] [s 87.13] [s 87.14] [s 87.15] [s 87.16] [s 87.17] [s 87.18] [s 87.19] [page 819]

Meaning of proper …. Finding by court that agreement is proper …. Juristic character of court’s approval …. Reasons for approval …. Principles which court should apply in proceedings for approval of an agreement …. Obligation of court …. Understanding by parties of the agreement …. Duty of disclosure …. Provisions in agreement as to disclosure …. Opposition to approval …. Registration of unapproved maintenance agreement …. Effect of an approval by court of a maintenance agreement — s 87(4) …. No court may make an order — s 87(4)(b) …. Courts having jurisdiction under the Act — s 87(4)(b)

[s 87.20] [s 87.21] [s 87.22] [s 87.23] [s 87.24] [s 87.25] [s 87.26] [s 87.27] [s 87.29] [s 87.30] [s 87.31] [s 87.32] [s 87.33]

…. Appeal from grant or refusal of approval …. Appeal by party who obtained approval …. Appeal from approval of an agreement in court of summary jurisdiction …. Effect on approval by reconciliation of parties …. Need for maintenance at time of approval — s 87(4A) …. Further proceedings — s 87(4B) …. Child maintenance provision in maintenance agreement — s 87(4C) …. Public policy — s 87(5) …. Approved maintenance agreement deemed to be registered — s 87(6) …. Registration of approved agreement in another court having jurisdiction — s 87(7) …. Revocation of approval of maintenance agreement — s 87(8) …. Revocation …. Third party application for revocation …. Discretion of court whether to revoke approval of maintenance agreement …. Delay in seeking revocation …. Bona fide third parties …. Implementation of the agreement …. Conduct of the applicant …. All property disposed of …. Approval obtained by fraud — s 87(8)(a) …. Fraud on the court …. Fraud at common law …. Equitable doctrine of constructive fraud …. Innocent misrepresentation …. Non-disclosure …. The former Family Law Rules …. Relevant time for determining fraud ….

[s 87.34] [s 87.35] [s 87.36] [s 87.37] [s 87.38] [s 87.39] [s 87.40] [s 87.41] [s 87.42] [s 87.43] [s 87.44] [s 87.45] [s 87.46] [s 87.46A] [s 87.47] [s 87.48] [s 87.49] [s 87.50] [s 87.51] [s 87.52] [s 87.53] [s 87.54] [s 87.55] [s 87.56] [s 87.57] [s 87.58] [s 87.59] [s 87.60]

Revocation of approval by consent — s 87(8)(b) …. Ordinary contract …. Acceptance of a serious breach …. Revocation by a subsequent reconciliation of parties …. Revocation implied from variation ….

[s 87.61] [s 87.62] [s 87.63] [s 87.64] [s 87.65] [page 820]

Void, voidable or unenforceable — s 87(8)(c) …. Courses of action …. Revocation of approval …. Aggrieved party …. Power to revoke …. Grounds …. Duress and undue influence …. Undue influence …. Family Law Act — undue influence …. Effect of fundamental breach by one party …. Meaning of “unenforceable” …. Procedure …. Discretion of court …. In the circumstances it is impracticable for agreement to be carried out or for part of agreement to be carried out — s 87(8)(d) …. Completed agreement …. Meaning of “impracticable” …. Impossible …. Difficult …. Effect of revocation of approval of maintenance agreement — s 87(9) …. Agreement ceases for all purposes to be in force — s 87(9)(a) …. Court may make orders for purpose of preserving or

[s 87.66] [s 87.68] [s 87.69] [s 87.70] [s 87.71] [s 87.72] [s 87.73] [s 87.74] [s 87.75] [s 87.76] [s 87.77] [s 87.78] [s 87.79]

[s 87.80] [s 87.81] [s 87.82] [s 87.83] [s 87.84] [s 87.85] [s 87.86]

adjusting rights — s 87(9)(b) …. Leave to commence proceedings …. Effect of death on approved maintenance agreement — s 87(10)(a) …. Provision for periodic maintenance — s 87(10)(b) …. Testator’s family maintenance legislation …. Validity, enforceability and effect of an approved maintenance agreement shall be determined according to principles of law and equity — s 87(11) …. Position before the 1983 Amendment Act …. Enforcement powers of High Court — s 87(11)(a) …. Judiciary Act …. Common law and equitable principles …. Declaratory orders …. Waiver …. Approved maintenance agreement remains intact …. Discretion of court …. Discretion and enforcement …. Which agreement can the court enforce? …. Payment of interest — s 87(11)(b) …. “as if it were an order of the court” — s 87(11)(c) …. Methods of enforcement …. Agreement approved in court of summary jurisdiction …. Duties of a court upon revocation — s 87(12) …. Definition of approved maintenance agreement — s 87(15) …. Agreement sanctioned under repealed Matrimonial Causes Act 1959 — s 87(16) …. Overseas maintenance agreements — s 87(17) …. Bankruptcy …. References to practice ….

[s 87.87] [s 87.88] [s 87.89] [s 87.90] [s 87.91]

[s 87.92] [s 87.93] [s 87.94] [s 87.95] [s 87.96] [s 87.97] [s 87.98] [s 87.99] [s 87.100] [s 87.101] [s 87.102] [s 87.103] [s 87.105] [s 87.106] [s 87.107] [s 87.108] [s 87.109] [s 87.110] [s 87.111] [s 87.112] [s 87.114] [page 821]

[s 87.1] Maintenance agreements under s 87 cannot be approved after 27 December 2000: subs (1A) Amendments that came into effect on 27 December 2000 created Pt VIIIA, dealing with financial agreements. Those provisions have effectively superseded s 87 maintenance agreements (and s 86 maintenance agreements). This is achieved by subs (1A): the court can no longer approve such agreements. Without approval they have no effect: subs (2). Section 87 maintenance orders approved before 27 December 2000, however, remain in force. It follows that the following commentary is now of historical interest in relation to the future agreements. However, it remains relevant to questions of enforcement of agreements approved before 27 December 2000. [s 87.2] Agreement sanctioned under s 87(1)(k) of repealed Matrimonial Causes Act 1959 An agreement sanctioned under s 87(1)(k) of the repealed Matrimonial Causes Act 1959 cannot be approved under s 87 of the Family Law Act: see In the Marriage of Lakajev (1978) 4 Fam LR 228; FLC 90– 448; see also In the Marriage of Smith (1979) 5 Fam LR 169; FLC 90–642; In the Marriage of Penberthy (1977) 3 Fam LR 11,302; FLC 90–255. Where an agreement sanctioned under s 87(1)(k) is not an agreement which is capable of being sanctioned, such as when it leaves property and maintenance without finality, that agreement cannot extinguish a party’s rights to bring proceedings for property rights: In the Marriage of Springbett and Miles (1990) 14 Fam LR 359; FLC 92–177. [s 87.3] Rights under Part VIII to which s 87(1) refers The rights under Pt VIII of the Act to which s 87(1) refers are: (a) rights to apply for maintenance of a party or of a child of a marriage under s 74; (b) the right to apply for a declaration as to property under s 78; and/or (c) the right to apply for an adjustment of property rights under s 79. [s 87.4] Rights under future Acts Section 87 provides for the approval of agreements which operate in substitution of rights of the parties to the agreement under Pt VIII of the Act. Provisions in a maintenance agreement

affecting rights under future Acts are therefore not proper and should not be approved and even if they are approved they may be inoperative. [s 87.4A] Protection of operation of Child Support (Assessment) Act Subsection (4D), inserted in 1989, protects the operation of the Child Support (Assessment) Act 1989, by providing that child maintenance provisions in an approved s 87 maintenance agreement have no effect, and are not enforceable, where one of the parties is entitled to make application for administrative assessment of child support under the Child Support (Assessment) Act. See generally under guide card CHILD SUPPORT, in Volume 2. [s 87.5] Matters dealt with in agreement It is important, when drafting a maintenance agreement, to specify: (a) the property of the parties which is dealt with in the agreement; (b) the party whose rights are dealt with in the agreement; (c) the rights of the parties which are dealt with in the agreement. See In the Marriage of Reed (1977) 3 Fam LR 11,362 at 11,366; FLC 90– 269. It is enough, however, for the court to approve a maintenance agreement that the agreement: (a) deals with the right to maintenance and/or property settlement of one or both of the parties whether for value received or not; and (b) that the agreement makes provision in the terms of s 87(1) of the Act. As to provisions in a s 87 agreement relating to children, see [s 87.12], below. [s 87.6] Benefits under agreement Under s 87(1)(k) of the repealed Matrimonial Causes Act 1959, the court only had power to sanction an agreement for “the acceptance of a lump sum or periodic sums or other benefits in lieu of rights”.

[page 822] The position, however, under s 87 of the Act is different in that there is no need for any benefit flowing from one party to the other in return for the surrender of rights under s 87. In In the Marriage of Sabbagh (1982) 8 Fam LR 88; FLC 91–224, Nygh J said that, in his view, it was enough that the agreement first dealt with the right to maintenance and/or property settlement of one or both of the parties, whether for value received or not; and secondly, that the agreement made provision in the terms of s 87(1) of the Act. It is, then, an agreement which the court can approve. The words “with respect to” in the definition of “maintenance agreement” in s 4(1) mean “on the subject of” and that a provision which is purely negative is as much a provision on the subject of maintenance or property as a provision which makes positive arrangements for payment of money or the transfer of property. Whether the court does in fact approve such an agreement depends on whether the court considers the agreement to be “proper”. [s 87.7] Rights of one party only It is important to make clear in the maintenance agreement whether the rights of both parties or only one of them are affected by the agreement: see In the Marriage of Goldberg (1977) FLC 90–233. Unless the rights of each of the parties have been dealt with by the agreement, the party whose rights have not been so dealt with can utilize s 72 or s 79 subject to the constraints of s 44(3A): see In the Marriage of Reed (1977) 3 Fam LR 11,362; FLC 90–269. [s 87.8] Property dealt with in the agreement It is also important to specify with particularity, the property which it is proposed is to be dealt with by the terms of the agreement. Recitals of the agreement should specifically exempt such property which it is intended will not be affected by the operation of the agreement and a liberty to apply in relation to that property should be preserved: see In the Marriage of Hayes (1982) 7 Fam LR 808; FLC 91–205. The agreement may deal with certain items of property, but not with others. The agreement may deal with certain rights in relation to a particular item of property, but not all of them.

[s 87.9] Rights dealt with by the agreement The agreement to be approved under s 87 does not have to be in substitution for all rights under Pt VIII of the Act. It is possible to select what rights are to be dealt with in the agreement. It is possible to deal, for example, with a wife’s rights to maintenance, but to leave intact her right to apply about property: see In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248; see also In the Marriage of Mackie (1981) 7 Fam LR 365; FLC 91–069. If, however, an agreement provides that the agreement operates in relation to the financial matters dealt with in the agreement in substitution for any rights of the parties to the agreement under Pt VIII of the Act, this clause operates to substitute the provisions of the agreement not only for the right to seek a property settlement, but also the right to seek a maintenance order: see In the Marriage of Williams, above.

The very purpose of a maintenance agreement under s 87 is that it shall operate, in relation to the financial matters dealt with in the agreement, in substitution for any rights of the parties to the agreement under Pt VIII. Unless the agreement makes it clear that all rights under Pt VIII are excluded, nothing in s 87(4) will prevent a party from applying for such rights as are not specifically excluded by the agreement: see In the Marriage of Reed (1977) 3 Fam LR 11,362; FLC 90–269. Once, however, a particular right is specifically excluded by the agreement, then no application may be made subsequently in respect to such right, even if subsequent applications deal with a different aspect of such right: see In the Marriage of Hayes (1982) 7 Fam LR 808; FLC 91–205; see also In the Marriage of Borzak (1979) 5 Fam LR 571; FLC 90–688. Limited in time The exclusion operates as long as the agreement remains in force. It is possible, however, that the agreement may be limited in time, such as until the occurrence of a specified contingency, for example retirement: see Carthew v Carthew (1966) 8 FLR 301. [s 87.10] Clause excluding rights under the Act The agreement must specifically state that it is in substitution for rights of maintenance and/or property which the husband and/or the wife might otherwise have applied for under the Act. [page 823] If there is no such clause excluding the right of the parties to apply to the court in the future, the agreement does not come within s 87 and any purported approval of it is ineffective for lack of jurisdiction: see Shaw v Shaw (1965) 6 FLR 455; 66 SR(NSW) 30; see also In the Marriage of Stegman v Bland (1977) 3 Fam LN 35; FLC 90–290. Such an agreement may, however, operate as an agreement under s 86. A s 87 agreement should not be expressed to be registrable also under s 86: see In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440.

[s 87.11] Exclusion of right to seek revocation It was for some time a common practice to include in maintenance agreements a clause to the effect that among the rights under Pt VIII sought to be excluded by the operation of the agreement with the court’s approval was the right to seek a revocation of the approval of the agreement except by consent. The practice of including such a provision in an agreement has now been expressly disapproved by the Full Court in In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90– 440; In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365. The Full Court held that it is not appropriate for parties to seek to oust the jurisdiction of the court with such a term in the agreement. [s 87.12] Provisions in respect of parental responsibility In In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440, The Full Court said that it is not appropriate to include, in an agreement, clauses relating to custody and access. Where such clauses do appear in an agreement the court should either require those clauses to be deleted or specifically approve clauses of the agreement other than those particular clauses. [s 87.13] Agreement must be approved — s 87(2) The agreement has no effect and is not enforceable unless it has been approved. Section 87(2) provides that a maintenance agreement does not have any effect unless it has been approved by the court. It cannot be enforced and cannot be used in subsequent proceedings except in the most limited way. In In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440, the Full Court said that an agreement, unless approved, has no legal effect or consequence in the sense of establishing or defining legal rights and duties. The agreement may not subsequently be relied upon by either party as having any relevance in subsequent litigation under s 72 or s 79 between the parties to the agreement. The circumstances mentioned are those comprehended by s 75(2). The agreement with which the Full Court was concerned in Gardiner, however, remained entirely executory. It has been held that an agreement which has been acted upon by one or both of the parties may be taken into account in subsequent property proceedings as a relevant factor under s 75(2) (o): see In the Marriage of Bates (1976) 2 Fam LR 11,407; FLC 90–123; In the Marriage of P & P (1985) 9 Fam LR 1100; FLC 91–605; Klesnik and Klesnik (1987) FLC 91–837; In the Marriage of Faraone and Shabalah

(1988) 12 Fam LR 577 at 581–3; FLC 91–956. Section 87(2) was amended by the Family Law Amendment Act 1983 by the addition of the words “and is not enforceable in any way” after the words “does not have effect”. These additional words appear to emphasise the decision of the Full Court in In the Marriage of Gardiner, above. [s 87.14] Effect of approval Approval is a condition precedent to the agreement having any effect. Any order having effect under Pt VIII ceases to have effect in so far as it relates to financial matters dealt with in the agreement. Subject to s 87 no court having jurisdiction under the Act may make an order with respect to those financial matters unless the approval of the agreement is revoked. By s 87(6) a maintenance agreement is deemed to be registered upon its approval and is enforceable pursuant to s 87(11). In Vandyke v Vandyke (1976) 12 ALR 621; 2 Fam LR 11,469; FLC 90– 139, the New South Wales Supreme Court of Appeal said that the effect of an approval of an agreement under s 87 is that the court does not lose jurisdiction, but the approved agreement provides an obstacle to any further application in relation to matters dealt with in the agreement. It removes from the agreement the effect of the common law principle that such agreements are contrary to public policy. In Shaw v Shaw (1965) 113 CLR 545, Barwick CJ said, at 549: “The court is given power [page 824] to sanction such an agreement so that it will be binding on the parties according to its terms so far as they relate to matters within that part of the Act.” The parties must therefore “rely upon the contractual rights which the agreement gives”. Section 87(4) gives legislative effect to the principle, not by depriving the court of jurisdiction, but by prohibiting the making of any order (see also s 87(8)(c), (d) and s 87(11)). [s 87.15] Proceedings for approval of a maintenance agreement — s 87(3)

Source of Commonwealth power The law regulating the right of spouses to make maintenance agreements with each other is referable to the Commonwealth marriage power: not the divorce power: see Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90– 039. It is for this reason that the court may deal with maintenance agreements even though there are no divorce proceedings instituted: see In the Marriage of Macsok (1976) 1 Fam LR 11,264; FLC 90–045. Separate matrimonial cause An application for approval of a maintenance agreement under s 87 is a separate and independent matrimonial cause: see In the Marriage of Macsok, above. Joint application An application for approval may be made jointly by the parties: see In the Marriage of Wright (1977) 3 Fam LR 11,150 at 11,153; FLC 90–221. Marriage broken down It has been said that, where there has been no divorce, “the court should be sure that the marriage has broken down and that there is no prospect of reconciliation”: see In the Marriage of Wright, above. [s 87.16] Approval before divorce — Repealed Act Under s 87(1)(k) of the repealed Matrimonial Causes Act 1959, the sanction of an agreement could only be sought at the time the decree nisi was pronounced or afterwards. [s 87.17] Approval before divorce — Family Law Act Under s 87, the approval may be made before any proceedings for dissolution of the marriage are commenced: see In the Marriage of Macsok (1976) 1 Fam LR 11,264; FLC 90–045. [s 87.18] Resumption of cohabitation In In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91–601, Forgarty J said that it is important, in respect of agreements approved prior to dissolution, to include a clause that will negate the agreement in the event of the subsequent reconciliation of the parties. See also In the Marriage of Morrissey (1986) 10 Fam LR 906 at 908; FLC 91– 742.

[s 87.19] Court must be satisfied that provisions of agreement are proper — s 87(3) Section 87(3) was inserted in the Act by the Family Law Amendment Act 1983. It merely repeated the provisions of the previous s 87(4). Under the repealed Matrimonial Causes Act 1959 the agreement sanctioned under that Act had to provide a benefit. As has been seen [s 87.6], above, under the Family Law Act the agreement has to be proper, but it does not have to be of benefit to a party to the agreement: see In the Marriage of Sabbagh (1982) 8 Fam LR 88; FLC 91–224. A court is required, pursuant to s 87(3), to be satisfied that the provisions of the agreement with respect to financial matters are proper. [s 87.20] Meaning of proper The word “proper” means proper from the point of view of both spouses having regard to all relevant matters, including his and her financial circumstances and earning capacity, his and her age and his and her needs and obligations and family responsibilities: see In the Marriage of Lindner (1978) 4 Fam LR 27; FLC 90–417; see also In the Marriage of Borzak (1979) 5 Fam LR 571; FLC 90–688. [page 825] The word “proper” also includes consideration of the interests of the community at large, in the sense that a spouse who is, or who may be, in need of support should not be deprived of his or her statutory right to support unless the court is reasonably satisfied that the agreement makes provision which is fair and just in all the circumstances: see In the Marriage of Lindner, above; see also In the Marriage of Borzak, above, and In the Marriage of Bailey (1981) 7 Fam LR 165; FLC 91–041. The court has a duty to the public at large not to approve an agreement whereby the wife agrees to be supported by social security payments instead of looking to the husband for maintenance which he is able to pay: see In the Marriage of Bailey, above. The fact that one party receives more than half of the marital assets, under the agreement, does not prevent the agreement being regarded as proper: see In the Marriage of Siewert (1980) 6 Fam LR 474;

FLC 90–892. In In the Marriage of Sabbagh (1982) 8 Fam LR 88; FLC 91–224, Nygh J said that it may only be in rare cases that a waiver of rights to maintenance and property settlement for no benefit in return would be regarded as proper. In In the Marriage of Suters (1983) 9 Fam LR 340 at 341; FLC 91–365, Wood SJ agreed with the exposition of the meaning of the word “proper” by Strauss J in In the Marriage of Lindner, above. In In the Marriage of Suters, above, Wood SJ said (at Fam LR 341; FLC 78,448): “In determining whether an agreement is proper in the context of the Act, regard must be had to the benefits given to litigants by the provisions of ss 79 and 75 and, where children are involved, the provisions of s 76. There should be some correlation between what the law provides and what the parties wish to agree to take them outside the provisions of the law and finally determine their financial relationships with due allowance being made by the court for the latitude which Parliament obviously intended the parties should have in permitting them to contract out of the provisions of the Family Law Act so far as property and financial matters are concerned.” In In the Marriage of Suters, above, Lambert J said (at Fam LR 343; FLC 78,459): “The term ‘proper’ in s 87(4) of the Family Law Act should be construed in my view as ‘just — taking into account all relevant matters under ss 79, 75 and where applicable s 76 of the Family Law Act, and the desire of the parties, or either of them, to finally determine their financial relationship through compromise’. In considering whether the provisions of a maintenance agreement submitted to the court for approval under the section are proper or not, the court must have regard to the factors that are relevant under the provisions of Pt VIII of the Act to a determination under that part of the rights of the parties with respect to the financial matters to which the agreement relates. The court must also have regard to the right of a party to agree to settle a dispute with respect to ‘financial matters’ upon terms less advantageous than might reasonably be anticipated from a determination of the dispute by a court exercising jurisdiction under the Act.” Recourse to public funds The court may refuse to approve an agreement which prevents a party from having recourse to his or her spouse for future maintenance and which requires such a party to have recourse to the public

purse, in circumstances wheere the other party is able to and should make a contribution to the maintenance of the other spouse. See In the Marriage of Morrissey (1986) 10 Fam LR 906; FLC 91–742 (Kay J). See also In the Marriage of Bailey (1981) 7 Fam LR 165; FLC 91–041 (Fogarty J). It is submitted (SO’R) that the difficulty with such an approach is that parties may have any number of reasons why they entered into the agreement, which are not taken into account by the trial judge and further there is nothing to prevent such parties asking the court to make consent orders and then the “dependent party” having recourse to public funds for his or her support. [s 87.21] Finding by court that agreement is proper It is a condition precedent to the approval of an agreement and to the effective operation of the agreement that a positive finding be made that the provisions of the agreement with respect to financial matters are proper: see In the Marriage of Wright (1977) 3 Fam LR 11,150 at 11,153; FLC 90–221; see also In the Marriage of Siewert (1980) 6 Fam LR 474 at 478; FLC 90–892. However, in In the Marriage of Wright, above, there was insufficient evidence to indicate that the trial judge had conducted a sufficient inquiry [page 826] into the financial resources of the parties, or given any indication that he considered the appropriateness of the agreement by any other means including a formal finding that the agreement was proper: see In the Marriage of Siewert, above. [s 87.22] Juristic character of court’s approval In In the Marriage of Suters (1983) 9 Fam LR 340 at 353; FLC 91–365 at 78,457, Strauss J said that the true juristic character of the court’s sanctioning or approval of a maintenance agreement has not ever been finally determined. It may be that the kind of supervisory jurisdiction which the court has under s 87(4) does not fit readily into a system in which an adjudication is usually made upon an adversary presentation of evidence: see also In the Marriage of Oliver (1978) 4 Fam LR 238; FLC 90–482.

The court’s powers are inquisitive not adjudicatory: see Gipps v Gipps [1974] 1 NSWLR 259 at 266 (Huntley JA); see also In the Marriage of Suters, above. The legislature has seen fit to provide an additional safeguard over and, above the voluntary agreement of the parties. That safeguard is the overall view of the court that in all the circumstances, the agreement is proper: see In the Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221; see also In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248. The court must however exercise its discretion and determine the propriety of the agreement: see In the Marriage of Hutchinson (1979) 5 Fam LR 476; FLC 90–691. The court, asked to approve an agreement, will closely consider its provisions, realising not merely that the parties are forgoing rights to the court’s immediate intervention, but that they must thereafter rely on the contractual rights which the agreement gives: see Shaw v Shaw (1965) 113 CLR 545. If there are any outstanding disputes as to facts about relevant matters, the court should at least be appraised of the conflicting contentions, so that it can reach its own conclusions about the propriety of what is, in effect, a compromise with regard to them. The matter of which the court has to be satisfied is that the provisions of the agreement with respect to financial matters are proper. Hence, the court has a duty to consider these financial matters and pass upon their propriety: see In the Marriage of Suters, above (9 Fam LR 354; (1983) FLC at 78,457). The court could not abdicate its responsibilities to satisfy itself that the provisions of the agreement are proper by merely relying on the agreement as between the parties. The court did not exercise its jurisdiction under s 87 by consent. See In the Marriage of Wright, above; see also In the Marriage of Suters, above. [s 87.23] Reasons for approval The court is not required to give detailed reasons for making an order giving approval to a maintenance agreement: see In the Marriage of Veney (No 2) (1984) 9 Fam LR 649; FLC 91–522. [s 87.24] Principles which court should apply in proceedings for approval of an agreement It was held in relation to the sanctioning of an agreement under the repealed Matrimonial Causes Act 1959, that the court had to be

affirmatively satisfied upon appropriate evidence that the provisions of the agreement were, in particular circumstances and having regard to the principles applied by the court in matters of maintenance, equitable. The court could not be asked to exercise its jurisdiction thereunder without the fullest disclosure to it of all the relevant facts to enable it to decide whether or not to make the order asked of it: see Shaw v Shaw (1965) 6 FLR 455; 66 SR(NSW) 30; see also Gribow v Gribow (1963) 5 FLR 51; Gipps v Gipps [1974] 1 NSWLR 259. In In the Marriage of Wright (1977) 3 Fam LR 11,150 at 11,153; FLC 90– 221, the Full Court said that the elements to be established are: (a) has there been sufficient and adequate disclosure of relevant financial resources? (b) does the agreement appear to be a fair adjustment between the parties? (c) is the agreement one which it is proper that the court should endorse? [page 827] (d) do the parties have the capacity to perform their obligations under the agreement? (e) are the interests of any minor children properly protected? (f) do the parties fully understand their rights and duties under the agreement and that it is in substitution of rights under Pt VIII. In In the Marriage of Wright, above, the Full Court said that the court does not have to embark upon a detailed and precise examination of the financial position of both parties and approve the agreement only when the agreement agrees with what the court would consider a proper order had the matter been contested and judicially resolved. Lengthy investigation is not envisaged; however, it is not enough to present the court with an agreement and expect it to be automatically approved because the parties had come to an agreement. It is not even sufficient to urge on the court that the parties, having had

competent legal advice, must necessarily have come to an agreement proper to be approved. Although this latter factor will obviously weigh with the court, it cannot absolve the court from the duty which is cast, not on the parties or their lawyers, but on the court, to approve the agreement only if it is satisfied the agreement is proper and refuse approval if not so satisfied: see also In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365. The court must have before it sufficient material to support a conclusion that the agreement represents a fair adjustment between the parties: see In the Marriage of Wright, above, see also In the Marriage of Suters, above; In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248; In the Marriage of Lindner (1978) 4 Fam LR 27; FLC 90–417; In the Marriage of Siewert (1980) 6 Fam LR 474; FLC 90–892. The parties and their legal advisers owe to the court a duty of full disclosure: see In the Marriage of Wright, above; see also In the Marriage of Suters, above; In the Marriage of Lind (1980) 6 Fam LR 225; FLC 90–858. [s 87.25] Obligation of court In In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440, the Full Court said that the court should, in the exercise of its discretion, if necessary protect a party against his or her own foolishness and carelessness and in relation to any lack of inquiry into the state of his or her liabilities. The court should not force upon a party an agreement arrived at in such a way if it is not otherwise proper, no matter how careless or foolish such a party may have been. In In the Marriage of Siewert (1980) 6 Fam LR 474; FLC 90–892, the Full Court said that it is not the duty of the court to inquire directly of the parties, who each have legal representation, as to their understanding of the nature and effect of an agreement. The Full Court referred to the practice of the court in obtaining specific assurances that the parties do understand the nature and effect of an agreement and said that this can take various forms, including assurances given from the bar table by practitioners, statements from the parties directly, either on oath or from the bar table or by way of affidavits which state in language, which a party is likely to understand, the nature and effect of approval under s 87. In In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365, the Full Court suggested that the court had a higher judicial duty than that suggested

by the Full Court in In the Marriage of Siewert, above. There is a positive obligation imposed upon the court to be satisfied that the agreement is proper and this requires the court to be satisfied that the parties understand the consequences of the agreement and thus conclude that the substantive provisions of the agreement are fair. There must also be a full and adequate disclosure of the financial circumstances of each party to the agreement: In the Marriage of Veney (No 2) (1984) 9 Fam LR 649; FLC 91–522, an appeal from the decision of Hogan J, (1983) FLC 91–355, Fogarty J said that the obligations of a trial judge and lawyers who appear for parties on a s 87 application are set out in the cases of In the Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221; In the Marriage of Suters, above and that Suters’ case does not impose any more extensive obligation in this respect than was indicated as appropriate in Wright’s case. [s 87.26] Understanding by parties of the agreement The court must be satisfied that both parties understand what the agreement means and what their future position will be: see In the [page 828] Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221; see also In the Marriage of Siewert (1980) 6 Fam LR 474; FLC 90–892; In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365. Independent legal advice In In the Marriage of Radwan (1985) 11 Fam LR 1; (1986) FLC 91–755, Frederico J said that it is highly desirable that the parties to a proposed maintenance agreement, when entering the agreement, should have independent advice. [s 87.27] Duty of disclosure Requirements of former rules The Family Law Rules 2004 maintain the insistence on full and frank disclosure of financial circumstances, but they have no application to s 87 because as indicated at the start of this commentary applications can no longer be made for approval of maintenance

agreements under this section. Under the former rules (the Family Law Rules 1984), O 17 rr 1 and 2 specifically required that each party to an application for approval of a maintenance agreement should each file a statement of financial circumstances verified by affidavit. Compliance with this requirement could not be dispensed with, as O 17 r 4 specifically overrode the general dispensing power contained in O 4 r 1. Former regulations had been less onerous, requiring the filing of a statement of financial circumstances only when the respondent wished the court to make a different order: see In the Marriage of Coombs and More (1990) 14 Fam LR 388; FLC 92–175 (FC). Judicial statements on disclosure The extent of disclosure required when parties seek approval of maintenance agreements has been considered by the Full Court in a series of cases: In the Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221; In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365; In the Marriage of Veney (No 2) (1984) 9 Fam LR 649; FLC 91– 522; In the Marriage of Morris and Jones (1990) 14 Fam LR 203; FLC 92– 157; In the Marriage of Coombs and More (1990) 14 Fam LR 388; FLC 92– 175. Disclosure of all relevant material to the court is important, because the meaning of the word “fraud” in s 87(8)(a), incorporated within the equitable doctrines in s 87(11), is likely to be interpreted to include negligent, reckless or intentional non-disclosure of material facts to the court or the other party: see In the Marriage of Suters, above, per Strauss J; see also In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058. The Full Court has stressed that Suters case should not be taken to impose any more extensive obligation than was indicated in Wright’s case: see In the Marriage of Coombs and More, above at 14 Fam LR 391–2. The Full Court there quoted a passage from In the Marriage of Condon (unreported) that, “it is ordinarily necessary for there to be evidence or a brief statement to the court as to background matters such as marriage, children, ages of the parties; the present financial circumstances of the parties; the effect of the deed, and the agreement to an understanding of the deed by the parties. How detailed that information needs to be obviously varies with the complexity or the simplicity of the individual case.” The Full Court emphasised that approval

was a discretionary matter for the judge, who is obliged to consider whether the depth of detail supplied is sufficient. The Full Court also quoted remarks of Nicholson CJ (in dissent) to the effect that where children’s interests are not involved, the court should be cautious about interfering with the parties’ arrangements, particularly where they have their own independent legal advice and representation: In the Marriage of Johns and Makepeace (1990) 14 Fam LR 16; FLC 92–138 (FC). Nicholson CJ also suggested that financial arrangements in an agreement might be “proper” even though they do not meet the objective test of being just and equitable. [s 87.29] Provisions in agreement as to disclosure It was a widespread practice for many agreements, submitted to the court for approval pursuant to s 87, to include in the agreement a provision in the following terms: “Each party covenants that in entering into the agreement herein contained his or her concurrence was in no way occasioned, obtained or brought about by any representation made either directly or indirectly by or on behalf of the other party or by any [page 829] information given either directly or indirectly by or on behalf of the other party or by the fact that the other party may have failed to disclose or make reference to any aspect of his or her financial position or any other matter of whatsoever kind or nature and each party further covenants that in no way was such concurrence the result of any influence exerted either directly or indirectly by or on behalf of the other party.” In In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365, the Full Court said that such a provision ought not to be included in a s 87 agreement and, if it is included, then the judge, before whom the agreement is brought for approval, should decline to approve the agreement unless the clause is struck out, notwithstanding that there may be adequate and proper evidence to show that the agreement is a proper one in relation to the financial matters dealt with in the agreement. [s 87.30] Opposition to approval Either party may commence proceedings for the approval of a maintenance agreement under s 87. It cannot be said that

there is no power in the sense of jurisdiction to approve an agreement unless both parties consent or do not oppose that course: see In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440. However, the court will not usually approve a maintenance agreement under s 87 unless both parties join in the application: see In the Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221; see also In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058. It would be a wholly inappropriate exercise of the discretionary power given under s 87 to approve an agreement if, at the time the application came before the court, such an application was opposed by one of the parties: see In the Marriage of Gardiner, above. [s 87.31] Registration of unapproved maintenance agreement It is unlikely that an agreement, which a court refused to approve under s 87, may then be registered under s 86. Section 86(1) precludes from registration agreements to which s 87 applies. Section 87(2) denies an unapproved s 87 agreement any effect or enforceability. Section 87(2) provides that an agreement requiring approval under s 87 does not have any effect unless it has been approved by the court: see In the Marriage of Papas (1983) FLC 91–358. Such an agreement would also, without approval, be void, in so far as it purported to oust the court’s jurisdiction under Pt VIII of the Act. [s 87.32] Effect of an approval by court of a maintenance agreement — s 87(4) This section was inserted in the Act by the Family Law Amendment Act 1983. It is in substantially the same terms as the previous s 87(3). Upon approval by the court of an agreement by the court pursuant to s 87, any existing order for maintenance, declaration of property rights or of property settlement made either under Pt VIII of the Family Law Act or under the repealed Matrimonial Causes Act or superseded State legislation ceases to have effect so far as that order relates to financial matters dealt with in the agreement. [s 87.33] No court may make an order — s 87(4)(b) The approval also has the effect that no court having jurisdiction under the Act may make an order

with respect to those financial matters dealt with in the agreement. [s 87.34] Courts having jurisdiction under the Act — s 87(4)(b) The exclusion relates only to courts having jurisdiction under the Family Law Act and only to matrimonial causes as defined in s 4(1). The jurisdiction of State courts under State law is excluded to the extent that such proceedings in a State court fall within the definition of matrimonial cause in s 4(1). The approval of a maintenance agreement pursuant to s 87 does not exclude the operation of any State law affecting the parties’ property or maintenance rights after the death of one party, in circumstances where the parties have sought and obtained the court’s approval of an agreement: see In the Marriage of Smith (1984) 9 Fam LR 675; FLC 91–525. [s 87.35] Appeal from grant or refusal of approval The previous s 87(4) was amended by the Family Law Amendment Act 1979 to make it clear that the approval of the agreement is to be [page 830] by order of the court. This removed any doubt that an appeal will lie from an order for approval under ss 94 and 96: see Yule v Junek (1978) 139 CLR 1; 3 Fam LR 11,640; FLC 90–439. Doubts had been raised by the decisions of Toose J in In the Marriage of Oliver (1978) 4 Fam LR 238; FLC 90–482, and Hogan J in In the Marriage of Hutchinson (1978) 4 Fam LR 446; FLC 90–492, to the effect that an approval by the court under s 87(3) did not constitute a decree from which an appeal would lie. See, however, in In the Marriage of Hutchinson (1979) 5 Fam LR 476; FLC 90–691, in which the Full Court held that, prior to the 1979 amendment, the court’s approval of a maintenance agreement did in fact fall within the meaning of a “decree” or “order” of the court. There is no doubt that an appeal can be lodged by a party who has unsuccessfully opposed the making of an order for approval of an agreement or who had unsuccessfully applied for such an order: see the definition of “decree” in ss 4(1), 94 and 96.

If a court approves an agreement without properly considering the financial circumstances of the parties, this omission can be relied upon as a ground for appeal, even by a party who originally sought approval of the agreement: see In the Marriage of Wright (1977) 3 Fam LR 11,150 at 11,153; FLC 90–221; see also In the Marriage of Lindner (1978) 4 Fam LR 27; FLC 90–417. [s 87.36] Appeal by party who obtained approval It was formerly suggested that a party who has assented to an approval could not be a party aggrieved by the very order which he or she sought: see In the Marriage of Hutchinson (1978) 4 Fam LR 446; FLC 90–492 (Hogan J); see also In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248. There is, however, no doubt that either party may appeal pursuant to s 94 or 96 in respect of the approval of a maintenance agreement pursuant to s 87: see In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365. An appellant under s 94 need no longer be a person aggrieved. The approval by the court is given for the protection of the parties and the children of the marriage and this approval can be refused even though both parties seek it: see In the Marriage of Wright, above. However, the mere fact that a party may change his or her mind after an agreement under s 87 has been approved by the court would not, of itself, substantiate grounds of appeal against the granting of an approval. It would be mischievous if it were thought that except for exceptional circumstances, a party may enter into a deed, join in its approval, and then challenge it: see In the Marriage of Lock (1977) 3 Fam LN 40; FLC 90–282; see also In the Marriage of Siewert (1980) 6 Fam LR 474 at 478; FLC 90–892. [s 87.37] Appeal from approval of an agreement in court of summary jurisdiction The question has arisen whether on appeal from an approval of a s 87 agreement by a court of summary jurisdiction, where a party withdraws consent, the reviewing court must set aside the approval. The main authorities are Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217; In the Marriage of Hartig (1983) 9 Fam LR 250; FLC 91–361; In the Marriage of Van der Veer (1981) 7 Fam LR 141; FLC 91–043 (Pawley SJ); In the Marriage of Smith (1982) 8 Fam LR 426; FLC 91–256 (Gee J); In

the Marriage of Hennessy and Dunne (1984) 9 Fam LR 828; FLC 91–583. The question is discussed in the commentary to s 96, and the following conclusion is expressed (RC): (1) An application under s 96 for review of the approval of a s 87 agreement within time or by leave, and the presentation of evidence that one party does not consent to the purported agreement, will effectively guarantee that the approval is set aside, unless the reviewing court is willing to hold that it can be “proper” to approve as a s 87 maintenance agreement a document to which one party does not agree. (2) This drastic consequence should be taken into account in considering application for leave to appeal out of time. Although it is difficult to find authorities for this, a court might be entitled to refuse leave where an approved agreement has been acted upon and where the consequence of setting it aside would be unfair to a party. [page 831] [s 87.38] Effect on approval by reconciliation of parties The Act clearly provides that so long as an agreement remains on foot, no proceedings under Pt VIII can be commenced: see In the Marriage of Borzak (1979) 5 Fam LR 571; FLC 90–688. Section 87 does not provide for the revocation of approval of an agreement on a resumption of cohabitation except by the consent of the parties. In In the Marriage of Borzak, above, Wood SJ said that the parties are still bound by the terms of the agreement and Pt VIII of the Act, in so far as it deals with maintenance and property, is no longer available to either of the parties. However, the court may not be deprived of dealing with matters not included in Pt VIII and the provisions of s 114 may still be available. In In the Marriage of Hayes (1982) 7 Fam LR 808; FLC 91–205, Nygh J held that by virtue of the approval, no proceedings under either s 78 or s 79 existed and thus no jurisdiction existed to grant injunctive relief. The application for injunctive relief would not be seen as falling within the definition of matrimonial cause as no proceedings under s 78 or s 79 could

exist, even if they could otherwise have been described as proceedings arising out of the dissolution of the parties’ marriage. In In the Marriage of Hayes, Nygh J was dealing with partnership property and the proceedings fell within para (f) of the definition of “matrimonial cause”. In In the Marriage of Smith (1982) 8 Fam LR 426; FLC 91–256, Gee J said that a reconciliation did not affect the approval of the maintenance agreement. In In the Marriage of Banhidy (1982) 8 Fam LR 821; (1983) FLC 91–302, the Full Court said that there may be circumstances relating to a resumption of cohabitation which could amount to a mutual rescission or waiver or which could stop a party from denying consent to such a rescission or waiver. In In the Marriage of Smith, above, Gee J said that, although reconciliation itself will not affect the approval of an agreement, the belief of one of the parties, that after reconciliation the agreement no longer operated in relation to the financial affairs, may be a reasonable explanation of any delay in appealing against the initial approval. However, see s 87(8)(c). If the agreement is rescinded by tacit agreement, it is no longer enforceable: see In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91–601. [s 87.39] Need for maintenance at time of approval — s 87(4A) This provision was inserted in the Act by the 1987 Amendment Act. It represents a very significant amendment to the Act. Effect of section If, notwithstanding the approval of a maintenance agreement which also deals with the rights of the parties to the agreement to seek spousal maintenance, it later appears that at the time of the approval, a party to the agreement would have been unable to support himself or herself without an income tested pension, allowance or benefit then the court has power to make an order in relation to maintenance of such party. It is submitted (SO’R) that the section allows for an application to be made in respect of spousal maintenance, after the approval of an agreement, without the necessity of seeking the revocation of the approval of the agreement pursuant to s 87(8), if an applicant can establish that at the time of the

approval, he or she was unable to support himself or herself without a pension. It in effect provides for a revocation of the approval of part of the agreement, without the necessity of seeking such a revocation. Purpose of section It is clearly part of the overall scheme of the 1987 Amendments to protect the “public purse”. Determination that agreement proper Although it is not provided for in the Act, it is submitted (SO’R), that as part of the judicial determination as to whether the provisions of the agreement are proper, the court will have to satisfy itself that a party to the agreement can support himself or herself without an income tested pension, allowance or benefit. Clearly, if this is not the case then to that extent, in relation to maintenance rights, the approval was not effective. It is submitted (SO’R) that it will be necessary for the court to make a finding that there is such an ability, and it should be so recited in the agreement. [page 832] Section 44(3A) A question arises as to whether, in the event that after the approval it was established that at the time of the approval a party could not maintain himself or herself without a pension, it is necessary to seek leave to commence proceedings. It is submitted (SO’R) that such leave is not necessary in the light of the provisions of s 87(4B): see [s 87.40]. [s 87.40] Further proceedings — s 87(4B) This provision was inserted in the Act by the 1987 Amendment Act. Section 83 In the event that in relation to an approved agreement it is established that the provisions of s 87(4A) apply to such an agreement then those parts of the agreement which make provision for the maintenance of a party to the agreement may be modified pursuant to the provisions of s 83. The potential difficulty of identifying those parts of the agreement which make provision for the maintenance of a party to the agreement has been overcome by s 87A.

[s 87.41] Child maintenance provision in maintenance agreement — s 87(4C) This provision was inserted in the Act by the 1987 Amendment Act. Subsections (13) and (14) which previously dealt with the variation of those parts of a maintenance agreement relating to child maintenance were repealed by the 1987 Act. It ensures that provisions relating to children can be subsequently varied by court order: see In the Marriage of Roberts (1989) 14 Fam LR 329; (1990) FLC 92–165 (child maintenance clause). Section 66S Section 66S applies to the variation of those parts of an approved maintenance agreement which deal with child maintenance. It is submitted (SO’R) that it is rare to see an approved maintenance agreement which contains provision for child maintenance, unless an attempt is being made to capitalise such maintenance, and the usual practice is to deal with such matters by consent orders. [s 87.42] Public policy — s 87(5) This section was inserted in the Act by the Family Law Amendment Act 1983. It provides that, notwithstanding any rule of law or equity, an approved maintenance agreement shall not be taken as void, voidable or unenforceable by reason of it making provision that the agreement shall operate in substitution for rights under Pt VIII. It prevents the operation of the common law rule regarding public policy which would have rendered the agreement unenforceable (see s 87(8)(c)). [s 87.43] Approved maintenance agreement deemed to be registered — s 87(6) This section was inserted in the Act by the Family Law Amendment Act 1983. It is in substantially the same terms as the previous s 87(8). [s 87.44] Registration of approved agreement in another court having jurisdiction — s 87(7) This section was inserted in the Act by the Family Law Amendment Act 1983. It is in substantially the same terms as the previous s 87(8). [s 87.45] Revocation of approval of maintenance agreement — s 87(8) A court may revoke the approval of a maintenance agreement on one or more of the following grounds: (a) that the approval was obtained by fraud;

(b) if both parties desire the revocation; (c) if the agreement is void, voidable, or unenforceable; or (d) in the circumstances that have arisen since the agreement was approved, it is impracticable for the agreement to be carried out, or impracticable for a part of the agreement to be carried out. Section 87(8) was inserted in the Act by the Family Law Amendment Act 1983. It is in substitution for the previous s 87(6). There were, under the previous s 87(6), the following grounds specified for revocation, namely: (a) that the approval was obtained by fraud; (b) that the concurrence of a party to the agreement was obtained by fraud; [page 833] (c) that the approval was obtained by undue influence; (d) that the concurrence of a party to the agreement was obtained by undue influence; (e) that the parties both desired the revocation of the approval. The Family Law Amendment Act 1983 added two new grounds for revocation. Section 87(8) maintains the grounds that the approval was obtained by fraud, that the parties desire the revocation of the approval, but the previous ground “that the concurrence of a party was obtained by fraud or undue influence” has been included in a much wider ground which now provides “the agreement is void, voidable or unenforceable”. An agreement in respect of which the concurrence of one of the parties was obtained by fraud or undue influence is voidable by law. This additional ground for revocation overcomes the problem as to what happened when the agreement ceased to have effect under ordinary contract law, but there was not a specific basis upon which the revocation of the

approval might be sought. The other additional ground for revocation is that, in the circumstances that have arisen since the agreement was approved, it is impracticable for the agreement to be carried out, or impracticable for a part of the agreement to be carried out. There is, therefore, introduced a test of “impracticability”. Section 87(8) is the only provision in the Act under which such an order can be made: see In the Marriage of Vartikian (1983) 9 Fam LR 151. [s 87.46] Revocation Revocation of the approval of a maintenance agreement is possible by the grounds set out in s 87(8). It has the important consequence of allowing parties to apply for fresh financial orders under Pt VIII subject to s 44(3A). Revocation of the agreement itself is possible due to the ordinary common law and equitable principles which can be applied to approved maintenance agreements under s 87(11). Revocation of an agreement per se does not normally entitle the parties to make further applications for orders under Pt VIII, but rather only to the normal common law remedies for damages. However, revocation of the agreement may, in certain circumstances, provide grounds for an application for revocation of the approval of the agreement under s 87(8): see In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91– 601. See also In the Marriage of Wray (1990) 14 Fam LR 324. [s 87.46A] Third party application for revocation The right to apply for revocation of the approval of a maintenance agreement is not limited to parties of the marriage or to parties to the agreement. A person such as a creditor with a special interest in the proceedings or whose rights may be affected by the agreement is entitled to apply for revocation: In the Marriage of Chemaisse (1988) 12 Fam LR 48; FLC 91–915 (FC). [s 87.47] Discretion of court whether to revoke approval of maintenance agreement The court has a discretion under s 87(8) and may refuse to revoke the approval of an agreement even when one of the grounds for revocation specified in s 87(8) has been established. In In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238 at 243; FLC 91–058, Ferrier J said that: “In the exercise of its discretion under s

87(6) [now s 87(8)] the court would have to give consideration to such factors principally associated with the rights and liabilities as set out in Pt VIII. Without taking into consideration any element of penalty for the acts of fraud, the court must assess whether it should throw open to the parties the right to litigate or relitigate over their financial relationships. In certain circumstances, bearing in mind the age of the parties, the duration of time between approval and the hearing of the application for revocation, the existence and placement of children and the respective financial circumstances of the parties, it would be inappropriate to revoke an approval”: see also In the Marriage of Oliver (1978) 4 Fam LR 238; FLC 90– 482. [s 87.48] Delay in seeking revocation If the applicant has delayed unduly in seeking revocation, then this, together with the, above-mentioned factors may result in the court exercising its discretion against revoking the approval of the agreement: see In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058. [page 834] [s 87.49] Bona fide third parties Other factors which a court may also take into consideration in exercising its discretion would include inquiries as to whether the rights of bona fide third parties would be interfered with. [s 87.50] Implementation of the agreement The court may also take into consideration whether the full term of the agreement had been implemented. [s 87.51] Conduct of the applicant The court may also take into account as a factor whether the applicant for revocation has acted fraudulently. Issue estoppel A party may be unable to make a claim that an agreement is unenforceable within s 87(8)(c) as a result of issue estoppel created by previous proceedings. This may arise because of a finding made in earlier proceedings, or on the basis of an estoppel of the “Anshun” type, that the matters relied on were so relevant to and connected with the subject matter of

the earlier proceedings that it is unreasonable for the party, not having raised the matters in the earlier proceedings, to raise them for the first time. See generally In the Marriage of Blackman (1998) 22 Fam LR 416; FLC 92–791, applying Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3. [s 87.52] All property disposed of If all of the property dealt with in the agreement has been disposed of and there is nothing left about which a court could make any orders under s 78 or s 79 after revoking the approval, then, if nothing may be achieved by the revocation, the court may decline in those circumstances to revoke the agreement. [s 87.53] Approval obtained by fraud — s 87(8)(a) This ground relates to the court’s approval itself being obtained by fraud: see In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91–601 at 79,860; In the Marriage of Chemaisse (1988) 12 Fam LR 48; FLC 91–915 at (FC). The repealed s 87(6) referred to two kinds of fraud, namely: (a) if the court’s approval was obtained by fraud; or (b) if the concurrence of a party was obtained by fraud. Section 87(8)(a) now only refers to the approval being obtained by fraud. The fraud now dealt with by the section is fraud on the court as distinct from fraud on the other party; fraud on a party is now relevant to s 87(8)(c), that is that the agreement is void, voidable or unenforceable. [s 87.54] Fraud on the court In In the Marriage of Chemaisse (1988) 12 Fam LR 48; FLC 91–915 at Fam LR 51 FLC 76,639, the Full Court quoted the following extract from Brooke v Mostyn (Lord) (1864) 33 Beav 457 at 462 which sets out the requirements to establish fraud upon the court: “This is an equity which extends far beyond the case of inference, and extends to every case where the court has been intentionally deceived, and has been made the involuntary instrument of depriving others of their just rights … In all such cases, the court will afterwards, if possible, set aside the transaction as against the innocent party or if that be not possible, will, as far as it can, prevent the further operation of it upon him. But in order to induce the court to take this step it must be shown that the parties to the transaction

have intentionally supressed truth or suggested error, in order to mislead the court.” See also In the Marriage of Radwan (1985) 11 Fam LR 1 at 7–8; (1986) FLC 91–755. For a more general discussion of fraud, see the commentary on s 87(8)(c) at [s 87.55]–[s 87.60]. See also [s 87.27] (duty of disclosure). [s 87.55] Fraud at common law The definition of “fraud” at common law has been well settled since the decision of Lord Herschell LC in Derry v Peek (1889) 14 App Cas 337 at 374, that “fraud in this context consists of a false statement of fact which is made by one party to a transaction to the other knowingly, or without belief in its truth, or recklessly, without caring [page 835] whether it is true or false, with the intent that it should be acted upon by the other party and which was in fact so acted upon”. At common law a fraudulent misrepresentation is a false statement which, when made, the representor did not honestly believe to be true. It is necessary to establish a false statement of fact. It is necessary also to establish an absence of honest belief. Fraud at common law requires a culpable intent. An innocent or negligent misrepresentation does not amount to fraud at common law. At common law a false misrepresentation also has no effect if the person to whom it was made did not actually rely on it: see In the Marriage of Gipps (1978) FLC 90–523. If a person relies on his or her own information then such a person cannot allege fraud: see In the Marriage of Oliver (1978) 4 Fam LR 238; FLC 90–482. Once a representee actually relies on a fraudulent misrepresentation, then the misrepresentor cannot argue that his or her statement was immaterial: see In the Marriage of Green and Kwiatek (1982) 8 Fam LR 419; FLC 91–259. At common law a contract induced by fraud is not void but voidable at the option of the party deceived. It remains binding until set aside: see

Newbigging v Adam (1886) 34 Ch D 582 at 592. On discovering the fraud, the person to whom the representation was made may elect either to affirm or disaffirm the contract. If he or she chooses to disaffirm the contract he or she should do so promptly upon discovery of the falsity of the representation: see Alati v Kruger (1955) 94 CLR 216 at 223. At common law, mere silence or nondisclosure is not normally fraud, unless some special relationship exists between the parties to make it otherwise. At common law there is no duty of disclosure between a husband and a wife: see In the Marriage of Dupont (1980) 6 Fam LR 395; FLC 90– 881; see also Yerkey v Jones (1939) 63 CLR 649. [s 87.56] Equitable doctrine of constructive fraud In circumstances where a person who made a statement had no honest belief in the truth of the statement sometimes called “actual fraud”, equity also assumed a concurrent jurisdiction with the common law, although the relief available was different. Equity gave a more extended meaning to the word “fraud” and developed a doctrine of constructive fraud: see Nocton v Lord Ashburton [1914] AC 932; [1914–15] All ER Rep 45; see also Wicks v Bennett (1921) 30 CLR 80 at 99 and Meagher, Gummow and Lehane, Equity Doctrines and Remedies, ch 12. The general principle upon which this constructive fraud was based was that a person who concluded a transaction under such circumstances that he or she was not a free agent, and were not equal to protecting himself or herself, was entitled to the protection of the court. Under certain circumstances, a duty may arise to disclose a material fact and its non-disclosure may have the same effect as a representation of its non-existence. Whenever the relationship between the parties to a contract is of a confidential or fiduciary nature, the person in whom the confidence is reposed and who thus possesses influence over the other cannot hold that other to the contract unless he or she satisfies the court that it is advantageous to the other party and that he or she has disclosed all material facts within his or her knowledge. Such a confidential relationship is deemed to exist between persons connected by certain recognised ties, such as parent and child, principal and agent, solicitor and client, religious superior and inferior and trustee and

beneficiary. However, the courts are also prepared to interfere in a contract wherever one party deliberately and voluntarily places himself or herself in such a position that it becomes his or her obligation to act fairly and to have regard to the interests of the other party. [s 87.57] Innocent misrepresentation Where contracts were induced by misrepresentations fraudulent at law, then equity would lend its assistance to rescission thereof at the instance of the deceived party. He or she would also have his remedies at law. It was necessary, however, to discover whether in the absence of any legal remedy, equity would order rescission of contracts [page 836] induced by misrepresentations not fraudulent in the legal sense: see Meagher, Gummow and Lehane ch 13. Fraud in equity goes beyond the definition at law given in Derry v Peek (1889) 14 App Cas 337. In Nocton v Lord Ashburton [1914] AC 932 at 955; [1914–15] All ER Rep 45, Lord Haldane LC said: “… however free the defendant might have been from any intention to deceive he was not allowed (in equity) to retain what he had obtained from the plaintiff by a material misstatement on which the latter was entitled to rely as being true.” At equity it is not necessary, in order to set aside a contract obtained by material false representation, to prove that the party who obtained it knew at the time when the representation was made that it was false: see Redgrave v Hurd (1881) 20 Ch D 1 at 12–13; see also Adam v Newbigging (1888) 13 App Cas 308; McDonald & Co Ltd v Wells (1931) 45 CLR 506; In the Marriage of Cameron (1988) 12 Fam LR 265; FLC 91–946. The representation must have produced a misunderstanding on the part of the representee and this must be one of the reasons which induced him or her to the contract. Thus the representee cannot seek rescission if the matter complained of did not influence him or her. However, it is not necessary that the representation be the sole inducing cause of the representee entering the contract. It is sufficient that the misrepresentation had the effect of inducing the representee to persevere in a decision to act which had already been

reached. But it is essential that the representor intended the representee to act in the way he or she in fact did, and it is not sufficient that the representee does something different; albeit related. If there is no proof that the representee did not rely on the representation, the court may infer that he or she acted upon it in entering the contract. [s 87.58] Non-disclosure The courts initially held that in order to succeed in showing that an approval was obtained by fraud, a party had to establish the existence “of fraud on a point directly material to the making of the order”: see Schumann v Schumann (1962) 4 FLR 129 at 135. The mere fact that evidence was presented to the court which was false in some particular manner was not enough. Fraud had to relate to some matter which was essential to the making of the order for approval, or to the concurrence of the other party. The fraud had to be directed at the obtaining of such an order or of such concurrence. Hence, a false statement made in an affidavit filed long before a maintenance agreement was contemplated did not affect the validity of the concurrence to that agreement or of the approval by the court of the agreement, even if it was established that a party was influenced by the material disclosed in that affidavit when deciding to enter into the agreement: see In the Marriage of Oliver (1978) 4 Fam LR 238 at 250; FLC 90–482. In In the Marriage of Dupont (1980) 6 Fam LR 395; FLC 90–881, Pawley SJ held that the word “fraud” (as dealt with in s 86(3)) connotes fraud as recognised by the common law. He held that mere silence or non-disclosure of an asset would not enable the court to exercise its powers of revocation unless some special relationship exists between the parties to make it otherwise. He also said that the relationship of husband and wife was not usually a special relationship from which undue influence could be inferred and that there must be shown to be special circumstances which cause the relationship to have otherwise arisen. At common law, mere silence or non-disclosure is not normally fraud. There is no duty of disclosure between the parties to a contract. There is no duty of disclosure between a husband and a wife who are negotiating towards a maintenance agreement: see Yerkey v Jones (1939) 63 CLR 649.

There is, however, an exception to this principle at common law in respect of “family arrangements” which require the fullest disclosure of all material facts known to each party even though no inquiry about them may have been made: see Gordon v Gordon (1821) 3 Swan 400; (1821) 36 ER 910; Greenwood v Greenwood (1863) 2 De GJ & S 28; 46 ER 285. [s 87.59] The former Family Law Rules The former rules, the Family Law Rules 1984, required parties to file financial statements. It had been held that there is under the Family Law Act [page 837] an obligation to disclose all assets and income. There was a duty of disclosure at the time of the approval of the agreement under s 87: see In the Marriage of Wright (1977) 3 Fam LR 11,150; FLC 90–221; see also In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058. In In the Marriage of Suters (1983) 9 Fam LR 340; FLC 91–365, the Full Court said that the duty of disclosure should not be dispensed with, despite the consent of the parties and despite the power of dispensation contained in O 4 r 1 (of the former rules). No exemption from full disclosure applied even when approval took place before a court of summary jurisdiction: see In the Marriage of Lindner (1978) 4 Fam LR 27; FLC 90–417; see also O 9, rr 1 and 2 of the former rules. It should be noted, however, that where a financial settlement was embodied in consent orders, no equivalent duty of disclosure arose under the rules of court: see In the Marriage of Smith (1984) FLC 91– 512; see also O 17 r 4 of the former rules. In In the Marriage of Green and Kwiatek (1982) 8 Fam LR 419; FLC 91– 259, the Full Court said that it is a fair inference that the grounds upon which the approval can be revoked should be the same as would entitle a party to obtain in equity the rescission of the agreement upon the ground of fraudulent misrepresentation. The Full Court also confirmed that the repealed reg 97 imposed on the parties an obligation to disclose all assets and income. In In the Marriage of Suters, above, the Full Court said that suppression or non-disclosure of material facts has long been treated as such fraud in equity

as would entitle a court of equity to set aside a transaction. The Full Court referred with approval to the decision of Ormrod LJ in Robinson v Robinson [1982] 2 All ER 699 that the power to set aside final orders is not limited to cases where fraud or mistake can be alleged. It extends to cases of material non-disclosure. [s 87.60] Relevant time for determining fraud The operative date for determining whether an approval has been obtained by fraud is the date of the approval: see In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058; see also In the Marriage of Dupont (1980) 6 Fam LR 395 at 399; FLC 90–881. [s 87.61] Revocation of approval by consent — s 87(8)(b) Usually this ground will require an application joined in by both parties. In In the Marriage of Banhidy (1982) 8 Fam LR 821 at 824; (1983) FLC 91–302, the Full Court said that there may be circumstances relating to a resumption of cohabitation which could amount to a mutual rescission or waiver or which could estop a party from denying consent to such rescission or waiver. If a reconciliation may in future put an agreement at risk, this may stretch the requirement of s 87(8)(b) to revocation by estoppel. [s 87.62] Ordinary contract An ordinary contract can be terminated by mutual agreement of the parties to the contract. No confirmation by a court is required. Section 87(8)(b), however, requires judicial confirmation. It is necessary for a court to order a revocation of the agreement. [s 87.63] Acceptance of a serious breach One party may breach the express terms of a maintenance agreement and the question which arises is whether this gives the innocent party a right to seek revocation of the approval. A serious breach would give a right to revoke the agreement under s 87(11) under common law principles; however, such a right only confers on the innocent party a right to contractual damages or to a decree of specific performance. It does not provide the innocent party with the alternative of making a fresh application under Pt VIII. If a major breach of a maintenance agreement by one party occurs, and the

innocent party also acts as though the agreement has been terminated, then it may be argued that both parties to the agreement desire the revocation of the approval under s 87(8)(b). [s 87.64] Revocation by a subsequent reconciliation of parties The parties to a maintenance agreement may make in the agreement a specific provision about the effect on an approved agreement of the resumption of cohabitation by the parties. [page 838] In In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91–601, the parties to an approved maintenance agreement were separated but not divorced at the time of the approval of the maintenance agreement. The terms of the agreement were fully carried out by each party. The parties subsequently reconciled and lived together for a further period of years, during which time they bought and sold various properties. The wife then filed an application under Pt VIII for various property orders. This application was opposed by the husband on the grounds that the approved agreement had terminated the court’s jurisdiction under Pt VIII. Fogarty J said (at Fam LR 96; FLC 79,864): “It seems to me an irresistible conclusion that the course of conduct of the parties over the years from late 1980 to March 1984 amounted to an implied agreement by them to rescind the contract insofar as it remained executory or to abandon it as a contract binding upon them.” Fogarty J held that under s 87(11) the agreement was declared to be “unenforceable” at law and equity and the approval of the agreement was revoked under s 87(8)(c). In In the Marriage of Drew, above, Fogarty J did acknowledge that different considerations may apply in circumstances where the parties resumed cohabitation after divorce and had not remarried. He said that, in that case the financial issues may not be referable to the prior marriage relationship and may not be a matrimonial cause, but rather be referable to the de facto relationship and fall to be determined by the applicable state law.

[s 87.65] Revocation implied from variation The parties to a maintenance agreement may attempt to vary its terms by another agreement. The question which arises by such attempted variation is whether this amounts to a desire to revoke the approval of the agreement. If there occurs a major or substantial variation of the approved agreement then this may amount to a mutual desire to revoke the agreement which in turn implies a desire to revoke the approval of the original agreement. This would then leave the parties free to apply for further financial orders under Pt VIII or mutually apply to have the written variation approved under s 87. A substantial variation may also be enforced pursuant to the common law principles under s 87(11). [s 87.66] Void, voidable or unenforceable — s 87(8)(c) This ground was inserted in the Act by the Family Law Amendment Act 1983 (Cth). It overcomes the problem as to what happened when the agreement ceased to have effect under ordinary contract law but there was not a specific basis upon which the revocation of the approval of the agreement might be sought. A party may seek to have the approval revoked on any basis which would, according to the law of contract, render the agreement void, voidable or unenforceable: see In the Marriage of Drew (1985) 10 Fam LR 87 at 92; FLC 91–601 at 79,860. It has been said that “the legislature, having adopted the language of the law of contract, intended to adopt also the legal concepts encapsulated by that language”: see In the Marriage of Blackman (1998) 22 Fam LR 416; FLC 92–791 at 84,874. An agreement in respect of which the concurrence of one of the parties was obtained by fraud or undue influence is voidable at law. The previous ground that the concurrence of a party was obtained by fraud or undue influence in the repealed s 87(6) has now been included in this more general ground. This ground provides a cross-reference to s 87(11). It is relevant where, for ordinary contractual reasons, the agreement is void or voidable. [s 87.68] Courses of action Where an agreement may be void, voidable or unenforceable at common law or equity, there are three courses of action available: (1) revocation of the approval under s 87(8)(c);

(2) common law remedies pursuant to common law principles under s 87(11); (3) enforcement of the agreement as an order of the court but pursuant to common law principles under s 87(11)(c). [s 87.69] Revocation of approval If the court revokes the approval of the maintenance agreement then the applicant can make a fresh application for property and maintenance orders under Pt VIII of the Act. These fresh proceedings, however, should be commenced within 12 months of the date on which the approval of the maintenance agreement is revoked. [page 839] [s 87.70] Aggrieved party The aggrieved party cannot personally revoke the approval of the agreement. Revocation of the approval is effected by a court order. However, as a prerequisite to applying for relief under s 87(8)(c) an applicant may need to promptly revoke an agreement in order to make it void, voidable or unenforceable. [s 87.71] Power to revoke The power to revoke approval under s 87(8)(c) only arises if the agreement is void, voidable or unenforceable under the principles of common law and equity. An agreement would fall into these categories if it lacked certainty, was obtained by fraud or affected by undue influence, duress, unconscionability, misrepresentation or operative mistake. [s 87.72] Grounds Other ways in which the validity of a contract can be affected are innocent misrepresentation, non est factum, repudiation and acceptance, mutual rescission and frustration. [s 87.73] Duress and undue influence An agreement procured by duress or by undue influence lacks the element of free consent which is deemed essential for an agreement. If there is an apparent, though not a free consent as in duress and undue influence, the agreement is voidable at the option of a person who has suffered such pressure. Both common law and equity provided that a party could not be held to an agreement unless he or she was

a free agent; however, the common law confined the avoidance of contracts obtained by duress to actual violence or actual violence to a person. Equity had a concurrent jurisdiction with the courts of common law with regard to duress, but by an application of its doctrine of constructive fraud, it exercised a separate and wider jurisdiction over contracts made without free consent in cases where the influence or pressure exerted fell short of common law duress. It developed a doctrine of undue influence. [s 87.74] Undue influence At equity, contracts which could be rescinded for undue influence fell into two distinct classes: (a) those where there was no special relationship between the parties; (b) those where special relationships, such as parent and child, existed. In the first class undue influence had to be proved as a fact. In the second class it was presumed to exist. In those cases where it was necessary to prove undue influence as a fact, the courts never attempted to define undue influence with precision, but it has been described as some unfair and improper conduct, some coercion from outside, some over-reaching, some form of cheating and generally, though not always, some personal advantage obtained by the guilty party: see Allcard v Skinner (1887) 36 Ch D 145 at 181. In the second class of case where a confidential relationship existed and undue influence was presumed, undue influence was presumed because the confidence reposed in one party either endowed him with exceptional authority over the other or imposed upon him the duty to give disinterested advice. In a situation where the presumption of undue influence applied, the onus was on the person who it was presumed exerted the influence to show that the party to whom the duty was owed in fact acted voluntarily, in the sense that the party was free to make an independent and informed estimate of the expediency of the contract or other transactions: see Allcard v Skinner, above. [s 87.75] Family Law Act — undue influence A number of authorities dealt with undue influence in relation to the repealed s 87(6). In In the Marriage of Dupont (1980) 6 Fam LR 395; FLC 90–881, Pawley SJ said that there are

two situations in which the doctrine of undue influence may arise. Firstly it may arise out of the special relationship of the parties to a contract; or secondly, it may arise by reason of external circumstances which place one party in a position of power over the other. Pawley SJ held that the relationship of husband and wife was not usually a special relationship from which undue influence may be inferred, but there must be shown to be special circumstances which have caused the relationship to have otherwise arisen: see also Yerkey v Jones (1939) 63 CLR 649; Bank of Victoria v Mueller [1925] VLR 642. [page 840] A party who alleges undue influence against another must prove to the satisfaction of the court that: (a) some illegitimate means of persuasion was used by the other party; and (b) that the illegitimate means used was a reason (although not necessarily the sole reason, nor the predominant reason, nor the clinching reason) why the party entered into the agreement. It is for an applicant to prove to the court’s satisfaction on the balance of probability that he entered into the transaction as a result of influence of an undue kind exercised by the respondent: see In the Marriage of O’Brien (1981) 7 Fam LR 919; FLC 91–094. [s 87.76] Effect of fundamental breach by one party According to general contractual principles, a fundamental breach of an agreement by one party does not render the agreement either void or voidable. It merely gives the other party a choice whether to affirm or terminate the contract. Such an agreement may, however, be “unenforceable” for the purposes of s 87(8)(c), even though the term “unenforceable” would not ordinarily be used to refer to an agreement terminated by one as a result of breach by the other (not least because obligations incurred before termination remain enforceable: see s 87.77, below): see In the Marriage of Blackman (1998) 22 Fam LR 416; FLC 92–791.

[s 87.77] Meaning of “unenforceable” The meaning of the term “unenforceable” has been considered by Fogarty J in In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91–601 and by the Full Court in In the Marriage of Blackman (1998) 22 Fam LR 416; FLC 92–791. In Blackman, the Full Court (Ellis, Lindenmayer and Gun JJ) expressed the “tentative” view that although “unenforceable” (as distinct from “void” or “voidable”) prima facie referred only to agreements that could not be enforced through non-compliance with a technical or procedural requirement (such as requirements of writing), it was unlikely that this was the meaning it bore in the context of s 87(8)(c). One reason for this was that a “maintenance agreement” is, by definition, an agreement in writing. It was impossible, therefore, that a s 87 agreement could be “unenforceable” for lack of writing, so “unenforceable” must bear a wider meaning. On the facts of both Drew and Blackman, it was held that “unenforceable” was wide enough to include agreements that had been rescinded as to the future only, even though already-accrued obligations under those agreements remained enforceable. It is submitted (JKD) that this is a sensible interpretation of the subsection, especially in view of the court’s obligation under s 87(12)(a), when considering how to exercise its powers following a revocation of approval, to have regard to anything done by a party pursuant to an agreement: see [s 87.106]. If there is any risk of injustice to the party against whom the right of rescission is being exercised, flowing from the revocation of approval, it can be avoided by a consideration of that paragraph. [s 87.78] Procedure In In the Marriage of Drew (1985) 10 Fam LR 87 at 94; FLC 91–601 at 79,861, Fogarty J said that an application under s 87(8)(c) will usually involve two steps. The first is the granting or withholding of a declaration or other appropriate relief under s 87(11) in accordance with principles of law and equity as to validity, enforceability, and effect of the agreement itself and, depending upon the terms of any such declaration or relief, an order under s 87(8)(c) revoking the approval of the agreement on the ground that the agreement is void, voidable or unenforceable. The court should first consider whether the agreement, in the events that have happened, is still a valid and enforceable agreement. If it is, then there is no other basis for revoking the approval and any application must be

dismissed for want of jurisdiction. If, however, upon the evidence, a court concludes that the agreement is no longer valid or enforceable, it is appropriate to make a declaration under s 87(11) to that effect and then consider the issue of revocation under s 87(8). [s 87.79] Discretion of court Even if an applicant satisfies common law principles and establishes that the agreement is void, voidable or unenforceable, the court still retains a discretion whether to grant revocation or not. This statutory discretion will be governed by similar principles [page 841] to those which prevail at common law. Principles at common law which are relevant to the exercise of discretion are — acquiescence, delay, affirmation and the need for substantial restitution. These are qualifications on the right of rescission. [s 87.80] In the circumstances it is impracticable for agreement to be carried out or for part of agreement to be carried out — s 87(8)(d) This ground was inserted in the Act by the Family Law Amendment Act 1983. The elements which must be demonstrated on the evidence are: (a) circumstances have arisen since the approval of the agreement; (b) the result of those circumstances is that it is impracticable for the agreement to be carried out; or (c) impracticable for a part of the agreement to be carried out. It is now possible to seek revocation of the approval of a maintenance agreement, either because the circumstances arising since the agreement was approved have made it impracticable for it to be carried out, or alternatively, impracticable for a part only to be carried out. The impetus to include this ground in the Act may have arisen from the decision of the Full Court of the Family Court in In the Marriage of Banhidy (1982) 8 Fam LR 821 at 824; (1983) FLC 91–302, where Evatt CJ, referring to what was said by Gee J in In the Marriage of Smith (1982) 8 Fam LR 426;

FLC 91–256 said: “in conclusion, I must point out that it is with some regret that there is no provision in the Act, for example by way of amendment to s 87(6) of the Act, which will enable the court to consider the impracticability of the provisions of a deed in the light of subsequent events as a ground for revocation of an order approving it.” In In the Marriage of Drew (1985) 10 Fam LR 87; FLC 91–601 Fogarty J said that s 87(8)(d) is directed to those cases where some event renders it impracticable for some significant part of the agreement to be carried into effect. [s 87.81] Completed agreement In In the Marriage of Drew (1985) 10 Fam LR 87 at 93; FLC 91–601 at 79,861, Fogarty J said that if the agreement was fully carried into effect and the property and moneys referred to in the agreement were each transferred in accordance with the terms of the agreement, and the only uncompleted provision is the continuing embargo as a consequence of the terms of the agreement and the terms of s 87, against the institution of any subsequent proceedings by either party under Pt VIII, then s 87(8)(d) does not apply. For s 87(8)(d) to operate, the impracticable continuing obligation must be one other than the expressed intention that the defined financial rights are final. [s 87.82] Meaning of “impracticable” The word “impracticable” is also used in s 79A(1)(b). The word where used in s 79A(1)(b) is not a term of art as would be the legal doctrine of frustration. It is a question of fact and degree in each case: see In the Marriage of Parker (1983) 9 Fam LR 323; FLC 91–364. See also [s 79A.22]. [s 87.83] Impossible Impracticability is a concept different from impossibility. The latter is absolute, the former introduces some degree of reason and some regard for practice: see Jayne v National Coal Board [1963] 2 All ER 220. [s 87.84] Difficult It may, however, also include “difficult”. A party may apply for revocation of an approved agreement when some of his or her obligations under the agreement become difficult to perform.

[s 87.85] Effect of revocation of approval of maintenance agreement — s 87(9) This section was inserted in the Act by the Family Law Amendment Act 1983. It makes it clear that where the approval of a maintenance agreement is revoked the agreement ceases, for all purposes, to be enforced. Section 87(2) would also operate so that the maintenance agreement has no effect and is not enforceable in any way. [page 842] [s 87.86] Agreement ceases for all purposes to be in force — s 87(9)(a) In In the Marriage of Fryda and Johnson (No 2) (1981) 7 Fam LR 238; FLC 91–058, Ferrier J said, in relation to the repealed s 86(6) (now s 87(8)), that both parties are put in the position that the agreement ceases to be in force. This means that whatever transactions have taken place with respect to property which has passed to either party under the terms of the agreement between the date of the approval and the date of the revocation are not affected by revocation. The principal effect of revocation would be that the rights of both parties under Pt VIII of the Act are again thrown open to them. The exercise of those rights, however, may be subject to an order on application being made under s 44(3). The revocation of approval affects not only those provisions dealing with financial matters, but the agreement as a whole. The entire agreement ceases to be in force: see In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248. [s 87.87] Court may make orders for purpose of preserving or adjusting rights — s 87(9)(b) The repealed s 87(6) did not state that, once the revocation of the approval of the maintenance agreement had occurred, the court may then proceed to make orders as to maintenance or property because its jurisdiction was restored. This section makes it clear that once the revocation of the approval of the maintenance agreement has occurred, the court may then proceed to make appropriate orders including orders for the transfer of property. The court is

also given power to do so either in the same proceedings as the proceedings for revocation of the approval, or on a separate application by a party to the agreement or any other interested person. The court, however, in exercising its power, shall have regard to the ground on which it revoked the approval of the agreement. It appears, therefore, that when the approval of the maintenance agreement is revoked either party to the agreement can apply for property and maintenance orders under ss 74 and 79 subject to s 44(3A) or the court may exercise its power under s 87(9)(b). Section 87(12), however, provides that, among other things, the court shall have regard to anything done or admitted to be done by a party to the agreement pursuant to the agreement. [s 87.88] Leave to commence proceedings A party to an agreement, the approval of which has been revoked, may apply for property and maintenance orders under ss 74 and 79. However, under s 44(3A), such an application should be made within 12 months after the date on which the approval of the maintenance agreement is revoked, unless an extension of time is granted under s 44(4). [s 87.89] Effect of death on approved maintenance agreement — s 87(10) (a) This section was inserted by the Family Law Amendment Act 1983. The repealed s 87(5) provided: “… a maintenance agreement that has been approved by a court ceases to be in force upon the death of a party to the agreement unless the agreement otherwise provides.” All future obligations under an approved agreement ceased upon the death of either party whether such obligations were property or maintenance obligations. Accrued maintenance and property obligations predating death were enforceable against an estate under s 105(3). The Act, however, did not make any express provision for enforcement of accrued obligations by an estate. It became practice for s 87 agreements to specify that all obligations were enforceable by and against the estates of both parties to the agreement. The effect of s 87(10) is that the responsibilities of the parties under the agreement are not affected by death and the agreement operates in favour of and operates against the legal personal representative of a deceased party.

[s 87.90] Provision for periodic maintenance — s 87(10)(b) A provision for payment of a periodic sum by way of maintenance requires an express provision in the agreement that it is to continue after death, if the maintenance is to continue after the death of the party liable to pay the maintenance. [page 843] Agreed periodic maintenance payments are not enforceable against the estate of a payer unless the agreement so provides. However, whatever may be provided for in the agreement, the liability to pay a periodic sum by way of maintenance ceases to operate after the death of the person who is entitled to receive those payments. [s 87.91] Testator’s family maintenance legislation Where a party to a maintenance agreement dies, no matter what the terms of the maintenance agreement, a party to the agreement is usually free to make a Testator’s Family Maintenance (or “family provision”) application against the estate of the deceased party. Under the Testator’s Family Maintenance legislation, the dependants of the deceased person have a right to apply for proper maintenance from the estate of the deceased party. A divorced spouse is classified as a dependant in every State and is therefore an eligible applicant under the Testator’s Family Maintenance legislation. In In the Marriage of Smith (1984) 9 Fam LR 675; FLC 91–525, the Full Court rejected an argument that the State Testator’s Family Maintenance legislation was ultra vires to the extent that it was inconsistent with the provisions of the Family Law Act which purport to finally determine the financial rights between a husband and wife. The Full Court said that, under the present wording of the Family Law Act, there is no clear inconsistency between the surrender of inter-spousal financial rights under the Federal Family Law Act and the preservation of analogous financial rights under the New South Wales Family Provision Act 1982.

[s 87.92] Validity, enforceability and effect of an approved maintenance agreement shall be determined according to principles of law and equity — s 87(11) This section was inserted in the Act by the Family Law Amendment Act 1983. It confers upon the Family Court, in relation to maintenance agreements, exclusive jurisdiction in relation to proceedings in respect of the operation, effect and enforcement of maintenance agreements. [s 87.93] Position before the 1983 Amendment Act Prior to the Family Law Amendment Act 1983 a conflict arose as to whether or not agreements approved under s 87 of the Act could be enforced in courts other than the Family Court. The Family Court held that the enforcement of agreements approved under s 87 of the Family Law Act was within the exclusive jurisdiction of courts exercising jurisdiction under the Family Law Act and not within the jurisdiction of the ordinary civil courts: see In the Marriage of Carew (1979) 5 Fam LR 513; FLC 90–698. On the other hand, the New South Wales Court of Appeal held that the enforcement of agreements approved under s 87 of the Family Law Act was within the jurisdiction of the ordinary civil courts: see In the Marriage of Ellinas (1979) 5 Fam LR 114; FLC 90–649. See also In the Marriage of Perlman (1983) 8 Fam LR 811; FLC 91–308; In the Marriage of Noble (1983) 9 Fam LR 55; FLC 91–338; McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90–655. This conflict was about to be resolved by the High Court in Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91–500. when the Family Law Amendment Act 1983 was introduced. The High Court determined in favour of the state court and overruled In the Marriage of Carew, above. There was added a new matrimonial cause to the definition of “matrimonial cause” in s 4(1), namely para (ea), which covers all aspects of the enforcement of or any proceedings in relation to maintenance agreements under both ss 86 and 87 and overseas maintenance agreements registered pursuant to s 87. All types of proceedings in relation to maintenance agreements, including enforcement of maintenance agreements, are now within the exclusive jurisdiction of the courts exercising jurisdiction under the Family Law Act.

Prior to the Family Law Amendment Act 1983, s 88 provided that a maintenance agreement, whether registered under s 86 or approved under s 87, may be enforced as if it were an order of the court. Section 88 has now been amended by the Family Law Amendment Act 1983 so that it only relates to agreements registered under s 86. The enforcement of the provisions of agreements approved under s 87 are now incorporated in s 87 itself. [page 844] [s 87.94] Enforcement powers of High Court — s 87(11)(a) Section 87(11) (a) gives to the court the same powers of enforcement of approved maintenance agreements as the High Court has in its original jurisdiction in respect of proceedings in connection with contract or purported contracts. [s 87.95] Judiciary Act The extent of the relief that can be granted is that of the High Court as set out in s 32 of the Judiciary Act 1903, as amended. Section 87(11)(a) incorporates the powers contained in s 32 of the Judiciary Act 1903: see In the Marriage of Vartikian (1984) 10 Fam LR 165; FLC 91– 334. Section 32 of the Judiciary Act provides: “The High Court in the exercise of its original jurisdiction and any cause or matter pending before it, whether originated in the High Court or removed into it from another court, shall have power to grant and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter: so as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters may be avoided.” [s 87.96] Common law and equitable principles Section 87(11) provides the Family Court with the power to determine the validity, enforceability and

effect of a maintenance agreement according to the principles of law and equity applicable to such matters: see In the Marriage of Drew (1985) 10 Fam LR 87 at 92–3; FLC 91–601 at 79,860. It confers upon the court a jurisdiction in equity and at common law in relation to the contractual obligations between the parties to an approved maintenance agreement. It includes such common law and equitable doctrines as mistake, estoppel, rectification, fraudulent, negligent or innocent misrepresentation, and damages for breach: see In the Marriage of Knitschke (1984) FLC 91–566. [s 87.97] Declaratory orders Section 87(11) enables the court to declare the rights and obligations of parties to an approved agreement, particularly if consequential relief is also claimed: see In the Marriage of Knitschke (1984) FLC 91–566. [s 87.98] Waiver A party may argue as a defence to an action for nonperformance that the agreement has been varied or that performance has been waived: see In the Marriage of Knitschke (1984) FLC 91–566. [s 87.99] Approved maintenance agreement remains intact When a party relies upon common law remedies under s 87(11), nevertheless the approval of the maintenance agreement remains intact. Even where rescission of the approved agreement occurs, this does not automatically revoke the court’s approval effected under s 87(3). The approved agreement may be rescinded either: (a) ab initio by the innocent party for fraudulent negligent or innocent misrepresentation; (b) ab initio by the court for unconscionability or operative mistake; or (c) ab futuro by the innocent party for a major breach of a term by the other party. However, in all these situations of rescission, a clause in the agreement excluding the rights of the parties under Pt VIII of the Act will remain intact so long as the parties purport to rely upon their common law remedies. If a party wants to pursue his or her common law remedies under s 87(11) and also revoke the court approval of the maintenance agreement, an additional application for revocation of approval would have to be made

under s 87(8). If, however, an applicant pursues his common law remedies under s 87(11) and obtains damages or a decree of specific performance, then a court would normally refuse an additional request for revocation of approval under s 87(8). This is so because, having enforced certain clauses in the approved agreement, the parties should not then be given an opportunity to circumvent another clause to the extent that it surrenders rights under Pt VIII. [page 845] [s 87.100] Discretion of court The court, having applied common law principles to determine the validity and effect of an approved maintenance agreement, is not then obliged to use common law remedies such as an award of damages or a decree of specific performance. The court may also use the statutory powers of enforcement in relation to an order of the court: see In the Marriage of Knitschke (1984) FLC 91–566. [s 87.101] Discretion and enforcement The provisions of the Act relating to enforcement of a maintenance agreement under ss 86, 87 and 89 all use the word “may” when conferring enforcement powers on the court. Applying common law and equitable principles under s 87(8)(c) or s 87(11) there are reasonably settled rules under which an aggrieved party can lose his or her remedies for breach of a contract. The right to rescind an agreement for innocent negligent or fraudulent misrepresentation, or undue influence, or equitable mistake or unconscionability, can be lost, where the aggrieved party: (a) has delayed for too long; (b) has affirmed the contract by words and/or conduct; (c) has misled the other party in such a manner that he or she is now estopped from rescinding; (d) cannot effect substantial restitution; (e) has failed to act before the rights of innocent third parties have intervened.

When applying law and equity under s 87(8)(c) or s 87(11), the court must necessarily have a discretion whether to grant rescission ab initio based on these principles. Enforcement can only be refused when there are grounds, on the ordinary principles of law and equity, to do so. The court does not have a further discretion which can be exercised because the court may consider an application for enforcement to be unmeritorious: see In the Marriage of L (1984) 9 Fam LR 1033; FLC 91–563. There is no further discretion to refuse enforcement on a broad ground such as hardship. The judicial discretion is governed by existing common law and equitable principles. This restriction, however, on any further statutory discretion applies at least under s 87(11)(a). If, however, the agreement is being enforced under s 87(11)(c) or under s 88(1) “as if it were an order of the court”, the court may have a further statutory discretion to refuse enforcement where the court concludes that enforcement would be unfair or cause undue hardship: see In the Marriage of Ramsey (1982) 8 Fam LR 863; (1983) FLC 91–301. If an applicant seeks to enforce a registered agreement under s 86, or an approved agreement under s 87, as though it is a deemed order of the court, by statutory remedies such as sequestration, garnishment, seizure of personal property, sale of real property or execution of documents by a court officer under s 84(1A), then the court has a broad statutory discretion to refuse enforcement altogether, or certain kinds of enforcement: see In the Marriage of Knitschke (1984) FLC 91–566. Although there is no broad discretion to refuse an award of damages under s 87(11)(c) for breach of an express covenant in an agreement, there is a discretion to refuse certain statutory remedies under s 87(11)(c) on the grounds of hardship. [s 87.102] Which agreement can the court enforce? The only agreement which the court has jurisdiction to enforce is an agreement approved pursuant to the provisions of s 87. If the parties substitute a fresh agreement, without obtaining the court’s approval thereto, the new agreement is incapable of enforcement: see In the Marriage of Hennessy and Dunne (1984) 9 Fam LR 828; FLC 91–583.

[s 87.103] Payment of interest — s 87(11)(b) This section gives the court power to award interest on amounts payable pursuant to an agreement in the course of proceedings as to the validity, enforcement and effect. The rate of interest awarded is to be at a rate not exceeding a rate prescribed by the rules. [page 846] This section provides that the court has the power to make an order for the payment of interest on an amount payable pursuant to the agreement, from the time when the amount became due and payable, at a rate not exceeding the rate prescribed by the rules. The court is empowered to order payment of interest, where an obligation to pay interest was not provided for in the agreement: see In the Marriage of Ingham-Rhodes (1984) FLC 91–538 at 79,356. [s 87.105] “as if it were an order of the court” — s 87(11)(c) This section was inserted in the Act by the Family Law Amendment Act 1983. It confers on the court the power to enforce the terms of a maintenance agreement as if it were an order of the court. Section 88 has been amended so that it now relates only to agreements under s 86. [s 87.106] Methods of enforcement (a) Order a Registrar to execute documents on behalf of a defaulting party under s 84(1A); (b) the power to imprison for contempt (ss 35 and 108); (c) the power to have wages or debts garnished; (d) the power to order the seizure of personal property; (e) the power to order the sale of realty. [s 87.107] Agreement approved in court of summary jurisdiction The Family Court has no jurisdiction to entertain an application to enforce a maintenance agreement approved in a court of summary jurisdiction unless the machinery provided for in the rules for the registration of maintenance

agreements to which s 87 of the Act applies has been followed: see In the Marriage of Hennessy and Dunne (1984) 9 Fam LR 828; FLC 91–583. [s 87.108] Duties of a court upon revocation — s 87(12) This section was inserted in the Act by the Family Law Amendment Act 1983. It requires the court, when the approval of a maintenance agreement has been revoked, to consider what has happened under the terms of the agreement. Prior to the Family Law Amendment Act 1983 one of the problems which arose was the attitude a court should take in respect of financial arrangements made under agreement approved under s 87 which have actually been carried out. The court now, by the section, in considering what order to make as to property or maintenance, is required to consider anything done or omitted to be done by a party to the agreement pursuant to the agreement during the periods of its operation. The court is also required to have regard to any change in the circumstances of either of the parties arising out of the doing of any act or failure to do anything pursuant to the agreement during the period it was in force. The court also has to consider any orders made by way of enforcement during the period that the agreement was in operation and to consider any orders made in the proceedings for revocation by way of preserving or adjusting the rights of the parties. [s 87.109] Definition of approved maintenance agreement — s 87(15) This section was inserted in the Act by the Family Law Amendment Act 1983. [s 87.110] Agreement sanctioned under repealed Matrimonial Causes Act 1959 — s 87(16) This section was inserted in the Act by the Family Law Amendment Act 1983. It substantially repeats the repealed s 87(10). Section 87(16) provides that nothing in the Act affects the operation of an agreement sanctioned under s 87(1)(k) of the repealed Matrimonial Causes Act 1959, or the rights and obligations of a person under such an agreement. This means that the effect of such an agreement and the rights and obligations of the parties thereto must be determined and enforced as if the Family Law

Act 1975 had never been passed. The effect is that this section preserves in totality the old law relating to such an agreement, not only in substantive matters, but also as regards to procedure, the method of enforcement and the forum in which enforcement proceedings can be brought: see In the Marriage of Penberthy (1977) 3 Fam LR 11,302 at 11,305; FLC 90–255. [page 847] Agreements sanctioned under the repealed Matrimonial Causes Act are outside the provisions of the Family Law Act and therefore outside the jurisdiction of the Family Court: see In the Marriage of Lakajev (1978) 4 Fam LR 228; FLC 90–448; see also In the Marriage of Smith (1979) 5 Fam LR 169; FLC 90–642. Unlike the Family Law Act, the Matrimonial Causes Act did not contain any provisions about the effect of sanctioning a deed or its enforceability: see Vandyke v Vandyke (1976) 12 ALR 621; 2 Fam LR 11,469 at 11,477; FLC 90–139. Consequently, the rights and obligations of the parties to such an agreement had to be deduced from the terms of the agreement itself. Such an agreement is only enforceable in those courts which have jurisdiction in relation to the general enforcement of contractual transactions: see Shaw v Shaw (1965) 113 CLR 545. The fact that the Family Court has no jurisdiction to register or enforce an agreement sanctioned under the repealed Matrimonial Causes Act supports the contention that the proceedings to enforce such an agreement cannot be a matrimonial cause within the meaning of the Family Law Act 1975: see Hillman v Hillman (1977) 4 Fam LR 274; 2 NSWLR 739; FLC 90–316 at Fam LR 280. [s 87.111] Overseas maintenance agreements — s 87(17) Section 87 applies to “overseas maintenance agreements” only in so far as regulations made pursuant to s 89 permit. The regulations make no provision for the application of s 87 to such agreements: see s 89 and reg 33 of the Family Law Regulations.

[s 87.112] Bankruptcy Under the Bankruptcy Act 1966, transactions made prior to bankruptcy pursuant to a registered or approved maintenance agreement are protected from creditors: see ss 5 and 123(6). Prior to a 1987 amendment of 123(6), operative from 13 January 1988, a disposition in a maintenance agreement which was intended to defraud creditors was also protected: see discussion, above at [s 86.14]. [s 87.114] References to practice See vol 2, guide card PRACTICE AND PRECEDENTS at [5200].

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[s 87A] Specification in maintenance agreements of payments etc for maintenance purposes *87A (1) Where: (a) a maintenance agreement (whether or not registered under section 86 or approved under section 87) has the effect of requiring: (i) payment of a lump sum, whether in one amount or by instalments; or (ii) the transfer or settlement of property; and (b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a marriage or a child or children of a marriage; the agreement shall: (c) state that the agreement is an agreement to which this section applies; and (d) specify: (i) the person or persons for whose maintenance

provision is made by the payment, transfer or settlement; and [page 848]

(ii) the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for that person or each of those persons, as the case may be. (2) Where a maintenance agreement of a kind referred to in paragraph (1)(a): (a) does not state that the agreement is an agreement to which this section applies; or (b) states that the agreement is an agreement to which this section applies, but does not comply with paragraph (1)(d); any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the agreement has the effect of requiring, shall be taken not to make provision for the maintenance of a party to the relevant marriage or of a child of the relevant marriage. [s 87A insrt Act 181 of 1987 s 48]

*Editor’s note: Section 67(2) of the Family Law Amendment Act, No 181 of 1987, provides: (2) Application of specification requirements in orders and agreements Section 87A of the Principal Act as amended by this Act applies only in relation to maintenance agreements entered into after the commencement of this Act. COMMENTARY ON SECTION 87A PRELIMINARY Introductory comment ….

[s 87A.1]

AGREEMENTS TO WHICH SECTION 87A APPLIES Scope of section — general …. Maintenance agreements …. Lump sum payment, or transfer or settlement of property …. Purpose of making provision for spousal or child maintenance …

[s 87A.11]

DUTY CREATED BY SECTION 87A Requirements ….

[s 87A.20]

FAILURE TO COMPLY Non-compliance — general effect — s 87A(2) …. Non-compliance — whether non-complying agreement is “proper” …. Non-compliance — effect on rights of parties ….

[s 87A.5] [s 87A.7] [s 87A.9]

[s 87A.30] [s 87A.32] [s 87A.34]

PRELIMINARY [s 87A.1] Introductory comment This provision was inserted in the Act by the 1987 Amendment Act, which came into force on 1 April 1988. It applies to maintenance agreements involving payments or property transfers for the purpose of spousal or child maintenance. Such agreements are required to specify the extent to which they make provision for such maintenance. The

section is for the purpose of social security means testing. It is similar to ss 66R and 77A. AGREEMENTS TO WHICH SECTION 87A APPLIES [s 87A.5] Scope of section — general The section applies to any maintenance agreement entered into after 1 April 1988 which satisfies two criteria. First, the agreement must have the effect of requiring payment of a lump sum or the transfer or settlement of property. Secondly, the purpose or one of the purposes of the payment transfer or settlement must be to “make provision for the maintenance of a party to the marriage”. [s 87A.7] Maintenance agreements The section applies to “maintenance agreements” as defined in s 4. It includes maintenance agreements under s 86 (whether or not registered) and under s 87 (whether or not approved by the court). [s 87A.9] Lump sum payment, or transfer or settlement of property The section applies where the agreement has the effect of requiring payment of a lump sum or the transfer or settlement of property. On the meaning of these terms, see commentary to ss 79, 80. [page 849] Lump sum The lump sum payment may be by instalments. The section does not apply however to an agreement for periodical payments of maintenance. [s 87A.11] Purpose of making provision for spousal or child maintenance Introductory comments The section applies where the purpose or one of the purposes of the payment etc is to make provision for the maintenance of a party to the marriage, or a child or children of the marriage. Children of the marriage The section is limited, in relation to child maintenance, to children of the marriage. Although (subject to the Child

Support Scheme) the Family Law Act now provides for maintenance of all children, maintenance agreements are still limited to children of the marriage: see s 4, defining “maintenance agreement” and “financial matters”. Purpose or purposes It is not immediately apparent whether the section is intended to apply to agreements which include what has been called a “maintenance component”, for example, a transfer of the matrimonial home to a wife under s 79 where one of the bases for the agreement is that the wife cannot afford other accommodation. The Full Court has held in relation to s 77A that a narrower reading is correct, namely that the section applies only to agreements which make provision for maintenance in the strict sense: In the Marriage of Dein (1989) 12 Fam LR 853; FLC 92–014; In the Marriage of Habib (1988) 12 Fam LR 127; FLC 91–931 at 12 Fam LR 130 Kay J, said that ss 66R, 77A and 87A are “intended to catch only that portion of the lump sum or property which could be fairly attributed to an order that could otherwise be made under s 66G for child maintenance or s 74 for spousal maintenance”. This decision was followed by the Full Court in Dein, above, and the Full Court would no doubt take the same approach in relation to s 87A. DUTY CREATED BY SECTION 87A [s 87A.20] Requirements Where an agreement falls within subs (1), the agreement must do three things, namely (i) state that it is an agreement to which the section applies; (ii) specify the person or persons for whom maintenance is made by the payment etc; and (iii) specify the portion of the payment or the value of the property attributable to the provision of such maintenance. Nature of duty The section, by providing that “the agreement shall” contain the statements and specifications mentioned, appears to create a duty in the parties to the agreement. However, the only prescribed consequence of the breach of such a duty is that the agreement is taken not to provide for maintenance: see below. FAILURE TO COMPLY

[s 87A.30] Non-compliance — general effect — s 87A(2) This subsection sets out the consequences of a failure to comply with the requirements of s 87A(1). The payment, transfer or settlement shall be taken not to make provision for spousal maintenance. Other consequences? It is not clear whether any other consequences will attach to breach of the section, for example, whether it might be arguable that an agreement which failed to comply with the section should be regarded as contrary to public policy within ordinary contract principles. However the better view is probably (RC) that the effect of the provision should generally be limited to its consequences for social security means-testing. [s 87A.32] Non-compliance — whether non-complying agreement is “proper” It seems clear that an agreement under s 87 which did not comply with s 87A would not be “proper” and should therefore not be approved by the court. The court is therefore required to consider, on an application for approval, whether s 87A applies. [page 850] [s 87A.34] Non-compliance — effect on rights of parties Does s 87A have any effect on the rights of the parties? For example, suppose a s 87 agreement includes a lump sum payment in favour of the wife, purporting to operate in substitution for her rights to maintenance under the Act, and is approved by the court although it fails to comply with s 87A. As a result subs (2) provides that it is taken not to have made provision for spousal maintenance. Does it follow that the wife can commence fresh proceedings for maintenance? The question is arguable, but a plausible and convenient view is (RC) that like ss 66R and 77A, s 87A should be read as having no effect on the rights of the parties under the Act, but having consequences limited to means testing for social security purposes.

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[s 88]

Enforcement of maintenance agreements

88 (1) [Enforced as court order] A maintenance agreement that has been registered, or is deemed to have been registered, in a court may be enforced as if it were an order of that court. (2) [Agreements approved under section 87] Subsection (1) does not apply in relation to maintenance agreements that have been approved under section 87. [subs (2) insrt Act 72 of 1983 s 45] COMMENTARY ON SECTION 88 Enforcement of maintenance agreements — s 88 …. Terms of the agreement …. General principles …. Registration under s 86 of agreements sanctioned under repealed Matrimonial Causes Act …. Deferral of enforcement proceedings in respect of an agreement registered under s 86 …. Execution of documents — s 84 …. Enforcement in other courts ….

[s 88.1] [s 88.2] [s 88.3] [s 88.4] [s 88.5] [s 88.6] [s 88.7]

[s 88.1] Enforcement of maintenance agreements — s 88 This section provides that the provisions of a maintenance agreement may be enforced by the court of registration as if the provisions of the agreement constituted an order of the court: see In the Marriage of Harding and Gibson (1979) 5 Fam LN 10; FLC 90–665. Section 88 was amended by the Family Law Amendment Act 1983 by the inclusion of s 88(2). Section 88 now relates only to maintenance agreements registered under s 86. This is because the enforcement provisions as to agreements approved under s 87 are now incorporated in s 87 itself. Section 88, however, does not apply to an agreement which is not a maintenance agreement within the ambit of s 86: see In the Marriage of Gibb (1979) 5 Fam LR 694; FLC 90–694. See also Re Rules of the Supreme Court; Re Masterson (1978) 4 Fam LR 660.

[s 88.2] Terms of the agreement The provisions of s 88 are attracted only in so far as, in form and substance, the terms of the agreement are such as could have constituted orders of the court: see In the Marriage of Williams (1977) 3 Fam LN 24; FLC 90–248. See also In the Marriage of Smith (1979) 5 Fam LR 169; FLC 90–642. The relief sought must be of a kind which, in the circumstances, the Family Court has power to grant: see In the Marriage of Smith, above. See also In the Marriage of Harding and Gibson (1979) 5 Fam LN 10; FLC 90–665. [s 88.3] General principles Section 88 is an enforcement procedure provision only and there is nothing in the section which provides remedies of an equitable nature. The section does not allow for the use of enforcement remedies other than those expressly provided for by the Act [page 851] itself. Neither does it allow for proceedings to be brought which are essentially proceedings for variation of a maintenance agreement or for the incorporation into the agreement of terms which are not therein: see In the Marriage of Power (1980) 6 Fam LR 296; FLC 90–878. See, however, in In the Marriage of Makin (1980) 5 Fam LR 825; FLC 90–818 in which Watson SJ held that equitable principles may be applied. The statement in In the Marriage of Makin, above, is obvious: see Perlman v Perlman (1984) 155 CLR 474; 51 ALR 317; 9 Fam LR 413; FLC 91–500. For the purpose of enforcement of covenants contained in a maintenance agreement, s 88 brings into play all enforcement sections in the Act including ss 80, 84 and 106 where it relates to enforcement: see In the Marriage of Harding and Gibson (1979) 5 Fam LN 10; FLC 90–665. [s 88.4] Registration under s 86 of agreements sanctioned under repealed Matrimonial Causes Act It is not possible to register an agreement sanctioned under the repealed Matrimonial Causes Act pursuant to the provisions of s 86 of the Family Law Act and then seek to enforce it as if it were an order made under the Family Law Act: see In the Marriage of Hing

(1980) 6 Fam LR 907 and s 87(16). [s 88.5] Deferral of enforcement proceedings in respect of an agreement registered under s 86 The court has a discretion under s 88 to defer the enforcement of a maintenance agreement registered under s 86 pending the consideration of an application under either ss 74 or 79: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467. [s 88.6] Execution of documents — s 84 Section 88 can be relied upon in making s 84 applicable to the enforcement of covenants in an agreement registered under s 86: see In the Marriage of Dupont (No 2) (1981) 7 Fam LR 147; FLC 91–037. However, there must be a precisely framed covenant requiring one of the parties to execute a document before an order can be made under s 84 by way of enforcement: see In the Marriage of Maddocks (1981) 6 Fam LR 877; FLC 91–031. [s 88.7] Enforcement in other courts Proceedings for the enforcement of an agreement registered under s 86 constitute a “matrimonial cause” and can therefore only take place under the Family Law Act: see In the Marriage of Burgoyne (1978) 4 Fam LR 204; FLC 90–467. See, however, In the Marriage of Oliver (1978) 4 Fam LR 238; FLC 90–482; In the Marriage of Hutchinson (1978) 4 Fam LR 446; FLC 90–492, where this question was argued extensively in respect of the enforcement of agreements approved pursuant to s 87. It may be that when the reasoning in the cases on s 87 agreements is applied in respect of s 86 agreements, the absence of a court order associated with the registration of an agreement under s 86 would have the effect that there is no matrimonial cause involved within the meaning of s 4(1) and that it would be open to the Supreme Court to hear such proceedings as an alternative to enforcement under the Family Law Act. This view, however, is probably incorrect because of insertion in s 4(1) of the Act of paras (ea)(iv), and (ea)(v). Paragraph (ea)(v) of s 4(1), describes “proceedings — with respect to the enforcement under this Act of a maintenance agreement —”. Proceedings in a state court for enforcement of a maintenance agreement registered under s 86 could not be described as proceedings under the Family Law Act.

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[s 89]

Overseas maintenance agreements

89 The regulations may make provision for and in relation to: (a) the application of sections 86 and 87, with such additions, exceptions and modifications as are prescribed, to overseas maintenance agreements; and [page 852] (b) the transmission to appropriate courts or authorities of prescribed overseas jurisdictions of, or of copies of, maintenance agreements and of agreements for maintenance of ex-nuptial children for the purpose of securing the enforcement of those agreements in those jurisdictions. [s 89 am Act 72 of 1984 s 3 and Sch] COMMENTARY ON SECTION 89 Introductory comment …. Provisions of an overseas maintenance agreement …. Prescribed overseas jurisdictions …. Registration of overseas maintenance agreement …. Cancellation of registration of overseas maintenance agreement …. Transmission of Australian maintenance agreement overseas …. Effect of registration of overseas maintenance agreement …. Non-prescribed overseas jurisdiction ….

[s 89.1] [s 89.2] [s 89.3] [s 89.4] [s 89.5] [s 89.6] [s 89.7] [s 89.8]

Enforcement of overseas maintenance agreements in courts other than the Family Court ….

[s 89.9]

[s 89.1] Introductory comment An “overseas maintenance agreement” is defined in s 4(1) of the Act. [s 89.2] Provisions of an overseas maintenance agreement An overseas maintenance agreement must meet the general requirements of a maintenance agreement as defined in s 4(1) of the Act; that is to say an agreement in writing, between parties to a marriage which makes provision with respect to financial matters. An overseas maintenance agreement may also contain provisions in relation to an ex-nuptial child. [s 89.3] Prescribed overseas jurisdictions An overseas maintenance agreement must be an agreement which has force and effect in a prescribed overseas jurisdiction by reason of the registration of that agreement in that jurisdiction or the taking of any other action in relation to the agreement under the law of that jurisdiction. Prior to its amendments by SR No 164 of 1988, reg 14 declared Papua New Guinea to be a prescribed overseas jurisdiction for the purposes of s 89. Regulation 14 now relates only to ss 60D and 70M and 70N. [s 89.4] Registration of overseas maintenance agreement See reg 33. [s 89.5] Cancellation of registration of overseas maintenance agreement See reg 44. [s 89.6] Transmission of Australian maintenance agreement overseas See reg 35. [s 89.7] Effect of registration of overseas maintenance agreement Upon registration pursuant to reg 33, the overseas maintenance agreement is enforceable in Australia as if it were a maintenance agreement that had been entered into in Australia and registered under s 86 of the Family Law Act. The agreement, however, can only operate as an agreement registered under s

86. It cannot exclude the rights of a party to apply under s 74 or s 79 of the Act: see reg 33(4). [s 89.8] Non-prescribed overseas jurisdiction Section 89 does not apply to agreements governed by the law of non-prescribed overseas jurisdictions: it is limited to “overseas maintenance agreements” as defined in s 4(1). [s 89.9] Enforcement of overseas maintenance agreements in courts other than the Family Court Maintenance agreements which may not be registered under s 86 or enforced under s 89 may be enforced at common law so long as the obligation being enforced thereunder is not variable: see McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90–655.

____________________ [page 853]

[s 89A] Institution of spousal maintenance proceedings by authority or person 89A The regulations may make provision for and in relation to the authorizing of a prescribed authority of the Commonwealth, of a State or of a Territory, or the person for the time being holding a prescribed office under a law of the Commonwealth, of a State or of a Territory, in the discretion of the authority or person, to institute and prosecute proceedings with respect to the maintenance of a party to a marriage, on behalf of that party. [s 89A insrt Act 63 of 1976 s 28; am Act 181 of 1987 ss 49, 63 and Sch] COMMENTARY ON SECTION 89A Introductory comment …. Regulation ….

[s 89A.1] [s 89A.2]

[s 89A.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1976. It enables regulations to be made authorising prescribed authorities or persons to institute and prosecute maintenance proceedings on behalf of a party to, or a child of, a marriage. [s 89A.2] Regulation See reg 15.

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[s 90]

Certain instruments not liable to duty

90 (1) [Instruments not subject to duty] The following agreements, deeds and other instruments are not subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only to or in relation to a Territory: (a) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under this Part; (b) a relevant maintenance agreement that confers a benefit upon a party to, or a child of, the marriage to which the maintenance agreement relates, to the extent that the maintenance agreement confers that benefit; (c) a deed or other instrument executed by a person for the purposes of, or in accordance with, a relevant maintenance agreement, being a deed or other instrument that confers a benefit upon a party to, or a child of, the marriage to which the maintenance agreement relates, to the extent that the deed or other instrument confers that benefit. [subs (1) am Act 181 of 1987 s 50; Act 37 of 1991 s 20 and Sch]

(2) [Relevant maintenance agreements] The following

maintenance agreements are relevant maintenance agreements for the purposes of this section: (a) a registered maintenance agreement made in connection with the termination of the marriage to which the maintenance agreement relates by divorce or the annulment of the marriage to which the maintenance agreement relates; (b) a registered maintenance agreement (other than a maintenance agreement referred to in paragraph (a)) made in contemplation of the termination of the marriage to which the maintenance agreement relates by divorce or the annulment of the marriage to which the maintenance agreement relates; [page 854] (c) a registered maintenance agreement (other than a maintenance agreement referred to in paragraph (a) or (b)) made in connection with the breakdown of the marriage to which the maintenance agreement relates; (d) an approved maintenance agreement made in connection with the termination of the marriage to which the maintenance agreement relates by divorce or the annulment of the marriage to which the maintenance agreement relates; (e) an approved maintenance agreement (other than a maintenance agreement referred to in paragraph (d)) made in contemplation of the termination of the marriage to which the maintenance agreement relates by

divorce or the annulment of the marriage to which the maintenance agreement relates; (f) an approved maintenance agreement (other than a maintenance agreement referred to in paragraph (d) or (e)) made in connection with the breakdown of the marriage to which the maintenance agreement relates. [subs (2) am Act 98 of 2005 s 2 and Sch 1, cl 86–89, opn 3 Aug 2005]

(3) [Instrument taken to confer a benefit] For the purposes of this section, a maintenance agreement, deed or other instrument that confers an entitlement to property on a person may be taken to confer a benefit upon the person notwithstanding that the maintenance agreement, deed or other instrument also deprives the person of an entitlement to other property of an equal or greater value. (4) [Interpretation] In this section: (a) approved maintenance agreement means a maintenance agreement approved by a court by order under section 87; (b) registered maintenance agreement means a maintenance agreement registered in a court under section 86 or a maintenance agreement that is registered in a court under regulations made pursuant to section 89; and (c) a reference to the marriage to which a maintenance agreement relates is a reference to the marriage the parties to which are parties to the maintenance agreement. [s 90 subst Act 72 of 1983 s 46] COMMENTARY ON SECTION 90

Introductory comment …. Classes of documents not liable to duty …. Parenting Plans ….

[s 90.1] [s 90.2] [s 90.3]

[s 90.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1983. The previous s 90 was held by a majority decision of the Full High Court in Gazzo v Comptroller of Stamps (Vic); Ex parte Attorney-General for Victoria (1981) 38 ALR 25; 7 Fam LR 675; FLC 91–101 not to be a valid law of the Commonwealth. The previous s 90 was held not to be a valid law because it attempted to apply to any duty or charge under any law of a state. The decision effectively ended the Commonwealth Government’s ability to exempt from state stamp duty provisions the transfers and instruments executed by a person in accordance with a maintenance agreement, or under Pt VIII of the Act. The decision did not, however, deny the validity of s 90 in so far as it exempted instruments from a duty or charge under a law of a territory of the Commonwealth. As a result of the decision, the various state legislatures enacted legislation dealing with stamp duties applicable to instruments executed pursuant to agreements or orders under Pt VIII of the Act. [page 855] The new s 90 endeavours to limit the classifications of agreements in respect of which relief of stamp duty is granted. It endeavours to overcome the decision of the High Court that s 90 was in part not a valid law of the Commonwealth. The section now sets out classes of agreements in respect of which exemption from stamp duty is granted and is an endeavour to bring s 90 into the sphere of a valid enactment of the Commonwealth, delimiting its operations so as to bring it within Commonwealth power: Constitution, s 51(xxi). [s 90.2] Classes of documents not liable to duty Section 90 exempts from

state, territory or Commonwealth duty or charges the following deed or instruments: (a) a maintenance agreement registered under s 86 or approved under s 87 made in connection with the dissolution or annulment of the marriage to which the agreement relates; (b) a maintenance agreement registered under s 86 or approved under s 87 made in contemplation of the dissolution or annulment of the marriage to which the maintenance agreement relates; (c) a maintenance agreement registered under s 86 or approved under s 87 made in connection with the breakdown of the marriage to which the maintenance agreement relates; (d) a deed or other instrument executed pursuant to an order under Pt VIII; (e) a deed or instrument executed by a person for the purposes of maintenance agreement under s 86 or s 87; (f) a deed or instrument executed pursuant to an order under Pt VII. Section 90 therefore is an attempt to exempt from duty all classes of documents executed by a person under the Family Law Act 1975 dealing in whole or in part with financial matters. For illustration of a broad application of the section, see Commissioner for Taxes v Liveris (1990) 14 Fam LR 336; FLC 92–174. In this case an agreement by the husband and wife for future transfer of property to a unit trust in which they and their adult children were unit holders was held to constitute a maintenance agreement within the meaning of the section. [s 90.3] Parenting Plans Certain instruments, including a child agreement, are specifically exempted from the payment of any duty under state or Commonwealth law: s 70Q(1). The section should be referred to for the criteria which must be satisfied before exemption from duty will apply.

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[page 857]

PART VIIIAA — ORDERS AND INJUNCTIONS BINDING THIRD PARTIES [Pt VIIIAA insrt Act 138 of 2003 s 3 and Sch 6, opn 17 Dec 2004]

DIVISION 1 — PRELIMINARY

Subdivision A — Scope of this Part [s 90AA]

Object of this Part

90AA The object of this Part is to allow the court, in relation to the property of a party to a marriage, to: (a) make an order under section 79 or 114; or (b) grant an injunction under section 114; that is directed to, or alters the rights, liabilities or property interests of a third party. COMMENTARY ON SECTION 90AA Introductory comment ….

[s 90AA.5]

[s 90AA.5] Introductory comment The law in respect of third parties was formerly governed by the decision of the High Court in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91– 000. The court had power to bind third parties in a limited sense and ancillary to their power to bind parties to the marriage, but subject to the comments of his Honour Justice Gibbs, at 354: The general words of ss 80 and 114 must be understood in the context of

the Act, which confers jurisdiction on the Family Court in matrimonial causes and Associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do. If the sections had been intended to prejudice the interests of third parties in this way, it would have been necessary to consider their constitutional validity. The provisions of Part VIIIAA broaden considerably the court’s power to bind strangers to a marriage whether by way of property order or property injunction, interim or final order. The amendments to the Family Law Act which took effect on 17 December 2004 provide that the court may now make orders which affect or alter the rights of third parties in assets and/or liabilities. The new provisions do not apply to matters in which there is in existence a final order pursuant to s 79, a s 87 agreement or a binding financial agreement, unless such order or agreement is subsequently set aside. Constitutional Validity The Commonwealth’s law making power is in respect of “matrimonial causes” and matters incidental to matrimonial causes. It is clear that not all orders which affect

[page 858] third party rights will be constitutionally invalid. See In the Marriage of Gould (1993) 17 Fam LR 156; FLC 92–434. The question for the court will be to what extent do the new powers broaden the scope such that its acts can no longer be characterised as truly incidental to a matrimonial cause.

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[s 90AB]

Definitions

90AB In this Part: marriage includes a void marriage. third party, in relation to a marriage, means a person who is not a party to the marriage. COMMENTARY ON SECTION 90AB Definition of third party ….

[s 90AB.5]

[s 90AB.5] Definition of third party This is a broad definition and includes both related and unrelated parties, individuals and corporate entities.

____________________ 1

[s 90AC] deeds etc

This Part overrides other laws, trust

90AC (1) This Part has effect despite anything to the contrary in any of the following (whether made before or after the commencement of this Part): (a) any other law (whether written or unwritten) of the Commonwealth, a State or Territory; (b) anything in a trust deed or other instrument. (2) Without limiting subsection (1), nothing done in compliance with this Part by a third party in relation to a marriage is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1). COMMENTARY ON SECTION 90AC Introductory comment ….

[s 90AC.5]

[s 90AC.5] Introductory comment It was necessary to make clear that the court can make orders which override laws or legal documents that would otherwise undermine the court’s jurisdiction to bind a third party: see BP v KS (2002) 31 Fam LR 436; (2003) FLC 93–157, in which the court found that an order which required a trustee to act (pay monies) was an inappropriate predetermination of matters which were within the discretion of the trustee to determine according to the trust deed. The court is still required to take into account the terms of any legislation or legal instrument which would on their face prevent the making of an order but for this Part: see s 90AE(4)(f). Practical examples of laws or instruments which may be overridden include: family trust deeds, employment contracts which allow stock options to be held only by employees, insurance policies which are expressed to be non-transferable and memoranda of association which limit the persons who might own shares.

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[s 90ACA] annuities

This Part not to apply to certain

90ACA The powers of the court under this Part do not apply to 18 superannuation annuities (within the meaning of the Income Tax Assessment Act 1997). [s 90ACA subst Act 15 of 2007 s 3 and Sch 1[10], opn 15 Mar 2007]

[page 859]

[s 90AD] Extended meaning of matrimonial cause and property 90AD (1) For the purposes of this Part, a debt owed by a party to a marriage is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4. (2) For the purposes of paragraph 114(1)(e), property includes a debt owed by a party to a marriage. COMMENTARY ON SECTION 90AD Introductory comment ….

[s 90AD.5]

[s 90AD.5] Introductory comment This provision deems a liability of a party to the marriage to be property. It is clearly property in the hands of a third party. The effect of this may be to open the way to applications in cases were there are no or negligible assets of the marriage, but significant debt. Query: does it effect the process (four-step) of ascertaining the net property pool of the parties, determining contributions, adjusting for s 75(2) factors and standing back to ensure that the result is just and equitable?

[s 90ADA] Other provisions of this Act not affected by this Part 90ADA This Part does not affect the operation of any other provision of this Act. Example: Paragraph 90AE(3)(e) and subsection 90AE(4) do not limit the operation of any other provisions of this Act that require or permit the court to take matters into account in making an order in proceedings under section 79.

DIVISION 2 — ORDERS UNDER SECTION 79

[s 90AE] Court may make an order under section 79 binding a third party 90AE (1) In proceedings under section 79, the court may make any of the following orders: (a) an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor; (b) an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt owed to the creditor; (c) an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made; (d) an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party. (2) In proceedings under section 79, the court may make any other order that: (a) directs a third party to do a thing in relation to the property of a party to the marriage; or (b) alters the rights, liabilities or property interests of a third party in relation to the marriage. [page 860]

(3) The court may only make an order under subsection (1) or (2) if: (a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and (b) if the order concerns a debt of a party to the marriage— it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and (c) the third party has been accorded procedural fairness in relation to the making of the order; and (d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and (e) the court is satisfied that the order takes into account the matters mentioned in subsection (4). (4) The matters are as follows: (a) the taxation effect (if any) of the order on the parties to the marriage; (b) the taxation effect (if any) of the order on the third party; (c) the social security effect (if any) of the order on the parties to the marriage; (d) the third party’s administrative costs in relation to the order; (e) if the order concerns a debt of a party to the marriage — the capacity of a party to the marriage to repay the debt after the order is made; Note: See paragraph (3)(b) for requirements for making the order in these circumstances.

Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.

(f) the economic, legal or other capacity of the third party to comply with the order; Example: The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).

(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters — those matters; Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

(h) any other matter that the court considers relevant. COMMENTARY ON SECTION 90AE Validity …. Discretion …. Section 90AE(1)(a), (b) and (c): Who is a creditor? …. Substituting the parties to a loan agreement …. Section 90AE(1)(d): Transferring shares in a company …. How wide is the power? …. Effect on property interests of third parties …. Section 90AE(3) and (4): Rights of third parties …. Procedural fairness …. Just and equitable …. Matters which must be taken into account ….

[s 90AE.2] [s 90AE.5] [s 90AE.10] [s 90AE.15] [s 90AE.20] [s 90AE.25] [s 90AE.30] [s 90AE.35] [s 90AE.40] [s 90AE.45] [s 90AE.50]

[page 861] [s 90AE.2] Validity In Hunt v Hunt (2006) 36 Fam LR 64, O’Ryan J upheld the validity of s 90AE(2). He said that when the section was read in conjunction with s 90AE(3), s 79, and Pt VIIIAA generally, it was clear that it was not some arbitrary invasion of the rights of third parties but an alteration of those rights where they were sufficiently connected to the division of the property of the parties to a marriage, and that there was a sufficient connection with each of the marriage, divorce and matrimonial causes powers. After an extensive review of the provisions and the authorities, O’Ryan J concluded: [121] I am of the opinion that ss 90AE(2) and 90AF(2) are laws with respect to marriage, divorce or matrimonial causes, or at least incidental thereto, given that they are to be made in the case of s 90AE, in proceedings under s 79 for division of property orders, which orders are “central” to the marriage power and in the case of s 90AF, in proceedings under s 114, which confers power on the court to grant injunctions, but only in proceedings of the kind referred to in para (e) of the definition of “matrimonial cause” in s 4(1). This creates a sufficient connection with each of the marriage, divorce and matrimonial causes powers. [122] The scheme of Pt VIIIAA and the relevant impugned provisions is such as to ensure that the capacity of the court to make orders which affect third parties is carefully constrained and remains sufficiently connected to the marriage, divorce or matrimonial cause powers which support it. [124] I am also of the opinion that ss 90AE(2) and 90AF(2) of the Family Law Act are valid laws of the Commonwealth. [s 90AE.5] Discretion The power to make an order binding on a third party is a discretionary one (“the court may …”). Guidance on the exercise of discretion is provided by s 90AE(3) and (4) but satisfaction that each of the matters set out in those subsections has been considered cannot compel exercise of the discretion.

[s 90AE.10] Section 90AE(1)(a), (b) and (c): Who is a creditor? A party to the marriage may now seek orders in respect of a creditor of one or both parties to the marriage. If the order is made against a creditor who has been provided with notice and accorded procedural fairness, the order will be binding. The creditor may also seek orders although unless the parties have commenced proceedings (or it is likely that they will finalise their affairs by way of a financial agreement) then it is unlikely that a creditor could commence proceedings in a court exercising jurisdiction under the Family Law Act. In circumstances where one of the parties to the marriage is bankrupt the provisions of s 79(10A) provide that a creditor’s rights are subsumed by the trustee who has the right of appearance. [s 90AE.15] Substituting the parties to a loan agreement In place of an order to discharge a joint loan a party may now seek as against his/her spouse and the lender an order that the party or the spouse be solely legally responsible as between the lender and the parties. The lender may wish to be heard about the appropriateness of this arrangement from a commercial or risk perspective. The court is specifically directed to consider a number of matters including the foreseeability of the loan being discharged in full if the order sought or proposed is made. Parties who were previously wholly responsible for payment of loan (albeit a joint loan) may now seek an order as against their spouse and a third party lender, requiring the lender to apportion the loan so that each is legally responsible in respect of half of the borrowed funds (or some other specified proportion). The capacity to continue a jointly held liability in the names of both parties (albeit in different proportions) would be a continuation of the financial relationship between them following final orders and in that regard may well offend against the principles outlined in s 81 requiring a “cleanfinancial break” between husband and wife. [page 862]

[s 90AE.20] Section 90AE(1)(d): Transferring shares in a company This is the fact situation which arose in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000. The legislation is now plain. The third party (whether related, as in Ascot Investments, or unrelated) must, if served and accorded procedural fairness, abide by the an order of the court requiring transfer. [s 90AE.25] How wide is the power? The power is expressly wide. Section 90AE(2) provides that in s 79 proceedings the court has the power to order a third party to do a “thing” in relation to the property of a party to the marriage. “Thing” is not defined but it is submitted has been specifically chosen as a term in the legislation so as not to narrow the range of orders which might be sought. Certainly, the “thing” must be necessary (“appropriate and adapted”) to achieve the result in the s 79 proceedings and must be ordered only after taking into account the matters in s 90AE(3) and (4). [s 90AE.30] Effect on property interests of third parties The court is not fettered by the fact that an order may change the property rights of the third party. Section 90AE(2)(b) clearly contemplates that property rights of third parties might be altered by orders of a court exercising jurisdiction under the Family Law Act. In those circumstances it is submitted that a third party who complains that his/her/its property rights have been detrimentally affected by an order under this Part must first pursue his/her/its rights in the court in which the order was made. The right of the court under this Part to change the property rights of a third party is subject to s 90AE(3) and (4) and specifically to the requirement that any acquisition of property must be on just terms. [s 90AE.35] Section 90AE(3) and (4): Rights of third parties Reasonably necessary, appropriate and adapted By stating that the order which binds a third party must be reasonably necessary, appropriate and adapted (s 90AE(3)(a)) the legislation effectively limits the involvement of third parties. It is submitted that the court would make an order which bound the third party only if there were no other more appropriate order reasonably

available. The use of the term “reasonably” suggests that the order to bind the third party need not be the only remedy available. Repayment of debts in full The Part provides that a borrower may be substituted for the existing borrower or joint borrowings may be transferred to a single borrower. This raises questions for the lender about the appropriateness of the lending arrangement having regard to the capacity of the substituted borrower or single borrower to make payments as and when they fall due and to discharge the loan in full during its existing term. The lender is free to raise any concerns in that regard (as is a party). If there is a question about the capacity of the substituted borrower the court must not make the order sought. This may require third party lenders to provide details of their lending policies and risk calculations to the court. The test of “reasonable foreseeability” is one which looks at the circumstances of the party or parties at the time of the making of the order having regard to the financial information of the parties provided to the court. The provisions of s 90AE(2)(b) would permit the alteration of the term of a loan and hence the rate of periodic repayment. [s 90AE.40] Procedural fairness There is no doubt that the third party should be served with any application which seeks orders which would bind or affect the third party together with any affidavit material which would bear on the court’s determination of the issue which relates to the third party: see In the Marriage of Biltoft (1995) 19 Fam LR 82; FLC 92–614. The third party also has a right to be heard in respect of the relief sought. Orders may be made in circumstances where a third party has been given the opportunity to be heard but has not in fact been heard: see Knight & Alesi & Anor [2007] FamCA 126. [page 863] [s 90AE.45] Just and equitable The legislation requires that an order binding a third party not be made unless it is “just and equitable”. In this context it would theoretically refer not only to justice and equity as between

the husband and wife (see s 79(2)), but rather justice and equity as between the husband and wife and third party or third parties. It will be necessary to watch the case law to determine how the court will interpret “justice and equity” as between husband wife and others. [s 90AE.50] Matters which must be taken into account Section 90AE(3) (d) states that the court consider the matters set out in s 90AE(4). It is mandatory that the court, in making a determination, consider the matters set out. Tax consequences Sections 90AE(4)(a) and (b) require consideration of taxation consequences (if any) of the orders sought for the parties (including any third party). In most cases this will require expert evidence. Social security Section 90AE(4)(c) requires consideration of the impact of proposed orders on eligibility for social security. This is in addition to the consideration of eligibility in s 75(2). Costs of the third party There are two types of costs to consider: administrative costs and legal fees. The Part deals with administrative costs and requires to the court to take the same into account when making an order. This is appropriate in circumstances where s 90AJ provides that as a general rule such costs are to be borne equally by the parties. It is expected that third parties will be able to provide evidence to the court of the expected costs of compliance with an order. Capacity of third party to comply This section provides that the court must consider the economic, legal and other capacity of the third party to comply. Other capacity may include the administrative burden on a third party. Legal capacity (or lack thereof) is dealt with in s 90AC. Economic capacity must be effected by the ability of the third party under the provisions of this Part to recover costs from the parties. Matters raised by the third party Third parties are given the ability to raise any other relevant matter (s 90AE(4)(g)) in proceedings in which an order binding them is sought and the court is required to consider any such matter in making a determination.

Any other matter The court is permitted to consider any other matter. It is submitted that this would include (relevant) matters raised by one or both the parties or matters which the court raises with the parties as bearing on the determination. It is to be seen whether any other matter is to be interpreted broadly or ejusdem generis with the matters in s 90AE(3) and (4). It is has been suggested that if the section were to be interpreted as requiring that any further matters be ejusdem generis then the court may be limited to financial matters rather than broader issues of policy or conduct: see Dr T Altobelli, “The New Third Party Powers in the Family Law Act — The Big Picture”, For Love or Money: Recent Amendments in Family Law, College of Law, 04/185. See also A Dickey QC, “Alteration of Property Interests Against Third Parties”, Australian Law Journal, vol 79 no 8, 2005, p 483.

____________________ DIVISION 3 — ORDERS OR INJUNCTIONS UNDER SECTION 114

[s 90AF] Court may make an order or injunction under section 114 binding a third party 90AF (1) In proceedings under section 114, the court may: (a) make an order restraining a person from repossessing property of a party to a marriage; or [page 864] (b) grant an injunction restraining a person from commencing legal proceedings against a party to a marriage. (2) In proceedings under section 114, the court may make any other order, or grant any other injunction that: (a) directs a third party to do a thing in relation to the property of a party to the marriage; or (b) alters the rights, liabilities or property interests of a third party in relation to the marriage. (3) The court may only make an order or grant an injunction under subsection (1) or (2) if: (a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and (b) if the order or injunction concerns a debt of a party to the marriage — it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not

being paid in full; and (c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and (d) for an injunction or order under subsection 114(1) — the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and (e) for an injunction under subsection 114(3) — the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and (f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4). (4) The matters are as follows: (a) the taxation effect (if any) of the order or injunction on the parties to the marriage; (b) the taxation effect (if any) of the order or injunction on the third party; (c) the social security effect (if any) of the order or injunction on the parties to the marriage; (d) the third party’s administrative costs in relation to the order or injunction; (e) if the order or injunction concerns a debt of a party to the marriage — the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted; Note: See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances. Example: The capacity of a party to the marriage to repay the debt would be

affected by that party’s ability to repay the debt without undue hardship.

(f) the economic, legal or other capacity of the third party to comply with the order or injunction; Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

[page 865] (g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters — those matters; Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

(h) any other matter that the court considers relevant. COMMENTARY ON SECTION 90AF Validity …. Repossession of property …. Restraining proceedings in other courts …. Broader power …. Procedural fairness ….

[s 90AF.2] [s 90AF.5] [s 90AF.10] [s 90AF.15] [s 90AF.20]

[s 90AF.2] Validity In Hunt v Hunt (2006) 36 Fam LR 64, O’Ryan J upheld the validity of s 90AF(2), along with that of s 90AE(2). See the commentary to s 90AE, above.

[s 90AF.5] Repossession of property The court is empowered by s 90AF(1) (a) to make on order which would restrain a third party from taking possession of property to which it is entitled to take possession having regard to the terms of an agreement with a party or the parties to a marriage or at law. This would include landlords. Query: does it include persons and entities who have security over properties? The use of the expression “repossessing” in the legislation suggests that the third party has at one time had possession of the property and therefore it appears as though mortgagees are not covered by subs (1)(a) although they are clearly persons who might be otherwise bound by an order of the court perhaps requiring them not to exercise their right of “possession” in respect of the security. [s 90AF.10] Restraining proceedings in other courts This section gives the court explicit power to restrain a party from commencing proceedings in another court in respect of the property of the parties to a marriage or either of them. The Full Court considered the scope of the power in Christie & Christie & Ors (2007) 37 Fam LR 181; [2007] FamCA 125 where the wife sought an anti-suit injunction preventing the husband’s brother and entities controlled by him from continuing proceedings in a state court. The Court concluded that the scope of the power was wide and appropriately invoked for the protection of serious issues to be tried in the Family Court. No distinction is to be made between “commencing” proceedings and “continuing” proceedings. [s 90AF.15] Broader power Section 90AF(2) provides a wide power to the court to grant injunctions which bind third parties subject to the considerations set out in subss (3) and (4). The considerations in respect of the making of injunctions are similar to those set out at s 90AE(3) and (4). [s 90AF.20] Procedural fairness The court is not permitted to make an order under subs (1) or (2) of s 90AF unless the third party who is to be bound has been accorded procedural fairness: s 90AF(3)(c). On one view it is submitted that the requirement to accord procedural fairness to the third party would preclude the making of an ex parte injunction. However, there are clearly

circumstances, particularly in respect of related third parties, where it may be appropriate to grant an ex parte injunction expressed to operate only for such time as is required to serve the third party and bring the matter before the court so that the third party can be heard.

____________________ [page 866] DIVISION 4 — OTHER MATTERS

[s 90AG] trustees

Orders and injunctions binding on

90AG If an order or injunction binds a person in the capacity of trustee in relation to property, then the order or injunction is also binding (by force of this section) on any person who subsequently becomes the trustee. COMMENTARY ON SECTION 90AG Introductory comment ….

[s 90AG.5]

[s 90AG.5] Introductory comment This section prevents the appointment of a new trustee to circumvent orders of the court.

____________________

[s 90AH]

Protection for a third party

90AH A third party in relation to a marriage is not liable for loss or damage suffered by any person because of things done (or not done) by the third party in good faith in reliance on an order or injunction made or granted by a court in accordance with this Part.

COMMENTARY ON SECTION 90AH Introductory comment ….

[s 90AH.5]

[s 90AH.5] Introductory comment Section 90AH provides protection for third parties and confirms that the remedy for persons who seek to challenge the action (or inaction) of a third party in compliance with an order under this Part lies in a court exercising jurisdiction under this Act.

____________________

[s 90AI]

Service of documents on a third party

90AI (1) If a document is required or permitted to be served for the purposes of this Part on a third party in relation to a marriage, the document may be served in any of the ways in which a document may be served under the applicable Rules of Court. (2) Subsection (1) is in addition to any other method of service permitted by law.

[s 90AJ]

Expenses of third party

90AJ (1) Subsection (2) applies if: (a) the court has made an order or granted an injunction in accordance with this Part in relation to a marriage; and (b) a third party in relation to the marriage has incurred expense as a necessary result of the order or injunction. (2) The court may make such order as it considers just for the payment of the reasonable expenses of the third party incurred as a necessary result of the order or injunction. (3) In deciding whether to make an order under subsection (2), subject to what the court considers just, the court must take into

account the principle that the parties to the marriage should bear the reasonable expenses of the third party equally. [page 867] (4) The regulations may provide, in situations where the court has not made an order under subsection (2): (a) for the charging by the third party of reasonable fees to cover the reasonable expenses of the third party incurred as a necessary result of the order or injunction; and (b) if such fees are charged — that each of the parties to the marriage is separately liable to pay the third party an amount equal to half of those fees; and (c) for conferring jurisdiction on a particular court or courts in relation to the collection or recovery of such fees.

COMMENTARY ON SECTION 90AJ Introductory comment ….

[s 90AJ.5]

[s 90AJ.5] Introductory comment It is submitted that this is different from the legal costs of the third party which are governed by s 117 of the Act. Query: to what extent can the definition of the “reasonable fees cover the reasonable expenses of the third party incurred as a necessary result of the order or injunction” include their reasonable legal fees? The Regulations provide at reg 15AA for the payment of fees by third parties and provide that no court order is required to create the obligation of the parties to meet the reasonable fees of the third party. The general rule is that the costs will be borne equally. It is clear however that it is open to the court to apportion the fees contrary to the general rule.

____________________

[s 90AK]

Acquisition of property

90AK (1) The court must not make an order or grant an injunction in accordance with this Part if the order or injunction would: (a) result in the acquisition of property from a person otherwise than on just terms; and (b) be invalid because of paragraph 51(xxxi) of the Constitution. (2) In this section: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

COMMENTARY ON SECTION 90AK Introductory comment ….

[s 90AK.5]

[s 90AK.5] Introductory comment The section merely confirms rather than increases the constitutionally guaranteed right of a party to party to “just terms” on acquisition of property. The interpretation of the constitutional requirement mirrored in s 90AK will be guided by the decision of the Full Court in In the Marriage of Gould (1993) FLC 92–434 per Nicholson CJ, Fogarty and Finn JJ (a decision relating to former s 85, now s 106B); Fam LR 156. The Judgment of his Honour Justice Fogarty (with whom the other judges agreed) identified four issues, three of which are dealt with below: 1. Is the subject matter “property”? 2. Will the making of an order constitute acquisition? Not every order which deals with property will constitute an acquisition. In Australian Tape Manufacturers v Commonwealth of Australia (1993) 112 ALR 53 at 65– 66, the High Court concluded [page 868]

3.

that there is no acquisition where an obligation is imposed “as a genuine taxation, as a penalty for proscribed conduct, as a compensation for a wrong doing or damages for an injury inflicted, or as a genuine adjustment of competing rights, claims or obligations of persons in a particular relationship or area of activity”. In this context it may be that it is open to the court to find that there is no acquisition but rather that there may be consequences of the process, that it the adjustment of property as between parties to the marriage. If there was an acquisition, was it on just terms? The concept of “just terms” embodying not merely the question of monetary value but also the third parties’ right to be accorded procedural fairness (including its right to be heard).

____________________

[page 869]

PART VIIIA — FINANCIAL AGREEMENTS [Part VIIIA insrt Act 143 of 2000 s 3 and Sch 2 item 10 opn 27 Dec 2000] INTRODUCTION TO PART VIIIA [s 90A.0] The Family Law Amendment Act 2000 introduced the concept of the binding financial agreement to the Family Law Act for the first time. Although such agreements (sometimes referred to as pre-nuptial agreements or pre-marriage contracts) have been well established in civil law systems and in many jurisdictions in the United States for some time, they have been slower to make an appearance in Australian family law. Here, the tradition has been to subject all the parties’ beneficially owned property to the exercise of an overriding judicial discretion at the point of divorce. Parties have been free to make agreements governing the financial consequences of a divorce or separation, and the existence of such an agreement has been regarded as relevant to the exercise of the judicial discretion — but not determinative, or exclusive, of it. However, pressure for change to the law in Australia has been mounting since at least the publication of the report of the Joint Select Committee on The Operation and Interpretation of Certain Aspects of the Family Law Act in 1992 and similar legislation has now been enacted in New Zealand and the United Kingdom. Of course, divorcing couples have long been encouraged to agree the terms of their own divorce, but this policy has only kicked in once divorce proceedings are under way; and the possibility of judicial intervention has always remained in the background. The innovative features of Pt VIIIA are (a) that it permits parties to make agreements governing the financial consequences of divorce either before they marry or during their marriage and (b) that those agreements are effective to oust the court’s jurisdiction, subject to certain conditions: see s 71A. In many respects, these provisions

mirror those already in place for de facto couples in many Australian jurisdictions. The new Pt VIIIA effectively supersedes the existing provisions relating to maintenance agreements under ss 86 and 87 of the Act. Binding financial agreements only oust the court’s jurisdiction with respect to financial matters or resources expressly dealt with in the agreement. Other resources or matters remain to be dealt with under the Pt VIII regime, although how they will be dealt with will inevitably be affected by the existence of the agreement. There is no requirement of registration in court of an agreement: see s105(2A).

____________________

[s 90A]

Definitions

90A In this Part: dealt with includes the meaning given by subsection 90F(2). marriage includes a void marriage. COMMENTARY ON SECTION 90A Effect of agreements on jurisdiction of the court …. Effect of a valid agreement …. Do the provisions of ss 79(4), 75(2) and 79(2) apply to a financial agreement? ….

[s 90A.1] [s 90A.2] [s 90A.3]

[s 90A.1] Effect of agreements on jurisdiction of the court The effect of a valid agreement made pursuant to ss 90B, 90C or 90D is to oust the jurisdiction of a court pursuant to the Family Law Act to hear an application concerning property adjustment pursuant to s 79 or an application for spouse maintenance unless the provisions of s 90F(1A) apply. [page 870]

[s 90A.2] Effect of a valid agreement A valid agreement pursuant to ss 90B, 90C or 90D is determinative of a parties’ rights on marriage breakdown. It may be enforced in a court having jurisdiction under the Family Law Act in the same manner as if it were an order of that court. It may be relied upon by a party to obtain relief from stamp duty which might otherwise be payable on dutiable transactions the subject of the agreement. Each state has its own law concerning the payment of state duty and exemptions for separated couples. It may be relied upon by a party to obtain Capital Gains Tax (CGT) rollover relief in respect of a CGT event the subject of the agreement. [s 90A.3] Do the provisions of ss 79(4), 75(2) and 79(2) apply to a financial agreement? A financial agreement is not required to comply with the contribution based analysis set out in section 79(4) nor is it required to make adjustments for the matters referred to in s 75(2). A financial agreement is a form of private ordering, that is the agreement of the parties is not subject to the scrutiny of a court. The fact that a financial agreement may not result in the parties achieving the same result as would have occurred had ss 79(4) and 75(2) applied cannot be considered as a basis upon which the agreement should be set aside: Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109.

____________________

[s 90B]

Financial agreements before marriage

90B (1) If: (a) people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and

(b) the agreement is expressed to be made under this section; the agreement is a financial agreement. The people may make the financial agreement with one or more other people. [subs (1) am Act 115 of 2008 s 3 and Sch 3[3]–[4], opn 21 Nov 2008]

(2) The matters referred to in paragraph (1)(a) are the following: (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and before divorce, is to be dealt with; (b) the maintenance of either of the spouse parties: (i) during the marriage; or (ii) after divorce; or (iii) both during the marriage and after divorce. [subs (2) am Act 98 of 2005 s 2 and Sch 1, cl 90–92, opn 3 Aug 2005; Act 115 of 2008 s 3 and Sch 3[5], opn 21 Nov 2008]

(3) A financial agreement made as mentioned in subsection (1) may also contain: (a) matters incidental or ancillary to those mentioned in subsection (2); and (b) other matters. [subs (3) subst Act 115 of 2008 s 3 and Sch 3[6], opn 21 Nov 2008]

(4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement. [subs (4) subst Act 115 of 2008 s 3 and Sch 3[6], opn 21 Nov 2008]

[page 871] COMMENTARY ON SECTION 90B Financial agreements before marriage ….

[s 90B.1]

[s 90B.1] Financial agreements before marriage This section permits parties contemplating marriage to enter binding financial agreements relating to the manner in which property acquired before or during the marriage, but not after its dissolution, will be dealt with on the breakdown of the marriage, or with respect to the maintenance of the parties. Such an agreement is a ‘financial agreement’ for the purposes of Part VIIIA. Binding financial agreements will oust the ordinary property jurisdiction: see s 71A, providing that Part VIII does not apply to financial matters to which a binding financial agreement applies. The “agreement is expressed to be made under this section” This indicates that parties cannot inadvertently create binding financial agreements, but must express a conscious intention to do so. Relevant property and financial resources The agreement may either cover only the parties’ property in existence at the date of the agreement, or may include any property that they will acquire during the marriage but before its dissolution. Property acquired post-dissolution cannot be made the subject of a financial agreement under this or any other of the relevant sections. If such property is of significant dimensions, it could be the subject of an application under Pt VIII of the Act, which is not confined to property acquired before or during the marriage. Pre-existing agreements Parties may only make a binding agreement if there is no existing agreement between them under Pt VIIIA: s 90B(1)(aa). However, it is open to parties to make an agreement that simultaneously revokes an earlier agreement and creates a new one: s 90B(4). The objective is to ensure that parties only ever have one agreement between them in force at any one time, rather than a series of amending agreements.

____________________

[s 90C]

Financial agreements during marriage

90C (1) If: (a) the parties to a marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, the parties to the marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90D) with respect to any of those matters; and (b) the agreement is expressed to be made under this section; the agreement is a financial agreement. The parties to the marriage may make the financial agreement with one or more other people. [subs (1) am Act 115 of 2008 s 3 and Sch 3[7]–[8], opn 21 Nov 2008]

(2) The matters referred to in paragraph (1)(a) are the following: (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with; (b) the maintenance of either of the spouse parties: (i) during the marriage; or (ii) after divorce; or (iii) both during the marriage and after divorce.

[subs (2) am Act 98 of 2005 s 2 and Sch 1, cl 93–94, opn 3 Aug 2005; Act 115 of 2008 s 3 and Sch 3[9], opn 21 Nov 2008]

[page 872] (2A) For the avoidance of doubt, a financial agreement under this section may be made before or after the marriage has broken down. [subs (2A) insrt Act 138 of 2003 s 3 and Sch 5 item 1A opn 27 Dec 2000]

(3) A financial agreement made as mentioned in subsection (1) may also contain: (a) matters incidental or ancillary to those mentioned in subsection (2); and (b) other matters. [subs (3) subst Act 115 of 2008 s 3 and Sch 3[10], opn 21 Nov 2008]

(4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement. [subs (4) subst Act 115 of 2008 s 3 and Sch 3[11], opn 21 Nov 2008] COMMENTARY ON SECTION 90C Financial agreements during marriage ….

[s 90C.1]

[s 90C.1] Financial agreements during marriage This section permits parties to a marriage to enter binding financial agreements relating to the manner in which property acquired before or during the marriage, but not after its dissolution, will be dealt with on the breakdown of the marriage, or with respect to the maintenance of the parties. Such an agreement is a “financial agreement” for the purposes of Pt VIIIA. Binding financial

agreements will oust the ordinary property jurisdiction: see s 71A, providing that Part VIII does not apply to financial matters to which a binding financial agreement applies. The “agreement is expressed to be made under this section” This indicates that parties cannot inadvertently create binding financial agreements, but must express a conscious intention to do so. Relevant property and financial resources The agreement may either cover only the parties’ property in existence at the date of the agreement, or may include any property that they will acquire during the marriage but before its dissolution. Property acquired post-dissolution cannot be made the subject of a financial agreement under this or any other of the relevant sections. If such property is of significant dimensions, it could be the subject of an application under Pt VIII of the Act, which is not confined to property acquired before or during the marriage. Pre-existing agreements Parties may only make a binding agreement if there is no existing agreement between them under Pt VIIIA: s 90C(1)(aa). However, it is open to parties to make an agreement that simultaneously revokes an earlier agreement and creates a new one: s 90C(4). The objective is to ensure that parties only ever have one agreement between them in force at any one time, rather than a series of amending agreements.

____________________

[s 90D] is made

Financial agreements after divorce order

90D (1) If: (a) after a divorce order is made in relation to a marriage (whether it has taken effect or not), the parties to the former marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and (aa) at the time of the making of the agreement, the parties to

the former marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90C) with respect to any of those matters; and (b) the agreement is expressed to be made under this section; [page 873] the agreement is a financial agreement. The parties to the former marriage may make the financial agreement with one or more other people. [subs (1) am Act 98 of 2005 s 2 and Sch 1, cl 95, opn 3 Aug 2005; Act 115 of 2008 s 3 and Sch 3[11]–[12], opn 21 Nov 2008]

(2) The matters referred to in paragraph (1)(a) are the following: (a) how all or any of the property or financial resources that either or both of the spouse parties had or acquired during the former marriage is to be dealt with; (b) the maintenance of either of the spouse parties. [subs (2) am Act 115 of 2008 s 3 and Sch 3[13], opn 21 Nov 2008]

(3) A financial agreement made as mentioned in subsection (1) may also contain: (a) matters incidental or ancillary to those mentioned in subsection (2); and (b) other matters. [subs (3) subst Act 115 of 2008 s 3 and Sch 3[14], opn 21 Nov 2008]

(4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial

agreement (however made) if all of the parties to the previous agreement are parties to the new agreement. [subs (4) subst Act 115 of 2008 s 3 and Sch 3[14], opn 21 Nov 2008] COMMENTARY ON SECTION 90D Financial agreements after dissolution ….

[s 90D.1]

[s 90D.1] Financial agreements after dissolution This section permits parties to a former marriage to enter binding financial agreements relating to the manner in which property acquired before or during the marriage, but not after its dissolution, will be dealt with on the breakdown of the marriage, or with respect to the maintenance of the parties. An agreement may only be made under this section once the decree nisi has been made. Such an agreement is a “financial agreement” for the purposes of Pt VIIIA. Binding financial agreements will oust the ordinary property jurisdiction: see s 71A, providing that Part VIII does not apply to financial matters to which a binding financial agreement applies. The “agreement is expressed to be made under this section” This indicates that parties cannot inadvertently create binding financial agreements, but must express a conscious intention to do so. Relevant property and financial resources The agreement may cover the parties’ property “had or acquired” during the former marriage. Although this is potentially narrower in scope than either s 90B or s 90C, in that it seems to exclude property owned by either party before the marriage, the legislative intent is clearly to treat all three cases as identical in this respect (see the explanatory memorandum accompanying the bill, at paras 141–144). As with ss 90B and 90C, property acquired post-dissolution cannot be made the subject of a financial agreement under this section. If such property is of significant dimensions, it could be the subject of an application under Pt VIII of the Act, which is not confined to property acquired before or during the marriage. Pre-existing agreements Parties may only make a binding agreement if there

is no existing agreement between them under Pt VIIIA: s 90D(1)(aa). However, it is open to parties to make an agreement that simultaneously revokes an earlier agreement and creates a new one: s 90D(4). The objective is to ensure that parties only ever have one agreement between them in force at any one time, rather than a series of amending agreements.

____________________ [page 874]

[s 90DA] Need for separation declaration for certain provisions of financial agreement to take effect 90DA (1) A financial agreement that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties: (a) at the time when the agreement is made; or (b) at a later time and before the termination of the marriage by divorce; are to be dealt with, is of no force or effect until a separation declaration is made. Note: Before the separation declaration is made, the financial agreement will be of force and effect in relation to the other matters it deals with (except for any matters covered by section 90DB). [subs (1) subst Act 115 of 2008 s 3 and Sch 3[30], opn 21 Nov 2008]

(1A) Subsection (1) ceases to apply if: (a) the spouse parties divorce; or

(b) either or both of them die. Note: This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the divorce or death(s). [subs (1A) insrt Act 115 of 2008 s 3 and Sch 3[30], opn 21 Nov 2008]

(2) A separation declaration is a written declaration that complies with subsections (3) and (4), and may be included in the financial agreement to which it relates. [subs (2) am Act 115 of 2008 s 3 and Sch 3[31], opn 21 Nov 2008]

(3) The declaration must be signed by at least one of the spouse parties to the financial agreement. [subs (3) am Act 115 of 2008 s 3 and Sch 3[15], opn 21 Nov 2008]

(4) The declaration must state that: (a) the spouse parties have separated and are living separately and apart at the declaration time; and (b) in the opinion of the spouse parties making the declaration, there is no reasonable likelihood of cohabitation being resumed. [subs (4) am Act 115 of 2008 s 3 and Sch 3[15], opn 21 Nov 2008]

(5) In this section: declaration time means the time when the declaration was signed by a spouse party to the financial agreement. [def subst Act 115 of 2008 s 3 and Sch 3[16], opn 21 Nov 2008]

separated has the same meaning as in section 48 (as affected by section 49). [s 90DA insrt Act 20 or 2005 s 3 and Sch 5, opn 15 Apr 2005] COMMENTARY ON SECTION 90DA Separation declarations ….

[s 90DA.0]

[s 90DA.0] Separation declarations This provision became law on 15 April 2005. It applies to all Financial Agreements (whether made prior to marriage, during marriage or after separation). The agreement does not become binding until it is accompanied by a separation declaration. The declaration is designed to avoid fraudulent transfer of assets between parties who have not separated. To avoid the possibility of a party who has subsequently resiled from a Financial Agreement the separation declaration is only required to be signed by one party to the relationship.

____________________ [page 875]

[s 90DB] Whether or when certain other provisions of financial agreements take effect 90DB (1) A financial agreement that is binding on the parties to the agreement, to the extent to which it provides for a third party to contribute to the maintenance of a spouse party during the marriage, is of no force or effect. (2) A financial agreement that is binding on the parties to the agreement, to the extent to which it provides for matters covered by paragraph 90B(3)(b) or 90C(3)(b), is of no force or effect unless and until the marriage breaks down. [s 90DB insrt Act 115 of 2008 s 3 and Sch 3[17], opn 21 Nov 2008]

[s 90E] Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children 90E

A provision of a financial agreement that relates to the

maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies: (a) the party, or the child or children, for whose maintenance provision is made; and (b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be. [s 90E am Act 115 of 2008 s 3 and Sch 3[18], opn 21 Nov 2008]

[s 90F]

Certain provisions in agreements

90F (1) No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) applies. [subs (1) subst Act 138 of 2003 s 3 and Sch 5 item 1 opn 27 Dec 2000]

(1A) This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit. [subs (1A) insrt Act 138 of 2003 s 3 and Sch 5 item 1 opn 27 Dec 2000]

(2) To avoid doubt, a provision in an agreement made as mentioned in subsection 90B(1), 90C(1) or 90D(1) that provides for property or financial resources owned by a spouse party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with. [subs (2) am Act 115 of 2008 s 3 and Sch 3[19], opn 21 Nov 2008; Act 115 of 2008 s 3 and Sch 3[45], opn 21 Nov 2008]

COMMENTARY ON SECTION 90F Power of court to order maintenance despite existence of financial agreement after dissolution ….

[s 90F.1]

[s 90F.1] Power of court to order maintenance despite existence of financial agreement after dissolution This section permits a court to order maintenance of a party to a marriage, irrespective of the terms of an agreement, where the agreement is such as to leave the party [page 876] dependent on a state pension, allowance or benefit. As originally enacted the section allowed for a financial agreement to oust the jurisdiction to make orders for spouse maintenance provided the agreement was entered into prior to the pronouncement of a decree absolute. The new provisions are to operate retrospectively.

____________________

[s 90G]

When financial agreements are binding

90G (1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if: (a) the agreement is signed by all parties; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal

practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the agreement has not been terminated and has not been set aside by a court. Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995. [subs (1) am Act 138 of 2003 s 3 and Sch 5 item 2 opn 14 Jan 2004; Act 115 of 2008 s 3 and Sch 3[20]–[22], opn 21 Nov 2008; Act 122 of 2009 s 3 and Sch 5[1A,2,3,4], opn 4 Jan 2010]

(1A) A financial agreement is binding on the parties to the agreement if: (a) the agreement is signed by all parties; and (b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and (d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and (e) the agreement has not been terminated and has not been set aside by a court.

[subs (1A) insrt Act 122 of 2009 s 3 and Sch 5 [4B] opn 4 Jan 2010]

(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement. [subs (1B) insrt Act 122 of 2009 s 3 and Sch 5 [4A] opn 4 Jan 2010]

(1C) To avoid doubt, section 90KA applies in relation to the enforcement application. [subs (1C) insrt Act 122 of 2009 s 3 and Sch 5 [4A] opn 4 Jan 2010]

(2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary. [page 877] COMMENTARY ON SECTION 90G Requirements for an agreement to be binding ….

[s 90G.1]

[s 90G.1] Requirements for an agreement to be binding This section sets out the requirements that must be met for a financial agreement to be binding on the parties. All the requirements must be satisfied for the agreement to be binding. The stringency of these requirements is justified because the effect of a valid agreement is to oust the jurisdiction of the court: see s 71A (subject to the court’s power to set the agreement aside on specified grounds — see below). However, there is no requirement of court oversight or scrutiny of agreements. Note that the section requires: (a) independent legal advice (b) provided by a legal practitioner (c) such advice to deal with legal rights of the party and advantages and disadvantages of making the agreement

(d) such advice to be provided prior to signing; (e) a signed statement evidencing the advice has been given to be provided by the legal practitioner to the party prior to or after signing (it need not be annexed to the agreement but must be provided to the other spouse or his/her legal representative). The rules governing proving the contents of a written agreement are set out in s 48 of the Evidence Act 1995 (Cth). Non-complying agreements The section was amended effective 4 January 2010 to ensure a less technical approach but the section still provides that the agreement will be binding if and only if certain requirements are met but such an approach is substantially modified by the provisions of s 90G(1A) which allows that even if one of the requirements in s 90G(1) is not met the court may nonetheless make a declaration under subsection (1B) that the agreement is binding. The circumstances in which such a declaration will be made include where it would be “unjust and inequitable if the agreement were not binding.” In considering whether a failure to make a declaration that the agreement is binding would be “unjust and inequitable” the court is to disregard changes in circumstances from the time of the making of the agreement. The only remaining mandatory requirements are that the agreement be in writing and signed by the parties. It is suggested that strict compliance with the following will still be required: each party must have had legal advice before signing of the agreement, advice must have been independent. An example of a technical requirement that the court may dispense with, in its discretion under subs (1B), could be where the spouse does not receive a signed statement that advice has been provided to the other party (but the advice has in fact been provided). The legislative amendments function retrospectively: see Wallace v Stelzer (2013) 283 FLR 126; 51 Fam LR 115; [2013] FamCAFC 199; BC201352522. However, agreements which complied with the legislation as it was enacted until 14 January 2004 continue to be binding. If orders have been made pursuant to s 79 or s 83 (because a financial agreement between the parties was taken not to be valid) those orders are binding and the legislative change does not “revive” the financial agreement.

Section 90G(1A) not limited to “technical” matters A “narrow interpretation” would not “promote the objectives” of the 2009 amending Act: Parker v Parker (2012) 260 FLR 284; (2012) FLC ¶93-499; [2012] FamCAFC 33; BC201250109 at [20]. While the expression “technicalities” was referred to in the second reading speech in 2009 it is not found in the words of the Act themselves. Unless the intent and interpretation of the statute requires secondary materials, its meaning should be taken from the plain words of the section. Who bears the onus? The party seeking the protection of the agreement carries the burden of establishing that it is binding (“the party who asserts must prove”). [page 878] If it is asserted that the agreement ought not be binding because the applicant did not receive the requisite legal advice then the court is entitled to accept the signed certificate as prima facie evidence that the advice has been provided. It is then incumbent upon the applicant to demonstrate through evidence that the assumption is inaccurate: see Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109. What does “unjust and inequitable” mean? The expression “unjust and inequitable” should not be conflated with the expression “just and equitable” as it appears in s 79(2). A consideration of the property adjustment which would have occurred but for the agreement has no place in the analysis of whether the parties should be held to their bargain: see Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109. How wide is the discretion? The relevant facts and circumstances which might be considered by the court on application to set aside would be those surrounding the making and performance of the agreement: see Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109 per Strickland and Ainslie-Wallace JJ.

What is the significance of claims of inadequate legal advice? The provision by a qualified Australian legal practitioner of a certificate of legal advice is prima facie evidence that the advice was given and may be relied upon by the party seeking to enforce the agreement: see Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109. The party seeking to impugn the legal advice may not maintain their legal professional privilege if the argument they make is inconsistent with the maintenance of the privilege: see Bilal v Omar [2015] FamCAFC 30. The issue is not the content of the advice but whether it was given: see Hoult v Hoult (2013) 276 FLR 412; 50 Fam LR 260; [2013] FamCAFC 109. The issue is similarly not whether the advice was understood but whether it was given: see Bilal v Omar [2015] FamCAFC 30.

____________________

[s 90H] Effect of death of party to financial agreement 90H A financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party.

[s 90J]

Termination of financial agreement

90J (1) The parties to a financial agreement may terminate the agreement only by: (a) including a provision to that effect in another financial agreement as mentioned in subsection 90B(4), 90C(4) or 90D(4); or (b) making a written agreement (a termination agreement) to that effect. (2) Subject to subsection (2A), a termination agreement is

binding on the parties if, and only if: (a) the agreement is signed by all parties to the agreement; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and [page 879] (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the agreement has not been set aside by a court. [subs (2) am Act 138 of 2003 s 3 and Sch 5 item 3 opn 14 Jan 2004; Act 115 of 2008 s 3 and Sch 3[23]–[25], opn 21 Nov 2008; Act 122 of 2009 s 3 and Sch 5 [5,6,7] opn 4 Jan 2010]

(2A) A termination agreement is binding on the parties if: (a) the agreement is signed by all parties to the agreement; and (b) one or more of paragraphs (2)(b), (c) and (ca) are not

satisfied in relation to the agreement; and (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and (d) the court makes an order under subsection (2B) declaring that the agreement is binding on the parties to the agreement; and (e) the agreement has not been set aside by a court. [subs (2A) insrt Act 122 of 2009 s 3 and Sch 5 [7A] opn 4 Jan 2010]

(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement. [subs (2B) insrt Act 122 of 2009 s 3 and Sch 5 [7A] opn 4 Jan 2010]

(2C) To avoid doubt, section 90KA applies in relation to the enforcement application. [subs (2C) insrt Act 122 of 2009 s 3 and Sch 5 [7A] opn 4 Jan 2010]

(3) A court may, on an application by a person who was a party to the financial agreement that has been terminated, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons. Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995. COMMENTARY ON SECTION 90J

Termination of a financial agreement ….

[s 90J.1]

[s 90J.1] Termination of a financial agreement The requirements for a valid termination of an agreement parallel those for the creation of a valid agreement. All the requirements must be satisfied for the termination agreement to be valid. Note that the section requires: (a) independent legal advice (b) provided by a legal practitioner (c) such advice to deal with legal rights of the party and advantages and disadvantages of making the agreement (d) such advice to be provided prior to signing; (e) a signed statement evidencing the advice has been given to be provided by the legal practitioner to the party prior to or after signing (it need not be annexed to the agreement but must be provided to the other spouse or his/her legal representative). The rules governing proving the contents of a written agreement are set out in s 48 of the Evidence Act 1995 (Cth). [page 880] Non-complying Termination Agreements The section was amended effective 4 January 2010 to ensure a less technical approach but the section still provides that the agreement will be binding “if and only if” certain requirements are met and one would expect that the Court will, following the decision in Black and Black (2008) 38 Fam LR 503; (2008) FLC ¶93-357; [2008] FamCAFC 7; BC200850079, take a strict approach to the satisfaction of the requirements set out in the legislation, save that such an approach is substantially modified by the provisions of s 90J(2A) which allows that even if one of the requirements in s 90J(2) is not met the court may nonetheless make a declaration under subsection (2B) that the termination agreement is binding. The circumstances in which such a declaration will be made include where it would be “unjust and inequitable” if the termination agreement were

not binding. In considering whether a failure to make a declaration that the termination agreement is binding would be “unjust and inequitable” the court is to disregard changes in circumstances from the time of the making of the termination agreement. The section includes a power vested in the court to make such order or orders as it “considers just and equitable” for the purposes of preserving or adjusting the rights of anyone who was either a party to the agreement or otherwise “an interested person”. This provision parallels that contained in s 87(9), which gives the court a similar power to make orders when it revokes an s 87 maintenance order. Enforcement of Agreements where there is a Termination Agreement in place In proceedings to enforce a Financial Agreement, where the parties have subsequently entered into an agreement purporting to terminate the Financial Agreement the court may make a declaration that the Termination Agreement is binding. The provisions of s 90KA explicitly apply to the enforcement application.

____________________

[s 90K] Circumstances in which court may set aside a financial agreement or termination agreement 90K (1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that: (a) the agreement was obtained by fraud (including nondisclosure of a material matter); or (aa) a party to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

(ii) with reckless disregard of the interests of a creditor or creditors of the party; or (ab) a party (the agreement party) to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or (iii) with reckless disregard of those interests of that other person; or (b) the agreement is void, voidable or unenforceable; or (c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or [page 881] (d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child

(as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or (e) in respect of the making of a financial agreement — a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or (f) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or (g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB. [subs (1) am Act 61 of 2001 s 3 and Sch 1 item 3 opn 28 Dec 2002; Act 138 of 2003 s 3 and Sch 4A item 3 opn 17 Dec 2003; Act 115 of 2008 s 3 and Sch 3[26], opn 21 Nov 2008; Act 115 of 2008 s 3 and Sch 1[49], opn 1 Mar 2009]

(1A) For the purposes of paragraph (1)(aa), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party. [subs (1A) insrt Act 138 of 2003 s 3 and Sch 4A item 4 opn 17 Dec 2003]

(2) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if: (a) the person is a parent of the child with whom the child lives; or (b) a parenting order provides that: (i) the child is to live with the person; or

(ii) the person has parental responsibility for the child. (c) [repealed] [subs (2) am Act 46 of 2006 s 3 and Sch 8 item 93, opn 1 July 2006]

(3) A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons. [subs (3) insrt Act 138 of 2003 s 3 and Sch 4A item 5 opn 17 Dec 2003]

(4) An order under subsection (1) or (3) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. [subs (4) insrt Act 138 of 2003 s 3 and Sch 4A item 5 opn 17 Dec 2003]

(5) If a party to proceedings under this section dies before the proceedings are completed: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and [page 882] (b) if the court is of the opinion:

that it would have exercised its powers under this (i) section if the deceased party had not died; and (ii) that it is still appropriate to exercise those powers; the court may make any order that it could have made under subsection (1) or (3); and (c) an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. [subs (5) insrt Act 138 of 2003 s 3 and Sch 4A item 5 opn 17 Dec 2003]

(6) The court must not make an order under this section if the order would: (a) result in the acquisition of property from a person otherwise than on just terms; and (b) be invalid because of paragraph 51(xxxi) of the Constitution. For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution. [subs (6) insrt Act 138 of 2003 s 3 and Sch 4A item 5 opn 17 Dec 2003] COMMENTARY ON SECTION 90K Setting agreements aside ….

[s 90K.1]

[s 90K.1] Setting agreements aside This is an important section and perhaps the one most likely to receive judicial attention. It is closer in structure to s 87(8) (setting aside maintenance agreements) than to s 79A (setting aside s 79 orders), although there are echoes of both in the drafting. Intent to defeat etc creditors, or reckless disregard: para subss (1)(aa), and (1A) These provisions were inserted following the decision of O’Ryan J that the court had no jurisdiction, on an application by a third party (ASIC), to set aside an agreement that involved the transfer from a husband to a wife

of large sums, in circumstances where the marriage had not broken down and there was an arguable case that the purpose of the agreement was to defeat claims by creditors of the husband. The provision allows the court to set aside a financial agreement or a termination agreement where it is satisfied (to summarise) that either party entered it in order to defeat creditors, or with reckless disregard of the interests of creditors. By subs (1A), “creditor” includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor. Even though subs (1A) is expressed in a way that does not limit the term “creditor” it seems likely that the court would read the provision as inapplicable to a situation in which an agreement is made in order to protect a party in advance against undefined future claims. See David Hodson, “How the Rich Get Richer: a Study in Legislative Response to Lawyer Initiatives” (2004) 17 Australian Family Lawyer 19–20. Fraud The case law has defined fraud as “[c]onscious wrongdoing or some form of deceit”: In the Marriage of Kokl (1981) 7 Fam LR 591; FLC 91–078. A false representation made knowingly, without belief in its truth, or recklessly, or carelessly as to whether it is true or false, will constitute fraud. Provided that the agreement was obtained by fraud (either fraudulent representation or omission) it will not be necessary to demonstrate that the fraud was the only or chief inducement. Third party proceedings If one or both the parties to a financial agreement have entered into the agreement with the intention of defrauding a creditor or creditors the agreement may be set aside. It is not necessary that one or both of the parties had as their sole or even dominant purpose the defrauding of creditors, nor is it necessary that defrauding creditors be the sole or dominant purpose of the agreement. A failure to avert to the position of creditors when entering into an agreement may also lead to it being set aside by a third party if it was entered into recklessly. [page 883]

Section 90K(3) further provides that in respect of the assets dealt with in a financial agreement which has been set aside the court may make orders including orders to adjust the interests of the parties and third parties. Such orders may explicitly include an order transferring property. Such disposition is required to be on just terms. Any final orders adjusting the property interests of spouses would be in accordance with the provisions of ss 79 and 75(2). An order made pursuant to s 90K(3) may have the effect of restoring the status quo prior to the agreement. “Void, voidable or unenforceable” The reference in para (b) to the agreement being “void, voidable or unenforceable” indicates that general common law and equitable principles of Contract Law relating to vitiating factors apply. These include misrepresentation, undue influence, mistake and duress. The separate reference to unconscionability in para (e), technically redundant because unconscionability will in any case lead to an agreement being voidable under general equitable principles, was the result of a Senate amendment. According to the Explanatory Memorandum, para (e) is not intended to suggest that unconscionability has pre-eminent importance as a ground for setting aside financial agreements, nor that it has any special meaning in this context beyond that established in general equitable jurisprudence. Another way in which the Agreement may be found to be void is if it does not comply with the formal requirements of Section 90G, see Black and Black [2008] FamCAFC 7; (2008) 38 Fam LR 503; (2008) FLC ¶93-357. Impracticality This is similar to s 87(9)(d). Material change in circumstances This is similar to s 79A(1)(d), but probably wider in that the change in question need not be “exceptional”, but “material” and such as to lead to hardship to a party to the agreement or the child. The ground of hardship to a party to the agreement can only be relied on where the applicant to have the order set aside has caring responsibility (as defined) for the child in question. The purpose of this subsection is to recognise that agreements may have been made before the birth of children, and may operate harshly in the financial aftermath of child-rearing in ways

that may not have been foreseen. This justifies a more generous approach than that taken in s 79A, where the order sought to be set aside has usually been made after taking the financial effects of children into account. Death of a party to the proceedings If a party to proceedings to set aside a financial agreement dies after proceedings have been instituted and orders made, those orders may be enforced either by or against the deceased’s legal personal representative. If a party dies after the institution of proceedings but before they are completed those proceedings may be continued by the legal personal representative for the deceased and the court can make those orders which it considers appropriate.

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[s 90KA] Validity, enforceability and effect of financial agreements and termination agreements 90KA The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court: (a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and [page 884]

(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and (c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court. COMMENTARY ON SECTION 90KA Power of the Court ….

[s 90KA.1]

[s 90KA.1] Power of the Court This section, which is similar to the existing s 87(11), states that the validity, enforceability and effect of a financial agreement shall be determined by the court in accordance with general equitable principles.

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[s 90L] Financial and other agreements etc not liable to duty 90L None of the following is subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory: (a) a financial agreement; (b) a termination agreement; (c) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order or financial agreement made under this Part.

[s 90L subst Act 138 of 2003 s 3 and Sch 5 item 4 opn 27 Dec 2000] COMMENTARY ON SECTION 90L [s 90L.1] This section was amended on 17 December 2003. The agreements themselves are not subject to duty on the instrument (agreement, deed etc). The provisions of state law deal with the question of duty payable on the transactions referred to in the instrument.

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[s 90M] etc

Notification of proceeds of crime orders

90M (1) If: (a) a person makes an application for an order, under this Part, with respect to: (i) the property of the parties to a marriage or either of them; or (ii) the maintenance of a party to a marriage; and (b) the person knows that the property of the parties to the marriage or either of them is covered by: (i) a proceeds of crime order; or (ii) a forfeiture application; the person must: (c) disclose in the application the proceeds of crime order or forfeiture application; and (d) give to the court a sealed copy of that order or application. [subs (1) am Act 67 of 2016 s 3 and Sch 1 item 28, opn 17 Nov 2016]

(2) A person who does not comply with subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units. [page 885] (3) If: (a) a person is a party to property settlement or spousal maintenance proceedings under this Part; and (b) the person is notified by the proceeds of crime authority that the property of the parties to the marriage or either of them is covered by: (i) a proceeds of crime order; or (ii) a forfeiture application; the person must: (c) notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and (d) give the Registry Manager: (i) a copy of the notification referred to in paragraph (b) (if the notification is in writing); and (ii) a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application). [subs (3) am Act 174 of 2011 s 3 and Sch 2 items 174 and 175, opn 6 June 2012]

(4) A person who does not comply with subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

[s 90M insrt Act 86 of 2002 s 3 and Sch 5 item 9 opn 1 Jan 2003]

[s 90N] Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc 90N (1) A court in which property settlement or spousal maintenance proceedings are pending must stay those proceedings if notified under section 90M in relation to the proceedings. (1A) The court may, before staying proceedings under subsection (1), invite or require the proceeds of crime authority to make submissions relating to staying the proceedings. [subs (1A) am Act 174 of 2011 s 3 and Sch 2 item 176, opn 6 June 2012]

(2) A court must, on the application of the proceeds of crime authority, stay property settlement or spousal maintenance proceedings under this Part if the property of the parties to the marriage or either of them is covered by: (a) a proceeds of crime order; or (b) a forfeiture application. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 176, opn 6 June 2012]

(3) A court must notify the proceeds of crime authority if the court stays property settlement or spousal maintenance proceedings under subsection (1) or (2). [subs (3) am Act 174 of 2011 s 3 and Sch 2 item 176, opn 6 June 2012]

(4) The proceeds of crime authority must notify the Registry Manager if: (a) a proceeds of crime order ceases to be in force; or (b) a forfeiture application is finally determined. [subs (4) am Act 174 of 2011 s 3 and Sch 2 item 176, opn 6 June 2012]

(5) For the purposes of subsection (4), a forfeiture application is taken to be finally determined when: (a) the application is withdrawn; or [page 886] (b) if the application is successful — the resulting forfeiture order comes into force; or (c) if the application is unsuccessful — the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of. [s 90N insrt Act 86 of 2002 s 3 and Sch 5 item 9 opn 1 Jan 2003]

[s 90P]

Lifting a stay

90P (1) A court that stayed the property settlement or spousal maintenance proceedings under section 90N must wholly or partially lift the stay if: (a) either party to the proceedings makes an application for the stay to be lifted and the proceeds of crime authority consents to such an application; or (b) the proceeds of crime authority makes an application for the stay to be lifted. [subs (1) am Act 174 of 2011 s 3 and Sch 2 item 177, opn 6 June 2012]

(2) A court that stayed the property settlement or spousal maintenance proceedings under section 90N may, on its own motion, wholly or partially lift the stay if the proceeds of crime authority consents to such a motion.

[subs (2) am Act 174 of 2011 s 3 and Sch 2 item 178, opn 6 June 2012]

(3) Giving the Registry Manager written notice of the proceeds of crime authority’s consent under this section is taken to be the giving of that consent, unless the court requires the authority to appear in the proceedings. The notice may be given by the authority or by a party to the proceedings. [subs (3) am Act 174 of 2011 s 3 and Sch 2 items 179 and 180, opn 6 June 2012] [s 90P insrt Act 86 of 2002 s 3 and Sch 5 item 9 opn 1 Jan 2003]

[s 90Q] Intervention by proceeds of crime authority 90Q (1) The proceeds of crime authority may intervene in any property settlement or spousal maintenance proceedings in relation to which a court is notified under section 90M, or in any proceedings under section 90N or 90P in which the authority is not already a party. [subs (1) am Act 174 of 2011 s 3 and Sch 2 items 181 and 182, opn 6 June 2012]

(2) If the proceeds of crime authority intervenes, the authority is taken to be a party to the proceedings with all the rights, duties and liabilities of a party. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 183, opn 6 June 2012] [s 90Q insrt Act 86 of 2002 s 3 and Sch 5 item 9 opn 1 Jan 2003]

[page 887]

PART VIIIAB — FINANCIAL MATTERS RELATING TO DE FACTO RELATIONSHIPS [Part VIIIAB insrt Act 115 of 2008 s 3 and Sch 1[50], opn 1 Mar 2009]

DIVISION 1 — PRELIMINARY

Subdivision A — Meaning of key terms [s 90RA]

Participating jurisdictions

90RA (1) Participating jurisdictions For the purposes of this Act, the following are the participating jurisdictions: (a) each referring State; (b) each Territory. (2) Referring States A State is a referring State if: (a) the Parliament of the State has referred, or refers, to the Parliament of the Commonwealth financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) the referral of the financial matters is made: (i) for the purposes of paragraph 51(xxxvii) of the Constitution; and (ii) to the extent that the financial matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than

by a reference under paragraph 51(xxxvii) of the Constitution). This subsection has effect subject to subsection (5). (3) To avoid doubt, a State is not a referring State if its Parliament has referred, or refers, to the Parliament of the Commonwealth only a limited class of the matters referred to in paragraph (2)(a). (4) A State is a referring State even if a law of the State provides that a reference to the Commonwealth Parliament described in subsection (2) is to terminate in particular circumstances. (5) A State ceases to be a referring State if the State’s reference to the Commonwealth Parliament described in subsection (2) terminates. COMMENTARY ON SECTION 90RA [s 90RA.1] The states who have referred powers are New South Wales, Queensland, Tasmania and Victoria. The Commonwealth did not require a referral from the territories (s 122 of the Constitution) and they are participating jurisdictions. South Australia and Western Australia have not referred jurisdiction. Western Australia has legislation which may allow a partial referral in respect of the superannuation interests of de facto couples. A state may withdraw its referral from the Commonwealth at any time.

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[s 90RB] Meaning of child of a de facto relationship 90RB

For the purposes of this Part, a child is a child of a de

facto relationship if the child is the child of both of the parties to the de facto relationship. Note: To determine who is a child of a person see Subdivision D of Division 1 of Part VII.

[page 888] COMMENTARY ON SECTION 90RB [s 90RB.1]

Section 90RB is to be read with s 60HA of the Act.

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Subdivision B — Relationship with State and Territory laws [s 90RC] laws

Relationship with State and Territory

90RC (1) De facto financial provisions In this section: de facto financial provisions means the following provisions: (a) this Part; (b) Part VIIIAA (as applied by section 90TA); (c) Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship; (d) subsection 114(2A). (2) State and Territory laws do not apply to financial matters Parliament intends that the de facto financial provisions

are to apply to the exclusion of any law of a State or Territory to the extent that the law: (a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships). Note 1: If, for example, both this Part and a law of a non-referring State deal with the distribution of property between the parties to a de facto relationship that has broken down after the commencement of this section, then the parties can only seek to distribute the property under this Part. Subsection (2) has the effect of preventing the parties from seeking to distribute the property under the State law. Note 2: For de facto relationship, see section 4AA.

(3) Exception — insufficient link to a participating jurisdiction or Division 2 not applicable because of section 90SB Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if: (a) a court cannot make an order under this Part in relation to that financial matter because of section 90SB, 90SD or 90SK; and (b) there is no Part VIIIAB financial agreement that is binding on the parties dealing with that financial matter. Example 1: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction.

Subsection (3) has the effect that State law will govern financial matters arising out of the breakdown of their relationship. Example 2: Cleo and Dan are parties to a de facto relationship that has broken down after the commencement of this section. Early in their relationship, they made a financial agreement under the law of a non-referring State, but later spent most of their relationship in a participating jurisdiction. Cleo and Dan now have a sufficient geographical link with a participating jurisdiction for either of them to apply for an order under this Part in relation to financial matters arising out of the breakdown of their relationship. This means that subsection (3) will not apply and that their

[page 889] financial agreement will not be enforceable under State law because of subsection (2). However, their financial agreement will be enforceable under this Part as a Part VIIIAB financial agreement (see section 90UE).

(4) Exception — laws facilitating this Act Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory to the extent that the law facilitates the operation of this Act. Note: This Part is not intended to apply to the exclusion of, for example, a State law that deals with superannuation entitlements by acknowledging superannuation splitting under Part VIIIB of this Act.

(5) Exception — prescribed State or Territory laws Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection.

COMMENTARY ON SECTION 90RC [s 90RC.1] The effect of s 90RC is to provide that where federal jurisdiction applies to de facto financial matters in participating jurisdictions, state and territory laws dealing with the same subject matter are excluded. Parties who do not meet the geographical requirements set out in ss 90SD or 90SK or the length of relationship requirement in s 90SB will not be precluded by this section from having resort to applicable state law, provided they have not entered into a financial agreement.

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Subdivision C — Declarations about existence of de facto relationships [s 90RD] Declarations about existence of de facto relationships 90RD (1) If: (a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and (b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person; the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons. (2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following: (a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

(b) whether there is a child of the de facto relationship; (c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); (d) when the de facto relationship ended; (e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. Note: For child of a de facto relationship, see section 90RB.

[page 890] COMMENTARY ON SECTION 90RD [s 90RD.1] As was the case prior to the referral of powers one party may claim that no de facto relationship existed and hence the Court has no power to adjust property interests. Unlike a marriage where the fact of having been married is proven by the filing of a marriage certificate or (in its absence) the giving of evidence about the legal ceremony/procedure, the existence of a de facto relationship must be demonstrated having regard to the presence of the indicia of such a relationship, see s 4AA. [s 90RD.2] The application for a declaration would allow this matter to be agitated as a preliminary issue. If the Court were to make a declaration that there was no de facto relationship or that the relationship was shorter than required by s 90SB or fell outside the geographical requirements imposed by ss 90SD and 90SK then, subject to an appeal or an application to set aside the declaration, the Court would not be required to consider any application for property distribution or maintenance.

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[s 90RE]

Effect of declarations

90RE (1) A section 90RD declaration has effect as a judgment of the court. (2) For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.

[s 90RF]

Applying for declarations

90RF Any party to the primary proceedings may apply for a section 90RD declaration.

[s 90RG]

Geographical requirement

90RG A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced. COMMENTARY ON SECTION 90RG [s 90RG.1] Only one of the parties to the relationship need be present for the application to be made.

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[s 90RH]

Setting aside declarations

90RH (1) If, in the primary proceedings, a person (the affected person) affected by a section 90RD declaration made in those proceedings applies under this subsection, and the court is satisfied that: (a) a fact or circumstance has arisen that has not previously been disclosed to the court; and

if the affected person was a party to the primary (b) proceedings at the time the application for the declaration was made — the fact or circumstance was not within the affected person’s knowledge at that time; the court may do any of the following: (c) vary the declaration; [page 891] (d) set the declaration aside; (e) set the declaration aside and make another section 90RD declaration in substitution for the declaration so set aside. (2) The setting aside of a declaration does not affect anything done in reliance on the declaration while it remained in force. (3) If the court sets aside a section 90RD declaration, the court may, on application by the affected person or any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of placing as far as practicable any person affected by the setting aside of the declaration in the same position as that person would have been in if the declaration had not been made. COMMENTARY ON SECTION 90RH [s 90RH.1] If the Court sets aside a declaration s 90RH(3) makes clear that any consequential orders are not necessarily affected by the mere act of setting aside the declaration. The effect of s 90RH(3) is to introduce a discretion which would allow the Court to make orders which restore the position prior to the declaration. However, the making of such orders will not

be automatic and will have regard to the “justice and equity” of the proposed orders.

____________________ DIVISION 2 — MAINTENANCE, DECLARATIONS OF PROPERTY INTERESTS AND ALTERATIONS OF PROPERTY INTERESTS

Subdivision A — Application of Division [s 90SA] This Division does not apply to certain matters covered by binding financial agreements 90SA (1) This Division does not apply to any of the following matters to which a Part VIIIAB financial agreement that is binding on the parties to the agreement applies: (a) the maintenance of one of the spouse parties; (b) the property of the spouse parties or of either of them; (c) the financial resources of the spouse parties or of either of them. (2) Subsection (1) does not apply in relation to: (a) proceedings between: (i) a party to a de facto relationship; and (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the maintenance of the first-mentioned party after the breakdown of the de facto relationship; or (b) proceedings between: (i) a party to a de facto relationship; and

(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship; with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party. (3) Despite subsection (1), a party to a de facto relationship is not prevented from bringing property settlement proceedings under this Part if a Part VIIIAB financial agreement is not binding on that party. [page 892] Example: Before Amy and Ben’s de facto relationship breaks down, Ben and Cathy make a Part VIIIAB financial agreement. Ben and Cathy’s Part VIIIAB financial agreement does not prevent Amy from bringing property settlement proceedings against Ben. COMMENTARY ON SECTION 90SA [s 90SA.1] For commentary on s 90SA see commentary on the similar provision concerning property adjustment for married couples where there is a financial agreement [s 71A.1].

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[s 90SB] When this Division applies — length of relationship etc 90SB A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de

facto relationship only if the court is satisfied: (a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or (b) that there is a child of the de facto relationship; or (c) that: (i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and (ii) a failure to make the order or declaration would result in serious injustice to the applicant; or (d) that the relationship is or was registered under a prescribed law of a State or Territory. Note: For child of a de facto relationship, see section 90RB. COMMENTARY ON SECTION 90SB Length of relationship …. Child of de facto relationship …. Substantial contribution …. Serious injustice …. Registration ….

[s 90SB.1] [s 90SB.2] [s 90SB.3] [s 90SB.4] [s 90SB.5]

[s 90SB.1] Length of relationship For the purpose of s 90SB(a) a party is able to aggregrate periods of time which would qualify as a de facto relationship. A period of separation would not be included in the two (2) year. This overcomes the problem faced by parties under state legislation who found themselves in a series of de facto relationships all of less than 2 years duration. [s 90SB.2] Child of de facto relationship A child must be the child of both parties to the relationship. The child may be the biological child of both parties, the adopted child of both parties, a child born to one of the parties by

artifical conception methods with the consent of the non-birth parent or a child born under a surrogacy arrangement whose parentage is subsequently recognised by court order. [s 90SB.3] Substantial contribution The legislation has incorporated as an exception to the two year requirement in recognition of cases where a party has made a substantial contribution (economic or non-economic) such that to deny them the opportunity to bring an application would be to unjustly enrich the other party. Usually the contribution will be of an economic nature but the legislation also refers to non-financial contributions. [page 893] [s 90SB.4] Serious injustice Examples of where a party has made substantial contributions which require adjustment to prevent serious injustice may include extensive unpaid work in a business, significant financial contributions to a property in the other parties’ sole name, twenty-four hour nursing care for a sick or elderly partner. [s 90SB.5] Registration Some states have legislated to provide relationship recognition for de facto couples (same sex and opposite sex). This allows parties to opt in and may ground a declaration where the requirements of s 90SB are not otherwise met.

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[s 90SC] This Division ceases to apply in relation to a de facto relationship if the parties marry each other 90SC (1) This Division (other than subsections 90SJ(2) to (5)) ceases to apply in relation to a de facto relationship if the parties to the de facto relationship later marry each other.

(2) Despite subsection (1), a declaration, order or injunction: (a) made in property settlement proceedings under this Division in relation to the de facto relationship; and (b) in force when the parties marry each other; may, after the marriage, be enforced, varied or set aside in accordance with this Act. (3) If a declaration, order or injunction is set aside as described in subsection (2), another declaration, order or injunction may be made under this Division in substitution for that declaration, order or injunction. COMMENTARY ON SECTION 90SC [s 90SC.1] Enforcement A de facto partner who obtains an order under this Division prior to marriage and subsequently marries will still be entitled to apply for variation or enforcement of that order.

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Subdivision B — Maintenance [s 90SD]

Geographical requirement

90SD (1) A court may make an order under section 90SE or 90SG in relation to a de facto relationship only if the court is satisfied: (a) that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (the application time); and (b) that either:

both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or (ii) the applicant for the order made substantial contributions, in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or that the alternative condition in subsection (1A) is met. (i)

[page 894] (1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. (2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship. (3) If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications. Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

(4) If: (a) a Proclamation under subsection (3) is in force; and (b) a State ceases to be a referring State on a particular day; the Proclamation is revoked by force of this subsection

on and from that day. (5) If, under subsection (4), a Proclamation under subsection (3) is revoked: (a) this section has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on applications made before the specified day is not affected. COMMENTARY ON SECTION 90SD [s 90SD.1] If all states refer power then the geographical nexus requirement will no longer be necessary. Until that time it is necessary to prevent forum shopping.

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[s 90SE] Power of court in maintenance proceedings 90SE (1) After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division. Note 1: The geographical requirement in section 90SD must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB.

(2) If: (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the maintenance of a party to the de facto relationship; and

either of the following subparagraphs apply to a party to (b) the de facto relationship: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings. [page 895] (3) If, under subsection (2), a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. (4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances. (5) If: (a) an application is made for an order under this section in proceedings between the parties to a de facto

relationship with respect to the maintenance of a party to the de facto relationship; and (b) either of the following subparagraphs apply to a party to the de facto relationship (the debtor party): (i) when the application was made, the debtor party was a debtor subject to a personal insolvency agreement; (ii) after the application was made but before it is finally determined, the debtor party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the trustee of the agreement as a party to the proceedings. (6) If, under subsection (5), the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a de facto relationship, then, except with the leave of the court, the debtor party is not entitled to make a submission to the court in connection with any property subject to the agreement. (7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances. (8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:

(a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. COMMENTARY ON SECTION 90SE [s 90SE.1] Power to order maintenance For a discussion of the expression “proper” see [s 74.1].

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[s 90SF] Matters to be taken into consideration in relation to maintenance 90SF (1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship: (a) only to the extent that the first-mentioned party is reasonably able to do so; and [page 896] (b) only if the second-mentioned party is unable to support himself or herself adequately whether: (i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or (ii) by reason of age or physical or mental incapacity

for appropriate gainful employment; or (iii) for any other adequate reason. Note: For child of a de facto relationship, see section 90RB.

(2) In applying this principle, the court must take into account only the matters referred to in subsection (3). (3) The matters to be so taken into account are: (a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within

or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and (j) 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; and (k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and [page 897] (l)

the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto relationship); or (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (q) any child support under the Child Support (Assessment)

Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and (r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and (t) the terms of any financial agreement that is binding on a party to the subject de facto relationship. (4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit. COMMENTARY ON SECTION 90SF JUSTICE OF CASE ….

[s 90SF.10]

RELEVANCE OF PENSION, BENEFIT OR ALLOWANCE ….

[s 90SF.11]

[s 90SF.1] For commentary on inability to support her/himself adequately see [s 75.12] [s 90SF.2] The matters to be taken into account below are considered under the related commentary to s 75(2) of the Act. [page 898]

AGE See commentary [s 75.4]. HEALTH See commentary [s 75.5]. INCOME See commentary [s 75.6-7]. PROPERTY See commentary [s 75.8]. FINANCIAL RESOURCES See commentary [s 75.9–s 75.20]. CAPACITY FOR EMPLOYMENT See commentary [s 75.21]. RESPONSIBILITY FOR A CHILD See commentary [s 75.22] Note, under this section, the child has to be a child of the de facto relationship, see s 90RB and s 60HA. COMMITMENTS See commentary [s 75.23–s 75.31]. RESPONSIBILILTY FOR ANY OTHER PERSON See commentary [s 75.32–s 75.35]. ELIGIBILITY FOR SOCIAL SECURITY See commentary [s 75.36–s 75.37]. SUPERANNUATION See commentary [s 75.38]. STANDARD OF LIVING See commentary [s 75.39]. EARNING CAPACITY/EDUCATION See commentary [s 75.40]. CREDITORS INTERESTS See commentary [s 75.40A]. CONTRIBUTION See commentary [s 75.41]. DURATION OF THE RELATIONSHIP See commentary [s 75.42–s 75.44]. ROLE OF PARENT See commentary [s 75.45].

COHABITATION WITH ANOTHER PERSON See commentary [s 75.46]. EFFECT OF ORDER See commentary [s 75.47]. [s 90SF.5] Section 90SF(o) and (p) provide for recognition of an order made in proceedings other than those in which the section is currently being considered, that is an order made in proceedings between a party and a second or subsequent de facto partner and/or an order made in proceedings between a de facto partner and his/her de jure spouse. [s 90SF.10] JUSTICE OF CASE See commentary to s 75(2)(o) [s 75.48] and [s 75.52] and specifically as the relevance (if any) of conduct see [s 75.49–75.51]. [s 90SF.11] RELEVANCE OF PENSION, BENEFIT OR ALLOWANCE See commentary [s 75.53–s 75.54]

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[s 90SG]

Urgent maintenance cases

90SG If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Division, it appears to the court that: (a) the party is in immediate need of financial assistance; and [page 899] (b) it is not practicable in the circumstances to determine immediately what order, if any, should be made; the court may order the payment, pending the disposal of the

proceedings, of such periodic sum or other sums as the court considers reasonable. Note 1: The geographical requirement in section 90SD must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB. COMMENTARY ON SECTION 90SG [s 90SG.1] For commentary on the circumstances in which the Court would make an order for urgent maintenance see [s 77.1–s 77.6].

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[s 90SH] Specification in orders of payments etc. for maintenance purposes 90SH (1) If: (a) a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a party to a de facto relationship in accordance with this Division, is made by consent or varies an earlier order), and the order has the effect of requiring: (i) payment of a lump sum, whether in one amount or by instalments; or (ii) the transfer or settlement of property; and (b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a de facto relationship in relation to the breakdown of the de facto relationship; the court must:

express the order to be an order to which this section (c) applies; and (d) specify the portion of the payment, or the value of the portion of the property, attributable to the maintenance of the party. (2) If: (a) a court makes an order of a kind referred to in paragraph (1)(a); and (b) the order: (i) is not expressed to be an order to which this section applies; or (ii) is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d); any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, must be taken not to make provision for the maintenance of a party to the relevant de facto relationship. COMMENTARY ON SECTION 90SH [s 90SH.1] For commentary on specified lump sum maintenance payments see [s 77A.1–s 77A.22].

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[s 90SI]

Modification of maintenance orders

90SI (1) If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:

[page 900] (a) made by the court; or (b) made by another court and registered in the firstmentioned court in accordance with the applicable Rules of Court; the court may: (c) discharge the order if there is any just cause for so doing; or (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; or (e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner. (2) The court’s jurisdiction under subsection (1) may be exercised: (a) in any case — in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or (b) if there is a bankrupt party to the de facto relationship — on the application of the bankruptcy trustee; or (c) if a party to the de facto relationship is a debtor subject to a personal insolvency agreement — on the application of the trustee of the agreement. (3) The court must not make an order increasing or decreasing

an amount ordered to be paid by an order unless it is satisfied: (a) that, since the order was made or last varied: (i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship); or (ii) the circumstances of the person liable to make payments under the order have so changed; or (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative — the circumstances of the estate are such; as to justify its so doing; or (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or (c) in a case where the order was made by consent — that the amount ordered to be paid is not proper or adequate; or (d) that: (i) material facts were withheld from the court that made the order, or from a court that varied the order; or (ii) material evidence previously given before such a court was false. (4) In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician. (5) The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12

months have elapsed since the order was made or was last varied having regard to a change in the cost of living. (6) In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by a party to the de facto relationship, or by the bankruptcy trustee of a party to the de facto relationship, to: (a) the other party; or (b) any other person for the benefit of the other party. [page 901] (7) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate. (8) If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date, being money that would not have been required to be paid under the secondmentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act. (9) If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act. (10) For the purposes of this section, the court must have regard to the provisions of section 90SF.

(11) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect. COMMENTARY ON SECTION 90SI [s 90SI.1] The provisions in respect of modification of a spouse maintenance order as between de facto spouses are similar but not identical to the provisions in respect of married spouses. [s 90SI.2] For commentary on modification of orders generally see [s 83.1–s 83.12]. [s 90SI.5] The use of the word “stable” to further define the new “de facto relationship” in s 90SI(3)(i) is curious (SC) and yet to receive any judicial consideration.

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[s 90SJ]

Cessation of maintenance orders

90SJ (1) An order with respect to the maintenance of a party to a de facto relationship in accordance with this Division ceases to have effect upon: (a) the death of the party; or (b) the death of the person liable to make payments under the order. (2) An order with respect to the maintenance of a party to a de facto relationship in accordance with this Division ceases to have effect upon the marriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders. (3) If a marriage referred to in subsection (2) takes place, it is

the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the marriage. (4) Any money paid in respect of a period after the event referred to in subsection (2) may be recovered in a court having jurisdiction under this Act. (5) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect. COMMENTARY ON SECTION 90SJ [s 90SJ.1] Unusually, while an order is expressed to cease upon a party marrying, it does not do so upon the party entering into a subsequent de facto relationship. [page 902] [s 90SJ.2] For commentary on cessation due to death see [s 82.2–s 82.4]. [s 90SJ.3] For commentary on cessation due to remarriage see [s 82.5–s 82.8] and recovery of monies paid subsequent to marriage [s 82.9]. [s 90SJ.4] For commentary on recovery of arrears see [s 82.10]. [s 90SJ.5] There would appear to be no explicit provision for cessation by consent, see commentary [s 82.11].

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Subdivision C — Declarations and alterations of property interests

[s 90SK]

Geographical requirement

90SK (1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied: (a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and (b) that either: (i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or (ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or that the alternative condition in subsection (1A) is met. (1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. (2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship. (3) If each State is a referring State, the Governor-General may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications. Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation

to applications made before the proclaimed day.

(4) If: (a) a Proclamation under subsection (3) is in force; and (b) a State ceases to be a referring State on a particular day; the Proclamation is revoked by force of this subsection on and from that day. (5) If, under subsection (4), a Proclamation under subsection (3) is revoked: (a) this section has effect as if the revoked Proclamation had not been made; but (b) the effect of the revoked Proclamation on applications made before the specified day is not affected. COMMENTARY ON SECTION 90SK [s 90SK.1] If all states refer power then the geographical nexus requirement will no longer be necessary. Until that time it is necessary to prevent forum shopping.

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[s 90SL]

Declaration of interests in property

90SL (1) In proceedings between the parties to a de facto relationship: (a) after the breakdown of the de facto relationship; and (b) with respect to existing title or rights in respect of property;

the court may declare the title or rights, if any, that a party has in respect of the property. Note 1: The geographical requirement in section 90SK must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB.

(2) If a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession. COMMENTARY ON SECTION 90SL [s 90SL.1] For commentary in respect of the making of declarations concerning property see the commentary accompanying s 78. [s 90SL.2] As to the courts’ jurisdiction to make declarations see [s 78.4] [s 90SL.3] Section 44(5)(b) makes clear that the two year time limit for the making of an application applies to the making of an application for a declaration. [s 90SL.4] As to whether there needs to be a dispute as to title to ground an application for a declaration see [s 78.9]. [s 90SL.5] As to the difference between orders and declarations see [s 78.10–s 78.13] and as to the relationship between orders and declarations see [s 78.14–s 78.17]. [s 90SL.6] As to declarations involving the interests of third parties see [s 78.18–s 78.19].

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[s 90SM]

Alteration of property interests

90SM (1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them — altering the interests of the parties to the de facto relationship in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship — altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the de facto relationship; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines. Note 1: The geographical requirement in section 90SK must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB. Note 3: For child of a de facto relationship, see section 90RB.

[page 904]

(2) If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. (3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii) otherwise in relation to any of that last-mentioned property; whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

(ii) otherwise in relation to any of that last-mentioned property; whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and (c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and (e) the matters referred to in subsection 90SF(3) so far as they are relevant; and (f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship. (5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, if, in property settlement proceedings in relation to the parties to a de facto relationship, a court is of the opinion: (a) that there is likely to be a significant change in the financial circumstances of the parties to the de facto relationship or either of them and that, having regard to

the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and (b) that an order that the court could make with respect to: (i) the property of the parties to the de facto relationship or either of them; or [page 905] (ii) the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the de facto relationship than an order that the court could make immediately with respect to: (iii) the property of the parties to the de facto relationship or either of them; or (iv) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship; the court may, if so requested by either party to the de facto relationship or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the de facto relationship or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances. (6) If a court proposes to adjourn proceedings as provided by

subsection (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to: (a) any of the property of the parties to the de facto relationship or of either of them; or (b) any of the vested bankruptcy property in relation to a bankrupt party to the de facto relationship. (7) The court may, in forming an opinion for the purposes of subsection (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the de facto relationship, have regard to any change in the financial circumstances of a party to the de facto relationship that may occur by reason that the party to the de facto relationship: (a) is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or (b) may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property; but nothing in this subsection limits the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the de facto relationship. (8) If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before property settlement proceedings are completed: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the

deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and (b) if the court is of the opinion: (i) that it would have made an order with respect to property if the deceased party had not died; and (ii) that it is still appropriate to make an order with respect to property; the court may make such order as it considers appropriate with respect to: [page 906] (iii) any of the property of the parties to the de facto relationship or either of them; or (iv) any of the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; and (c) an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. (9) The Family Court must not make an order under this section in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless: (a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate

with a Registrar or Deputy Registrar of the Family Court; or (b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or (c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a). (10) The following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to a de facto relationship (the subject de facto relationship): (a) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made; (b) a person: (i) who is a party to a de facto relationship (the other de facto relationship) with a party to the subject de facto relationship; and (ii) who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship; (c) a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) with a party to the subject de facto relationship;

(d) a person: (i) who is a party to a marriage with a party to the subject de facto relationship; and (ii) who could apply, or has an application pending, for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); (e) a person who is a party to a financial agreement (that is binding on the person) with a party to the subject de facto relationship; (f) any other person whose interests would be affected by the making of the order. (11) Subsection (10) does not apply to a creditor of a party to the proceedings: (a) if the party is a bankrupt — to the extent to which the debt is a provable debt (within the meaning of the Bankruptcy Act 1966); or (b) if the party is a debtor subject to a personal insolvency agreement— to the extent to which the debt is covered by the personal insolvency agreement. [page 907] (12) If a person becomes a party to proceedings under this section because of paragraph (10)(b), the person may, in the proceedings, apply for: (a) an order under section 90SM; or (b) a declaration under section 90SL;

in relation to the other de facto relationship described in that paragraph. (13) If a person becomes a party to proceedings under this section because of paragraph (10)(d), the person may, in the proceedings, apply for: (a) an order under section 79; or (b) a declaration under section 78; in relation to the marriage (or void marriage) described in that paragraph. (14) If: (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the property of the parties to the de facto relationship or either of them; and (b) either of the following subparagraphs apply to a party to the de facto relationship: (i) when the application was made, the party was a bankrupt; (ii) after the application was made but before it is finally determined, the party became a bankrupt; and (c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the bankruptcy trustee as a party to the proceedings.

(15) If a bankruptcy trustee is a party to property settlement proceedings in relation to the parties to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party. (16) The court must not grant leave under subsection (15) unless the court is satisfied that there are exceptional circumstances. (17) If: (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the property of the parties to the de facto relationship or either of them; and (b) either of the following subparagraphs apply to a party to the de facto relationship (the debtor party): (i) when the application was made, the party was a debtor subject to a personal insolvency agreement; (ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and (c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and (d) the court is satisfied that the interests of the debtor party’s creditors may be affected by the making of an order under this section in the proceedings; the court must join the trustee of the agreement as a party to the proceedings.

[page 908] (18) If the trustee of a personal insolvency agreement is a party to property settlement proceedings in relation to the parties to a de facto relationship, then, except with the leave of the court, the party to the de facto relationship who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement. (19) The court must not grant leave under subsection (18) unless the court is satisfied that there are exceptional circumstances. (20) For the purposes of subsections (14) and (17), an application for an order under this section is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. COMMENTARY ON SECTION 90SM [s 90SM.1] For commentary on adjustment of propert interests generally see the commentary accompanying s 79. [s 90SM.2] As to jurisdictional issues see [s 79.39–s 79.43]. [s 90SM.3] As to what constitutes property see [s 79.61–s 79.97]. [s 90SM.4] As to valuation see [s 79.111–s 79.133]. [s 90SM.5] As to the exercise of discretion generally see [s 79.151–s 79.178]. [s 90SM.6] As to the assessment of contributions see [s 79.191–s 79.215].

[s 90SM.7] As to the assessment of matters in s 90SF(3) see [s 79.231–s 79.257] [s 90SM.8] As to assessment of matters in s 90SM(d) and (f) see [s 79.271–s 79.273]. [s 90SM.9] As to what orders may be made see [s 79.291–s 79.309]. [s 90SM.10] As to the relationship between orders for property adjustment and orders for maintenance see [s 79.311–s 79.320]. [s 90SM.11] As to the consequences of the death of a party to the relationship see [s 79.321–s 79.335]. [s 90SM.12] As to bankruptcy of a party to the relationship see [s 79.351–s 79.357]. [s 90SM.13] For commentary on adjournment of proceedings pursuant to s 90SM(5), including the making of an interim order see [s 79.377–s 79.385].

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[s 90SN] Varying and setting aside orders altering property interests 90SN (1) If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that: (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or [page 909]

(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or (c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or (e) a proceeds of crime order has been made covering property of the parties to the de facto relationship or either of them, or a proceeds of crime order has been made against a party to the de facto relationship; the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside. Note: For child of a de facto relationship, see section 90RB.

(2) A court may, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the

order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside. (3) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if: (a) the person is a parent of the child with whom the child lives; or (b) a parenting order provides that: (i) the child is to live with the person; or (ii) the person has parental responsibility for the child. (4) An order varied or made under subsection (1) or (2) may, after the death of a party to the de facto relationship in relation to which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. (5) If, before proceedings under this section in relation to an order made under section 90SM are completed, a party to the de facto relationship dies: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and (b) if the court is of the opinion: (i) that it would have exercised its powers under subsection (1) or (2) in relation to the order if the deceased party had not died; and (ii) that it is still appropriate to exercise its powers under subsection (1) or (2) in relation to the order; the court may vary the order, set the order aside, or set

the order aside and make another order under section 90SM in substitution for the order so set aside; and [page 910] (c) an order varied or made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party. (6) In the exercise of its powers under subsection (1), (2) or (5), a court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested. (7) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 90SM was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover his or her debt because the order has been made. (8) For the purposes of this section, if: (a) an order is made by a court under section 90SM in proceedings with respect to the property of the parties to a de facto relationship or either of them; and (b) either of the following subparagraphs apply to a party to the de facto relationship: (i) when the order was made, the party was a bankrupt; (ii) after the order was made, the party became a bankrupt; the bankruptcy trustee is taken to be a person whose interests are affected by the order.

(9) For the purposes of this section, if: (a) a party to a de facto relationship is a bankrupt; and (b) an order is made by a court under section 90SM in proceedings with respect to the vested bankruptcy property in relation to the bankrupt party; the bankruptcy trustee is taken to be a person whose interests are affected by the order. (10) For the purposes of this section, if: (a) an order is made by a court under section 90SM in proceedings with respect to the property of the parties to a de facto relationship or either of them; and (b) either of the following subparagraphs apply to a party to the de facto relationship: (i) when the order was made, the party was a debtor subject to a personal insolvency agreement; (ii) after the order was made, the party became a debtor subject to a personal insolvency agreement; the trustee of the agreement is taken to be a person whose interests are affected by the order. COMMENTARY ON SECTION 90SN [s 90SN.1] For commentary in respect of setting aside or varying final property orders pursuant to s 90SN see generally the commentary accompanying s 79A. [s 90SN.2] As to setting aside or varying generally see [s 79A.0–s 79A.9]. [s 90SN.3] As to miscarriage of justice see [s 79A.10]. [s 90SN.4] As to fraud see [s 79A.11].

[s 90SN.5] As to duress see [s 79A.12] [s 90SN.6] As to the giving of false evidence see [s 79A.13]. [page 911] [s 90SN.7] As to suppression of evidence see [s 79A.14]. [s 90SN.8] As to any other circumstance see [s 79A.15–s 79A.20]. [s 90SN.9] As to impracticability see [s 79A.21]. [s 90SN.10] As to default see [s 79A.25–s 79A.26]. [s 90SN.11] As to “just and equitable” see [s 79A.27]. [s 90SN.12] As to child related circumstances see [s 79A]. [s 90SN.13] As to setting aside order by consent see [s 79A.31]. [s 90SN.14] As to interests of bona fide purchaser see [s 79A.36].

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Subdivision D — Notification of application [s 90SO] Notifying third parties about application 90SO The applicable Rules of Court may specify the circumstances in which a person who: (a) applies for an order under this Division; or (b) is a party to a proceeding for an order under this Division;

is to give notice of the application to a person who is not a party to the proceedings. Note: The applicable Rules of Court may, for example, make provision for the notification of a person married to, or in a de facto relationship with, the applicant or respondent to the proceedings.

[s 90SP] Notifying bankruptcy trustee etc. about application under section 90SE, 90SL, 90SM or 90SN 90SP (1) The applicable Rules of Court may make provision for a bankrupt who becomes a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN to give notice of the application to the bankruptcy trustee. (2) The applicable Rules of Court may make provision for a debtor subject to a personal insolvency agreement who becomes a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN to give notice of the application to the trustee of the agreement.

[s 90SQ]

Notifying court about bankruptcy etc

90SQ (1) Bankruptcy The applicable Rules of Court may make provision for a person who: (a) is a party to a de facto relationship that has broken down; and (b) is a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN; and (c) before that application is finally determined, becomes a bankrupt; to notify a court exercising jurisdiction under this Act that the person has become a bankrupt. [page 912]

(2) Debtor subject to a personal insolvency agreement The applicable Rules of Court may make provision for a person who: (a) is a party to a de facto relationship that has broken down; and (b) is a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN; and (c) before that application is finally determined, becomes a debtor subject to a personal insolvency agreement; to notify a court exercising jurisdiction under this Act that the person has become a debtor subject to a personal insolvency agreement. (3) Institution of proceeding under the Bankruptcy Act 1966 The applicable Rules of Court may make provision for a person who: (a) is a party to a de facto relationship that has broken down; and (b) is a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN; and (c) before that application is finally determined, becomes a party to a proceeding before the Federal Court or the Federal Circuit Court of Australia under the Bankruptcy Act 1966 that relates to: (i) the bankruptcy of the person; or (ii) the person’s capacity as a debtor subject to a personal insolvency agreement; to notify a court exercising jurisdiction under this Act of the institution of the proceeding under the Bankruptcy Act 1966. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(4) The applicable Rules of Court may make provision for a person who: (a) is the bankruptcy trustee of a bankrupt party to a de facto relationship; and (b) the de facto relationship has broken down; and (c) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act; to notify a court exercising jurisdiction under this Act of the making of the application. (5) When application finally determined For the purposes of this section, an application for an order under section 90SE, 90SM or 90SN is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) an order (other than an interim order) is made as a result of the application. (6) For the purposes of this section, an application for a declaration under section 90SL is taken to be finally determined when: (a) the application is withdrawn or dismissed; or (b) a declaration is made as a result of the application.

[s 90SR] Notifying non-bankrupt de facto party about application under section 139A of the Bankruptcy Act 1966 90SR The applicable Rules of Court may make provision for a person who: (a) is the bankruptcy trustee of a bankrupt party to a de facto relationship; and (b) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act in relation to an entity (other than the other party to the de facto relationship); [page 913] to notify the other party to the de facto relationship of the making of the application if that bankruptcy trustee is aware that the de facto relationship has broken down. COMMENTARY ON SECTION 90SR [s 90SR.1] For equivalent provisions on notification of third parties in cases where the parties are married see ss 79G and 79H.

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Subdivision E — Court powers [s 90SS] General powers of court

90SS (1) General powers The court, in exercising its powers under this Division, may do any or all of the following: (a) order payment of a lump sum, whether in one amount or by instalments; (b) order payment of a weekly, monthly, yearly or other periodic sum; (c) order that a specified transfer or settlement of property be made by way of maintenance for a party to a de facto relationship; (d) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs; (e) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order; (f) appoint or remove trustees; (g) order that payments be made direct to a party to the de facto relationship, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the de facto relationship; (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order; (i) impose terms and conditions; (j) make an order by consent; (k) make any other order, or grant any other injunction, (whether or not of the same nature as those mentioned in

(l)

the preceding paragraphs of this section) which it thinks it is necessary to make to do justice; subject to this Act and the applicable Rules of Court, make an order under this Division at any time before or after the making of a decree under another provision of this Act.

Note: The court also has specific powers in relation to third parties (see Division 3 of Part VIIIAA (as that Division has effect because of section 90TA)).

(2) Limitation for orders or injunctions covered by section 90AF Subsection (1) has effect subject to subsection 90AF(3) (as that subsection has effect because of section 90TA). Note: An order or injunction made or granted under subsection (1) that is of a kind covered by subsection 90AF(1) or (2) can only be made or granted in accordance with subsection 90AF(3).

[page 914] (3) Maintenance orders The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Division, in relation to the maintenance of a party to a de facto relationship does not prevent a court from making a subsequent order in relation to the maintenance of the party. (4) The applicable Rules of Court may make provision with respect to the making of orders under this Division in relation to the maintenance of parties to de facto relationships (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

(5) Injunctions Without limiting paragraph (1)(k), the court may: (a) grant: (i) an interlocutory injunction; or (ii) an injunction in aid of the enforcement of a decree; in any case in which it appears to the court to be just or convenient to do so; and (b) grant an injunction either unconditionally or upon such terms and conditions as the court considers appropriate. (6) Bankruptcy and insolvency If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(e) directed to the bankrupt. (7) If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(e) directed to the debtor subject to the agreement. (8) Subsections (6) and (7) do not limit paragraph (1)(e). (9) If a party to a de facto relationship is a bankrupt, a court may, on the application of the other party to the de facto relationship, by interlocutory order, grant an injunction under subsection (1) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt’s creditors. (10) If a party to a de facto relationship is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the de facto relationship, by interlocutory order, grant an injunction under subsection (1) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement. (11) Subsections (9) and (10) do not limit subsections (1) and

(5). COMMENTARY ON SECTION 90SS Powers of the Court …. Injunctions ….

[s 90SS.1] [s 90SS.14]

[s 90SS.1] Powers of the Court For commentary on the powers of the Court generally see [s 80.1] [s 90SS.2] As to payment of a lump sum see [s 80.2–6] [s 90SS.3] As to payment of a periodic sum see [s 80.7] [s 90SS.4] As to transfer of property see [s 80.8] [s 90SS.5] As to orders for security see [s 80.9] [page 915] [s 90SS.6] As to execution of documents see [s 80.10] [s 90SS.7] As to payment to a particular authority see [s 80.12] [s 90SS.8] As to appointment or removal of trustees see [s 80.11] [s 90SS.9] As to types of order see [s 80.13–s 80.15] [s 90SS.10] As to consent orders see [s 80.17] [s 90SS.11] As to orders to “do justice” see [s 80.18–s 80.20A] [s 90SS.12] As to timing of order see [s 80.21] [s 90SS.13] As to effect of order for maintenance see [s 80.22] [s 90SS.14] Injunctions As to injunctions generally see commentary

accompanying s 114.

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[s 90ST]

Duty of court to end financial relations

90ST In proceedings under this Division, other than proceedings under section 90SL, the court must, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the de facto relationship and avoid further proceedings between them. COMMENTARY ON SECTION 90ST [s 90ST.1] For commentary on s 90ST see s 81.

____________________ DIVISION 3 — ORDERS AND INJUNCTIONS BINDING THIRD PARTIES

[s 90TA] parties

Orders and injunctions binding third

90TA (1) In addition to the effect Part VIIIAA has apart from this section, that Part also has effect in relation to: (a) orders and injunctions under Division 2; and (b) proceedings for orders or injunctions under Division 2; with the modifications provided for in subsections (2) and (3). (2) Part VIIIAA has effect in accordance with subsection (1) as if the following substitutions were made: Substitutions to be made

Item 1 2 3 4

For a reference in Part VIIIAA to … marriage section 79 section 114 paragraph (ca) of the definition of matrimonial cause

substitute a reference to … de facto relationship section 90SM section 90SS paragraph (c) of the definition of de facto financial cause

[page 916] Substitutions to be made Item For a reference in Part VIIIAA to … 5 orders or injunctions under section 114 6

proceedings under section 114

7

an injunction under subsection 114(3)

substitute a reference to … orders or injunctions under Division 2 of Part VIIIAB proceedings under Division 2 of Part VIIIAB an injunction covered by subsection 90SS(5)

(3) Part VIIIAA has effect in accordance with subsection (1) as if: (a) subsection 90AD(2) were replaced with the following: “(2) For the purposes of section 90SS (to the extent that it provides for the granting of an injunction in relation to the property of a party to a de facto relationship), property includes a debt owed by a party to the de facto relationship.”; and

(b) paragraph 90AF(3)(d) were omitted; and (c) the following paragraph were inserted after paragraph 90AF(3)(e): “(ea)for any other injunction—the court is satisfied that, in all the circumstances, it is necessary to grant the injunction to do justice; and”; and (d) the following subsection were added at the end of section 90AF: “(5) Subsections (1) and (2) do not limit subsection 90SS(1).” DIVISION 4 — FINANCIAL AGREEMENTS

[s 90UA] Geographical requirement for agreements made in participating jurisdictions 90UA Two or more people can make a Part VIIIAB financial agreement under section 90UB, 90UC or 90UD only if the spouse parties are ordinarily resident in a participating jurisdiction when they make the agreement.

[s 90UB] Financial agreements before de facto relationship 90UB (1) If: (a) people who are contemplating entering into a de facto relationship with each other make a written agreement with respect to any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and (b) at the time of the making of the agreement, the people

are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and (c) the agreement is expressed to be made under this section; the agreement is a Part VIIIAB financial agreement. The people may make the Part VIIIAB financial agreement with one or more other people. (2) The matters referred to in paragraph (1)(a) are the following: (a) how all or any of the: (i) property; or (ii) financial resources; [page 917] of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed; (b) the maintenance of either of the spouse parties. (3) A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2). (4) A Part VIIIAB financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement. COMMENTARY ON SECTION 90UB [s 90UB.1] For commentary on agreements made in contemplation of a de

facto relationship see commentary on financial agreements before marriage [s 90B.1]. A financial agreement made between two (prospective) spouse parties may also include as parties to the agreement third parties to the relationship. For example, a financial agreement may acknowledge a loan by a parent of one of the spouse parties.

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[s 90UC] Financial agreements during de facto relationship 90UC (1) If: (a) while in a de facto relationship, the parties to the de facto relationship make a written agreement about any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and (b) at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and (c) the agreement is expressed to be made under this section; the agreement is a Part VIIIAB financial agreement. The parties to the de facto relationship may make the Part VIIIAB financial agreement with one or more other people. (2) The matters referred to in paragraph (1)(a) are the following: (a) how all or any of the: (i) property; or (ii) financial resources;

of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed; (b) the maintenance of either of the spouse parties. (3) A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2). (4) A Part VIIIAB financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement. COMMENTARY ON SECTION 90UC [s 90UC.1] For commentary on s 90UC see commentary on financial agreements made during marriage [s 90C.1]

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[page 918]

[s 90UD] Financial agreements after breakdown of a de facto relationship 90UD (1) If: (a) after the breakdown of a de facto relationship, the parties to the former de facto relationship make a written agreement with respect to any of the matters mentioned in subsection (2); and (b) at the time of the making of the agreement, the parties to the former de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and (c) the agreement is expressed to be made under this section; the agreement is a Part VIIIAB financial agreement. The parties to the former de facto relationship may make the Part VIIIAB financial agreement with one or more other people. (2) The matters referred to in paragraph (1)(a) are the following: (a) how all or any of the: (i) property; or (ii) financial resources; that either or both of the spouse parties had or acquired during the former de facto relationship is

to be distributed; (b) the maintenance of either of the spouse parties. (3) A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2). (4) A Part VIIIAB financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement. COMMENTARY ON SECTION 90UD [s 90UD.1] For commentary on s 90UD see [s 90D.1].

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[s 90UE] Agreements made in non-referring States that become Part VIIIAB financial agreements 90UE (1) How State agreements can become Part VIIIAB financial agreements This section applies if: (a) 2 people (the couple) have made a written agreement, signed by both of them, with respect to any of the matters (the eligible agreed matters) mentioned in subsection (3); and (b) the agreement was made under a non-referring State de facto financial law; and (c) either: (i) a court could not, because of that law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters; or (ii) a court could not, because of that law, make an order under that law that is with respect to any of the eligible agreed matters to which the agreement applies; and [page 919] (d) at the time the agreement was made, the members of the couple were not the spouse parties to any Part VIIIAB financial agreement that is binding on them with respect to any of the eligible agreed matters; and

(e) at a later time (the transition time), the couple’s circumstances change so that: (i) if the de facto relationship has not broken down — sections 90SB, 90SD and 90SK would not prevent a court from making an order or declaration under this Part in relation to the eligible agreed matters if the de facto relationship were to break down; or (ii) if the de facto relationship has broken down — sections 90SB, 90SD and 90SK do not prevent a court from making an order or declaration under this Part in relation to the eligible agreed matters; and (f) immediately before the transition time: (i) the agreement was in force under the non-referring State de facto financial law; and (ii) the couple were not married to each other. Paragraph (a) extends to agreements made before the commencement of this section, and to agreements made with one or more other people. Note 1: This section extends to agreements made in contemplation of a de facto relationship, during a de facto relationship or after a de facto relationship has broken down. Note 2: Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deems certain agreements, made under a law of a State that is or becomes a participating jurisdiction, or made under a law of a Territory, to be Part VIIIAB financial agreements.

(2) For the purposes of this Act, the agreement is taken, on and after the transition time, to be a Part VIIIAB financial agreement to the extent that the agreement deals with:

(a) the eligible agreed matters; and (b) matters incidental or ancillary to the eligible agreed matters. Note: This means that, after the transition time, the agreement can only be enforced, varied, terminated or otherwise set aside under this Act.

(3) Eligible agreed matters The matters referred to in paragraph (1)(a) are the following: (a) how all or any of the: (i) property; or (ii) financial resources; of either member, or both members, of the couple at the time when the agreement is made, or at a later time and during a de facto relationship between them, is to be distributed; (b) the maintenance of either member of the couple; in the event of the breakdown of a de facto relationship between them, or in relation to a de facto relationship between them that has broken down, as the case requires. (4) For the purposes of paragraph (1)(c), disregard whether the non-referring State de facto financial law permits the court to make such an order if the court varies or sets aside the agreement. [page 920] COMMENTARY ON SECTION 90UE [s 90UE.1] Treatment of state agreements Section 90UE has the effect of treating agreements made other than pursuant to the Family Law Act as though they were made pursuant to the Family Law Act provided that they

deal with an eligible agreed matter (although they may also deal with other matters). There is nothing in the section that requires the agreements to have dealt with all eligible agreed matters. Consequently, an agreement which deals with property adjustment but does not deal with maintenance or financial resources may still be treated as an agreement. [s 90UE.2] Setting aside such an agreement Theoretically such an agreement could be set aside if one of the provisions of section 90UM applied.

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[s 90UF] Need for separation declaration for certain provisions of financial agreement to take effect 90UF (1) A Part VIIIAB financial agreement that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the breakdown of the de facto relationship, all or any of the property or financial resources of either or both of the spouse parties: (a) at the time when the agreement is made; or (b) at a later time and during the de facto relationship; are to be dealt with, is of no force or effect until a separation declaration is made. Note: Before the separation declaration is made, the financial agreement will be of force and effect in relation to the other matters it deals with (except for any matters covered by section 90UG).

(2) Subsection (1) ceases to apply if either or both of the spouse parties die. Note: This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the

death(s).

(3) Requirements for a valid separation declaration A separation declaration is a written declaration that complies with subsections (4) and (5), and may be included in the Part VIIIAB financial agreement to which it relates. (4) The declaration must be signed by at least one of the spouse parties to the Part VIIIAB financial agreement. (5) The declaration must state that: (a) the spouse parties lived in a de facto relationship; and (b) the spouse parties have separated and are living separately and apart at the declaration time; and (c) in the opinion of the spouse parties making the declaration, there is no reasonable likelihood of cohabitation being resumed. (6) Meaning of declaration time In this section: declaration time means the time when the declaration was signed by a spouse party to the Part VIIIAB financial agreement. COMMENTARY ON SECTION 90UF [s 90UF.1] For commentary on separation declarations see [s 90DA.0].

____________________ [page 921]

[s 90UG] Whether or when certain other provisions of financial agreements take effect

90UG A Part VIIIAB financial agreement that is binding on the parties to the agreement, to the extent to which it provides for matters covered by subsection 90UB(3) or 90UC(3) or paragraph 90UE(2)(b), is of no force or effect unless and until the de facto relationship breaks down. COMMENTARY ON SECTION 90UG [s 90UG.1] See similar provision s 90DB.

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[s 90UH] Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children 90UH (1) A provision of a Part VIIIAB financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies: (a) the party, or the child or children, for whose maintenance provision is made; and (b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be. Note: While Part VIIIAB financial agreements are not made with respect to child maintenance, provisions about child maintenance could be included in the same document for child support (or other non-Part VIIIAB) purposes.

(2) Subsection (1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.

COMMENTARY ON SECTION 90UH [s 90UH.1] See similar provision s 90E.

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[s 90UI] Certain provisions in financial agreements 90UI (1) No provision of a Part VIIIAB financial agreement excludes or limits the power of a court to make an order under Division 2 in relation to the maintenance of a party to the agreement if subsection (2) applies. (2) This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit. (3) To avoid doubt, a provision in a Part VIIIAB financial agreement: (a) made as mentioned in subsection 90UB(1), 90UC(1) or 90UD(1); or (b) covered by section 90UE; [page 922] that provides for property or financial resources owned by a spouse party to the agreement to continue in the ownership of that party is taken, for the purposes of that subsection or section, to be a provision with respect to how the property or financial resources

are to be distributed. COMMENTARY ON SECTION 90UI [s 90UI.1] For commentary on financial agreements dealing with maintenance see [s 90F.1].

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[s 90UJ]

When financial agreements are binding

90UJ (1) Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if, and only if: (a) the agreement is signed by all parties; and (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the agreement has not been terminated and has not been set aside by a court.

Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995. [subs (1) am Act 122 of 2009 s 3 and Sch 5 [9A,10,11,12] opn 4 Jan 2010]

(1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if: (a) the agreement is signed by all parties; and (b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and (d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and (e) the agreement has not been terminated and has not been set aside by a court. [subs (1A) am Act 122 of 2009 s 3 and Sch 5 [12A] opn 4 Jan 2010]

(1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement. [subs (1B) am Act 122 of 2009 s 3 and Sch 5 [12A] opn 4 Jan 2010]

[page 923]

(1C) To avoid doubt, section 90UN applies in relation to the enforcement application. [subs (1C) am Act 122 of 2009 s 3 and Sch 5 [12A] opn 4 Jan 2010]

(2) A Part VIIIAB financial agreement covered by section 90UE is binding on the parties to the agreement if, and only if, the agreement has not been terminated and has not been set aside by a court. (3) A Part VIIIAB financial agreement ceases to be binding if, after making the agreement, the parties to the agreement marry each other. (4) A court may make such orders for the enforcement of a Part VIIIAB financial agreement that is binding on the parties to the agreement as it thinks necessary. COMMENTARY ON SECTION 90UJ [s 90UJ.1] For commentary on s 90UJ see [s 90G.1]

____________________

[s 90UK] Effect of death of party to financial agreement 90UK A Part VIIIAB financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party. Note: If the parties are still in the de facto relationship when one of them dies, the de facto relationship is not taken to have broken down for the purposes of enforcing the matters mentioned in the financial agreement (see the definition of breakdown in subsection 4(1)).

COMMENTARY ON SECTION 90UK [s 90UK.1] See similar provision s 90H.

____________________

[s 90UL]

Termination of financial agreement

90UL (1) The parties to a Part VIIIAB financial agreement may terminate the agreement for the purposes of this Act only by: (a) including a provision to that effect in another Part VIIIAB financial agreement as mentioned in subsection 90UB(4), 90UC(4) or 90UD(4); or (b) making a written agreement (a Part VIIIAB termination agreement) to that effect. (2) Subject to subsection (2A), a Part VIIIAB termination agreement is binding on the parties if, and only if: (a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and (b) before signing the termination agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the termination agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the termination agreement; and (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the termination agreement);

and [page 924] (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and (d) the termination agreement has not been set aside by a court. [subs (2) am Act 122 of 2009 s 3 and Sch 5 [13] opn 4 Jan 2010]

(2A) A Part VIIIAB termination agreement is binding on the parties if: (a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and (b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the termination agreement; and (c) a court is satisfied that it would be unjust and inequitable if the termination agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and (d) the court makes an order under subsection (2B) declaring that the termination agreement is binding on the parties to the agreement; and (e) the termination agreement has not been set aside by a court. [subs (2A) am Act 122 of 2009 s 3 and Sch 5 [15A] opn 4 Jan 2010]

(2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a Part VIIIAB termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement. [subs (2B) insrt Act 122 of 2009 s 3 and Sch 5 [15A] opn 4 Jan 2010]

(2C) To avoid doubt, section 90UN applies in relation to the enforcement application. [subs (2C) am Act 122 of 2009 s 3 and Sch 5 [14A] opn 4 Jan 2010]

(3) A court may, on an application by: (a) a person who was a party to the Part VIIIAB financial agreement; or (b) any other interested person; make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of: (c) persons who were parties to the Part VIIIAB financial agreement; and (d) any other interested persons. Note: For the manner in which the contents of a Part VIIIAB financial agreement may be proved, see section 48 of the Evidence Act 1995. COMMENTARY ON SECTION 90UL [s 90UL.1] For commentary on the termination of financial agreements see [s 90J.1].

____________________

[s 90UM]

Circumstances in which court may set

aside a financial agreement or termination agreement 90UM (1) A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that: (a) the agreement was obtained by fraud (including nondisclosure of a material matter); or [page 925] (b) a party to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or (ii) with reckless disregard of the interests of a creditor or creditors of the party; or (c) a party (the agreement party) to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party; or (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the

(d)

(e) (f)

(g)

other de facto relationship; or (iii) with reckless disregard of those interests of that other person; or a party (the agreement party) to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a spouse party; or (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or (iii) with reckless disregard of those interests of that other person; or the agreement is void, voidable or unenforceable; or in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (4)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

in respect of the making of a Part VIIIAB financial (h) agreement — a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or (i) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or (j) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB; or (k) if the agreement is a Part VIIIAB financial agreement covered by section 90UE — subsection (5) applies. Note: For child of a de facto relationship, see section 90RB.

(2) For the purposes of paragraph (1)(b), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party. [page 926] (3) For the purposes of the application of subparagraph (1)(c) (ii) to a Part VIIIAB financial agreement covered by section 90UE: (a) the reference in that subparagraph to an order under section 90SM is taken to include a reference to an order (however described) under a corresponding provision (if any) of the non-referring State de facto financial law

concerned; and (b) the reference in that subparagraph to a declaration under section 90SL is taken to include a reference to a declaration (however described) under a corresponding provision (if any) of the non-referring State de facto financial law concerned. (4) For the purposes of paragraph (1)(g), a person has caring responsibility for a child if: (a) the person is a parent of the child with whom the child lives; or (b) a parenting order provides that: (i) the child is to live with the person; or (ii) the person has parental responsibility for the child. (5) This subsection applies if: (a) at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or (b) if this advice was provided to at least one of the spouse parties to the agreement—that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party; and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside. [subs (5) am Act 122 of 2009 s 3 and Sch 5 [16] opn 4 Jan 2010]

(6) A court may, on an application by a person who was a party

to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons. (7) An order under subsection (1) or (6) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party. (8) If a party to proceedings under this section dies before the proceedings are completed: (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and (b) if the court is of the opinion: (i) that it would have exercised its powers under this section if the deceased party had not died; and (ii) that it is still appropriate to exercise those powers; [page 927] the court may make any order that it could have made under subsection (1) or (6); and (c) an order under paragraph (b) may be enforced on behalf

of, or against, as the case may be, the estate of the deceased party. (9) The court must not make an order under this section if the order would: (a) result in the acquisition of property from a person otherwise than on just terms; and (b) be invalid because of paragraph 51(xxxi) of the Constitution. For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution. COMMENTARY ON SECTION 90UM [s 90UM.1] For commentary on the setting aside of a financial agreement see [s 90K.1].

____________________

[s 90UN] Validity, enforceability and effect of financial agreements and termination agreements 90UN The question whether a Part VIIIAB financial agreement or a Part VIIIAB termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court: (a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection

with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and (b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and (c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court. COMMENTARY ON SECTION 90UN [s 90UN.1] For commentary on the validity, enforcement and effect of financial agreements see [s 90KA.1].

____________________ DIVISION 5 — PROCEEDS OF CRIME AND FORFEITURE

[s 90VA] Notification of proceeds of crime orders etc 90VA (1) If: (a) a person makes an application for an order, under this Part, with respect to: (i) the property of the parties to a de facto relationship or either of them; or (ii) the maintenance of a party to a de facto relationship; and

[page 928] (b) the person knows that the property of the parties to the de facto relationship or either of them is covered by: (i) a proceeds of crime order; or (ii) a forfeiture application; the person must: (c) disclose in the application the proceeds of crime order or forfeiture application; and (d) give to the court a sealed copy of that order or application. (2) A person who does not comply with subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units. (3) If: (a) a person is a party to de facto property settlement or maintenance proceedings under this Part; and (b) the person is notified by the proceeds of crime authority that the property of the parties to the de facto relationship or either of them is covered by: (i) a proceeds of crime order; or (ii) a forfeiture application; the person must: (c) notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and (d) give the Registry Manager: (i) a copy of the notification referred to in paragraph

(b) (if the notification is in writing); and (ii) a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application). [subs (3) am Act 174 of 2011 s 3 and Sch 2 items 184 and 185, opn 6 June 2012]

(4) A person who does not comply with subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units. COMMENTARY ON SECTION 90VA [s 90VA.1] For similar provision on the interaction between property and maintenance orders and proceeds of crime legislation see s 90M.

____________________

[s 90VB] Court to stay property or maintenance proceedings affected by proceeds of crime orders etc. 90VB (1) A court in which property settlement, or maintenance proceedings, are pending must stay those proceedings if notified under section 90VA in relation to the proceedings. (2) The court may, before staying proceedings under subsection (1), invite or require the proceeds of crime authority to make submissions relating to staying the proceedings. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 186, opn 6 June 2012]

(3) A court must, on the application of the proceeds of crime authority, stay de facto property settlement or maintenance

proceedings under this Part if the property of the parties to the de facto relationship or either of them is covered by: [page 929] (a) a proceeds of crime order; or (b) a forfeiture application. [subs (3) am Act 174 of 2011 s 3 and Sch 2 item 186, opn 6 June 2012]

(4) A court must notify the proceeds of crime authority if the court stays de facto property settlement or maintenance proceedings under subsection (1) or (3). [subs (4) am Act 174 of 2011 s 3 and Sch 2 item 186, opn 6 June 2012]

(5) The proceeds of crime authority must notify the Registry Manager if: (a) a proceeds of crime order ceases to be in force; or (b) a forfeiture application is finally determined. [subs (5) am Act 174 of 2011 s 3 and Sch 2 item 186, opn 6 June 2012]

(6) For the purposes of subsection (5), a forfeiture application is taken to be finally determined when: (a) the application is withdrawn; or (b) if the application is successful — the resulting forfeiture order comes into force; or (c) if the application is unsuccessful — the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of. COMMENTARY ON SECTION 90VB

[s 90VB.1] For similar provision see s 90N.

____________________

[s 90VC]

Lifting a stay

90VC (1) A court that stayed the de facto property settlement or maintenance proceedings under section 90VB must wholly or partially lift the stay if: (a) either party to the proceedings makes an application for the stay to be lifted and the proceeds of crime authority consents to such an application; or (b) the proceeds of crime authority makes an application for the stay to be lifted. [subs (1) am Act 174 of 2011 s 3 and Sch 2 item 187, opn 6 June 2012]

(2) A court that stayed the de facto property settlement or maintenance proceedings under section 90VB may, on its own motion, wholly or partially lift the stay if the proceeds of crime authority consents to such a motion. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 188, opn 6 June 2012]

(3) Giving the Registry Manager written notice of the proceeds of crime authority’s consent under this section is taken to be the giving of that consent, unless the court requires the authority to appear in the proceedings. The notice may be given by the authority or by a party to the proceedings. [subs (3) am Act 174 of 2011 s 3 and Sch 2 items 189 and 190, opn 6 June 2012] COMMENTARY ON SECTION 90VC [s 90VC.1] For similar provision see s 90P.

____________________ [page 930]

[s 90VD] authority

Intervention by proceeds of crime

90VD (1) The proceeds of crime authority may intervene in any de facto property settlement or maintenance proceedings in relation to which a court is notified under section 90VA, or in any proceedings under section 90VB or 90VC in which the authority is not already a party. [subs (1) am Act 174 of 2011 s 3 and Sch 2 items 191 and 192, opn 6 June 2012]

(2) If the proceeds of crime authority intervenes, the authority is taken to be a party to the proceedings with all the rights, duties and liabilities of a party. [subs (2) am Act 174 of 2011 s 3 and Sch 2 item 193, opn 6 June 2012] COMMENTARY ON SECTION 90VD [s 90VD.1] For similar provision see s 90Q.

____________________ DIVISION 6 — INSTRUMENTS NOT LIABLE TO DUTY

[s 90WA]

Certain instruments not liable to duty

90WA (1) None of the following is subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory:

(a) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under Division 2; (b) a Part VIIIAB financial agreement; (c) a Part VIIIAB termination agreement; (d) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order or Part VIIIAB financial agreement made under Division 4. (2) Subsection (1) does not apply to a liability to pay duty or charge (if any) in relation to a Part VIIIAB financial agreement covered by section 90UE if the liability arises before the transition time (within the meaning of that section) for the agreement. (3) Despite any State law, a failure to discharge a liability covered by subsection (2) in relation to an agreement has no effect for the purposes of this Act. In particular, the failure does not affect whether the agreement may be presented in evidence in a court for the purposes of this Act. COMMENTARY ON SECTION 90WA [s 90WA.1] For similar provision see s 90L. For commentary see [s 90L.1]. Section 90WA(3) overcomes any prohibition on the tendering of dutiable documents on which duty has not been paid.

____________________

[page 931]

PART VIIIB — SUPERANNUATION INTERESTS [Pt VIIIB insrt Act 61 of 2001 s 3 and Sch 1 item 4 opn 28 Dec 2002]

DIVISION 1 — PRELIMINARY

Subdivision A — Scope of this Part [s 90MA]

Object of this Part

90MA The object of this Part is to allow certain payments (splittable payments) in respect of a superannuation interest to be allocated between: (a) the parties to a marriage; or (b) the parties to a de facto relationship; either by agreement or by court order. [s 90MA am Act 115 of 2008 s 3 and Sch 1[51], opn 1 Mar 2009]

[s 90MB] deeds etc

This Part overrides other laws, trust

90MB (1) Subject to subsection (3), this Part has effect despite anything to the contrary in any of the following instruments (whether made before or after the commencement of this Part): (a) any other law of the Commonwealth; (b) any law of a State or Territory; (c) anything in a trust deed or other instrument. [subs (1) am Act 114 of 2001 s 3 and Sch 1 item 1 opn 28 Dec 2002]

(2) Without limiting subsection (1), nothing done in compliance with this Part by the trustee of an eligible superannuation plan is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1). (3) This Part has effect subject to the Superannuation (Unclaimed Money and Lost Members) Act 1999. [subs (3) insrt Act 114 of 2001 s 3 and Sch 1 item 2 opn 28 Dec 2002]

[s 90MC] Extended meanings of matrimonial cause and de facto financial cause 90MC (1) A superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4. [subs (1) am Act 115 of 2008 s 3 and Sch 1[52], opn 1 Mar 2009]

(2) A superannuation interest is to be treated as property for the purposes of paragraph (c) of the definition of de facto financial cause in section 4.

[subs (2) am Act 115 of 2008 s 3 and Sch 1[53], opn 1 Mar 2009]

Subdivision B — Interpretation [s 90MD]

Definitions

90MD In this Part, unless the contrary intention appears: approved deposit fund has the same meaning as in the SIS Act. [page 932] business day [def rep Act 46 of 2011 s 3 and Sch 2[588], opn 27 Dec 2011]

declaration time, in relation to a separation declaration, means the time when the declaration was signed by a spouse (or last signed by a spouse, if both spouses have signed). Note: If a spouse has died, the spouse’s legal personal representative may sign a declaration (see subsection 90MP(2)). [def am Act 115 of 2008 s 3 and Sch 3[32], opn 21 Nov 2008; Act 115 of 2008 s 3 and Sch 1[54], opn 1 Mar 2009]

eligible annuity [def rep Act 15 of 2007 s 3 and Sch 1[11], opn 15 Mar 2007]

eligible superannuation plan means any of the following: (a) a superannuation fund within the meaning of the SIS Act; (b) an approved deposit fund; (c) an RSA;

(d) an account within the meaning of the Small Superannuation Accounts Act 1995; (e) a superannuation annuity (within the meaning of the Income Tax Assessment Act 1997). [def am Act 153 of 2004 s 3 and Sch 2, opn 15 June 2005; Act 15 of 2007 s 3 and Sch 1[12], opn 15 Mar 2007]

flagging order means an order mentioned in subsection 90MU(1). flag lifting agreement has the meaning given by section 90MN. in force, in relation to an agreement, has the meaning given by section 90MG. interest includes a prospective or contingent interest, and also includes an expectancy. marriage includes a void marriage. member, in relation to an eligible superannuation plan, includes a beneficiary (including a contingent or prospective beneficiary). member spouse, in relation to a superannuation interest, means the spouse who has the superannuation interest. non-member spouse, in relation to a superannuation interest, means the spouse who is not the member spouse in relation to that interest. operative time: (a) in relation to a payment split under a superannuation agreement or flag lifting agreement — has the meaning given by section 90MI; or (b) in relation to a payment flag under a superannuation

agreement — has the meaning given by section 90MK or paragraph 90MLA(2)(c) as appropriate; or (c) in relation to a payment split under a court order — means the time specified in the order. [def am Act 121 of 2002 s 3 and Sch 1 item 1AAA opn 28 Dec 2002]

[page 933] payment flag means: (a) the application of section 90ML in relation to a superannuation interest; or (b) the application of a flagging order in relation to a superannuation interest. payment split means: (a) the application of section 90MJ in relation to a splittable payment; or (b) the application of a splitting order in relation to a splittable payment. percentage-only interest means a superannuation interest prescribed by the regulations for the purposes of this definition. regulated superannuation fund has the same meaning as in the SIS Act. reversionary beneficiary means a person who becomes entitled to a benefit in respect of a superannuation interest of a spouse, after the spouse dies. [def insrt Act 121 of 2002 s 3 and Sch 1 item 1 opn 28 Dec 2002]

reversionary interest has the meaning given by section 90MF. RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997. secondary government trustee means a trustee that: (a) is the Commonwealth, a State or Territory; and (b) is a trustee only because of the operation of section 90MDA. separation declaration has the meaning given by section 90MP. SIS Act means the Superannuation Industry (Supervision) Act 1993. splittable payment has the meaning given by section 90ME. splitting order means an order mentioned in subsection 90MT(1). spouse means: (a) a party to a marriage; or (b) a party to a de facto relationship. [def subst Act 115 of 2008 s 3 and Sch 1[55], opn 1 Mar 2009]

superannuation agreement has the meaning given by sections 90MH and 90MHA. [def am Act 115 of 2008 s 3 and Sch 1[56], opn 1 Mar 2009]

superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest. trustee, in relation to an eligible superannuation plan, means: (a) if the plan is a fund that has a trustee (within the

ordinary meaning of that word) — the trustee of the plan; or (b) if paragraph (a) does not apply and a person is identified in accordance with the regulations as the trustee of the plan for the purposes of this definition — the person identified in accordance with the regulations; or (c) in any other case — the person who manages the plan. unflaggable interest means a superannuation interest prescribed by the regulations for the purposes of this definition. unsplittable interest means a superannuation interest prescribed by the regulations for the purposes of this definition. [page 934]

[s 90MDA]

Extended meaning of trustee

90MDA If a person who is not the trustee of an eligible superannuation plan nevertheless has the power to make payments to members of the plan, then references in this Part to the trustee of the plan include references to that person.

[s 90ME]

Splittable payments

90ME (1) Each of the following payments in respect of a superannuation interest of a spouse is a splittable payment: (a) a payment to the spouse; (b) a payment to another person for the benefit of the

spouse; (c) a payment to the legal personal representative of the spouse, after the death of the spouse; (d) a payment to a reversionary beneficiary, after the death of the spouse; (e) a payment to the legal personal representative of a reversionary beneficiary covered by paragraph (d), after the death of the reversionary beneficiary. (2) A payment is not a splittable payment if it is prescribed by the regulations for the purposes of this subsection. The regulations may prescribe a payment either: (a) generally (that is, for the purposes of all payment splits in respect of a superannuation interest); or (b) only for the purposes of applying this Part to a particular payment split in respect of a superannuation interest. [subs (2) subst Act 114 of 2001 s 3 and Sch 1 item 2A opn 28 Dec 2002]

(3) If a payment is made to another person for the benefit of 2 or more persons who include the spouse, then the payment is nevertheless a splittable payment, to the extent to which it is paid for the benefit of the spouse.

[s 90MF]

Reversionary interests

90MF For the purposes of this Part, a person’s interest in an eligible superannuation plan is a reversionary interest at any time while the person’s entitlement to benefits in respect of the interest is conditional on the death of another person who is still living.

[s 90MG]

Meaning of in force

90MG (1) A financial agreement is in force at any time when it is binding on the parties in accordance with section 90G. (1A) A Part VIIIAB financial agreement is in force at any time when it is binding on the parties in accordance with section 90UJ. [subs (1A) insrt Act 115 of 2008 s 3 and Sch 1[57], opn 1 Mar 2009]

(2) A superannuation agreement is in force at any time when the relevant financial agreement, or relevant Part VIIIAB financial agreement, is in force. [subs (1A) insrt Act 115 of 2008 s 3 and Sch 1[58], opn 1 Mar 2009]

(3) A flag lifting agreement is in force if, and only if: (a) it meets the requirements set out in subsection 90MN(3); and (b) it has not been set aside by a court and has not been terminated. [page 935] DIVISION 2 — PAYMENT SPLITTING OR FLAGGING BY AGREEMENT

Subdivision A — Superannuation agreements [s 90MH] Superannuation agreement to be included in financial agreement if about a marriage 90MH (1) A financial agreement under Part VIIIA may include an agreement that deals with superannuation interests of either or both of the spouse parties to the agreement as if those interests were property. It does not matter whether or not the

superannuation interests are in existence at the time the agreement is made. [subs (1) am Act 115 of 2008 s 3 and Sch 3[27], opn 21 Nov 2008]

(2) The part of the financial agreement that deals with superannuation interests is a superannuation agreement for the purposes of this Part. (3) A superannuation agreement has effect only in accordance with this Part. In particular, it cannot be enforced under Part VIIIA. (4) A superannuation agreement that is included in a financial agreement under section 90B (in contemplation of marriage) has no effect unless and until the spouse parties marry. [subs (4) am Act 115 of 2008 s 3 and Sch 3[28], opn 21 Nov 2008]

(5) In applying sections 90B, 90C and 90D for the purposes of this Division, a superannuation interest of a spouse party to a financial agreement is treated as being acquired at the time when that party first becomes a member of the eligible superannuation plan in respect of that interest. [subs (5) am Act 115 of 2008 s 3 and Sch 3[29], opn 21 Nov 2008]

[s 90MHA] Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship 90MHA (1) A Part VIIIAB financial agreement may include an agreement that deals with superannuation interests of either or both of the spouse parties to the agreement as if those interests were property. It does not matter whether or not the superannuation interests are in existence at the time the agreement is made. (2) The part of the Part VIIIAB financial agreement that deals with superannuation interests is a superannuation agreement for the purposes of this Part. (3) A superannuation agreement has effect only in accordance with this Part. In particular, it cannot be enforced under Part VIIIAB. (4) A superannuation agreement that is included in a Part VIIIAB financial agreement under section 90UB (in contemplation of a de facto relationship) has no effect unless and until the spouse parties enter into that de facto relationship. (5) In applying sections 90UB, 90UC, 90UD and 90UE for the purposes of this Division, a superannuation interest of a spouse party to a Part VIIIAB financial agreement is treated as being acquired at the time when that party first becomes a member of the eligible superannuation plan in respect of that interest. [s 90MHA insrt Act 115 of 2008 s 3 and Sch 1[59], opn 1 Mar 2009]

[page 936]

Subdivision B — Payment splitting [s 90MI]

Operative time for payment split

90MI (1) The operative time for a payment split under a superannuation agreement or flag lifting agreement is the beginning of the fourth business day after the day on which a copy of the agreement is served on the trustee, accompanied by: (a) if the parties are divorced—a copy of the divorce order that has terminated the marriage; and (aa) if, in the case of a payment split under a superannuation agreement: (i) the parties are not divorced; and (ii) a separation declaration is not part of the superannuation agreement; a separation declaration; and (b) if the agreement specifies a method for calculating a base amount — a document setting out the amount calculated using that method; and (c) if a form of declaration is prescribed for the purposes of this paragraph — a declaration in that form. Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations. [subs (1) am Act 115 of 2008 s 3 and Sch 3[33]–[34], opn 21 Nov 2008]

(2) For the purposes of subsection (1), the separation declaration must have a declaration time that is not more than 28 days before the service on the trustee. [subs (2) am Act 115 of 2008 s 3 and Sch 3[35], opn 21 Nov 2008] [s 90MI am Act 98 of 2005 s 2 and Sch 1, cl 96, opn 3 Aug 2005]

[s 90MJ] Payment split under superannuation agreement or flag lifting agreement 90MJ (1) This section applies to a superannuation interest if: (a) the interest is identified in a superannuation agreement or flag lifting agreement; and (b) if the interest is a percentage-only interest — the agreement does one of the following: (i) it specifies a percentage that is to apply for the purposes of this sub-paragraph; (ii) it specifies a percentage that is to apply to all splittable payments in respect of the interest; and (c) if the interest is not a percentage-only interest — the agreement does one of the following: (i) it specifies an amount as a base amount in relation to the interest for the purposes of this Part; (ii) it specifies a method by which such a base amount can be calculated at the time when the agreement is served on the trustee under section 90MI; (iii) it specifies a percentage that is to apply to all splittable payments in respect of the interest; and (d) the agreement is in force at the operative time; and (da) if the agreement relates to a marriage — the marriage is broken down at the operative time; and [page 937] (db) if the agreement relates to a de facto relationship — the

de facto relationship is broken down at the operative time; and (e) the interest is not an unsplittable interest. Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations. [subs (1) am Act 115 of 2008 s 3 and Sch 3[36], opn 21 Nov 2008; Act 115 of 2008 s 3 and Sch 1[60], opn 1 Mar 2009]

(2) The following provisions begin to apply to the interest at the operative time. (3) Whenever a splittable payment becomes payable in respect of the interest: (a) the non-member spouse is entitled to be paid the amount (if any) that is calculated under subsection (4); and (b) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the payment split. (4) The amount is calculated as follows: (a) if the agreement specifies a percentage as mentioned in subparagraph (1)(b)(ii) or subparagraph (1)(c)(iii) — the amount is calculated by applying the specified percentage to the splittable payment; or (b) otherwise — the amount is calculated in accordance with the regulations. (5) Subject to section 90MV, this section continues to apply to the superannuation interest even if the agreement referred to in subsection (1) later ceases to be in force.

Subdivision C — Payment flagging

[s 90MK]

Operative time for payment flag

90MK (1) The operative time for a payment flag under a superannuation agreement is: (a) the service time, if the eligible superannuation plan is a self-managed superannuation fund; or (b) otherwise, the beginning of the fourth business day after the day on which the service time occurs. (2) In this section: self-managed superannuation fund has the same meaning as in the SIS Act. service time means the time when a copy of the agreement is served on the trustee, accompanied by: (a) if the parties are divorced — a copy of the divorce order that has terminated the marriage; and (aa) if the parties are not divorced — a separation declaration with a declaration time that is not more than 28 days before the service on the trustee; and (b) if a form of declaration is prescribed for the purposes of this paragraph — a declaration in that form. [def am Act 115 of 2008 s 3 and Sch 1[61], opn 1 Mar 2009] [subs (2) am Act 98 of 2005 s 2 and Sch 1, cl 97, opn 3 Aug 2005]

[s 90ML]

Payment flag

90ML (1) This section applies to a superannuation interest if: (a) the interest is identified in a superannuation agreement; and

[page 938] (b) the agreement provides that the interest is to be subject to a payment flag under this Part; and (c) the agreement is in force at the operative time; and (d) the interest is not an unflaggable interest. (2) A payment flag starts to operate on the superannuation interest at the operative time and continues to operate until either: (a) a court terminates the operation of the payment flag by an order mentioned in section 90MM; or (b) a flag lifting agreement is served on the trustee as mentioned in section 90MI in respect of the superannuation interest. (3) If a payment flag ceases to operate because of paragraph (2) (b), the cessation is not affected by a later termination of the flag lifting agreement. (4) While a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest. Penalty: 50 penalty units. Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

(4A) Subsection (4) does not apply if the splittable payment is made in circumstances in which section 90MLA applies. Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code). [subs (4A) insrt Act 121 of 2002 s 3 and Sch 1 item 1AA opn 28 Dec 2002]

(5) If a splittable payment becomes payable in respect of a

superannuation interest while a payment flag is operating, the trustee must, within 14 days after it became payable, give written notice to the member spouse and the non-member spouse. Penalty: 50 penalty units. Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

(6) Subsection (5) does not apply if the trustee has previously given a notice under that subsection, for an earlier splittable payment, in respect of the payment flag. (7) If either spouse dies while a payment flag is operating: (a) the payment flag nevertheless continues to operate; and (b) the legal personal representative of the deceased spouse has all the rights the deceased spouse would have had in respect of the payment flag. Note: The rights of the legal personal representative under paragraph (b) include the right to enter into a flag lifting agreement under section 90MN.

[s 90MLA] Some splittable payments payable if payment flag operating 90MLA (1) This section applies if: (a) a superannuation interest (original interest) a person has in an eligible superannuation plan (old ESP) is identified in a superannuation agreement; and (b) a payment flag under section 90ML is operating on the original interest; and (c) a splittable payment is made by the trustee of the old ESP to the trustee of another eligible superannuation plan (new ESP) in respect of the original interest as part

of a successor fund transfer. [page 939] (2) If this section applies, then: (a) the new interest in the new ESP is taken to be the original interest identified in the superannuation agreement; and (b) the payment flag operates on the new interest; and (c) despite section 90MK, the operative time for the payment flag in respect of the new interest is the time that the payment to the trustee of the new ESP is made. (3) In this section: successor fund transfer means the transfer of a person’s superannuation interest in the old ESP in circumstances where: (a) the new ESP confers on the person, in relation to the new interest, equivalent rights to the rights the person had in relation to the original interest; and (b) before the transfer, the trustee of the new ESP had agreed with the trustee of the old ESP to the conferral of such rights. [s 90MLA insrt Act 121 of 2002 s 3 and Sch 1 item 1AB opn 28 Dec 2002]

[s 90MM] court

Payment flag may be terminated by

90MM (1) If a court makes an order under section 90K setting aside a financial agreement in respect of which a payment

flag is operating, the court may also make an order terminating the operation of the flag. Note: Under section 90MH, a superannuation agreement must be part of a financial agreement. Therefore, setting aside the financial agreement also has the effect of setting aside the superannuation agreement. [subs (1) am Act 115 of 2008 s 3 and Sch 1[62], opn 1 Mar 2009]

(2) If a court makes an order under section 90UM setting aside a Part VIIIAB financial agreement in respect of which a payment flag is operating, the court may also make an order terminating the operation of the flag. Note: Under section 90MHA, a superannuation agreement relating to a de facto relationship must be part of a Part VIIIAB financial agreement. Therefore, setting aside the financial agreement also has the effect of setting aside the superannuation agreement. [subs (2) insrt Act 115 of 2008 s 3 and Sch 1[63], opn 1 Mar 2009]

[s 90MN]

Flag lifting agreement etc

90MN (1) At any time when a payment flag is operating on a superannuation interest, the spouses may make an agreement (a flag lifting agreement) that either: (a) provides that the flag is to cease operating without any payment split; or (b) specifies an amount, method or percentage in accordance with subsection 90MJ(1). (2) If the flag lifting agreement provides for a payment split, the spouses may at any time make an agreement (a termination agreement) that terminates the flag lifting agreement. (3) A flag lifting agreement or termination agreement has no effect unless it complies with the following requirements: (a) the agreement must be signed by both spouses;

(b) for each spouse, the agreement must contain a statement that the spouse has been provided with independent legal advice from a legal practitioner as to the legal effect of the agreement; [page 940] (c) a certificate must be attached to the agreement, signed by the person who provided the legal advice and stating that the advice was provided; (d) after the agreement is signed by the spouses, each spouse must be provided with a copy of the agreement. (4) A court may make an order setting aside a flag lifting agreement or termination agreement if, and only if, the court is satisfied as to: (a) if the spouses are parties to a marriage — any of the grounds set out in subsection 90K(1) (other than paragraph 90K(1)(f)); or (b) if the spouses are parties to a de facto relationship — any of the grounds set out in subsection 90UM(1) (other than paragraph 90UM(1)(i)). [subs (4) am Act 115 of 2008 s 3 and Sch 1[64], opn 1 Mar 2009]

(5) An order setting aside a flag lifting agreement also operates to set aside the related financial agreement or Part VIIIAB financial agreement. [subs (5) am Act 115 of 2008 s 3 and Sch 1[65], opn 1 Mar 2009]

(6) An order under section 90K setting aside a financial agreement also operates to set aside the related flag lifting

agreement. (7) An order under section 90UM setting aside a Part VIIIAB financial agreement also operates to set aside the related flag lifting agreement. [subs (7) insrt Act 115 of 2008 s 3 and Sch 1[66], opn 1 Mar 2009]

Subdivision D — Miscellaneous

[s 90MO] order

Limitation on section 79 or 90SM

90MO (1) A court cannot make an order under section 79 or 90SM with respect to a superannuation interest if: (a) the superannuation interest is covered by a superannuation agreement that is in force; or (b) the non-member spouse has served a waiver notice on the trustee under section 90MZA in respect of the interest; or (c) a payment flag is operating on the superannuation interest. Note: Under section 90MM, the court can terminate the operation of a payment flag in certain circumstances. [subs (1) am Act 115 of 2008 s 3 and Sch 1[67], opn 1 Mar 2009]

(2) Subsection (1) does not prevent the court taking superannuation interests into account when making an order with respect to other property of the spouses. [Heading am Act 115 of 2008 s 3 and Sch 1[67], opn 1 Mar 2009]

[s 90MP]

Separation declaration

90MP (1) A separation declaration is a written declaration that complies with this section, and may be included in the superannuation agreement to which it relates. [subs (1) am Act 115 of 2008 s 3 and Sch 3[37], opn 21 Nov 2008]

(2) The declaration must be signed by at least one of the spouses. For this purpose, if a spouse has died the spouse’s legal personal representative may sign the declaration. [subs (2) am Act 115 of 2008 s 3 and Sch 3[38], opn 21 Nov 2008]

(2A) Spouses who are parties to a marriage Subsections (3) to (5) apply if the spouses are parties to a marriage. [subs (2A) insrt Act 115 of 2008 s 3 and Sch 1[68], opn 1 Mar 2009]

[page 941] (3) If section 90MQ applies to the declaration, then the declaration must state that: (a) the spouses are married; and (b) the spouses separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and (c) in the opinion of the spouse (or spouses) making the declaration, there is no reasonable likelihood of cohabitation being resumed. (4) If section 90MQ does not apply to the declaration, then the declaration must state that the spouses are married, but are separated, at the declaration time. (4A) If either or both of the spouses have died, then the declaration must state: (a) if section 90MQ applies to the declaration — that at the most recent time when both spouses were alive: (i) the spouses were married; but (ii) the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or (b) if section 90MQ does not apply to the declaration — that the spouses were married, but separated, at the most

recent time when both spouses were alive. Subsections (3) and (4) have effect subject to this subsection. [subs (4A) insrt Act 115 of 2008 s 3 and Sch 3[39], opn 21 Nov 2008]

(5) For the purposes of subsections (3) to (4A), the question whether spouses lived separately and apart for a continuous period of not less than 12 months before a particular date is to be determined in the same way as it is under section 48. [subs (5) am Act 115 of 2008 s 3 and Sch 1[69], opn 1 Mar 2009]

(6) In subsections (3) to (5): separated has the same meaning as in section 48 (as affected by sections 49 and 50). [subs (6) am Act 115 of 2008 s 3 and Sch 1[70], opn 1 Mar 2009]

(7) Spouses who are parties to a de facto relationship Subsections (8) to (12) apply if the spouses are parties to a de facto relationship. [subs (7) insrt Act 115 of 2008 s 3 and Sch 1[71], opn 1 Mar 2009]

(8) If section 90MQ applies to the declaration, then the declaration must state that: (a) the spouses lived in a de facto relationship; and (b) the spouses separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and (c) in the opinion of the spouse (or spouses) making the declaration, there is no reasonable likelihood of cohabitation being resumed. [subs (8) insrt Act 115 of 2008 s 3 and Sch 1[71], opn 1 Mar 2009]

(9) If section 90MQ does not apply to the declaration, then the declaration must state that the spouses lived in a de facto

relationship, but are separated, at the declaration time. [subs (9) insrt Act 115 of 2008 s 3 and Sch 1[71], opn 1 Mar 2009]

(10) If either or both of the spouses have died, then the declaration must state: (a) if section 90MQ applies to the declaration — that: (i) the spouses lived in a de facto relationship; but (ii) at the most recent time when both spouses were alive, the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or [page 942] (b) if section 90MQ does not apply to the declaration — that the spouses: (i) lived in a de facto relationship; but (ii) were separated at the most recent time when both spouses were alive. Subsections (8) and (9) have effect subject to this subsection. [subs (10) insrt Act 115 of 2008 s 3 and Sch 1[71], opn 1 Mar 2009]

(11) For the purposes of subsection (8) and paragraph (10)(a), the spouses can have separated and be living separately and apart even if: (a) their cohabitation was brought to an end by the action or conduct of one only of them; or (b) they have continued to reside in the same residence; or (c) either of them has rendered some household services to

the other. [subs (11) insrt Act 115 of 2008 s 3 and Sch 1[71], opn 1 Mar 2009]

(12) For the purposes of subsection (8) and paragraph (10)(a), if, after the spouses separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the relevant time referred to in paragraph (8)(b) or (10)(a): (a) the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period; but (b) the period of cohabitation shall not be taken to be part of the period of living separately and apart. [subs (12) insrt Act 115 of 2008 s 3 and Sch 1[71], opn 1 Mar 2009]

[s 90MQ] Superannuation interests in excess of low rate cap amount 90MQ (1) This section applies to a declaration if: (a) if both spouses are alive at the declaration time — at the declaration time; or (b) otherwise — at the most recent time when both spouses were alive; the total withdrawal value for all the superannuation interests of the member spouse is more than the member spouse’s low rate cap amount for the income year in which that time occurs. [subs (1) subst Act 115 of 2008 s 3 and Sch 3[40], opn 21 Nov 2008]

(2) This section does not apply in the circumstances (if any) prescribed by the regulations.

(3) In this section: ETP threshold [def rep Act 15 of 2007 s 3 and Sch 1[14]opn 15 Mar 2007]

total withdrawal value means the amount determined in accordance with the regulations. low rate cap amount has the meaning given by the Income Tax Assessment Act 1997 (disregarding subsection 307345(2) of that Act and section 307-345 of the Income Tax (Transitional Provisions) Act 1997). [def insrt Act 15 of 2007 s 3 and Sch 1[15], opn 15 Mar 2007]

[s 90MR]

Enforcement by court order

90MR (1) A court may make such orders as it thinks necessary for the enforcement of a payment split or payment flag under this Division. [page 943] (2) The question whether a superannuation agreement or flag lifting agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts. (3) Without limiting subsection (2), in proceedings relating to a superannuation agreement or flag lifting agreement, the court has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection

with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction. DIVISION 3 — PAYMENT SPLITTING OR FLAGGING BY COURT ORDER

[s 90MS] Order under section 79 or 90SM may include orders in relation to superannuation interests 90MS (1) In proceedings under section 79 or 90SM with respect to the property of spouses, the court may, in accordance with this Division, also make orders in relation to superannuation interests of the spouses. Note 1: Although the orders are made in accordance with this Division, they will be made under either section 79 or 90SM. Therefore they will be generally subject to all the same provisions as other orders made under that section. Note 2: Sections 71A and 90MO limit the scope of section 79. Note 3: Subsections 44(5) and (6) and sections 90SB, 90SK and 90MO limit the scope of section 90SM. [subs (1) am Act 115 of 2008 s 3 and Sch 1[72]–[74], opn 1 Mar 2009]

(2) A court cannot make an order under section 79 or 90SM in relation to a superannuation interest except in accordance with this Part. [subs (2) am Act 115 of 2008 s 3 and Sch 1[75], opn 1 Mar 2009] [Heading am Act 115 of 2008 s 3 and Sch 1[72], opn 1 Mar 2009]

[s 90MT]

Splitting order

90MT (1) A court, in accordance with section 90MS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest): (a) if the interest is not a percentage-only interest — an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

the non-member spouse is entitled to be paid the (i) amount (if any) calculated in accordance with the regulations; and (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order; (b) an order to the effect that, whenever a splittable payment becomes payable in respect of the interest: (i) the non-member spouse is entitled to be paid a specified percentage of the splittable payment; and (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order; (c) if the interest is a percentage-only interest — an order to the effect that, whenever a splittable payment becomes payable in respect of the interest: [page 944] (i)

the non-member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order; (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order; (d) such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).

(2) Before making an order referred to in subsection (1), the court must make a determination under paragraph (a) or (b) as follows: (a) if the regulations provide for the determination of an amount in relation to the interest, the court must determine the amount in accordance with the regulations; (b) otherwise, the court must determine the value of the interest by such method as the court considers appropriate. [subs (2) subst Act 121 of 2002 s 3 and Sch 1 item 1A opn 28 Dec 2002]

(2A) The amount determined under paragraph (2)(a) is taken to be the value of the interest. [subs (2A) insrt Act 121 of 2002 s 3 and Sch 1 item 1A opn 28 Dec 2002]

(3) Regulations for the purposes of paragraph (2)(a) may provide for the amount to be determined wholly or partly by reference to methods or factors that are approved in writing by the Minister for the purposes of the regulations. [subs (3) am Act 121 of 2002 s 3 and Sch 1 item 1B opn 28 Dec 2002]

(4) Before making an order referred to in paragraph (1)(a), the court must allocate a base amount to the non-member spouse, not exceeding the value determined under subsection (2). Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

[s 90MU]

Flagging order

90MU (1) A court, in accordance with section 90MS, may make an order in relation to a superannuation interest (other than an unflaggable interest):

directing the trustee not to make any splittable payment (a) in respect of the interest without the leave of the court; and (b) requiring the trustee to notify the member spouse and the non-member spouse, within a period specified in the order, of the next occasion when a splittable payment becomes payable in respect of the interest. [subs (1) am Act 115 of 2008 s 3 and Sch 3[46], opn 21 Nov 2008]

(2) In deciding whether to make an order in accordance with this section, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a splittable payment will soon become payable in respect of the superannuation interest.

[s 90MUA] Some splittable payments may be made without leave of court 90MUA (1) A flagging order made under subsection 90MU(1) in relation to a superannuation interest (original interest) a person has in an eligible superannuation [page 945] plan (old ESP) does not apply to a splittable payment if the splittable payment is made by the trustee of the old ESP to the trustee of another eligible superannuation plan (new ESP) in respect of the original interest as part of a successor fund transfer. (2) If the splittable payment is made, then the flagging order is taken to be made in relation to the new interest from the time that the payment to the trustee of the new ESP is made.

(3) In this section: successor fund transfer means the transfer of a person’s superannuation interest in the old ESP in circumstances where: (a) the new ESP confers on the person, in relation to the new interest, equivalent rights to the rights the person had in relation to the original interest; and (b) before the transfer, the trustee of the new ESP had agreed with the trustee of the old ESP to the conferral of such rights. [s 90MUA insrt Act 121 of 2002 s 3 and Sch 1 item 1C opn 28 Dec 2002]

DIVISION 4 — GENERAL PROVISIONS ABOUT PAYMENT SPLITTING

[s 90MV]

Court may cancel payment split

90MV (1) A court may, under section 79 or 90SM, make an order terminating the operation of a payment split if: (a) the superannuation agreement in respect of the payment split has ceased to be in force; and (b) the non-member spouse has not served a waiver notice on the trustee under section 90MZA in respect of the payment split. [subs (1) am Act 115 of 2008 s 3 and Sch 1[76], opn 1 Mar 2009]

(2) The termination has effect for splittable payments that become payable after the date specified in the order.

[s 90MW] Deductions from splittable payment before calculating payment split

90MW Any deduction that the trustee is entitled to make from a splittable payment is to be deducted from the splittable payment before calculating any payment split and before applying section 90MX.

[s 90MX] Multiple payment splits applying to the same splittable payment 90MX (1) This section applies if 2 or more payment splits apply to the same splittable payment. (2) The payments splits are to be calculated in order of their operative times, starting with the earliest time. (3) For the purpose of calculating each of those payment splits (other than the one with the earliest operative time), the amount of the splittable payment is taken to be reduced by the amount to which a person other than the member spouse is entitled under the payment split with the next earlier operative time. [page 946] Example 1: W has a superannuation interest that is subject to 3 payment splits in respect of W’s marriages to X, Y and Z (in that order). The operative times of the payment splits are in the same order as the marriages. Assume each payment split provides for a 50% share to the non-member spouse. W becomes entitled to a splittable payment of $100. The final payment entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the remaining $12.50. Example 2: W has a superannuation interest that is subject to 3 payment splits in

respect of W’s de facto relationship with X, W’s marriage to Y and W’s de facto relationship with Z (in that order). The operative times of the payment splits are in the same order as the relationships. Assume each payment split provides for a 50% share to the non-member spouse. W becomes entitled to a splittable payment of $100. The final payment entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the remaining $12.50. [subs (3) am Act 121 of 2002 s 3 and Sch 1 item 2 opn 28 Dec 2002; Act 115 of 2008 s 3 and Sch 1[77]–[78], opn 1 Mar 2009]

[s 90MY]

Fees payable to trustee

90MY (1) The regulations may: (a) allow trustees to charge reasonable fees: (i) in respect of a payment split; or (ii) otherwise in respect of the operation of this Part in relation to a superannuation interest; and (b) prescribe the person or persons liable to pay those fees. (2) If any such fee remains unpaid after the time it is due for payment, then the trustee may recover any unpaid amount by deduction from amounts that would otherwise become payable by the trustee, in respect of the superannuation interest, to the person who is liable to pay the fee.

[s 90MZ] Superannuation preservation requirements 90MZ (1) If the eligible superannuation plan for a payment split is a regulated superannuation fund or approved deposit fund, then the entitlement of the non-member spouse is subject to any regulations made under the SIS Act that provide for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme

within the meaning of the SIS Act for the benefit of the nonmember spouse. [subs (1) am Act 121 of 2002 s 3 and Sch 1 item 3 opn 28 Dec 2002]

(2) If the eligible superannuation plan for a payment split is an RSA, then the entitlement of the non-member spouse is subject to any regulations made under the Retirement Savings Accounts Act 1997 that provide for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the non-member spouse. [subs (2) am Act 121 of 2002 s 3 and Sch 1 item 3 opn 28 Dec 2002]

(3) If the eligible superannuation plan for a payment split is a constitutionally protected fund (within the meaning of the Income Tax Assessment Act 1997) or an exempt public sector superannuation scheme within the meaning of the SIS Act, then the entitlement of the non-member spouse is subject to any law or other instrument that [page 947] provides for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the non-member spouse. [subs (3) am Act 121 of 2002 s 3 and Sch 1 item 3 opn 28 Dec 2002; Act 15 of 2007, s 3 and Sch 1[16] opn 15 Mar 2007]

[s 90MZA] 90MZA

Waiver of rights under payment split

(1) If the non-member spouse serves a waiver notice

on the trustee in respect of a payment split, then the following provisions apply for each splittable payment that becomes payable after the date specified in the waiver notice: (a) the non-member spouse is not entitled to be paid any amount under the payment split in respect of the splittable payment; (b) the entitlement of the person to whom the splittable payment would have been made but for the payment split continues to be reduced in the same way as it would have been reduced if the entitlement of the non-member spouse had not been terminated. Example: X has a superannuation interest that is subject to a 50:50 payment split in favour of Y. Y serves a waiver notice on the trustee, in exchange for a lump sum payment made by the trustee to another fund for the benefit of Y. The effect is that X’s payments will continue to be reduced by half, but Y will receive no further payments under the payment split.

(2) To be effective for the purposes of this section, a waiver notice must be in the prescribed form and must be accompanied by: (a) a statement to the effect that the non-member spouse has been provided with independent financial advice from a prescribed financial adviser as to the financial effect of the waiver notice; and (b) a certificate signed by the person who provided the financial advice, stating that the advice was provided.

[s 90MZB]

Trustee to provide information

90MZB (1) An eligible person may make an application to the trustee of an eligible superannuation plan for information

about a superannuation interest of a member of the plan. (2) The application must be accompanied by: (a) a declaration, in the prescribed form, stating that the applicant requires the information for either or both of the following purposes: (i) to assist the applicant to properly negotiate a superannuation agreement; (ii) to assist the applicant in connection with the operation of this Part in relation to the applicant; and (b) the fee (if any) payable under regulations made for the purposes of section 90MY. (3) If the trustee receives an application that complies with this section, the trustee must, in accordance with the regulations, provide information about the superannuation interest to the applicant. Penalty: 50 penalty units. Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

[page 948] (4) Regulations for the purposes of subsection (3) may specify circumstances in which the trustee is not required to provide information. Example: The regulations might provide that a secondary government trustee is not required to provide information where there is another trustee of the eligible

superannuation plan who is better able to provide the information.

(5) The trustee must not, in response to an application under this section by a spouse of the member, provide the spouse with any address of the member. For this purpose, address includes a postal address. Penalty: 50 penalty units. Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

(6) If the trustee receives an application under this section from a person other than the member, the trustee must not inform the member that the application has been received. Penalty: 50 penalty units. Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

(7) The regulations may require the trustee of an eligible superannuation plan, after the operative time for a payment split, to provide information to the non-member spouse about the superannuation interest concerned. Such regulations may prescribe penalties for contravention, not exceeding 10 penalty units. (8) In this section: eligible person, in relation to a superannuation interest of a member of an eligible superannuation plan, means: (a) the member; or (aa) if the member has died — the legal personal representative of the member; or (b) a spouse of the member; or (ba) if a spouse of the member has died — the legal personal representative of the spouse; or (c) a person who intends to enter into a superannuation

agreement with the member. [def am Act 115 of 2008 s 3 and Sch 3[47]–[48], opn 21 Nov 2008]

[s 90MZC]

Death of non-member spouse

90MZC If the non-member spouse dies after the operative time for a payment split: (a) the payment split nevertheless continues to operate; and (b) the payment split then operates in favour of the legal personal representative of the deceased spouse and is binding on that legal personal representative; and (c) the legal personal representative has all the rights the deceased spouse would have had in respect of the payment split, including the right to serve a waiver notice under section 90MZA. [s 90MZC am Act 121 of 2002 s 3 and Sch 1 item 4 opn 28 Dec 2002]

[page 949] DIVISION 5 — MISCELLANEOUS

[s 90MZD]

Orders binding on trustee

90MZD (1) An order under this Part in relation to a superannuation interest may be expressed to bind the person who is the trustee of the eligible superannuation plan at the time when the order takes effect. However: (a) in the case of a trustee who is not a secondary government trustee — the court cannot make such an order unless the trustee has been accorded procedural

fairness in relation to the making of the order; and (b) in the case of a secondary government trustee: (i) the court cannot make such an order unless another trustee of the eligible superannuation plan has been accorded procedural fairness in relation to the making of the order; and (ii) the court may, if it thinks fit, require that the secondary government trustee also be accorded procedural fairness. (2) If an order is binding on the person who is the trustee of an eligible superannuation plan at the time when the order takes effect, then the order is also binding (by force of this subsection) on: (a) any person who subsequently becomes the trustee of that eligible superannuation plan; or (b) in a case where section 90MUA applies — a person who is the trustee, or any person who subsequently becomes the trustee, of the new ESP. [subs (2) am Act 121 of 2002 s 3 and Sch 1 item 5 opn 28 Dec 2002]

[s 90MZE]

Protection for trustee

90MZE The trustee of an eligible superannuation plan is not liable for loss or damage suffered by any person because of things done (or not done) by the trustee in good faith in reliance on: (a) any document served on the trustee for the purposes of this Part; or (b) an order made by a court in accordance with this Part.

[s 90MZF]

Service of documents on trustee

90MZF (1) If a document is required or permitted to be served for the purposes of this Part on the trustee of an eligible superannuation plan, the document may be served in any of the ways in which a document may be served under the Rules of Court. (2) Subsection (1) is in addition to any other method of service permitted by law.

[s 90MZG]

False declarations

90MZG (1) A person commits an offence if: (a) the person makes a statement in a declaration, knowing that the statement is false or misleading; and (b) the declaration is served on the trustee of an eligible superannuation plan for the purposes of this Part. [subs (1) am Act 4 of 2016 s 3 and Sch 4 items 1, 166, opn 10 Mar 2016]

[page 950] (2) An offence against subsection (1) is punishable by imprisonment for a period of up to 12 months. (3) Subsection (1) does not apply if the statement is not false or misleading in a material particular. (4) Subsection (1) does not apply in relation to a declaration if a spouse to which the declaration relates died before the declaration was made. [subs (4) insrt Act 115 of 2008 s 3 and Sch 3[41], opn 21 Nov 2008]

[s 90MZH]

Terminating employment because of

payment flag etc 90MZH A person must not terminate the employment of an employee on either of the following grounds: (a) a payment flag is operating in respect of a superannuation interest of the employee; (b) a superannuation agreement or splitting order is in force in respect of a superannuation interest of the employee. Penalty: 100 penalty units. Note: The penalty for a body corporate is 500 penalty units. See subsection 4B(3) of the Crimes Act 1914.

[page 951]

PART IX — INTERVENTION [s 91]

Intervention by Attorney-General

91 (1) [Proceedings justifying intervention] The AttorneyGeneral may intervene in, and contest or argue any question arising in: (a) any proceedings under this Act where the court requests the Attorney-General to do so or a matter arises that affects the public interest; or (b) any proceedings under this Act for or in relation to: (i) a parenting order, other than a child maintenance order; or (ii) an order under section 67ZC. [subs (1) am Act 181 of 1987 s 63 and Sch; Act 167 of 1995 s 35; Act 46 of 2006 s 3 and Sch 8 item 94, opn 1 July 2006]

(1A) [Intervention regarding miscarriage of justice] At any time after a divorce order has been made in any proceedings and before it has taken effect, the Attorney-General may intervene in the proceedings for the purpose of bringing to the notice of the court matters relevant to the exercise of its powers under section 58. [subs (1A) insrt Act 95 of 1976 s 4; am Act 98 of 2005 s 2 and Sch 1, cl 98, opn 3 Aug 2005]

(2) [Attorney-General deemed “a party”] Where the Attorney-General intervenes in any proceedings, the Attorney-

General shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. [subs (2) am Act 181 of 1987 s 63 and Sch] COMMENTARY ON SECTION 91 Introductory comment …. Rights and duties of Attorney-General …. Notice …. Decree nisi ….

[s 91.1] [s 91.2] [s 91.3] [s 91.4]

[s 91.1] Introductory comment This section permits the Attorney-General to intervene where the court requests him or her to do so, or if a matter arises that affects the public interests or any proceedings under Pt VII for a residence, contact or specific issues order or an order under s 67ZC. [s 91.2] Rights and duties of Attorney-General Where the AttorneyGeneral intervenes in any proceedings, he or she is deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. [s 91.3] Notice If the Attorney-General proposes to intervene he or she is required to file a notice that he or she proposes to intervene in the proceedings, the reasons that justify the intervention and any orders that the Attorney-General seeks upon intervention. This notice must be served on other parties to the proceedings. [s 91.4] Decree nisi The Attorney-General has power under s 58 to apply for the rescission of a decree nisi on the ground that there has been a miscarriage of justice.

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[s 91A]

Delegation by Attorney-General

91A (1) [Delegation to State Attorney-General] Where, in a State, there is a Family Court of the State, the Attorney-General

may, either generally or as otherwise provided by the instrument of delegation, by writing, delegate all or any of his or her [page 952] powers and functions under section 91 in respect of intervention in proceedings in the Family Court of that State and in other courts of that State to the person occupying from time to time, while the delegation is in force, the office of Attorney-General of that State. [subs (1) am Act 181 of 1987 s 63 and Sch]

(2) [Exercise by delegate] A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation. (3) [Exercise by Commonwealth Attorney-General] A delegation under this section does not prevent the exercise of a power or the performance of a function by the Attorney-General. (4) [State Attorney-General deemed “a party”] Where the Attorney-General of a State intervenes in any proceedings in accordance with a delegation under this section, the AttorneyGeneral of the State shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. [s 91A insrt Act 95 of 1976 s 5; am Act 181 of 1987 s 63 and Sch] COMMENTARY ON SECTION 91A [s 91A.1] Delegations of functions of Attorney-General to State Attorneys-General The only delegation which can be made under this section is to the Attorney-General for the State of Western Australia, which is the only state to have its own Family Court.

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[s 91B]

Intervention by child welfare officer

91B (1) [Court may request intervention] In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare. (2) [Officer deemed “a party”] Where the court has, under subsection (1), requested an officer to intervene in proceedings: (a) the officer may intervene in those proceedings; and (b) where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. Note: If an officer intervenes in proceedings and acts in good faith in relation to the proceedings, an order for costs, or for security for costs, cannot be made under subsection 117(2) against the officer: see subsection 117(4A). [subs (2) am Act 189 of 2011 s 3 and Sch 1 item 39, opn 7 June 2012] [s 91B insrt Act 72 of 1983 s 47] COMMENTARY ON SECTION 91B Introductory comment …. Intervention by child welfare officer ….

[s 91B.1] [s 91B.2]

[s 91B.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1983. The court is empowered in any proceedings that affect the welfare of a child to request the intervention in the proceedings of a state, territory or Commonwealth child welfare officer. The

court cannot compel the intervention in the proceedings of such a child [page 953] welfare officer: Secretary of the Department of Health and Human Services & Rollinson & Cheeseman [2010] FamCAFC 258. The reasoning indicates that similarly the court could not compel any other person to intervene under s 92. [s 91B.2] Intervention by child welfare officer Should the relevant child welfare officer intervene pursuant to s 91B(2), that officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party, including the right to seek an order for costs and to have an order for costs made against him or her. When a state or territory child protection authority intervenes in a parenting case under the Family Law Act 1975, the court applies that Act and not the legislation of the relevant state or territory; and, indeed, if there is an inconsistency, the Family Law Act 1975 would prevail under Constitution s 109: see Director-General, Dept of Human Services (NSW) v Tran (2010) 242 FLR 1; 44 Fam LR 1; (2010) FLC ¶93443; [2010] FamCAFC 151; BC201050772 (FC).

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[s 92]

Intervention by other persons

92 (1) [Any person may apply to intervene] In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings. [subs (1) am Act 98 of 2005 s 2 and Sch 1, cl 99, opn 3 Aug 2005]

(1A) In divorce or validity of marriage proceedings, a person in relation to whom an order has been made under subsection

69W(1) requiring a parentage testing procedure to be carried out may apply for leave to intervene in the proceedings, and the court may make an order entitling the person to intervene in the proceedings. [subs (1A) subst Act 181 of 1987 s 51; Act 167 of 1995 s 36; am Act 98 of 2005 s 2 and Sch 1, cl 100, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 9 item 62, opn 1 July 2006]

(2) [Order may involve conditions] An order under this section may be made upon such conditions as the court considers appropriate. [subs (2) am Act 181 of 1987 s 63 and Sch]

(3) [Person intervening deemed “a party”] Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. [subs (3) am Act 181 of 1987 s 63 and Sch] COMMENTARY ON SECTION 92 Intervention by other persons …. Necessity for a third party to intervene …. General principles …. Costs of intervention …. No additional jurisdiction to make orders …. Property proceedings …. Intervention in completed proceedings as well as current or pending proceedings …. Intervention in proceedings for parenting orders …. Proceedings under s 106B to set aside transaction …. Intervention by other persons — paternity tests — s 92(1A) …. Other relevant authorities ….

[s 92.1] [s 92.3] [s 92.4] [s 92.5] [s 92.6] [s 92.7] [s 92.8] [s 92.9] [s 92.10] [s 92.11] [s 92.14]

[page 954] [s 92.1] Intervention by other persons This section provides that in proceedings other than proceedings for principal relief, any person may apply for leave to intervene in the proceedings and the court may make an order, on any conditions, entitling that person to intervene. There are no limitations as to who may apply to intervene or what questions they may apply to intervene about, except that they cannot apply to intervene in proceedings as to divorce or nullity. Intervention under this section is designed to allow third parties who are affected personally by the proceedings to intervene to protect their own interests, rather than the public interest. See, for example, In the Marriage of Rogers and Fernandez (1988) 12 Fam LR 467; FLC 91–963, in which leave to intervene was refused because the applicant did not establish that he had any personal interest in the proceedings. Amicus curiae, “McKenzie friend” In In the Marriage of Rogers and Fernandez, above, the court also rejected an application to appear as amicus curiae, on the ground that the applicant was not a legal practitioner or a person having other appropriate qualifications to assist the court. The court also held that on the facts it was neither necessary nor appropriate to give the applicant leave to act as a “McKenzie friend” (a role created in McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472 (CA)). [s 92.3] Necessity for a third party to intervene It was held that s 92 preserves certain fundamental principles of natural justice and provides that a person against whom a claim or charge is made, or against whom an order is proposed, shall be given a reasonable opportunity of appearing and presenting his case. It was held by the Full Court in In the Marriage of Harris; Re Banaco Pty Ltd (1980) 6 Fam LR 450; FLC 90–906 that as s 92 prescribed a statutory form of approaching the court to seek such fundamental and natural justice, it provides the machinery for claiming such natural justice, and the machinery must be complied with by any such person so seeking.

However, in In the Marriage of Barro (1982) 8 Fam LR 855; (1983) FLC 91–300, a differently constituted Full Court took a different view and held that s 92 does not provide an exclusive code covering the rights of third parties in all cases. In some cases it may be proper for the third party to appear without the necessity of applying for leave to intervene at all; in other cases it may be appropriate to limit the intervention to the particular proceedings which are then before the court and in other cases it may be appropriate to require unlimited intervention. The Full Court distinguished Banaco, above. [s 92.4] General principles Where in a proceeding in the Family Court an order is made against a person who is not a party (or which affects the rights of such a person), such a person may: (a) apply to vary or discharge that order (where that course is appropriate); (b) appeal; (c) where a party to the proceedings has already appealed, seek to appear upon that appeal. In any such case the court has a discretion: (a) to permit such person to be heard without applying for leave to intervene under s 92; (b) to grant to such person leave to intervene limited to the issue in question; (c) to grant to such person leave to intervene generally in the proceedings between the parties, in each case subject to such terms as to costs or otherwise which may be appropriate: see In the Marriage of Barro (1982) 8 Fam LR 855; (1983) FLC 91–300; see also Re M (1982) 8 Fam LR 909; (1983) FLC 91–314. [s 92.5] Costs of intervention The consequence of intervention is that the intervener is a party and the basic principle which applies to interveners as well as to immediate parties to proceedings is that each party to proceedings under the Act bear his or her own costs. However, where the court is of the opinion that circumstances justify it in doing so, the court may make such

order as to [page 955] costs and security of costs as the court thinks just. That involves a consideration of the matters set out in s 117(2A): see In the Marriage of Riznic (1984) 10 Fam LR 385; FLC 91–589: see [s 117.19]. [s 92.6] No additional jurisdiction to make orders The section does not create an additional jurisdiction to make orders. It merely removes possible procedural obstacles by enabling the court to make an order either in favour of or against an intervener, but does not alter substantive rights or duties. It does not give the court power to impose new duties upon, or to annul the rights of, third parties who are interveners: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000: see s 9(3). [s 92.7] Property proceedings As a matter of substantive law there is no provision in the Act entitling an intervener, who is not a child of the marriage, to seek in his or her favour an alteration of property interests: see In the Marriage of Wallace (1984) 9 Fam LR 960; FLC 91–553. [s 92.8] Intervention in completed proceedings as well as current or pending proceedings It has been held that intervention may be in relation to completed proceedings: see In the Marriage of Waters (1978) 4 Fam LN 14; FLC 90–428. However, the Full Court of the Family Court held that leave to intervene could only be granted in proceedings which were actually pending at the time when leave to intervene was sought: see In the Marriage of E (No 2) (1979) 5 Fam LR 244; 36 FLR 12; FLC 90–645. The High Court has now held that it is not possible to intervene in proceedings that are concluded and are no longer on foot: see VitzdammJones v Vitzdamm-Jones; St Clair v Nicholson (1981) 6 Fam LR 609 at 628; FLC 91–012;.

Proceedings for parenting orders may be “completed” by the making of an order, notwithstanding that such orders are not final in so far as a fresh application may always be brought at a later time. [s 92.9] Intervention in proceedings for parenting orders A grandmother who has the care and control of a child involved in a dispute may be granted leave to intervene in order to seek an order in her favour: see In the Marriage of Hogue (1976) 2 Fam LN 6; 26 FLR 306; FLC 90–097. But the intervener need not be a relative of the child: see In the Marriage of Waters (1981) 6 Fam LR 871; (1981) FLC 91-019; see also In the Marriage of Jones (1976) FLC 90-148; In the Marriage of Robertson (1977) 15 ALR 145; 2 Fam LR 11,699; 28 FLR 129; (1977) FLC 90-214. The fact that an order has already been made for the separate representation of a child under s 68L and some overlapping of legal representation may arise is not a reason for refusal of leave: see In the Marriage of Hogue, above. The court may grant leave to intervene even though a parenting order has been made: see Re Pearn & Appleby (1977) FLC 90-231. [s 92.10] Proceedings under s 106B to set aside transaction A third party may also intervene under s 92 in proceedings under s 106B to set aside a transaction to defeat claims: see Re Demack; Ex parte Plummer (1977) 3 Fam LR 11,250 at 11,253; FLC 90–244. [s 92.11] Intervention by other persons — paternity tests — s 92(1A) This section was inserted in the Act by the Family Law Amendment Act 1983. It provides that persons directed in proceedings for principal relief (but not in proceedings of other kinds) to submit to paternity tests under s 99A, may apply to the court for and be granted leave to intervene in the proceedings. [s 92.14] Other relevant authorities In the Marriage of Macpherson and Clarke (1978) FLC 90–446; In the Marriage of Pertsoulis (1979) 4 Fam LR 613; FLC 90–613; In the Marriage of Krotofil (1980) 6 Fam LR 725; FLC 90–909.

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[page 956]

[s 92A]

Intervention in child abuse cases

92A (1) This section applies to proceedings under this Act in which it has been alleged that a child has been abused or is at risk of being abused. (2) Each of the following persons is entitled to intervene in the proceedings: (a) a guardian of the child; (b) a parent of the child with whom the child lives; (ba) a person with whom the child is to live under a parenting order; (bb) a person who has parental responsibility for the child under a parenting order; (c) any other person responsible for the care, welfare or development of the child; (d) a prescribed child welfare authority; (e) a person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse. [subs (2) am Act 167 of 1995 s 37; Act 46 of 2006 s 3 and Sch 8 item 95, opn 1 July 2006]

(3) Where a person intervenes in proceedings pursuant to this section, the person is, unless the court otherwise orders, to be taken to be a party to the proceedings with all the rights, duties and liabilities of a party. [s 92A insrt Act 37 of 1991 s 14] COMMENTARY ON SECTION 92A

[s 92A.1] Entitlement to intervene in child abuse cases Introductory comments This section gives certain persons an entitlement to intervene (compare s 92, giving the court a discretion to allow intervention) in proceedings in which allegations of child abuse, or risk of child abuse, arise. The section was added by the Family Law Amendment Act 1991. Abuse See the definition of this term in s 60D. Persons entitled The persons entitled to intervene are listed in subs (2). For definitions of many of the component terms, see ss 4, 60D and 64B. Intervener to be taken as a party — subs (3) The intervener effectively becomes a party to the proceedings unless the court otherwise orders. It is the same under s 92: see s 92(3).

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[page 957]

PART X — APPEALS [s 93]

No appeal after divorce order takes effect

93 An appeal does not lie from a divorce order after the order has taken effect. [s 93 am Act 98 of 2005 s 2 and Sch 1, cl 101, opn 3 Aug 2005] COMMENTARY ON SECTION 93 No appeal after decree absolute …. Lack of jurisdiction or fundamental defect ….

[s 93.1] [s 93.2]

[s 93.1] No appeal after decree absolute An appeal against the making of a decree nisi must be made before the decree becomes absolute. The institution of an appeal, however, by s 55(3) prevents the decree from becoming absolute until the appeal is disposed of. An appeal does not lie from a decree absolute under any circumstance. [s 93.2] Lack of jurisdiction or fundamental defect If it is alleged that a decree is void ab initio for lack of jurisdiction or other fundamental defects, the proper procedure to challenge it is by way of declaration as to validity of the decree under s 113 of the Act: see In the Marriage of Spratley (1976) 3 Fam LR 11,131 at 11,135; (1977) FLC 90–222. See also the extensive discussion in Price v Underwood [2009] FamCAFC 127; (2009) 41 Fam LR 614 (FC).

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[s 93A]

Appellate jurisdiction of Family Court

93A (1) [Jurisdiction over certain “matters”] The Family Court has jurisdiction with respect to matters arising under this Act or under any other law made by the Parliament in respect of which: (a) appeals referred to in section 94 are instituted; or (aa) appeals referred to in subsection 94AAA(1) or (1A) are instituted; or (b) appeals referred to in section 96 are instituted. [subs (1) am Act 194 of 1999 s 3 and Sch 11[73]; Act 22 of 2006 s 3 and Sch 1 item 19, opn 1 July 2006]

(2) [Evidence the court may receive] Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given: (a) by affidavit; or (b) by oral examination before the Family Court or a Judge; or (c) as provided for in Division 2 of Part XI. [subs (2) am Act 138 of 2003 s 3 and Sch 2 item 5 opn 14 Dec 2004] [s 93A insrt Act 72 of 1983 s 49] COMMENTARY ON SECTION 93A Appellate jurisdiction of Family Court …. Evidence that may be considered by the Family Court in an appeal — s 93A(2) …. What is an appeal? …. Process of an appeal …. General principles — interference with exercise of discretion ….

[s 93A.1] [s 93A.2] [s 93A.3] [s 93A.4] [s 93A.5]

General principles — application of law at time of trial ….

[s 93A.5A] [page 958]

General principles — interference with findings of fact …. Arithmetical errors …. Admission of further evidence — s 93A(2) …. Exercise of discretion to admit further evidence — general principles …. Admission of evidence available at trial …. Rehearing if the fresh evidence is disputed …. Evidence since the hearing …. Judicial bias — general principles …. Consent order …. Error induced by party …. Failure to give reasons …. Miscarriage of justice …. Appellate guidelines for exercise of discretion …. Conduct of appeal inconsistent with hearing …. Costs — appeal …. Reopening of final orders — Full Court lacks power ….

[s 93A.6] [s 93A.7] [s 93A.8] [s 93A.9] [s 93A.10] [s 93A.12] [s 93A.13] [s 93A.14] [s 93A.15] [s 93A.16] [s 93A.17] [s 93A.18] [s 93A.19] [s 93A.20] [s 93A.21] [s 93A.30]

[s 93A.1] Appellate jurisdiction of Family Court This section was inserted in the Act by the Family Law Amendment Act 1983 (Cth). It is in similar terms to the repealed s 29. This section confers appellate jurisdiction on the Family Court. Section 31(1)(d) covers the actual conferring of jurisdiction which is stated in this section. Appeals to the Full Court are by way of rehearing: CDJ v VAJ (No 1) (1998) 197 CLR 172 at 201–2 [111]; (2000) 26 Fam LR 237; FLC 93–033 per McHugh, Gummow and Callinan JJ; Allesch v Maunz (2000) 26 Fam LR

237; FLC 93–033. They are to be distinguished in this respect from hearings de novo on one hand and from appeals in the strict sense. As to the first, see commentary to s 96. The latter is an appeal by a court whose function is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original jurisdiction was given. See Allesch v Maunz (2000) 26 Fam LR 237; FLC 93–033 per Gaudron, McHugh, Gummow and Hayne JJ [22]–[23]. Court may limit rehearing following a successful appeal In Ruscoe v Walker (2001) 28 Fam LR 566 the Full Court considered whether it is open to a Full Court to order a re-hearing limited to particular matters, or whether any re-hearing must be unrestricted. On the facts, the Full Court had held that the trial judge made errors which resulted in a mistaken finding as to the property of the parties, by about $200,000. The majority (Lindenmayer and Joske JJ) ordered a re-hearing limited to “a reconsideration of any contributions of the parties made since the trial judge’s orders (which he held to be equal at that date, and which neither party challenged on this appeal), and of the impact of the relevant s 75(2) factors based on the evidence before the trial judge, plus such further evidence of events which have occurred or circumstances which have arisen since his orders as the parties may adduce, and the new trial judge may admit, on the re-hearing”. They took into account the public interest in ending litigation. Coleman J, dissenting, considered that the High Court’s decision in Allesch v Maunz (2000) 26 Fam LR 237; FLC 93-033 prevented the Full Court from limiting the re-hearing. The High Court refused special leave to appeal from this decision, on the basis that there was no error in the majority decision. The Full Court in Hartnett and Sampson & Anor (scope of rehearing) (2009) 222 FLR 340; (2009) 40 Fam LR 632; [2009] FamCAFC 1; BC200950034 dealt with a case where following a successful appeal the matter was remitted to the trial judge on limited issues. The trial judge subsequently disqualified herself and an issue arose as to whether the subsequent trial judge was bound by findings of the first judicial officer and the terms upon which the matter had been remitted. The Full Court found that any trial judge must not be constrained as to the determination of a controversy other than that it must be determined according to law. For a Full Court to direct that a new trial judge accept findings of

[page 959] another judge and then apply the law would be to inappropriately shackle that judge: Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (Hindmarsh Island Bridge case) (1996) 189 CLR 1; 138 ALR 220; [1996] HCA 18. [s 93A.2] Evidence that may be considered by the Family Court in an appeal — s 93A(2) This section is in similar terms to the repealed s 29(2). It prescribes the evidence that may be considered by the Family Court in an appeal. If the Full Court concludes that the trial judge was in error it will then consider whether to remit the matter to a single judge or re-exercise the discretion itself. If it does that latter, it should provide the parties an opportunity to lead further evidence of any relevant matters arising since the trial. See Allesch v Maunz (2000) 26 Fam LR 237; FLC 93–033. [s 93A.3] What is an appeal? An appeal is the formal proceeding by which an unsuccessful party seeks to have the formal order of the court set aside or varied in his or her favour by an appellate court: see Commonwealth v Bank of New South Wales (1949) 79 CLR 947. [s 93A.4] Process of an appeal The process of appeal subjects: (a) the whole matter for hearing as at the date of the appeal (in some instances a hearing de novo); or (b) a question of law only for review; or (c) the facts as well as the law for review. See Victorian Stevedoring General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73. [s 93A.5] General principles — interference with exercise of discretion The jurisdiction is exercised on the basis that there is a strong presumption in favour of the correctness of the decision appealed from. The decision will be affirmed unless the Court of Appeal is satisfied that it is plainly wrong, the

decision not being a proper exercise of judicial discretion. The strength of the presumption may be overcome when one or more of the following has occurred: (a) there has been an error as a result of acting upon a wrong principle; (b) weight has been given to an extraneous or irrelevant matter; (c) there has been a failure to give sufficient consideration to relevant matters or undue weight has been given to them; (d) a mistake has been made as to facts. The nature of the error of reasoning may not be discoverable, but if upon the facts the result is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure properly to exercise the judicial discretion: see House v R (1936) 55 CLR 499; see also Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621; In the Marriage of Watts (1976) 9 ALR 428; 1 Fam LR 11,266; 26 FLR 136; FLC 90–046; In the Marriage of Sanders (1976) 10 ALR 604; 1 Fam LR 11,433; 26 FLR 474; FLC 90–078; In the Marriage of Palsboll (1976) 2 Fam LR 11,171; FLC 90–094; Evans v Bartlam [1937] AC 473; Storie v Storie (1945) 80 CLR 597; Lovell v Lovell (1950) 81 CLR 513; [1950] ALR 944. [s 93A.5A] General principles — application of law at time of trial In determining whether the trial judge made an error of law, the appeal court applies the law as it was at the time of the trial. As the Full Court put it: ‘.notwithstanding that the appeal to this court is by way of rehearing, the appeal will succeed only if error is found in the making of the orders appealed. That involves the application of the law as it stood at the time the orders were made.’ However if it finds an error of law and engages in a redetermination, in redetermining the matter the appeal court applies the law as at the time of the re-determination: Simpson v Brockmann (2010) 43 Fam LR 32; [2010] FamCAFC 37; BC201050159, especially paragraph 40. [s 93A.6] General principles — interference with findings of fact Introductory comments The readiness with which an appeal bench should interfere with findings of fact at the trial has been the subject of many decisions. They are not easy to reconcile.

[page 960] Some emphasise the advantages of the trial judge and require appellate benches to be reluctant to reverse findings that are not clearly wrong. Others emphasise the appellate court’s responsibility to make its own determination. It seems that the decisions can usefully be grouped according to whether the trial judge’s determination was based in part or in whole on oral evidence. In such cases the appeal court tends to give weight to the perceived advantages of the trial judge in observing the demeanour of witnesses (although it has been noted in recent cases that this can be an unreliable guide to the truth). In cases where there is no oral evidence, or where the finding depends on inference to be drawn from documentary or other material, the appeal court is likely to say that it is in as good a position as the trial judge to consider whether the inference should be drawn. Skid marks on a road are a classic example. For this reason, the following brief account of a large volume of case law is based on this distinction. Where oral evidence is given When appealing against a finding of fact, particularly in cases where oral evidence is given, it is not enough to show that a different finding is more probable or that the members of the appellate court would have drawn a different inference from the evidence. It must be demonstrated that the finding of fact was clearly wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn, or the available evidence in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong: see Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; see also Edwards v Noble (1971) 125 CLR 296; [1972] ALR 385; (1971) 45 ALJR 682; ICI and ANZ Ltd v Murphy (1973) 47 ALJR 122. A discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. Once a mistake of fact is shown, then the appellate court exercises its own jurisdiction, even though the actual result reached by

the trial judge may have seemed within the ambit of possible results on a proper exercise of discretion: see In the Marriage of De Winter (1979) 4 Fam LR 583 at 588; FLC 90–605 at 78,091. A mistake of fact is a ground for overruling a decision involving a discretionary judgment: see Young v Thomas [1892] 2 Ch 134 at 137; Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627. It may be that in some cases the mistake of fact has not affected the final result or that its effect has been negligible or that in any case the conclusion reached was correct notwithstanding the error. But it is not right to say that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge: see In the Marriage of De Winter (1979) 4 Fam LR 583 at 588; FLC 90–605 at 78,901; see also In the Marriage of Mahon (1982) 8 Fam LN 4; FLC 91–242; In the Marriage of Jacobson (1988) 12 Fam LR 828; (1989) FLC 92–003. An appeal court, however, should not interfere with the findings of fact of a trial judge if there was evidence on which the trial judge could make such a finding. If the finding is a view reasonably open on the evidence, it is not enough to warrant its reversal that the appeal court would not have been prepared on that evidence to make the same finding: see Edwards v Noble (1971) 125 CLR 296 at 304; [1972] ALR 385 at 389; (1971) 45 ALJR 682 at 685; see also In the Marriage of Richards (1976) 1 Fam LR 11,345; FLC 90– 037; In the Marriage of Grabar (1976) 2 Fam LR 11,581 at 11,585; FLC 90– 147 at 75,716; Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719; FLC 90–716; BC7900112. Where no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight; it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this, and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only

[page 961] involve conflicting assessment of matters of weight: see Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719 at 722; FLC 90–716 at 78,849; BC7900112; see also In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507. Where no oral evidence is given: the rule in Warren v Coombes In the leading case Warren v Coombes (1979) 142 CLR 531 at 551; 23 ALR 405 at 423; 53 ALJR 293 at pp 300–1 the majority of the High Court held: “Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.” This passage has often been applied and treated as authoritative: see, for example, Dawson v Westpac Banking Corporation (1991) 104 ALR 295 at 304 and 314–15; 66 ALJR 94 at 99 and 105; Louth v Diprose (1992) 175 CLR 621; 110 ALR 1; Gronow v Gronow (1979) 144 CLR 513 at 525–6 and 539; 29 ALR 129; 5 Fam LR 719 at 726 and 735; FLC 90–716 at 78,852 and 78,860; BC7900112. It is submitted that this principle has application in those cases which are determined “on the papers”, as, for example, is the usual practice in proceedings under the Child Abduction (Hague Convention) Regulations. The extent to which the Full Court is likely to interfere with findings of fact in such matters may depend in part on the emphasis that is given to the point that the appellate court “will give respect and weight to the conclusion of the trial judge”. [s 93A.7] Arithmetical errors It is not necessary for judges to justify their decision in property and maintenance cases by reference to precise mathematical calculations. If the trial judge takes a very broad approach to the figures that were before him or her, then an appellant must show that there has been a fundamental and significant error before it can be said that

the trial judge’s discretion has been wrongly exercised: see In the Marriage of Burke (1981) 7 Fam LR 121; FLC 91–055. [s 93A.8] Admission of further evidence — s 93A(2) Introductory comments Subsection (2) provides that in an appeal the court has power in its discretion to receive further evidence upon questions of fact. This is an important provision, for it is not uncommon for appeals to be based in part on evidence not tendered at the trial, often wrongly called “fresh evidence”. Changing approaches to admission of further evidence The approach to applications to receive further evidence has varied over time. There is a line of earlier authority in other jurisdictions establishing two main principles (restated with some variations in the authorities) which restrict the circumstances in which fresh evidence can be accepted on appeal. The first is that the evidence sought to be admitted could not with reasonable diligence have been obtained for use at the trial. The second is that the evidence would probably have an important influence on the decision. The authorities include Shedden v Patrick (1869) LR 1 Sc & D 470 at 479; Corbett v Corbett [1953] P 205; Orr v Holmes (1948) 76 CLR 632. Initially the Full Court treated these principles as applicable under the Act, and indeed maintained this position in a considerable number of decisions: see, for example, In the Marriage of Cantarella (1976) 1 Fam LR 11,483; FLC 90–056; In the Marriage of Miller (1977) 4 Fam LR 34; (1978) FLC 90–418; In the Marriage of Banh (1981) 6 Fam LR 643; FLC 91–010; In the Marriage of Carlon (1982) 8 Fam LR 729; FLC 91–272; In the Marriage of Mistilis (1988) 12 Fam LR 175; FLC 91–914. A contrary view, that the court should not attempt to fetter a discretion that the legislature had left at large, had been embraced by Strauss and Joske JJ in In the Marriage of Raja Bahrin (1986) 11 Fam LR 233; (sub nom, B v B (Kidnapping) by differently constituted Full Courts) and was [page 962]

adopted in In the Marriage of Abdo (1989) 12 Fam LR 861; FLC 92–013 and In the Marriage of Cipars (1989) 13 Fam LR 793; (1990) FLC 92–122. In Abdo, in which the Full Court was constituted by Nicholson CJ, Murray and Strauss JJ, there was a detailed examination of the authorities. In Cipars, above, a Full Bench consisting of Ellis, Nygh and Bell JJ adopted the reasoning in that case, emphasising that it was desirable that there be a uniform view on the matter. Those decisions establish that the more flexible view should prevail, and that the contrary views expressed in the earlier cases, such as Mistilis, above and Carlon, above, must be taken to have been overruled. In particular, it is no longer correct to say that the court will not accept evidence that was not reasonably available at the trial. CDJ v VAJ — a broad but not unfettered discretion The issue has now been considered by the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442. The High Court confirmed that the power conferred by s 93A(2) was to be interpreted broadly, but that it was not “unfettered”. The reasoning of the majority of the High Court (McHugh, Gummow and Callinan JJ) is considered in more detail under the next heading. Appeals from courts of summary jurisdiction — reference to s 96 The words “subject to section 96” are inserted because since appeals from courts of summary jurisdiction are by way of rehearing, there is no restriction on the reception of fresh evidence: see commentary to s 96. [s 93A.9] Exercise of discretion to admit further evidence — general principles Introductory comment The leading case on the discretion to admit further evidence is CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; 23 Fam LR 755; FLC 92–828; [1998] HCA 67; BC9805442. The following propositions are drawn primarily from the High Court judgment. However, some of the commentary on the pre-CDJ case law, where it is considered to be of continuing relevance or where it has not been contradicted or overruled by that decision, has been retained.

Factors not rules In exercising its powers under s 93A(2), the Full Court is weighing factors, not applying principles or fixed rules. Relevant factors The subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power. Factors that would be determinative at common law, such as the need for finality in litigation, the discoverability of evidence and its likely effects on the orders made, become under s 93A(2) factors relevant to the exercise of the discretion. The need for finality remains an important consideration: see In the Marriage of Cipars (1989) 13 Fam LR 793; (1990) FLC 92–122. Chidren’s interests: paramountcy principle inapplicable but relevant Although the paramountcy principle is not strictly applicable to the decision whether to admit fresh evidence on appeal, nevertheless the best interests of the child will “be one of the most important discretionary considerations to which the Full Court must have regard”: CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686 at 704; 23 Fam LR 755 at 773; FLC 92–828 at 85,444; [1998] HCA 67; BC9805442. A good example is T v S (2001) 28 Fam LR 342; FLC 93–086 (FC) (mother, unrepresented at the trial, allowed to give further evidence of domestic violence). Nature of proceedings and orders appealed against Where the order appealed against is one that is not final, such as a parenting order or order for spousal maintenance, the matter should usually be dealt with by an application for variation. Where orders are in principle final, such as those under s 79, then it may be easier to persuade a court to admit fresh evidence (although there [page 963] is always the possibility of an application under s 79A). Indeed, it might be argued that the power to admit fresh evidence should not be exercised so as to circumvent the restrictions imposed by s 79A.

Remedial purpose of s 93A(2) Section 93A(2) is remedial in nature, its purpose being to give power to admit evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to correct errors that cannot otherwise be remedied within conventional appellate procedure. A subsidiary purpose is to admit evidence to further buttress findings already made. Original and appellate distinction The Full Court’s jurisdiction on appeal is partly appellate and partly original and the Full Court must decide the rights of the parties according to the facts and law as they exist at the date of the appeal. However, the power to admit new evidence must not be exercised so as to obliterate the distinction between original and appellate jurisdiction. Full Court’s role on appeal broader than those of common law courts Unlike common law courts the Full Court on appeal can evaluate the facts of the appeal for itself and in many cases is in a position to evaluate the further evidence and to take it into account without the need for the proceedings to be reheard. New evidence requiring new trial Where it is alleged that the new evidence requires a new trial, justice will not be served by the admission of the new evidence unless it can be shown that the further evidence would have produced a different result if it had been available at the trial. Usefulness not the criterion The discretion to receive further evidence is not so wide as to permit the admission of evidence merely because it is useful; to do so would be inconsistent with the nature of the appellate jurisdiction and the remedial purpose of the power. Undisputed evidence that is easily evaluated A court may readily admit new evidence which is undisputed and which the court is able to evaluate without the need for retrial. In such cases the court need not consider the effect that the new evidence would have had on the trial judge’s decision and other factors, such as the availability of the evidence at trial and the need for finality in litigation, are likely to weigh more heavily in the exercise of the discretion.

Power to be exercised judicially In cases involving parenting orders the power to admit fresh evidence should be exercised only if the evidence is both relevant to the welfare of the children and is admissible according to ordinary principles or by statute. Evidence that would have been inadmissible at trial cannot be admitted as fresh evidence on appeal: see In the Marriage of Smith (1991) 15 Fam LR 206; FLC 92–261. Caution needed in children cases The advantages enjoyed by a trial judge in hearing witnesses are real ones in parenting cases. Caution is particularly needed where an order for change of residence has been made. In such cases the interests of children are unlikely to be served by frequent displacements and the uncertainty of prolonged proceedings. Applications for variation preferred Applications for variation of a parenting order will generally be preferred even when there has been a change of circumstances between the making of the order and any appeal. Real risk that order endangers the child There may be exceptional cases in which it would be a proper exercise of the discretion to admit new evidence and order a new hearing even though the court is not reasonably satisfied that the evidence would have produced a different result. Such a case would be one in which the court thinks that there is a real risk that the current order endangers [page 964] the child. The consequences for the child may be so grave that the child’s best interests require admission of the evidence and a new hearing. Such cases, however, are truly exceptional and those cases are ordinarily best dealt with by means of a variation. [s 93A.10] Admission of evidence available at trial Introductory comment It has been noted, above, that in In the Marriage of Abdo (1989) 12 Fam LR 861; FLC 92–013 and In the Marriage of Cipars

(1989) 13 Fam LR 793; (1990) FLC 92–122, the Full Court disapproved earlier authorities to the effect that there is a rule against admission of evidence that was reasonably available at the trial. Nevertheless, this is now one of the matters relevant to the exercise of the court’s discretion. Relevant considerations The Full Court has said in Abdo, above, at Fam LR 870, that where the evidence sought to be admitted relates to matters that occurred before the trial: “… considerations relevant to the exercise of the discretion include such questions as whether the evidence could have been obtained with reasonable diligence, or whether the further evidence has cogency in the sense that it is credible and would have been likely to affect the outcome of the case.” It will be noted that this important quotation refers to three separate matters: whether the evidence was available; whether it is credible; and whether it would be likely to affect the outcome of the case. Relevance of earlier authorities The above quotation indicates, it is submitted (RC), that earlier authorities on these matters remain relevant as guides to matters that the Full Court may now take into account as a matter of discretion. Former authorities include: In the Marriage of Cantarella (1976) 1 Fam LR 11,483; FLC 90–056; In the Marriage of Miller (1977) 4 Fam LR 34; (1978) FLC 90–418; In the Marriage of Banh (1981) 6 Fam LR 643; FLC 91–010; In the Marriage of Carlon (1982) 8 Fam LR 729; FLC 91–272; In the Marriage of Mistilis (1988) 12 Fam LR 175; FLC 91–914. Impact of evidence On the question how certainly and how fundamentally the fresh evidence will affect the result, see also Orr v Holmes (1948) 76 CLR 632 (per Latham CJ and Rich J: “of such importance as very probably to influence the decision”); Brown v Dean [1910] AC 373 at 374; R v Copestake; Ex parte Wilkinson [1927] 1 KB 468. [s 93A.12] Rehearing if the fresh evidence is disputed If an appeal court receives fresh evidence, it is usually not for the appeal court itself to

determine whether the evidence is true or not. The matter should be remitted for a rehearing particularly if the fresh evidence is disputed: see In the Marriage of Boman (1981) 7 Fam LR 586; FLC 91–077 at 76,544; see also In the Marriage of Lea (1981) 7 Fam LR 553; FLC 91–115 at 78,876; In the Marriage of Carlon (1982) 8 Fam LR 729; FLC 91–272. However, in special circumstances the appeal court may adjourn the further hearing of the appeal and order that the further evidence to be tendered be heard before a member of the Full Court and direct that the member of the Full Court report to the Full Court on any question of fact and credit which may arise in the course of the further evidence: see In the Marriage of Foster (1977) 6 Fam LN 8; FLC 90–281. [s 93A.13] Evidence since the hearing It may be expected that courts will allow fresh evidence when to refuse it would be an affront to common sense or a sense of justice: see Mulholland v Mitchell [1971] AC 666 at 680; see also In the Marriage of Banh (1981) 6 Fam LR 643; FLC 91–010 at 76,131. However, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty in which the trial judge’s estimate had previously been made: see In the Marriage of Boman (1981) 7 Fam LR 586; FLC 91–077; see also [page 965] In the Marriage of Lea (1981) 7 Fam LR 553; FLC 91–115; In the Marriage of Mistilis (1988) 12 Fam LR 175; FLC 91–914. If, however, the Full Court does admit fresh evidence of matters which have occurred since the hearing, the court will upon receiving such evidence, usually not decide for itself whether the evidence is true or not, particularly if the evidence is disputed or appears likely to be disputed: see In the Marriage of Boman (1981) 7 Fam LR 586; FLC 91–077; see also Skone v Skone [1976] 2 All ER 528; In the Marriage of Lea (1981) 7 Fam LR 553; FLC 91–115. [s 93A.14] Judicial bias — general principles A ground of appeal can arise if there is a miscarriage of the trial by reason of the prejudging of some issue

by the judge before the completion of evidence. The test is whether a fairminded person present at the hearing could reasonably have suspected that the trial judge had prejudged the matter: Re Adamopoulos; Ex parte Adamopoulos (1987) 11 Fam LR 801; FLC 91–851; In the Marriage of Stiffle (1988) 12 Fam LR 620; FLC 91–977. See R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297; FLC 90–059; see also R v Lusink; Ex parte Shaw (1980) 6 Fam LR 230; FLC 90–884; In the Marriage of Gibson (1981) FLC 91–049; In the Marriage of Solomons (1984) 11 Fam LR 429; FLC 91–505; Stephens v Stephens (2010) 43 Fam LR 106; [2010] FamCA 184; BC201050336; Batey-Elton v Elton (2010) 43 Fam LR 62; [2010] FamCAFC 79; BC201050295. Where the only form of bias suggested is personal prejudice, it is insufficient to show merely that the judge held strong opinions on the relevant subject engendered by the conduct of the proceedings before him: see Re Nygh; Ex parte Bar-Mordecai (1983) 9 Fam LR 199 at 200; FLC 91– 366. A court must not proceed if there is actual bias or there is a reasonable suspicion of bias. However, a court is not required to desist from hearing proceedings when somebody wrongly and irrationally suspects bias: see in Re Simpson; Ex parte Morrison (1984) 9 Fam LR 596; FLC 91–513; Re JLR; Ex parte CJL (1986) 10 Fam LR 917; FLC 91–738 (HC), (communication by counsellor to judge). Procedure An appeal lies from a decision of a judge rejecting an application that he or she disqualify himself or herself from further hearing the matter: s 94(1AA). Comments made during delivery of judgment relating to costs, to the effect that one party’s case was hopeless, were held not to indicate bias at the time of the proceedings in respect of which the costs application was made: West and West (1997) 22 Fam LR 411; FLC 92–779. [s 93A.15] Consent order An order made by consent may be the subject of an appeal. However, an order made by consent may not be challenged by an appeal which is directed to the correctness of that order; that is, it cannot be appealed against on the merits: see In the Marriage of Smith (1984) FLC 91–

512; see also In the Marriage of Robinson and Willis (1982) 8 Fam LR 131; FLC 91–215. The court will not go behind the order to ask whether it reflects the intention of the parties: In the Marriage of Langford and Coleman (1992) 16 Fam LR 228; (1993) FLC 92–346. Of course, these decisions relate only to whether an appeal will succeed, and not to the different questions whether the order would be enforced (see s 105) or whether it might be set aside under s 79A. [s 93A.16] Error induced by party In In the Marriage of Bennett (1985) 10 Fam LR 68; FLC 91–617, the Full Court said that a party cannot, on appeal, rely on an error of fact or emphasis committed by the trial judge if that error was induced, or acquiesced in, by counsel for the appellant. If the error is one of mathematics, or in failing to point out a distinction between pre-separation and post-separation assets for the purposes of assessing contribution, the mistake is personal to that party and he or she must live with it: see In the Marriage of Bennett, above. Where, however, the error induced is a key error in law, it is the duty of an appellate tribunal to correct it: see In the Marriage of Bennett, above. [page 966] [s 93A.17] Failure to give reasons The failure of a trial judge to give reasons for his decision constitutes an error of law as such failure makes it impossible for an appellate court to determine whether or not the verdict was based on an error of law and so to give effect to a party’s statutory right to appeal: see Pettit v Dunkley [1971] NSWLR 376; see also In the Marriage of Brazel (1984) 9 Fam LR 1147; FLC 91–586 (lump sum maintenance order); In the Marriage of Power (1988) 12 Fam LR 97; FLC 91–911; In the Marriage of Horsley (1991) 14 Fam LR 550; FLC 92–205 (FC) (failure to distinguish between contribution under s 79 and s 75(2) factors). Similarly, where adequate reasons are not given, the appellate court is under a duty to scrutinise the decision with particular care: In the Marriage of Bonnici (1991) 15 Fam LR 138; (1992) FLC 92–272. This approach, and particularly a

passage from the judgment in Horsley (FC)at 554 was confirmed by the Full Court in In the Marriage of Merriman (1993) 17 Fam LR 22 at 28–9; FLC 92–422. See also In the Marriage of Bennett (1990) 14 Fam LR 397; FLC 92–191; In the Marriage of Smith (1994) 18 Fam LR 55; FLC 92–488 (FC). [s 93A.18] Miscarriage of justice In proceedings under the Act a judge must exercise his or her discretion in accordance with legal principles and a judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257; 9 ALR 551; 1 Fam LR 11,297; FLC 90–059. In the Marriage of Kemp (1985) 10 Fam LR 111, the Full Court said that it will amount to a miscarriage of justice if a judge rejects evidence of a witness where the credibility of the witness has not been tested and there is no evidence that the witness suffered any mental impairment or memory failure. In Browne v Dunn (1893) 6 R 67 (HL). Lord Herschell said: “It is absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross-examination showing that that imputation is intended to be made — it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.” If it is to be suggested that a witness is not truthful, then the attention of the witness must be directed to the point in cross-examination unless it is otherwise perfectly clear that the witness has had full notice beforehand that there is an intention to impeach his or her statement: see In the Marriage of Kemp, above. A witness is entitled before his or her evidence is rejected to have it tested by way of cross-examination. The whole basis of the adversary system, which applies in the Family Court, is that evidence is to be tested by crossexamination: see In the Marriage of Kemp, above. There is, however, no requirement that the contention be put to the witness “chapter and verse”: MWJ v The Queen (2005) 222 ALR 436; (2005) 80

ALJR 329; [2005] HCA 74; BC200510463; West v Mead [2003] NSWSC 161; Hyphonie Holdings Pty Ltd v Leroy [2003] NSWSC 624, indeed, the nature of the jurisdiction where each party files affidavit evidence is such that the rule in Browne and Dunn may have less application since each party has made his or her case clear: LC v TC [1998] FamCA 47 (FC). Lack of representation The lack of legal representation and lack of a reliable interpreter may found a successful appeal, and a new trial, on the ground that the appellant did not have a fair trial: see In the Marriage of Sajdak (1992) 16 Fam LR 280; (1993) FLC 92–348. [s 93A.19] Appellate guidelines for exercise of discretion The question has arisen how far appellate courts should indicate guidelines for the exercise of discretionary powers, such guidelines being more specific than the criteria specified in the Act for the exercise of the relevant discretion (for example, in custody that the child’s welfare is the “paramount consideration”). [page 967] The High Court has emphasised that it is wrong for an appellate court to attempt to fetter the discretion given by the Act to the court at first instance, for example by formulating principles as to when property might be divided equally under s 79 (In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449; FLC 91–507) or that young children should normally be placed under the mother’s custody (Gronow v Gronow (1979) 144 CLR 513; 29 ALR 129; 5 Fam LR 719; FLC 90–716; BC7900112). A more complex and divided view however emerges from the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; 10 Fam LR 819; FLC 91–712. Mason and Deane JJ indicated that the issuing of such guidelines by the Full Court of the Family Court might often be appropriate and desirable, and that there may be situations in which an appellate court would be justified in giving such guidance binding force by treating non-compliance as grounds for holding that the discretion had miscarried. Brennan J agreed that guidelines might often be valuable, but

considered that they could not be given such binding force. Wilson and Dawson JJ preferred a case by case approach rather than the formulation of abstract principles or guidelines. It is submitted (RC) that in the light of current authority the Full Court of the Family Court is entitled to issue such guidelines as it thinks desirable. Non-adherence to such guidelines at first instance does not of itself constitute an appealable error, although it might in a particular case be a factor in determining whether the discretion had miscarried. [s 93A.20] Conduct of appeal inconsistent with hearing An appellate bench may hold that it is not open to an appellant to conduct an appeal in a manner which is inconsistent with the way in which the appellant invited the trial judge to approach it. In general, it is not open to an appellant to put forward submissions which may be inconsistent with the manner in which the case had previously been conducted before the trial judge. The appellant cannot make submissions on the hearing of the appeal which are really contrary to the way in which the case was presented to the trial judge: see In the Marriage of Nolan and Ingram (1984) 9 Fam LR 808 at 822; FLC 91– 585 at 79,723. This approach is particularly likely to be taken in cases where, had the point been taken at the hearing, it might have been defeated by the calling of evidence or by some amendment or variation of the pleadings: see In the Marriage of Fagan (1984) 9 Fam LR 1140; (1985) FLC 91–607; see also [s 93A.16]. On the other hand it is open to the appeal court to allow points to be taken on appeal that were not taken at trial. In In the Marriage of Davidson (1994) 17 Fam LR 656 at 669; FLC 92–469 at 80,876 the Full Court (Nicholson CJ, Fogarty and Treyvaud JJ) said: “As a generality a judgment appealed against may be supported by grounds not previously argued: see, for example, Green v Sommerville (1979) 141 CLR 594 at 608 per Mason J; Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480; O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, and the discussion in Moore v Hendler (1992) 15 Fam LR 770 at 775–7; FLC 92–321 at 79,418–20; and Coulton v Holcombe (1986) 162 CLR 1 at 7. But ‘where a point is not taken in the court below and evidence could have

been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards’: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. As the High Court pointed out in Water Board v Moustakis (1988) 77 ALR 193 at 196 and 198 such an amendment will be allowed at the appeal stage where it is ‘expedient and in the interests of justice to entertain the point’ and where ‘such a point can be taken without prejudice to the defendant’.” It is ultimately a matter of discretion. The judgment may be supported by grounds not previously argued provided that to do so would not involve the prospect of unfairness or prejudice to the other party. [s 93A.21] Costs — appeal Generally speaking, a party who takes his or her chances on an appeal of dubious merit must be prepared to risk the costs of the event: see In the Marriage of Schwarz (1985) 10 Fam LR 235; FLC 91– 618. [page 968] [s 93A.30] Reopening of final orders — Full Court lacks power The High Court has held, by a majority, that the Full Court of the Family Court does not have the power to reopen its final orders after their entry: DJL v Central Authority (2000) 170 ALR 659; 26 Fam LR 1 at 15, 32, 49; FLC 93–015 (HC).

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[s 94] Appeals to Family Court from courts other than Federal Circuit Court and Magistrates Court of Western Australia 94 (1) [Appeals from original, appellate jurisdiction] Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:

(a) a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction: (i) under this Act; or (ii) under any other law; or (b) a decree of: (i) a Family Court of a State; or (ii) a Supreme Court of a State or Territory constituted by a single Judge; exercising original or appellate jurisdiction under this Act or in proceedings continued in accordance with any of the provisions of section 9. Note: This subsection applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in section 94AB. [subs (1) subst Act 72 of 1983 s 50; am Act 115 of 1990 s 49 and Sch; Act 194 of 1999 s 3 and Sch 11[74]; Act 113 of 2015 s 3 and Sch 4 item 12, opn 18 Aug 2015]

(1AA) An appeal lies to a Full Court of the Family Court from a decree or decision of a Judge exercising original or appellate jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter. [subs (1AA) insrt Act 141 of 1987 s 3 and Sch 1]

(1A) [Prescribed time to appeal] An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court. [subs (1A) insrt Act 23 of 1979 s 16; am Act 72 of 1983 s 76 and Sch; Act 141 of 1987 s 3 and Sch 1; Act 194 of 1999 s 3 and Sch 11[75]]

(2) [Powers of appeal court] Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate. [subs (2) am Act 141 of 1987 s 3 and Sch 1; Act 181 of 1987 s 63 and Sch]

(2A) If, in dismissing an appeal under subsection (1) or (1AA), the Full Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form. [subs (2A) insrt Act 143 of 2000 s 3 and Sch 3 item 76 opn 27 Dec 2000; am Act 138 of 2003 s 3 and Sch 7 items 21, 22 opn 14 Jan 2004]

(2B) A Full Court of the Family Court, or a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, may: (a) join or remove a party to an appeal under subsection (1) or (1AA); or (b) make an order by consent disposing of an appeal under subsection (1) or (1AA) (including an order for costs); or [page 969] (c) give directions about the conduct of an appeal under subsection (1) or (1AA), including directions about the use of written submissions and limiting the time for oral argument. [subs (2B) insrt Act 143 of 2000 s 3 and Sch 3 item 76 opn 27 Dec 2000]

(2C) The standard Rules of Court may make provision enabling matters of the kind mentioned in subsection (2B) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing. [subs (2C) insrt Act 143 of 2000 s 3 and Sch 3 item 76 opn 27 Dec 2000]

(2D) Applications of a procedural nature, including applications: (a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or (b) for leave to amend the grounds of an appeal under subsection (1) or (1AA); or (c) to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or (d) to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or (e) for an extension of time within which to file an application for leave to appeal; or (f) for security for costs in relation to an appeal; or (g) to reinstate an appeal dismissed under a provision of the Rules of Court; or (h) to adjourn the hearing of an appeal; or (i) to vacate the hearing date of an appeal; or (j) to expedite the hearing of an appeal; may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

[subs (2D) insrt Act 143 of 2000 s 3 and Sch 3 item 76 opn 27 Dec 2000; am Act 98 of 2005 s 2 and Sch 1, cls 23–24, opn 3 Aug 2005]

(2E) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing. [subs (2E) insrt Act 143 of 2000 s 3 and Sch 3 item 76 opn 27 Dec 2000]

(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D). [subs (2F) insrt Act 143 of 2000 s 3 and Sch 3 item 76 opn 27 Dec 2000]

(3) This section does not apply in relation to a proceeding that is transferred to the Court from the Federal Court of Australia. [subs (3) insrt Act 8 of 1988 s 28] [s 94 am Act 22 of 2006 s 3 and Sch 1 item 20, opn 1 July 2006; Act 13 of 2013 s 3 and Sch 1 item 296, opn 12 Apr 2013]

COMMENTARY ON SECTION 94 Appeal to Full Court of Family Court — s 94(1) …. Appeal from a decree — s 94(1) …. Appeal from rejection of application for judge’s disqualification — s 94(1AA) …. Referral to Attorney-General …. Leave to file appeal out of time …. Effect of death of a party to an appeal ….

[s 94.1] [s 94.2] [s 94.3] [s 94.4] [s 94.5] [s 94.6] [page 970]

Death before application to extend time to appeal …. Prerogative writs …. Procedure of appeal to Full Court — s 94(1A) …. Full Court may affirm, reverse or vary decree subject to appeal — s 94(2) …. Principles governing appeals …. Reimbursement of appeal costs ….

[s 94.7] [s 94.8] [s 94.9] [s 94.10] [s 94.11] [s 94.12]

[s 94.1] Appeal to Full Court of Family Court — s 94(1) This section was inserted in the Act by the Family Law Amendment Act 1983. It provides for an appeal to the Full Court of the Family Court from a decree of a Family Court (constituted otherwise than as a Full Court) exercising original or appellate jurisdiction under any law. An appeal lies to the Full Court of the Family Court from a decree of: (a) a Family Court constituted otherwise than as a Full Court exercising original or appellate jurisdiction under any other law; (b) a Family Court of a State; or (c) a Supreme Court of a State or Territory constituted by a single judge exercising original or appellate jurisdiction under the Family Law Act or in proceedings continued in accordance with any of the provisions of s 9.

For appeals from courts of summary jurisdiction see s 96. [s 94.2] Appeal from a decree — s 94(1) A “decree” is defined in s 4(1) to mean “decree, judgment or order” and includes a decree nisi and an order dismissing an application or refusing to make a decree or order. No appeal can be brought after a decree nisi is made absolute. The determination appealed from must be a judicial order. An answer to a question of law arising in proceedings which is not by itself determinative of such proceedings does not come within s 4(1): see Yule v Junek (1978) 139 CLR 1; 3 Fam LR 11,640 at 11,649; FLC 90–439. A consequential order, such as for the filing of affidavit evidence, can be the subject of an appeal under the section: see In the Marriage of Nieuwstraten (1987) 11 Fam LR 681; FLC 91–826. [s 94.3] Appeal from rejection of application for judge’s disqualification — s 94(1AA) This subsection was inserted by the Statute Law (Miscellaneous Provisions) Act 1987. It reverses the effect of a number of cases in which it had been held that a decision by a judge to continue to sit after being challenged for bias was not a decree from which an appeal could lie, even if a decision had been framed as an order: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297 at 11,311; FLC 90–059; see also In the Marriage of Bizannes (1977) 16 ALR 524; 3 Fam LR 11,555 at 11,563; FLC 90–313; In the Marriage of Solomons (1984) 11 Fam LR 429; FLC 91–505. [s 94.4] Referral to Attorney-General A referral by a judge of the court to the Commonwealth Attorney-General of breaches of Commonwealth laws, is not a decree within the meaning of s 94 of the Act from which an appeal lies: see In the Marriage of T (1984) FLC 91–588 at 79,747. [s 94.5] Leave to file appeal out of time A judge has discretion to extend the period in which the notice of appeal may be filed. An applicant for leave to appeal out of time must satisfy three conditions: (a) sufficient explanation must be given for failure to file and serve the notice of appeal within time;

(b) the grounds of appeal must raise a substantial issue, that is, an issue which would materially affect the outcome of the case if resolved in the applicant’s favour; (c) any hardship suffered by the respondent must be able to be compensated for and injustice avoided by putting the applicant on terms. [page 971] See In the Marriage of McMahon (1976) 1 Fam LR 11,260; FLC 90–038; In the Marriage of Casson (1988) 12 Fam LR 455; FLC 91–962; OP v HM [2002] FamCA 454; (2002) 29 Fam LR 251; Joshua v Joshua (1997) FLC 92-767 Lindenmayer J. However, where the application for leave to appeal is against an error of law, the court has no scope to exercise its discretion to dismiss the application for leave to appeal on the grounds of hardship or delay. If the error is made out the court must allow the appeal: see In the Marriage of Johns and Makepeace (1990) 14 Fam LR 16; FLC 92–138. See also In the Marriage of Coombs and More (1990) 14 Fam LR 388; FLC 92–175. [s 94.6] Effect of death of a party to an appeal The death of a party to an appeal does not cause the appeal to be abated, at least not if the appeal had already been lodged or if application had been made prior to the death of the party for leave to appeal out of time, even if that application had not been heard at the time of death: see In the Marriage of Pertsoulis (1979) 4 Fam LR 613; FLC 90–613; see also In the Marriage of Kenny and Parker (1984) 9 Fam LR 749; FLC 91–546, where Nygh J said that the words “with respect to the property of the parties to a marriage” in s 79(8) should be broadly and liberally interpreted, and an appeal relating to a property order and also an application for leave to appeal out of time with respect to a property order, fall within the description of proceedings “with respect to the property of the parties to a marriage”. [s 94.7] Death before application to extend time to appeal In the Marriage

of Kenny and Parker (1984) 9 Fam LR 749; FLC 91–546, Nygh J held that the court has no jurisdiction to entertain an application for leave to appeal out of time, if such application is made after the death of the other party. [s 94.8] Prerogative writs Where the Full Court of the Family Court has jurisdiction to entertain an appeal, relief should be sought from that court rather than by way of prerogative writ to the High Court of Australia: see the judgments of Mason, Murphy and Wilson JJ in R v Cook; Ex parte Twigg (1980) 6 Fam LR 161; FLC 90–859 (HC); also Re Baker; Ex parte Johnson (1980) 6 Fam LR 667; FLC 90–914; R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504; 4 Fam LR 598; FLC 90–606. Want or excess of jurisdiction In Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888 at 892–3; 59 ALJR 132; FLC 91– 555 at 79,483–4, Gibbs CJ said that although the existence of a right of appeal may provide a reason why the High Court may withhold relief on discretionary grounds, if a want or excess of jurisdiction is clearly shown, the fact that there is another remedy available to the person aggrieved such as an appeal will in general be immaterial. Gibbs CJ also said that if a clear case of want or excess of jurisdiction has been out, the writ will issue almost as of right, although the court will retain discretion to refuse relief if in all the circumstances that seems the proper course. If, however, the jurisdiction of the tribunal to which a writ is sought depends on the existence of particular facts which are in dispute, it will often be desirable to let the tribunal proceed to determine those facts in the first place. However, even where there is a preliminary or collateral issue as to the existence of facts on which the jurisdiction of the tribunal depends, a writ may be granted before the tribunal has made a finding on that issue, where there is some reason to think that the tribunal will decide the issue erroneously or otherwise exceed its authority. [s 94.9] Procedure of appeal to Full Court — s 94(1A) See Family Law Rules 2004 Ch 22. Oral hearing dispensed with for procedural applications Subs (2C) and (2D) provide, in effect, that the rules may dispense with an oral hearing of “applications of a procedural nature”, including the applications specified in

(2D). In other words, such applications can be determined on the basis of written material. See Family Law Rules 2004, especially Pt 5.4 (“Hearing on papers in absence of parties”) and Pt 22.7, particularly r 22.45. [page 972] [s 94.10] Full Court may affirm, reverse or vary decree subject to appeal — s 94(2) The appeal to the Full Court of the Family Court is a full appeal both as to facts and law. The relevant case law laying down the principles governing such appeals is as follows: Edwards v Noble (1971) 125 CLR 296 at 303; [1972] ALR 385; (1971) 45 ALJR 682; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 123 CLR 192 at 208; Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; House v R (1936) 55 CLR 499 (discretion); Lumsden v Lumsden [1964] VR 210; Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 626–7; In the Marriage of Cantarella (1976) 1 Fam LR 11,483; FLC 90–056. An appeal to the Full Court is not an appeal by way of rehearing: see In the Marriage of Sutton (No 2) (1976) 2 Fam LR 11,256; FLC 90–121. If there is sufficient material before the Full Court, the court may, in order to avoid further delay and expense, substitute its own order for that of the trial judge rather than send the matter back to him for a new hearing: see In the Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,493; FLC 90–056. [s 94.11] Principles governing appeals For annotations on this subject, see above, s 93A. [s 94.12] Reimbursement of appeal costs The Federal Proceedings (Costs) Act 1981 makes provision for reimbursement of party and party costs in respect of proceedings in Federal Courts (including the Family Court of Australia) or appeals from those courts in certain circumstances.

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[s 94AAA] Appeals to Family Court from Federal Circuit Court and Magistrates Court of Western Australia 94AAA (1) An appeal lies to the Family Court from: (a) a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; or (b) a decree or decision of a Judge of the Federal Circuit Court of Australia exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter. [subs (1) am Act 13 of 2013 s 3 and Sch 1 item 298, Sch 2 item 2, opn 12 Apr 2013]

(1A) An appeal lies to the Family Court from: (a) a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; or (b) a decree or decision of a Family Law Magistrate of Western Australia exercising in the Magistrates Court of Western Australia original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter. Note: This subsection applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in section 94AB. [subs (1A) insrt Act 22 of 2006 s 3 and Sch 1 item 20, opn 1 July 2006; am Act 113 of 2015 s 3 and Sch 4 item 13, opn 18 Aug 2015]

(2) Subsections (1) and (1A) have effect subject to section 94AA.

[subs (2) am Act 22 of 2006 s 3 and Sch 1 item 21, opn 1 July 2006]

(3) The jurisdiction of the Family Court in relation to an appeal under subsection (1) or (1A) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge. [subs (3) am Act 22 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

[page 973] (4) Subsection (3) has effect subject to subsections (8) and (10). (5) An appeal under subsection (1) or (1A) is to be instituted within: (a) the time prescribed by the standard Rules of Court; or (b) such further time as is allowed in accordance with the standard Rules of Court. [subs (5) am Act 22 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(6) On an appeal under subsection (1) or (1A), the Family Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing on such terms and conditions, if any, as it considers appropriate. [subs (6) am Act 22 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(7) If, in dismissing an appeal under subsection (1) or (1A), the Family Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.

[subs (7) am Act 138 of 2003 s 3 and Sch 7 item 23 opn 14 Jan 2004; Act 22 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(8) A single Judge or a Full Court may: (a) join or remove a party to an appeal under subsection (1) or (1A); or (b) make an order by consent disposing of an appeal under subsection (1) or (1A) (including an order for costs); or (c) give directions about the conduct of an appeal under subsection (1) or (1A), including directions about: (i) the use of written submissions; and (ii) limiting the time for oral argument. [subs (8) am Act 22 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

(9) The standard Rules of Court may make provision enabling matters of the kind mentioned in subsection (8) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing. (10) Applications of a procedural nature, including applications: (a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or (b) for leave to amend the grounds of an appeal under subsection (1) or (1A); or (c) to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or (d) to stay an order of the Family Court made in connection with an appeal under subsection (1) or (1A); or (e) for an extension of time within which to file an application for leave to appeal; or

(f) for security for costs in relation to an appeal; or (g) to reinstate an appeal dismissed under a provision of the Rules of Court; or (h) to adjourn the hearing of an appeal; or (i) to vacate the hearing date of an appeal; or (j) to expedite the hearing of an appeal; may be heard and determined by a single Judge or by a Full Court. [subs (10) am Act 98 of 2005 s 2 and Sch 1, cls 25–26, opn 3 Aug 2005; Act 22 of 2006 s 3 and Sch 1 item 22, opn 1 July 2006]

[page 974] (11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing. (12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section. (13) The single Judge referred to in subsection (3), (8) or (10) need not be a member of the Appeal Division. [s 94AAA insrt Act 194 of 1999 s 3 and Sch 11[76]; am Act 22 of 2006 s 3 and Sch 1 item 20, opn 1 July 2006; Act 13 of 2013 s 3 and Sch 1 item 297, opn 12 Apr 2013] COMMENTARY ON SECTION 94AAA Introductory comments …. Nature of appeal …. “Exercising original jurisdiction under this Act”: no appeal to Full Court from order by Deputy Registrar

[s 94AAA.1] [s 94AAA.5]

of the Federal Magistrates Court ….

[s 94AAA.10]

[s 94AAA.1] Introductory comments This section provides for appeals to the Family Court from decrees made by federal magistrates. In brief, these appeals may be heard by a Full Court or, if the Chief Justice considers it appropriate, by a single judge of the Family Court: subs (3). The single judge need not be a member of the Full Court: subs (13). Subsection (3) is often used in practice, and thus a significant number of appeals are determined by a single judge — in which case there is no further appeal to the Full Court: subs (12). A number of provisions in s 94AAA are similar to those that apply to appeals from single judges of the Family Court to the Full Court. Thus: Leave is required for appeals from prescribed decrees (ie interlocutory decisions): subs (2), referring to s 94AA. A refusal to disqualify can be appealed: subs (1)(b). The powers of the appeal court are the familiar ones: see subs (6), (7); compare ss 94(2), 93A(2). Procedures and time limits are similar, including the provision for certain applications to be dealt with “on the papers”: subs (5), (8), (9)–(12); compare s 94, and see commentary thereto. [s 94AAA.5] Nature of appeal Appeals from decrees made by federal magistrates are by way of rehearing, and are similar in this respect to appeals to the Full Court of the Family Court of Australia from decrees of single judges of the Family Court. Thus the usual authorities, such as House v R (1936) 55 CLR 499, apply. See the commentary to s 93A. Appeals from federal magistrates do not involve a hearing de novo, and in that respect are different from appeals from courts of summary jurisdiction: cf s 96(4). [s 94AAA.10] “Exercising original jurisdiction under this Act”: no appeal to Full Court from order by Deputy Registrar of the Federal Magistrates Court The Full Court has held that an appeal cannot be taken to the Full Court from an order by a deputy registrar of the Federal Magistrates Court: In the Marriage of Grayden (2003) 30 Fam LR 459; FLC 93–146 (Warnick, May and Boland JJ). The Full Court said that although the order

was a decree of the Federal Magistrates Court — FMA s 103(2) — it was not “a decree of the Federal Magistrates Court exercising original jurisdiction under this Act”. The Full Court said that the deputy registrar was exercising delegated jurisdiction, not original jurisdiction, and pointed out that an essential part of the jurisdiction was review by the Federal Magistrates: In the Marriage of Horne (1997) 21 Fam LR 363; FLC 92-734. Accordingly, the purported appeal to the Full Court was held to be incompetent. [page 975] The analysis their Honours chose seems to mean that there are three distinct types of jurisdiction, namely original, delegated and appellate. The conventional view, perhaps, would be that there are only two types of jurisdiction, original and appellate — see ss 28, 31, 94 — and that the registrar was indeed exercising original jurisdiction under the Family Law Act, albeit delegated to her by the Federal Magistrates (FMA ss 102, 103). Another way of achieving the sensible result in Grayden might have been simply to say that the Full Court will decline to hear appeals from registrars, since (for the reasons given by their Honours) the appropriate review is by a Federal Magistrate. (See, by analogy, the discussion in R v Cook; Ex parte Twigg (1980) 6 Fam LR 161; FLC 90-859 (HC)).

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[s 94AAB] Appeals, and applications for leave, without oral hearing 94AAB (1) Subject to subsection (2), an appeal under section 94 or 94AAA may be dealt with without an oral hearing if all the parties to the appeal consent to the appeal being dealt with in that way. (2) Subsection (1) does not apply to an appeal if the court to which the appeal is made otherwise orders.

(3) A consent given under subsection (1) may only be withdrawn with the leave of the court. [s 94AAB insrt Act 98 of 2005 s 2 and Sch 1, cl 27, opn 3 Aug 2005] COMMENTARY ON SECTION 94AAB Introductory comment ….

[s 94AAB.1]

[s 94AAB.1] Introductory comment By virtue of this section, if the parties consent, appeals to the Family Court under s 94 (from courts other than Federal Magistrates Court) and under s 94AAA (from the Federal Magistrates Court) may be dealt with on the papers, ie without an oral hearing, unless the appeal court orders otherwise. Consent may be withdrawn only with leave.

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[s 94AA]

Leave to appeal needed in some cases

94AA (1) The following table sets out the circumstances in which leave to appeal is required: Requirements for leave to appeal Item Appeal from

1

2

Appeal to

Who determines the application for leave to appeal a Full Court of a Full Court of the Family Court the Family Court

a prescribed decree of the Family Court (constituted otherwise than as a Full Court) a prescribed a Full Court of a Full Court of decree of a the Family Court the Family Court Family Court of a

3

State a prescribed a Full Court of a Full Court of decree of a the Family Court the Family Court Supreme Court of a State or Territory constituted by a single Judge

[page 976] Requirements for leave to appeal Item Appeal from

4

5

Appeal to

Who determines the application for leave to appeal a prescribed the Family Court (a) a single Judge decree of the of the Family Federal Circuit Court (who need Court of not be a member Australia of the Appeal Division); or (b) a Full Court of the Family Court a prescribed the Family Court (a) a single Judge decree of the of the Family Magistrates Court Court (who need of Western not be a member Australia of the Appeal constituted by a Division); or Family Law (b) a Full Court Magistrate of of the Family Western Court

Australia [subs (1) subst Act 98 of 2005 s 2 and Sch 1, cl 130, opn 3 Aug 2005; am Act 22 of 2006 s 3 and Sch 1 item 23, opn 1 July 2006; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) Despite subsection (1), an order by consent disposing of an application under this section for leave to appeal under subsection 94(1) or (1AA) (including an order for costs) may be made by: (a) a Full Court of the Family Court; or (b) a Judge of the Appeal Division; or (c) another Judge if there is no Judge of the Appeal Division available. [subs (2) subst Act 98 of 2005 s 2 and Sch 1, cl 130, opn 3 Aug 2005]

(2A) Despite subsection (1), an order by consent disposing of an application under this section for leave to appeal under subsection 94AAA(1) or (1A) (including an order for costs) may be made by: (a) a Full Court of the Family Court; or (b) a single Judge of the Family Court (who need not be a member of the Appeal Division). [subs (2A) insrt Act 98 of 2005 s 2 and Sch 1, cl 130, opn 3 Aug 2005; am Act 22 of 2006 s 3 and Sch 1 item 24, opn 1 July 2006]

(3) The standard Rules of Court may make provision for enabling applications for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing. [subs (3) am Act 194 of 1999 s 3 and Sch 11[79]]

(4) [subs (4) rep Act 143 of 2000 s 3 and Sch 3 item 77 opn 27 Dec 2000] [s 94AA insrt Act 115 of 1990 s 49 and Sch; am Act 167 of 1995 s 38]

COMMENTARY ON SECTION 94AA Introductory comments …. A “prescribed decree” is an interlocutory decree …. Child welfare matters: leave not required …. What is an interlocutory decree? …. Principles to be applied …. Aspects of practice ….

[s 94AA.1] [s 94AA.2] [s 94AA.3] [s 94AA.5] [s 94AA.10] [s 94AA.11] [page 977]

[s 94AA.1] Introductory comments The purpose of this section is essentially to require leave before a party can appeal against an interlocutory decree. The requirement applies both to appeals from single judge of the Family Court to the Full Court, and to appeals from a federal magistrate (whether to a single judge of the Family Court or to the Full Court). The section does not directly refer to interlocutory decrees, but to “a prescribed decree”, which is effectively defined as an interlocutory decree by reg 15A of the Family Law Regulations. However, leave is not required for child welfare matters. In the case of appeals from single judges, only the Full Court can give leave: subs (2). In the case of appeals from federal magistrates, a Full Court or a single judge of the Family Court can give leave: subs (2B). [s 94AA.2] A “prescribed decree” is an interlocutory decree Regulation 15A of the Family Law Regulations prescribes, for the purpose of subss (1) and (2A) (federal magistrates), “a decree of the kind mentioned in subsection 94(1) of the Act that is an interlocutory decree (other than a decree in relation to a child welfare matter)”. [s 94AA.3] Child welfare matters: leave not required Leave is not required for interlocutory decrees that are in relation to child welfare matters. This results from the terms of reg 15A, quoted in [s 94AA.2]. Regulation 15A(3) defines a child welfare matter as “a matter relating to: (a) the person or persons with whom a child is to live; or (b) contact between a child and

another person or persons; or (c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.” This definition clearly includes residence orders, contact orders, and specific issues orders under Pt VII. It would not seem to include other orders relating to children, such as injunctions under s 68B, unless the last component of the definition, (c), is given an expansive interpretation. On the nexus required in relation to “child welfare”, see Jukes v Doyle (2005) 32 Fam LR 617; [2005] FamCA 39. The substantive proceedings instituted by a mother concerned a child for whom the mother was seeking financial support. Coleman J said that while the matter was not necessarily clear beyond doubt, the case had sufficient nexus to the matter of “child welfare”, within the meaning of reg 15A(2) and (3) of the Family Law Regulations 1984 (Cth), with the result that leave to appeal was not required. [s 94AA.5] What is an interlocutory decree? The word interlocutory derives from a Latin word, “interlocutio”, meaning “a speaking between”, and thus the ordinary meaning of the is “of the nature of, or pertaining to, or occurring in conversation”: Macquarie Encyclopaedic Dictionary. A secondary meaning is “interjected into the main course of speech”. In law, the distinction is between “final” orders and “interlocutory” orders. This suggests that interlocutory orders form a part of a continuing process (conversation), namely the legal proceedings, while final orders mark the end of it. In many cases that will be true. The numerous orders about procedural matters at various points leading to a final hearing are normally all interlocutory orders, for which leave will be required. But as a matter of law it cannot be said that an interlocutory order must necessarily be made “between action begun and final judgment”: see the authorities considered in Bruce F McLaren Holdings Pty Ltd v McLaren (2000) 26 Fam LR 294; FLC 93–030 at [11]. The distinction between a final and an interlocutory order is often said to be a difficult one. It is considered in some detail in Bruce F McLaren Holdings Pty Ltd v McLaren (2000) 26 Fam LR 294; FLC 93–030, in which the Full Court followed the analysis of the Federal Court in Malouf v Malouf (1999) 167 ALR 383. Broadly speaking at least, the correct analysis is (i) that any order that is not a final order is an interlocutory order, and (ii) that a final order is one that finally disposes of the rights of the parties.

It seems from the recent High Court authorities in particular that the courts will tend to adopt a narrow view of what is a final order, with the effect that leave is required for many cases which are not easily characterised as either final or interlocutory. There is a clear rationale for this. [page 978] Characterising orders as “final” exposes the courts to an uncontrolled number of appeals. Characterising them as “interlocutory” allows the courts to control the flow of appeals by granting leave only in cases where there is a good reason to do so. For an explicit discussion of this issue, see Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246 at 256–7; 34 ALR 499 per Mason J, quoted in McLaren, above, at [11]. Orders held to be interlocutory The following orders have been held to be interlocutory: An order requiring a third party to produce documents for inspection: Bruce F McLaren Holdings Pty Ltd v McLaren (2000) 26 Fam LR 294; FLC 93–030. An order staying a proceeding on the ground that the Australian court is a forum non conveniens: In the Marriage of Gilmore (1993) 16 Fam LR 285; FLC 92–353. An injunction restraining the sale of a property pending the final hearing of the property proceedings: In the Marriage of Rutherford (1991) 15 Fam LR 1; FLC 92–255 (FC). An order striking out an application, for example, for want of prosecution: In the Marriage of Tudor (1991) 15 Fam LR 165; (1992) FLC 92–273; In the Marriage of Bennett (1985) 10 Fam LR 68; FLC 91–617. An order granting leave under s 44(3): In the Marriage of Emamy and Marino (1994) 18 Fam LR 44; (1994) FLC 92–487 (FC), Ellis and Baker JJ (Kay J dissenting, and leaving this point open). This decision overrules In the Marriage of Thallon (1992) 15 Fam LR 805; FLC 92–322. It leaves open the possibility that an order refusing

leave under s 44(3) might be a final order. But the analysis in McLaren, above, may suggest that since the legal consequence of such a refusal does not finally determine the property issues, and since in principle another application could be made at a later time, the order would be treated as interlocutory. (The point does not seem to have been taken in some appeals against refusal of leave, eg In the Marriage of McIntyre and Malezer (1986) 11 Fam LR 597; (1987) FLC 91–816.) An order setting aside subpoenas issued to a stranger to the proceedings: R v Gray; Ex parte Marsh (1985) 157 CLR 351; 62 ALR 17 (HC); or requiring production under such a subpoena: Brouwer v Titan Corp Ltd (1997) 73 FCR 241; 149 ALR 50. An order dismissing an application for pre-trial discovery: Malouf v Malouf (1999) 167 ALR 383 (Fed Ct). Orders held not to be interlocutory The following orders have been held to be final rather than interlocutory orders: A decree nisi for dissolution of marriage: In the Marriage of Abbott (1995) 18 Fam LR 550 at 560; FLC 92–582 (FC). Orders granting a permanent stay of proceedings on the basis of issue estoppel: In the Marriage of Blackman (1998) 22 Fam LR 416; FLC 92–791. [s 94AA.10] Principles to be applied The Full Court has followed the High Court’s view that particular caution should be exercised in the review by way of appeal of an order which pertains to practice and procedure: In the Marriage of Rutherford (1991) 15 Fam LR 1; FLC 92–255 (FC). Matters to be taken into account on a review of an order which is a matter of practice and procedure are that there has been an error of principle and that the decision appealed from is one which works a substantial injustice to one of the parties. As to whether the two elements of this test should be read disjunctively, authority is conflicting. The Full Court has declined to resolve the issue, finding that the same result flows from either view. But is has said that it is unnecessary and unwise to lay down rigid and exhaustive criteria: In the

Marriage of Rutherford (1991) 15 Fam LR 1; FLC 92–255 (FC). See also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; 35 ALR 625 (HC); De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143; In the Marriage of Tudor (1991) 15 Fam LR 165; (1992) FLC 92–273 (FC) (where the wife’s application for leave to appeal was refused because there was no error of principle or substantial injustice to the wife). [page 979] Other decisions applying these principles include: In the Marriage of Reed; M J Draper (Intervener) (1995) 20 Fam LR 229; FLC 92–649; GWP Aarons & Co and Knowles (1995) 19 Fam LR 462; FLC 92–627; In the Marriage of Best (1993) 16 Fam LR 937; FLC 92–418; In the Marriage of Jackson and Fordham (1994) 18 Fam LR 336; (1995) FLC 92–561; In the Marriage of Gould (1993) 17 Fam LR 156; FLC 92–434; Duroux v Martin (1993) 17 Fam LR 130; FLC 92–432. See also National Mutual Holdings Pty Ltd v Sentry Corp (1988) 83 ALR 434 (Fed C). [s 94AA.11] Aspects of practice The Full Court sometimes deals simultaneously with the application for leave and the substantive appeal, and in such cases the practical importance of the question of leave can be overemphasised.

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[s 94AB] orders

Appeals relating to court security

94AB (1) This section deals with the application of this Part in relation to the making, variation or revocation of a court security order under Part 4 of the Court Security Act 2013 by a member (as defined in that Act) of: (a) the Family Court; or

(b) the Family Court of Western Australia. (2) This Part applies as if the making, variation or revocation were a decree of the member’s court in the exercise of original jurisdiction under this Act. Note: As a result, an appeal from the making, variation or revocation lies under subsection 94(1), if the member is a member of the Family Court or a member of the Family Court of Western Australia other than a Family Law Magistrate of Western Australia.

(3) However, if the member is a member of the Family Court of Western Australia because he or she is a Family Law Magistrate of Western Australia, this Part applies as if: (a) the making, variation or revocation were a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; and (b) proceedings for the making, variation or revocation were proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. Note: As a result, an appeal from the making, variation or revocation by the member lies under subsection 94AAA(1A). [s 94AB insrt Act 113 of 2015 s 3 and Sch 4 item 14, opn 18 Aug 2015]

[s 94A]

Case stated

94A (1) [Court may hear preliminary questions of law] If, in proceedings in a court, being proceedings in which a decree or decision to which subsection 94(1) or (1AA) applies could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall

state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question. [subs (1) am Act 23 of 1979 s 17; Act 141 of 1987 s 3 and Sch 1]

(2) [Court may draw inferences] The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge. [page 980] (3) If, in proceedings in the Federal Circuit Court of Australia, being proceedings in which a decree or decision to which subsection 94AAA(1) applies could be made, a question of law arises which: (a) the Judge of the Federal Circuit Court of Australia; and (b) at least one of the parties; wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with: (c) the Judge of the Federal Circuit Court of Australia must state the facts and question in the form of a special case for the opinion of a Full Court of the Family Court; and (d) a Full Court of the Family Court must hear and determine the question. [subs (3) insrt Act 194 of 1999 s 3 and Sch 11[80]; am Act 13 of 2013 s 3 and Sch 1 item 299, Sch 2 item 2, opn 12 Apr 2013]

(4) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Judge of the Federal Circuit Court of

Australia. [subs (4) insrt Act 194 of 1999 s 3 and Sch 11[80]; am Act 13 of 2013 s 3 and Sch 1 item 300, opn 12 Apr 2013]

(5) If, in proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia, being proceedings in which a decree or decision to which subsection 94AAA(1A) applies could be made, a question of law arises which: (a) the Magistrate; and (b) at least one of the parties; wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with: (c) the Magistrate must state the facts and question in the form of a special case for the opinion of a Full Court of the Family Court; and (d) a Full Court of the Family Court must hear and determine the question. [subs (5) insrt Act 22 of 2006 s 3 and Sch 1 item 25, opn 1 July 2006]

(6) The Full Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the Magistrate. [subs (6) insrt Act 22 of 2006 s 3 and Sch 1 item 25, opn 1 July 2006] [s 94A insrt Act 63 of 1976 s 31] COMMENTARY ON SECTION 94A Case stated …. A question of law …. Conditions to be fulfilled …. Relevant rules or regulations — cases stated ….

[s 94A.1] [s 94A.2] [s 94A.3] [s 94A.4]

[s 94A.1] Case stated A question of law arising in proceedings in the Family Court can be referred to a Full Court of the Family Court without the need for an appeal. In proceedings in the Family Court constituted otherwise than as a Full Court, if a question of law arises which the judge and at least one of the parties wish to have determined by a Full Court before the proceedings are further dealt with, the judge shall state the facts and questions in the form of a special case for the opinion of a Full Court, and the Full Court shall hear and determine the question. [page 981] The Full Court is empowered to draw from the facts and documents any inference (whether of fact or of law) which could have been drawn from them by the judge. [s 94A.2] A question of law The use of the section can sometimes be an unsatisfactory way of resolving issues between parties to a matrimonial cause. The issues are determined by the Full Court on the basis of a statement of facts agreed to by the parties or settled by the judge. Those facts may differ in some ways from those which are ultimately established by the evidence; alternatively, there may be factual information omitted from the case which the Full Court may consider important to its decision. The section applies where a question of law arises: see In the Marriage of Mullane (1980) 5 Fam LR 801 at 802; FLC 90–826. [s 94A.3] Conditions to be fulfilled The proceedings must lie in a court to which s 94(1) applies. The procedure of a stated case can only be used in the course of proceedings before the court in which a party is seeking an order. There must be proceedings in which an order could have been made to which s 94(1) applies: see In the Marriage of Daff (1984) 9 Fam LR 546; FLC 91– 516. A question of law must arise in the proceedings which it is necessary to

determine before the proceedings can be determined: see In the Marriage of Robertson (1977) 15 ALR 145; 2 Fam LR 11,699; 28 FLR 129; FLC 90–214. The initiative to have the case stated must either come from the judge with the agreement of at least one party to the proceedings, or be at the request of one of the parties with the approval of the judge. A party or even both parties jointly do not have the right to demand that the judge state a case. Parties acting jointly can, however, deny the judge the opportunity to state a case. Exceptional circumstances The procedure should only be resorted to in exceptional circumstances, for example, where it may be important to get a further opinion on a point of law before embarking on proceedings to determine complex facts: see In the Marriage of Daff, above. [s 94A.4] Relevant rules or regulations — cases stated See O 32 r 3.

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[s 95]

Appeals to High Court

95 Despite anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except by special leave of the High Court. [s 95 subst Act 98 of 2005 s 2 and Sch 1, cl 134, opn 3 Aug 2005] COMMENTARY ON SECTION 95 Appeals to High Court …. Application to the High Court for special leave …. Certificate of the Full Court of the Family Court …. Important question of law or of public interest involved …. Order of application …. Inter se question …. Prerogative writs ….

[s 95.1] [s 95.2] [s 95.3] [s 95.4] [s 95.5] [s 95.6] [s 95.7]

[s 95.1] Appeals to High Court Appeals to the High Court are only possible by special leave of the High Court or a certificate from the Full Court of the Family Court of Australia. An important question of law or of public interest must be involved. [s 95.2] Application to the High Court for special leave The procedure for obtaining special leave from the High Court is set out in the High Court Rules: see High Court Rules, Pt 41. [page 982] [s 95.3] Certificate of the Full Court of the Family Court An application may be made orally at the handing down of the decision of the Full Court and may, if that court thinks fit, be then heard and determined by that court. The Full Court noted in 1996 that certificates had been granted only three times: see Re Z (No 2) (1996) 20 Fam LR 793 at 744–5; FLC 92–708. The majority judgment in that case, and the decision in Re Evelyn (No 2) (1998) 23 Fam LR 73; FLC 92–817 indicate that the Full Court will usually be most reluctant to grant certificates under s 95(b), since doing so has the effect of limiting the High Court’s capacity to decide whether or not it will hear a particular matter. [s 95.4] Important question of law or of public interest involved Where there is no fundamental inconsistency between decisions of the court, but only a difference in the application of principles to the facts of each case, there is unlikely to be “an important question of law or of public interest” involved under s 95(b): see In the Marriage of Yates (No 2) (1982) 7 Fam LN 20; FLC 91–228. The certificate should specify the terms of that important question. It should also state whether that question was one of law or of public interest or both: DJL v Central Authority (2000) 170 ALR 659; 26 Fam LR 1; FLC 93–015 (HC). [s 95.5] Order of application There is no objection to a litigant approaching the High Court direct for special leave without first going to the Full Court of

the Family Court: see In the Marriage of Duff (1977) 3 Fam LR 11,211; FLC 90–217. [s 95.6] Inter se question It is possible to take a matter direct to the High Court under ss 38A and 40A of the Judiciary Act where an inter se question is involved. [s 95.7] Prerogative writs The High Court may also review decisions or actions of the Family Court, including single judges of the Family Court by issuing a writ of prohibition of certiorari under s 75(v) of the Constitution which lie to a judge of a tribunal set up by the Commonwealth Parliament even though it is declared to be a superior court of record under s 21(2): see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297 at 11,309; FLC 90–059; see also R v Cook; Ex parte Twigg (1980) 6 Fam LR 161; FLC 90–859; Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555 and see [s 94.6]. But an application to the High Court for prerogative relief, other than in respect of a question as to the constitutional limit of legislative power, will be premature where an appropriate remedy is available on appeal to the Full Court of the Family Court: Re Family Court of Australia; Ex parte Herbert (1991) 15 Fam LR 308; (1992) FLC 92–280. Prohibition — state court Prohibition lies to a state court exercising federal jurisdiction if the state court does not possess the jurisdiction it purported to exercise. Prohibition — Family Court of Western Australia Prohibition does not lie on the ground of bias under s 75(V) of the Constitution to a judge of the Family Court of Western Australia, since such a judge is not an officer of the Commonwealth: see R v Anderson; Ex parte Bateman (1978) 21 ALR 56.

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[s 96] Appeals from courts of summary jurisdiction

96 (1AA) This section does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. Note: Appeals from these decrees are dealt with in section 94AAA. [subs (1A) insrt Act 22 of 2006 s 3 and Sch 1 item 26, opn 1 July 2006]

(1) [Appeal to Family Court or to the Supreme Court] An appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under this Act to the Family Court or to the Supreme Court of that State or Territory. [subs (1) subst Act 23 of 1979 s 18]

[page 983] (1A) [Prescribed time to appeal] An appeal under subsection (1) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court. [subs (1A) insrt Act 23 of 1979 s 18; am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[81]]

(2) [Jurisdiction of Supreme Courts] The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which appeals are instituted under this section. [subs (2) subst Act 72 of 1983 s 51]

(3) [Proclamation may end Supreme Court appeals] The Governor-General may, by Proclamation, fix a date as the date on or after which appeals to the Supreme Court of a specified State or Territory under this section may not be instituted.

(4) [Powers of appeal court] The court hearing an appeal under this section: (a) shall, subject to subsection (5), proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the court of summary jurisdiction; and (b) may make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal. [subs (4) subst Act 23 of 1979 s 18; am Act 181 of 1987 s 63 and Sch; Act 8 of 1988 s 29]

(5) The court hearing an appeal under this section may, on the application of a party or of its own motion, refer the appeal to a Full Court of the Family Court. [subs (5) insrt Act 8 of 1988 s 29]

(6) Where an appeal is referred to a Full Court of the Family Court under subsection (5), the Full Court may: (a) proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the court of summary jurisdiction; (b) order that questions of fact arising in the proceedings be tried by a Judge; (c) determine questions of law arising in the proceedings and remit the appeal to a Judge for hearing in accordance with directions given by it; and (d) make such other decrees as it considers appropriate, including a decree affirming, reversing or varying the

decree the subject of the appeal. [subs (6) insrt Act 8 of 1988 s 29] COMMENTARY ON SECTION 96 Introductory comments …. Nature of appeal …. Appeals from consent orders …. Appeals from approval of s 87 agreements …. Leave to file appeal out of time …. Rules ….

[s 96.1] [s 96.2] [s 96.3] [s 96.4] [s 96.5] [s 96.6]

[s 96.1] Introductory comments This section provides for an appeal from a state or territory court of summary jurisdiction to the Family Court of Australia or to the Supreme Court of the relevant state or territory. Appeals from state courts of summary jurisdiction lie to a judge of the Family Court of Australia in New South Wales, Victoria, South Australia, Queensland, Tasmania, the Australian Capital Territory and Norfolk Island. Appeals to the Supreme Courts of these states and territories cannot be instituted after 1 June 1976. [page 984] In the Northern Territory an appeal lies to a judge of the Family Court of Australia as from 1 March 1979. In Western Australia an appeal from a court of summary jurisdiction outside the Perth Metropolitan Area lies to the Family Court of Western Australia in both federal and non-federal jurisdiction. [s 96.2] Nature of appeal Hearing de novo A hearing de novo means that the reviewing judge starts afresh, normally considering the evidence before the lower court, the lower court’s decision, and any new evidence, and making a decision that is

appropriate at the time of the review. It is therefore possible for a review to set aside (on the basis of new evidence or changed circumstances) a decision that was impeccable in the light of the evidence before the lower court. See generally Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217 (HC); In the Marriage of Robinson and Willis (1982) 8 Fam LR 131; FLC 91–215; see also In the Marriage of Stredwick (1985) 10 Fam LR 964; (1986) FLC 91–724 (a case on s 37A). The matter was thoroughly discussed in In the Marriage of Robinson and Wills in terms that are generally consistent with the decision of the High Court in Harris v Caladine. Asche J said at Fam LR 136 that having invoked the right to appeal, the party “is entitled to a hearing de novo in which all matters are again in issue”. Fogarty J said at Fam LR 146 that the proceeding could be regarded as a hybrid, having some characteristics of appeal and some of original jurisdiction, but concluded that it was “not an appeal in any real sense, but as a process enabling a party to have in effect a second hearing on the merits”. Elliott J said at Fam LR 150 that the court “is not reviewing a decision of the court below seeking to find error, but is examining afresh the facts of the matter (which may or may not include additional evidence) and exercising its own independent discretion”. In In the Marriage of Robinson and Wills it was held that a husband could appeal against a consent order, having repented on his decision to make a generous payment of child maintenance. Review under s 37A compared There appears to be no significant difference between the nature of the appeal under s 96 and the review of a lower court’s decision under s 37A, which was considered by the High Court in Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217. Historical background In early decisions, it had been held that the appeal under s 96 was similar to an appeal under s 94 in that the appeal court must find some error in the judgment below: In the Marriage of Sutton (No 2) (1976) 2 Fam LR 11,256; FLC 90–121; In the Marriage of Nowland (1977) 3 Fam LR 11,262; FLC 90–236. Compare however Fogarty J’s dissent in Nowland, above. The amending Act of 1979 reversed these decisions by inserting the provision that the appeal is “by way of rehearing de novo”: subs (4). It also removed the previous requirement that the appellant be a “person

aggrieved”, as to which see In the Marriage of Hutchinson (1978) 4 Fam LR 446; FLC 90–492. [s 96.3] Appeals from consent orders As In the Marriage of Robinson and Wills, above, illustrates, the availability of the appeal de novo means that consent orders made by magistrates may generally be set aside where one party appeals (within time or by leave) under s 96. Practitioners may need to balance this lack of stability against the advantages to their clients of bringing these matters to courts of summary jurisdiction, namely convenience and lower costs, and perhaps speed. See also, on this point, the commentary to s 37A. [s 96.4] Appeals from approval of s 87 agreements Since the introduction on 27 December 2000 of the provisions in the Act which provide for Financial Agreements, agreements made pursuant to s 87 have been superseded so this commentary will apply in only the most limited of situations where leave would be required. Appeals from a court of summary jurisdiction against [page 985] the approval of maintenance agreements under s 87 raise a difficult issue. On one hand, the nature of the review de novo, as described in Harris v Caladine (1991) 172 CLR 84; 99 ALR 193; 14 Fam LR 593; FLC 92–217; In the Marriage of Robinson and Willis (1982) 8 Fam LR 131; FLC 91–215; and In the Marriage of Stredwick (1985) 10 Fam LR 964; (1986) FLC 91–724, suggests that the reviewing court will simply start afresh. It would appear to follow that if one party has withdrawn agreement since the summary proceedings, the approval will be set aside, since the reviewing court could hardly approve as “proper” a document which no longer represents an agreement: see [s 87.30] and in particular In the Marriage of Gardiner (1978) 4 Fam LR 517; FLC 90–440; This conclusion was accepted in two cases: In the Marriage of Van der Veer (1981) 7 Fam LR 141; FLC 91–043 (Pawley SJ); In the Marriage of Smith (1982) 8 Fam LR 426; FLC 91–256 (Gee J).

But it was not accepted by the Full Court: In the Marriage of Hartig (1983) 9 Fam LR 250; FLC 91–361. The court there overruled Van der Veer, and held that on a review the question was not whether the agreement should become binding but whether it should remain binding or should cease to be binding; whether the court should affirm, reverse or vary the order previously made. The fact that a party now does not consent is, however, a fact to be taken into account. Other relevant facts might be whether the approved agreement has been carried out in whole or in part; the time that has elapsed since the approval; the propriety and fairness of the agreement; and other merits of the case. See also In the Marriage of Hennessy and Dunne (1984) 9 Fam LR 828; FLC 91–583; In the Marriage of Evans (1985) 11 Fam LR 129; (1986) FLC 91–711. It is submitted (RC) that it is difficult to reconcile the reasoning in Hartig; Harris with the High Court’s analysis, in, of the nature of a hearing de novo. The court on review must consider afresh whether the agreement should be approved, as being “proper”. It can hardly be “proper” to approve a deed to which one party no longer consents, and it might be arguable that there is no “agreement” to approve. Difficult questions may arise where the deed has been acted upon since approval at summary jurisdiction, but it is submitted that this is no different from the situation where a party acts upon an agreement before it has been approved under s 87. It is submitted (RC) that in the light of above, the law is as follows: (1) An application under s 96 for review of the approval of a s 87 agreement within time or by leave, and the presentation of evidence that one party does not consent to the purported agreement, will effectively guarantee that the approval is set aside, unless the reviewing court is willing to hold that it can be “proper” to approve as a s 87 maintenance agreement a document to which one party does not agree. (2) This drastic consequence should be taken into account in considering application for leave to appeal out of time. Although it is difficult to find authorities for this, a court might be entitled to refuse leave where an approved agreement has been acted upon and where the consequence of setting it aside would be unfair to a party. [s 96.5] Leave to file appeal out of time See Family Law Rules 2004 Ch 22.

[s 96.6] Rules See O 32 r 2.

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[s 96AA] Appeal may be dismissed if no reasonable prospect of success 96AA (1) If: (a) an appeal has been instituted in a court under this Part; and (b) having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal); the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground). [page 986] (2) This section does not limit any powers that the court has apart from this section. [s 96AA subst Act 189 of 2011 s 3 and Sch 2[27], opn 7 Dec 2011]

[s 96A] Part does not apply to section 111C jurisdiction 96A This Part does not apply in relation to jurisdiction conferred on a federal court or a court of a Territory, or invested in a court of a State, by regulations made for the purposes of section 111C. Note: Those regulations may provide for courts to have jurisdiction in respect of appeals arising from matters dealt with by those regulations: see subsection 111C(5). [s 96A insrt Act 89 of 1998 s 3 and Sch 1]

[page 987]

PART XI — PROCEDURE AND EVIDENCE Note: Division 12A of Part VII has provisions about procedure and evidence that apply to child-related proceedings (within the meaning of Part VII). [Pt XI heading subst Act 46 of 2006 s 3 and Sch 3 item 7, opn 1 July 2006]

DIVISION 1 — GENERAL MATTERS CONCERNING PROCEDURE AND EVIDENCE [Div 1 heading insrt Act 138 of 2003 s 3 and Sch 2 item 6 opn 14 Jan 2004]

[s 97]

Procedure

97 (1) [Open court] Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court. [subs (1) subst Act 72 of 1983 s 52; am Act 72 of 1983 s 76 and Sch; Act 8 of 1988 s 30; Act 194 of 1999 s 3 and Sch 11[82] and [83]; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013; Act 186 of 2012 s 3 and Sch 3 item 1, opn 11 June 2013]

(1A) The regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers. [subs (1A) insrt Act 8 of 1988 s 30; am Act 194 of 1999 s 3 and Sch 11[84] and [85]; Act 138 of 2003 s 3 and Sch 7 item 24 opn 14 Jan 2004; Act 13 of 2013 s 3 and Sch 1 item 301, opn 12 Apr 2013]

(2) [Court may make various orders] In any proceedings in

the Family Court, or in another court when exercising jurisdiction under this Act, the court may, of its own motion or on the application of a party to the proceedings, make one or more of the following orders: (a) an order that a specified person is not, or specified persons are not, to be present in court during the proceedings or during a specified part of the proceedings; (b) an order that persons included in a specified class of persons are not to be present in court during the proceedings or during a specified part of the proceedings; (c) an order that only the parties to the proceedings, their legal representatives and such other persons (if any) as are specified by the court may be present in court during the proceedings or during a specified part of the proceedings. [subs (2) subst Act 72 of 1983 s 52]

(3) [Formality, duration of proceedings] In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted. (4) [subs (4) rep Act 8 of 1988 s 30] COMMENTARY ON SECTION 97 Procedure …. Open court — s 97(1) …. Discretion of the court to exclude persons — s 97(2) …. Proceedings without undue formality and not protracted — s 97(3) …. Litigants in person …. Relevant rules ….

[s 97.1] [s 97.2] [s 97.3] [s 97.4] [s 97.5] [s 97.6]

[page 988] [s 97.1] Procedure By s 38(1), subject to the Family Law Act, the practice and procedure of the court shall be in accordance with Rules and Regulations made under the Act. Section 123 authorises the making of Rules and Regulations not inconsistent with the Act. The words in s 38(1), “subject to this Act”, bring into consideration provisions such as s 97. [s 97.2] Open court — s 97(1) History of the section Section 97(1) was amended by the Family Law Amendment Act 1983. The repealed s 97(1) provided that subject to any other provisions of the Act and regulations, all proceedings under the Family Law Act shall be heard in closed court. Section 97(2) was also amended by the Family Law Amendment Act 1983. The repealed s 97(2) provided that various categories of persons may be present in court unless in a particular case the court otherwise ordered. The provisions of the repealed s 97(1) in so far as they related to courts other than the Family Court, went beyond the power of the Commonwealth Parliament and were invalid: see Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90–039. Pursuant to the power contained in the repealed s 97(1) for the regulations to make a contrary provision in relation to the court being closed, the repealed reg 105(2) provided that in proceedings in the nature of contempt proceedings, such proceedings were to be held in open court, in the sense that the regulations specifically provided that any person was entitled to be present: see In the Marriage of Davis (1976) 1 Fam LR 11,409; (1976) FLC 90–050. Section 97(1) and (2) now provides that, subject to a discretion in the court to exclude certain persons, proceedings in the Family Court or in a court of a

Territory (other than the Northern Territory) shall be heard in open court. Section 97(1A) provides that proceedings in chambers may be authorised by the regulations and rules. [s 97.3] Discretion of the court to exclude persons — s 97(2) This section confers on the court a discretion to exclude certain persons. The court may make such an order either on its own motion or on an application of a party to the proceedings. The court has the following powers: to order that a specified person is not to be present during the proceedings; to order that a specified person is not to be present during a specified part of the proceedings; to order that specified persons are not to be present during the proceedings; to order that specified persons are not to be present during a specified part of the proceedings; to order that persons included in a specified class of persons are not to be present during the proceedings; to order that persons included in a specified class of persons are not to be present during a specified part of the proceedings; to order that only the parties to the proceedings, their legal representatives and such other persons (if any) as specified may be present during the proceedings; to order that only the parties to the proceedings, their legal representatives and such other persons (if any) as are specified may be present during a specified part of the proceedings. Natural justice In In the Marriage of A (1986) 10 Fam LR 485 at 488 Lambert J said that the principles of natural justice govern the exercise of the discretion and that these principles must prevail other than in exceptional cases involving some special hazard or cause in urgency or conduct of a party at the hearing prejudicial to a fair trial of the proceedings. [s 97.4] Proceedings without undue formality and not protracted — s

97(3) This section requires the court to proceed without undue formality and to ensure that proceedings are not protracted. [page 989] In Russell v Russell (1976) 134 CLR 495; 9 ALR 103; 1 Fam LR 11,133; 50 ALJR 594; FLC 90–039, Stephen J said that the words lack precise meaning and whether they are capable of being rendered more than merely precatory may emerge if they ever have to be applied to particular facts. Order 30 r 3 enables the court to dispense with procedures and formalities. It replaced reg 108(2) of the repealed regulations. The repealed reg 108(2) limited the extent to which the court exercising jurisdiction under the Act could go in dispensing with the normal rules of practice and procedure under s 97(3). A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears an onus of proof from the necessity of discharging it: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551; 1 Fam LR 11,297; FLC 90– 059; In the Marriage of Lonard (1976) 2 Fam LR 11,116 at 11,119; FLC 90– 066. See also In the Marriage of Collins (1990) 14 Fam LR 162; FLC 92–149 and In the Marriage of S and P (1990) 14 Fam LR 251; FLC 92–159, where the Full Court confirmed that the court had an obligation to ensure that proceedings were not protracted or unreasonably expensive. For a discussion of the requirements of s 97(3) in matters involving litigants in person, see C and C (1998) 23 Fam LR 491; FLC 92–824. [s 97.5] Litigants in person The growing numbers of litigants in person in family proceedings is a striking feature of the current workload of the court. The Full Court has had many occasions on which to address the proper procedural approach to be adopted in cases involving such litigants. General principles In Re F: Litigants in person guidelines (2001) 27 Fam LR 517; FLC 93–072, the Full Court (Nicholson CJ, Coleman and O’Ryan JJ) set out guidelines relating to case involving litigants in person. (The guidelines modify those previously set out in In the Marriage of Johnson

(1997) 22 Fam LR 141; FLC 92–764.) The Re F guidelines are as follows: (1) A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial. (2) A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses. (3) A judge should explain to the litigant in person any procedures relevant to the litigation. (4) A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation. (5) If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course. (6) A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise. (7) If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights. (8) A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott (1994) 121 ALR 148 at 150. (9) Where the interests of justice and the circumstances of the case

require it, a judge may: draw attention to the law applied by the court in determining issues before it; question witnesses; [page 990] identify applications or submissions which ought to be put to the court; suggest procedural steps that may be taken by a party; clarify the particulars of the orders sought by a litigant in person or the bases for such orders. The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias. A breach of these guidelines may result in procedural unfairness, which may in turn require a re-trial: see S v R and the Children’s Representative (1999) 24 Fam LR 213; FLC 92–834. See also In the Marriage of Sadjak (1992) 16 Fam LR 280; (1993) FLC 92–348 per Nicholson CJ, Nygh and Purdy JJ, where the particular needs of litigants whose first language is not English are discussed. See also In the Marriage of Su and Chang (1999) 25 Fam LR 558; FLC 92–859 (FC). In Kousal v Tack (2002) 30 Fam LR 581; (2003) FLC 93–134, the Full Court held that although the guidelines for procedural fairness for dealing with self-represented litigants require the judge to inform the litigant of the right to cross-examine, they do not require the judge to explain to the litigant the consequences of failure to cross-examine, or to make the tactical decision on behalf of the litigant as to which witnesses it might be useful to crossexamine and the manner in which they should be cross-examined. It may be desirable, however, for a judge to advise a litigant of the consequences of not cross-examining (per Nicholson CJ). Judge should not give legal advice In Johnson (above), the Full Court

affirmed the view of the Full Court in the unreported case of C and O, (Fam Ct (FC), 18 March 1997, unreported) that a judge should not offer legal advice to an unrepresented party because it may be unfair, or have an appearance of unfairness to the other parties, and the advice given may not be with full knowledge of the facts. Imposing controls The duty imposed on the court by s 97(3) to ensure that the proceedings do not become protracted may become especially relevant where a party is unrepresented. Some useful guidance is provided by the Full Court in C and C (1998) 23 Fam LR 491; FLC 92–824. The following points are especially important: (a) a party’s right to challenge evidence by cross-examination has to operate within the broad parameters of s 97(3), as determined by the court; (b) in general, the imposition of time limits on a party in the presentation of their case would amount to a breach of natural justice, but the requirements of natural justice may be waived where a party either agrees to time limits being imposed, or fails to object to their imposition; (c) a trial judge should be cautious of rejecting apparently outrageous propositions out of hand, because if an appeal court finds some merit in the proposition but no findings in relation to it, then a retrial may be necessary. Informal representation: “McKenzie friends” In some cases, a court may grant an unrepresented party permission to be accompanied in court by a “McKenzie friend” (so-called after the English case of McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472 in which it was recognised, following early nineteenth century authority, that a party may be accompanied by a layperson, the latter’s role being to take notes, make suggestions and give advice). In In the Marriage of Cooke and Stehbens (1998) 24 Fam LR 5; (1999) FLC 92–839, the Full Court granted a party’s application that her mother be allowed to act as her advocate (that is, to go beyond the role of McKenzie friend as usually understood), but the Full Court stressed the exceptional nature of the application.

[s 97.6] Relevant rules See Family Law Rules 2004.

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[s 98]

Evidence by affidavit

98 (1) The standard Rules of Court may provide for evidence of any material matter to be given on affidavit at the hearing of: (a) divorce or validity of marriage proceedings that are undefended at the time of hearing; and (b) proceedings other than divorce or validity of marriage proceedings. [subs (1) am Act 98 of 2005 s 2 and Sch 1, cl 102–103, opn 3 Aug 2005]

(2) This section does not apply to proceedings in the Federal Circuit Court of Australia. Note: For provisions relating to the Federal Circuit Court of Australia, see the Federal Circuit Court of Australia Act 1999. [subs (2) insrt Act 194 of 1999 s 3 and Sch 11[87]; am Act 13 of 2013 s 3 and Sch 1 item 302, Sch 2 item 2, opn 12 Apr 2013] [s 98 am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[86]] COMMENTARY ON SECTION 98 Evidence by affidavit ….

[s 98.1]

[s 98.1] Evidence by affidavit This section authorises the regulations to provide for evidence of any material matter to be given on affidavit at the hearing of undefended proceedings for principal relief and on the hearing of any proceedings other than for principal relief. See generally Family Law Rules 2004, especially Ch 15 (Evidence).

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[s 98AA]

Oaths and affirmations

98AA (1) A Judge of the Family Court may require and administer all necessary oaths and affirmations for the purposes of the Family Court. (2) A Judge of the Family Court may cause to be administered all necessary oaths and affirmations for the purposes of the Family Court. For this purpose, the Family Court may, either orally or in writing, authorise any person (whether in or outside Australia) to administer oaths and affirmations. (3) The Chief Executive Officer may, in writing, authorise: (a) a Registrar of the Family Court; or (b) a staff member of the Family Court; to administer oaths and affirmations for the purposes of the Family Court. [s 98AA insrt Act 189 of 2011 s 3 and Sch 2[28], opn 7 Dec 2011]

[s 98AB]

Swearing of affidavits etc

98AB (1) An affidavit to be used in a proceeding in the Family Court may be sworn or affirmed in Australia before: (a) a Judge of the Family Court; or (b) a Registrar of the Family Court; or (c) a justice of the peace; or (d) a commissioner for affidavits; or (e) a commissioner for declarations; or

[page 992] (f) a person who is authorised to administer oaths or affirmations for the purposes of: (i) the Family Court; or (ii) the High Court; or (iii) the Federal Court of Australia; or (iv) the Supreme Court of a State or Territory; or (v) the Federal Circuit Court of Australia; or (g) a person before whom affidavits can be sworn or affirmed under the Evidence Act 1995. [subs (1) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) An affidavit to be used in a proceeding in the Family Court may be sworn or affirmed at a place outside Australia before: (a) an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955, who is exercising his or her function in that place; or (b) an employee of the Commonwealth who is: (i) authorised under paragraph 3(c) of the Consular Fees Act 1955; and (ii) exercising his or her function in that place; or (c) an employee of the Australian Trade and Investment Commission who is: (i) authorised under paragraph 3(d) of the Consular Fees Act 1955; and (ii) exercising his or her function in that place; or

(d) a notary public who is exercising his or her function in that place; or (e) a person who is: (i) qualified to administer an oath or affirmation in that place; and (ii) certified by a person mentioned in any of paragraphs (a), (b), (c) and (d), or by the superior court of that place, to be so qualified. [subs (2) am Act 31 of 2016 s 3 and Sch 2 item 17, opn 1 May 2016]

(3) An affidavit sworn or affirmed outside Australia otherwise than before a person referred to in subsection (2) may be used in a proceeding in the Family Court in circumstances provided by the standard Rules of Court. [s 98AB insrt Act 189 of 2011 s 3 and Sch 2[28], opn 7 Dec 2011]

[s 98A]

Proceedings in absence of parties

98A (1) [Dissolution proceedings — Instituted by one party] The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage: (a) the proceedings are undefended; (b) there are no children of the marriage who have not attained the age of 18 years; (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties; the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor

their legal representatives are present in court. [subs (1) am Act 194 of 1999 s 3 and Sch 11[88]; Act 98 of 2005 s 2 and Sch 1, cl 104, opn 3 Aug 2005]

[page 993] (2) [Dissolution proceedings — Instituted jointly] The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted jointly by the parties to the marriage: (a) one of the parties to the marriage has requested the court to determine the proceedings in the absence of the parties and the other party to the marriage has not requested the court not to determine the proceedings in the absence of the parties; or (b) both parties to the marriage have requested the court to determine the proceedings in the absence of the parties; the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court. [subs (2) am Act 194 of 1999 s 3 and Sch 11[88]; Act 143 of 2000 s 3 and Sch 3 item 78 opn 27 Dec 2000; Act 98 of 2005 s 2 and Sch 1, cl 105, opn 3 Aug 2005]

(2A) The court must not determine proceedings for the divorce order in relation to the marriage under subsection (2) if: (a) there are any children of the marriage who are under 18; and (b) the court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare

and development of those children. [subs (2A) insrt Act 143 of 2000 s 3 and Sch 3 item 79 opn 27 Dec 2000; am Act 98 of 2005 s 2 and Sch 1, cl 106, opn 3 Aug 2005]

(2B) The court may determine proceedings under subsection (1) or (2) in chambers. [subs (2B) insrt Act 143 of 2000 s 3 and Sch 3 item 79 opn 27 Dec 2000]

(3) For the purposes of this section, a child (including an exnuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time. [subs (3) insrt Act 181 of 1987 s 52]

(4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings for the divorce order in relation to the marriage. [subs (4) insrt Act 181 of 1987 s 52; am Act 98 of 2005 s 2 and Sch 1, cl 107, opn 3 Aug 2005] [s 98A insrt Act 72 of 1983 s 53] COMMENTARY ON SECTION 98A PRELIMINARY Introductory comment ….

[s 98A.1]

CONSENT Introductory comment ….

[s 98A.2]

CHILD Introductory comment — s 98A(3) …. Relevant time — s 98A(4) ….

[s 98A.3] [s 98A.4]

PRELIMINARY [s 98A.1] Introductory comment This section makes provision for the making of Rules to hear proceedings for dissolution of marriage in the absence of the parties. [page 994] Proceedings in absence of parties It was originally inserted in the Act by the 1983 Amendment Act. It enabled rules to be made to provide that undefended divorce proceedings, where there are no children of the marriage under 18 years, may, in certain circumstances, be dealt with by the court notwithstanding that neither party nor their legal representatives are present in court. CONSENT [s 98A.2] Introductory comment The application must be one which is either not opposed (s 98A(1)), or is by consent: s 98A(2). CHILD [s 98A.3] Introductory comment — s 98A(3) This provision was inserted in the Act by the 1987 Amendment Act. Both s 98A(1) and 98A(2) require that there be no children of the marriage who have not attained the age of 18 years. Section 98A(3) defines child of the marriage for the purposes of the section. Child of the marriage The definition of child of the marriage, for the purposes of the section, includes: a natural child; an ex-nuptial child; an adopted child; a child who is not a child of either party;

if such a child was treated by the parties as a child of the family, at the relevant time. See s 55A(4). [s 98A.4] Relevant time — s 98A(4) This section defines for the purposes of s 98A(3) “relevant time”. See s 55A(3) and commentary at [s 55A.2] on constitutional validity.

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[s 99] 99

Evidence as to paternity [s 99 rep Act 181 of 1987 s 53]

[s 99A] 99A

[s 100]

Paternity tests [s 99A rep Act 181 of 1987 s 53]

Evidence of husbands and wives

100 (1) [Parties competent and compellable] The parties to proceedings under this Act are competent and compellable witnesses. (2) [Communication during marriage] In proceedings under this Act, the parties to a marriage are competent and compellable to disclose communications made between them during the marriage. (3) [Communications before commencement of Act] Subsection (2) applies to communications made before, as well as to communications made after, the date of commencement of this Act. COMMENTARY ON SECTION 100 Evidence of husband and wives — introductory comment ….

[s 100.1]

Family Law Act ….

[s 100.2] [page 995]

[s 100.1] Evidence of husband and wives — introductory comment At common law the parties to an action and their spouses were incompetent to give evidence. This disability has long since been removed by statute, starting with English Evidence Act 1851 and followed by similar legislation in the several states and territories. Under the previous Matrimonial Causes Act 1959, s 97 provided that the parties to a marriage were competent, but not compellable to disclose communications made to each other during the marriage. [s 100.2] Family Law Act Section 100 provides that the parties to proceedings under the Act are competent and capable witnesses. It also provides that parties to a marriage can now be compelled to disclose communications made to each other during the marriage, whether before or after the commencement of the Family Law Act. However, admissions made by a party to the marriage to a marriage counsellor at a conference are not admissible in evidence: see s 18(2).

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[s 100A] 100A

Evidence of children [s 100A rep Act 46 of 2006 s 3 and Sch 3 item 5, opn 1 July

2006]

Editor’s note: Please note the Family Law Amendment (Shared Parental Responsibility) Act 2006 No 46 amends the Family Law Act 1975. Schedule 3, Pt 2 of Act 46 of 2006 provides as follows:

PART 2 — APPLICATION OF AMENDMENTS

Application of amendments 8 The amendments made by Part 1 of this Schedule apply: (a) to proceedings commenced by an application filed on or after 1 July 2006; and (b) to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave. COMMENTARY ON REPEALED SECTION 100A Children’s statements not subject to the hearsay rule ….

[s 100A.1]

[s 100A.1] Children’s statements not subject to the hearsay rule Section 100A was repealed by the Family Law Amendment (Shared Parental Responsibility) Act 2006 and its substance now appears in Div 12A: s 69ZV. However, although the provision repealing s 100A is on its face unqualified, as a result of other provisions s100A continues to operate in some cases, and in that sense its repeal has been only partial. Section 100A provided: 100A (1) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible solely because of the law against hearsay in any proceedings under Part VII. (2) A court may give such weight (if any) as it thinks fit to evidence admitted pursuant to subsection (1). (3) This section applies in spite of any other Act or rule of law. (4) In this section: child means a child under 18 years of age. representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.

The continued operation of s 100A comes about in the following way: Schedule 3 of the Family Law Amendment (Shared Parental Responsibility) Act 2006 Act has two Parts. Part 1 introduced the new Division 12A, and (in Item 5) repealed s 100A. [page 996] Part 2 provides: 8 The amendments made by Part 1 of this Schedule apply: (a) to proceedings commenced by an application filed on or after 1 July 2006; and (b) to proceedings commenced by an application filed before 1 July 2006, if the parties to the proceedings consent and the court grants leave. Thus, in relation to proceedings commenced before 1 July 2006, “the amendments apply” only if the parties to the proceedings consent and the court grants leave. The result is that the rule that that children’s statements are exempt from the hearsay rule applies to all proceedings under Part VII of the Act, because: in relation to proceedings commenced after 1 July 2006, the rule, now part of Division 12A, applies: s 69ZV. in relation to proceedings commenced before 1 July 2006, Div 12A (including s 69ZV) applies if the parties to the proceedings consent and the court grants leave; and s 100A applies in other cases.

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[s 100B] Children swearing affidavits, being called as witnesses or being present in court 100B (1) A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the

purposes of proceedings, unless the court makes an order allowing the child to do so. (2) A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be). (3) In this section: child means a child under 18 years of age. [s 100B insrt Act 143 of 2000 s 3 and Sch 3 item 79A opn 27 Dec 2000]

[s 100C] Evidence in respect of which a child is a protected confider 100C

[s 100C rep Act 21 of 2011 s 3 and Sch 1[5], opn 13 Apr 2011]

COMMENTARY ON SECTION 100C Introduction ….

[s 100C]

[s 100C] Introduction This section was inserted by the Evidence Amendment (Journalists’ Privilege) Act 2007 No. 116, operative 26 July 2007. It enables applications to be made on behalf of a child under s 126B and s 126E of the Evidence Act 1995 (Cth), which were also inserted by the 2007 Act. In brief, s 126B of the Evidence Act gives the courts a discretion to exclude evidence that would disclose ‘a protected confidence’ or ‘the contents of a document recording a protected confidence’, or ‘protected identity information’. The court should do so when it considers that the harm caused by the evidence would outweigh the desirability of it being given. ‘Protected confidence’ is defined to mean certain confidential communications to journalists. ‘Protected identity information’ is defined to mean, in substance, information that could identify the person who made a protected confidence. New s 126E of the Evidence Act 1995 allows the court

to make certain ancillary orders, for example that part of the proceedings be heard in camera, or that the publication of certain evidence be suppressed. (The Evidence Act 1995 is printed in volume 3 of this Service, under its own guidecard). [page 997] Section 100C deals with the situation when a child is the one who confides in the journalist, and it enables certain people to make an application on behalf of the child. Those entitled to make such an application are the independent children’s lawyer or a parent or other person who has responsibility for making decisions about major long-term issues in relation to the child. Note that the operation of the s 126 of the Evidence Act is qualified by s 69ZX(4), also added in 2007: the court must not prevent the evidence being adduced if adducing the evidence would be in the best interests of the child. See that section for details.

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[s 101]

Protection of witnesses

101 (1) The court shall forbid the asking of, or excuse a witness from answering, a question that it regards as offensive, scandalous, insulting, abusive or humiliating, unless the court is satisfied that it is essential in the interests of justice that the question be answered. [subs (1) am Act 37 of 1991 s 16]

(2) The court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, or excuse a witness from answering questions asked during such an examination, unless the court is satisfied that it is essential in the interests of

justice for the examination to continue or for the questions to be answered. [subs (2) insrt Act 37 of 1991 s 16] COMMENTARY ON SECTION 101 Offensive or scandalous questions — introductory comment …. Smear tactics ….

[s 101.1] [s 101.2]

[s 101.1] Offensive or scandalous questions — introductory comment This section allows the court to forbid the asking or answering of offensive, scandalous, insulting or humiliating questions unless the court is satisfied that it is essential in the interests of justice that they be answered. [s 101.2] Smear tactics “Smear tactics” in Pt VII proceedings are contrary to the purpose of this section: see Mills and Mills (1978) FLC 90–404.

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[s 102] Proof of birth, parentage, death or marriage 102 In proceedings under this Act, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of: (a) a certificate, entry or record of a birth, death or marriage alleged to have taken place, whether in Australia or elsewhere; or (b) an entry in a register of parentage information kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction. [s 102 subst Act 181 of 1987 s 54]

COMMENTARY ON SECTION 102 MARRIAGE Proof of marriage …. Presumption of validity of marriage …. Evidentiary effect of a marriage certificate ….

[s 102.1] [s 102.2] [s 102.3] [page 998]

Discretion of the court …. Effect of certificate of marriage in a foreign country ….

[s 102.4] [s 102.5]

BIRTH Parentage — s 102(b) ….

[s 102.6] MARRIAGE

[s 102.1] Proof of marriage The normal method of proving marriage is by the production of a certified copy of an entry in the register of marriages of the place of celebration, or by the production of the original certificate of marriage: see Family Law Rules 2004, especially r 2.02. If the marriage certificate is not in the English language, a translation in the English language of the marriage certificate must be supplied with the certificate: r 2.02(4). [s 102.2] Presumption of validity of marriage Once it is established that a ceremony of marriage took place, there is a presumption that the ceremony complied with all the necessary requirements to make it valid. Even where the ceromony cannot be proved, there is also a presumption, to quote the Full Court, that “where parties have lived together for a significantly long period of time and there is evidence of reputation from others in favour of the parties having been married the presumption arises and may be rebutted only with clear evidence showing that the parties had not married”: Lester & Lester [2007] FamCA 186 allowing an appeal from the decision reported as JL v PTL (2006) 35 Fam LR 686. In Lester, the Full Court reviewed the authorities and held that on the evidence in that case the validity of the

marriage was not established. The trial judge was not able to find that there had been a ceremony of marriage; and though the parties had lived together for some years, the trial judge did not believe the applicant, and there was no evidence from others that the parties had represented to the world that they were a married couple. The Full Court said: “the application of the presumption must be consonant with the evidence in the case, not sit, as it does here, in an evidentiary vacuum”. Such difficulties in proving a marriage usually arise in relation to marriages in overseas countries, such as Lester. The earlier authorities include Piers v Piers (1849) 2 HL Cas 331; Re Shephard, George v Thyer [1904] CH 456; Jacombe and Jacombe (1960) 105 CLR 355; Sheludko v Sheludko [1972] VR 82; Re Taylor (deceased) Taylor v Taylor and Another [1961] All ER 9; Kousal v Tack (2002) 30 Fam LR 581 (FC). There is also a presumption that the marriage is valid in all substantial respects, such as capacity to marry, consent to marry, etc. If a party wishes to argue that some essential part of the ceremony was missing, then that party must satisfy the court of that fact. However, it is only necessary to bring some evidence casting doubt on the capacity or consent of one of the parties to the marriage to rebut any presumption: see Mahadervan v Mahadervan [1964] P 233. Where a party has been involved in two marriages, and a question arises whether the second marriage was bigamous, there is authority for the proposition that if no further evidence is available, the presumption of validity attaches to the second marriage and the court may assume that the first marriage has been duly dissolved through dissolution or death: see Axon v Axon (1937) 59 CLR 395 at 403–4; see also Jacombe v Jacombe (1961) 105 CLR 355. However, there is also authority that once there is evidence available from which the court can infer that the first marriage was not dissolved at the time of the second marriage, through divorce or death, the burden of establishing the validity of the second marriage in effect lies upon the party who asserts that validity: see In the Marriage of Kirby (1977) 3 Fam LR 11,318; FLC 90– 261; see also Walker v Walker (1969) 13 FLR 490 at 496; Fox v Public Trustee (1984) 9 Fam LR 275; In the Marriage of Banh (1981) 6 Fam LR 643; FLC 91–010.

[s 102.3] Evidentiary effect of a marriage certificate Section 102 provides that in proceedings under the Family Law Act the court may receive as evidence of a fact stated in it, a document purporting to be either the original or a certified copy of a certificate, entry or record of a birth, death or marriage alleged to have taken place whether in Australia or elsewhere. [page 999] The section therefore enables a party to prove that the parties went through a ceremony of marriage simply by tendering a document which on the face of it states or implies that it is an original or certified copy of the birth, death or marriage certificate without having to prove that the seal or signature appearing on the certificate is the true or official seal or signature of the court which issued it. The court may also receive a certificate not only as evidence of what it was directly issued for, such as the fact of a marriage or a birth, but also for the incidental information which it may contain. [s 102.4] Discretion of the court The section says “may receive” and not “shall receive”. A court may refuse to accept a certificate if it is suspicious that it was forged or it might consider the evidence to be too slight if it is to be deduced by inference and not by direct statement on the particular point: see Wala v Wala [1966] NZLR 254. Even if the court accepts the certificate as evidence, it is not conclusive evidence. The court may assume that what the certificate stated is true, but a party can always bring other evidence to rebut that presumption: see In the Marriage of Pickering (1978) 4 Fam LR 349; FLC 90–507. [s 102.5] Effect of certificate of marriage in a foreign country Section 88G of the Marriage Act provides that a document purporting to be either the original or a certified copy of a certificate of marriage in a foreign country and to have been issued by an authority of that country is to be prima facie evidence of the marriage and its validity, except if it is proved that the authority of the foreign country by which the document purports to have been

issued was not, at the time of issue, a competent authority. The term “competent authority” is defined in s 88G(3) as being either an authority prescribed by the regulations in relation to a foreign country or part of a foreign country, or any other authority competent under the law of that foreign country to issue the original certificate or a certified copy thereof. Even where a document does not qualify as a certificate of marriage within the meaning of s 88G, it may still be admissible as a record of marriage within the meaning of s 102 of the Family Law Act. This is because a “document” within the meaning of s 102 is a historical recitation of an event and does not have to be an official document: see In the Marriage of Lengyel and Rasad (1990) 14 Fam LR 198; FLC 92–154. BIRTH [s 102.6] Parentage — s 102(b) This provision was inserted in the Act by the 1987 Amendment Act.

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[s 102A]

Restrictions on examination of children

102A (1) Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act. (2) Where a person causes a child to be examined for the purpose of deciding: (a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or (b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused; subsection (1) does not apply in relation to evidence resulting

from the first examination which the person caused the child to undergo. (3) In considering whether to give leave for a child to be examined, the court must have regard to the following matters: [page 1000] (a) whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise; (b) the qualifications of the person who proposes to conduct the examination to conduct that examination; (c) whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination; (d) any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings; (e) any other matter that the court thinks is relevant. (4) In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that: (a) the evidence relates to relevant matters on which the evidence already before the court is inadequate; and (b) the court will not be able to determine the proceedings properly unless the evidence is admitted; and (c) the welfare of the child concerned is likely to be served

by the admission of the evidence. (5) In this section: examined, in relation to a child, means: (a) subjected to a medical procedure; or (b) examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant). [subs (5) am Act 167 of 1995 s 39; Act 46 of 2006 s 3 and Sch 4 item 66, opn 1 July 2006] Note: Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the law against hearsay. [s 102A insrt Act 37 of 1991 s 17; am Act 46 of 2006 s 3 and Sch 3 item 6, opn 1 July 2006] COMMENTARY ON SECTION 102A Introductory comments …. When leave required …. What is excluded …. Exercise of discretion to grant leave — subs (3) …. Discretion to admit evidence obtained without leave — subs (4) …. Exception — one examination where abuse suspected — subs (2) ….

[s 102A.1] [s 102A.3] [s 102A.5] [s 102A.7] [s 102A.9] [s 102A.11]

[s 102A.1] Introductory comments This section is intended to protect children from unnecessary or harmful examinations in child abuse cases. It is a legislative response to concerns that children can be subjected to multiple examinations, often quite intrusive, for the purposes of litigation. In essence, it provides that the resulting evidence cannot be admitted unless the court’s leave has been obtained. To this rule there is an exception (subs (2)) and a qualification: subs (4). For a detailed and authoritative account of the origins and purpose of the section, see Separate Representative v JHE and GAW

(1993) 16 Fam LR 485; FLC 92–376 at 500–6, 509–10. No sanction for examination itself, or exclusion of evidence unrelated to abuse The section renders certain evidence inadmissible. It does not in terms prohibit or even discourage single or multiple examinations of children. It does not therefore prevent a child from being subjected to multiple examinations for the purpose of providing evidence about matters other than abuse eg evidence about the child’s development, or relationships with other people. In this respect the [page 1001] section is very limited, and is by no means a comprehensive treatment of the problem of unnecessary multiple examinations of children for the purposes of litigation. In Separate Representative v JHE and GAW, above at 506, Nicholson CJ and Fogarty J drew attention to the limitations of the section and said, “It may be that some further legislative attention should be given to this section and in particular prohibiting examinations without leave of the court”. [s 102A.3] When leave required Leave is required when the child is “examined”, a term defined in subs (5) to mean subjected to a medical procedure or examined or assessed by a psychiatrist or psychologist. It does not include examinations or assessments by a family and child counsellor or welfare officer (except where such examinations involved medical procedures — a rare or unknown occurrence). [s 102A.5] What is excluded Subject to subss (2) and (4) the section renders inadmissible evidence resulting from the examination which relates to abuse or the risk of abuse. “Abuse” is defined in s 60D. [s 102A.7] Exercise of discretion to grant leave — subs (3) Subsection (3) directs the court to have regard to certain matters, including “any other matter that the court thinks is relevant”. The matters are the likelihood of providing relevant information that would otherwise be difficult to obtain; the

qualifications of the person conducting the examination; whether any distress to the child will be outweighed by the value of the information; and distress to the child from previous examinations. [s 102A.9] Discretion to admit evidence obtained without leave — subs (4) Discretion to admit The inadmissibility rule of subs (1) is not absolute. The court may in its discretion admit evidence which would otherwise be inadmissible under subs (1). It may exercise its discretion only when satisfied of the matters mentioned in paras (a)–(c). Such satisfaction is a necessary but not sufficient condition for the evidence to be admitted. Requirements — paras (a)–(c) The court may consider whether to admit the evidence only if it is satisfied about each of three matters: that the evidence relates to relevant matters on which other admissible evidence is “inadequate”; that the court will not be able to determine the proceedings “properly” unless the evidence is admitted; and that the welfare of the child is likely to be served by the admission of the evidence. Issues involved The mere fact that the evidence would be of assistance is not enough. In applying subs (4) the court must balance two policies (RC). First, admitting evidence too readily under subs (4) would undermine the effectiveness of subs (1). Second, in most cases it is likely that from a consideration only of the welfare of the particular child (the examination already having been carried out) the evidence should be admitted. The exercise of discretion thus involves a balance between the welfare of the particular child, and the welfare of children in general, which will be promoted by the policy in subs (1). For this reason, although the evidence will not be admitted unless it is likely to serve the child’s interests (para (c)) it is not strictly correct to say that the child’s best interest is the paramount consideration in this context. On the exercise of discretion, see generally Separate Representative v JHE and GAW (1993) 16 Fam LR 485; FLC 92–376 (FC). [s 102A.11] Exception — one examination where abuse suspected — subs (2) Subsection (2) is an important exception to the general rule that the court’s leave must be obtained. It deals with the situation where a person is

contemplating whether to bring proceedings involving an allegation that the child has been abused or is at risk of abuse, or whether to make such an allegation in the course of proceedings already on foot. The person may cause the child to be examined, and does not need leave to tender evidence resulting from this (“the first”) examination.

____________________ [page 1002]

[s 102B]

Assessors

102B In any proceedings under this Act (other than prescribed proceedings), the court may, in accordance with the applicable Rules of Court, get an assessor to help it in the hearing and determination of the proceedings, or any part of them or any matter arising under them. [s 102B insrt Act 167 of 1995 s 40; am Act 194 of 1999 s 3 and Sch 11[89]]

DIVISION 2 — USE OF VIDEO LINK, AUDIO LINK OR OTHER APPROPRIATE MEANS TO GIVE TESTIMONY, MAKE APPEARANCES AND GIVE SUBMISSIONS ETC [Div 2 insrt Act 138 of 2003 s 3 and Sch 2 item 7 opn 14 Jan 2004]

[s 102C]

Testimony

102C (1) The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means. Note: See also section 102F.

(2) The testimony must be given on oath or affirmation unless:

the person giving the testimony is in a foreign country; and (b) either: (i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceedings; or (ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings; and (c) the court or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation. (3) If the testimony is given otherwise than on oath or affirmation, the court or a Judge must give the testimony such weight as the court or the Judge thinks fit in the circumstances. (4) The power conferred on the court or a Judge by subsection (1) may be exercised: (a) on the application of a party to the proceedings concerned; or (b) on the court’s own initiative or on the Judge’s own initiative, as the case may be. (5) This section applies whether the person giving testimony is in or outside Australia, but does not allow testimony to be given by a person who is in New Zealand. (a)

Note: See Part 6 of the Trans-Tasman Proceedings Act 2010. [subs (5) am Act 36 of 2010 s 3 and Sch 2 item 13, opn 11 Oct 2013]

[s 102D]

Appearance of persons

102D (1) The court or a Judge may, for the purposes of any proceedings, direct or allow a person to appear before the court or the Judge by way of video link, audio link or other appropriate means. Note: See also section 102F.

(2) The power conferred on the court or a Judge by subsection (1) may be exercised: (a) on the application of a party to the proceedings concerned; or (b) on the court’s own initiative or on the Judge’s own initiative, as the case may be. [page 1003] (3) This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand. Note: See Part 6 of the Trans-Tasman Proceedings Act 2010. [subs (3) am Act 36 of 2010 s 3 and Sch 2 item 14, opn 11 Oct 2013]

[s 102E]

Making of submissions

102E (1) The court or a Judge may, for the purposes of any proceedings, direct or allow a person to make a submission to the court or the Judge by way of video link, audio link or other appropriate means. Note: See also section 102F.

(2) The power conferred on the court or a Judge by subsection (1) may be exercised:

on the application of a party to the proceedings concerned; or (b) on the court’s own initiative or on the Judge’s own initiative, as the case may be. (3) This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand. (a)

Note: See Part 6 of the Trans-Tasman Proceedings Act 2010. [subs (3) am Act 36 of 2010 s 3 and Sch 2 item 15, opn 11 Oct 2013]

[s 102F]

Conditions for use of links

102F (1) Video link The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to a video link unless the court or the Judge is satisfied that the following conditions are met in relation to the video link: (a) the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see and hear the person (the remote person) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission; as the case may be, by way of the video link; (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom; (c) such other conditions (if any) as are prescribed by the

applicable Rules of Court in relation to the video link; (d) such other conditions (if any) as are imposed by the court or a Judge. (2) The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (1)(c) include conditions relating to: (a) the form of the video link; and (b) the equipment, or class of equipment, used to establish the link; and (c) the layout of cameras; and (d) the standard of transmission; and (e) the speed of transmission; and (f) the quality of communication. [page 1004] (3) Audio link The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is satisfied that the following conditions are met in relation to the audio link: (a) the courtroom is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom to hear the person (the remote person) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission;

as the case may be, by way of the audio link; (b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court or the Judge is sitting; (c) such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the audio link; (d) such other conditions (if any) as are imposed by the court or a Judge. (4) The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (3)(c) include conditions relating to: (a) the form of the audio link; and (b) the equipment, or class of equipment, used to establish the audio link; and (c) the standard of transmission; and (d) the speed of transmission; and (e) the quality of communication. (5) Other appropriate means The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to appropriate means other than video link or audio link unless the court or the Judge is satisfied that the following conditions are met in relation to that means: (a) the conditions (if any) as are prescribed by the applicable Rules of Court in relation to that other appropriate means; (b) such other conditions (if any) as are imposed by the court or the Judge.

(6) Eligible persons For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court or the Judge considers should be treated as eligible persons for the purposes of the proceedings. (7) Meaning of courtroom In this section: courtroom means: (a) in relation to a Judge or a court that is not a split court — the courtroom or other place where the Judge or court is sitting; or (b) in relation to a split court — each of the courtrooms or places where the Judges of the split court are sitting.

[s 102G]

Putting documents to a person

102G (1) This section applies if, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Division, it is necessary to put a document to the person. [page 1005] (2) A court (that is not a split court) or a Judge may direct or allow the document to be put to the person: (a) if the document is physically present in the courtroom or other place where the court or the Judge is sitting: (i) by causing a copy of the document to be transmitted to the place where the person is located; and (ii) by causing the transmitted copy to be put to the

person; or (b) if the document is physically present in the place where the person is located: (i) by causing the document to be put to the person; and (ii) by causing a copy of the document to be transmitted to the courtroom or other place where the court or the Judge is sitting. (3) A split court may direct or allow the document to be put to the person: (a) if the document is physically present in a courtroom or other place where a Judge of the split court is sitting: (i) by causing a copy of the document to be transmitted to the place where the person is located; and (ii) by causing the transmitted copy to be put to the person; or (b) if the document is physically present in the place where the person is located: (i) by causing the document to be put to the person; and (ii) by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting.

[s 102H]

Putting documents to a split court

102H (1) If proceedings are before a split court and it is necessary or appropriate to put a document to the court, the court

may direct or allow the document to be put to the court: (a) if the document is physically present in a courtroom or other place where a Judge of the split court is sitting: (i) by causing the document to be put to the Judge; and (ii) by causing a copy of the document to be transmitted to each courtroom or other place where the other Judge or Judges of the split court are sitting; and (iii) by causing a copy of the document to be transmitted to such other place where an eligible person is located as the court directs; or (b) if the document is not physically present in a courtroom or other place where a Judge of the split court is sitting: (i) by causing a copy of the document to be transmitted to each of the courtrooms or other places where the Judges of the split court are sitting; and (ii) by causing a copy of the document to be transmitted to such other place where an eligible person is located as the court directs. (2) Eligible persons For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court considers should be treated as eligible persons for the purposes of the proceedings. [page 1006]

[s 102J]

Administration of oaths and

affirmations 102J (1) An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link, audio link or other appropriate means in accordance with this Division may be administered: (a) by means of the video link or audio link, as the case may be, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the court or the Judge is sitting; or (b) if the court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation — by that other person. (2) In this section: courtroom or other place where the court or the Judge is sitting, in relation to a split court, means the courtroom or other place where the presiding Judge of the split court is sitting.

[s 102K]

Expenses

102K (1) The court or a Judge may make such orders as the court or the Judge thinks just for the payment of expenses, including the court’s expenses, incurred in connection with: (a) the giving of testimony by video link, audio link or other appropriate means in accordance with this Division; or (b) the appearance of a person by video link, audio link or other appropriate means in accordance with this

Division; or (c) the making of submissions by video link, audio link or other appropriate means in accordance with this Division; or (d) the court sitting as a split court in accordance with this Division and Division 3. (2) Subsection (1) has effect subject to the regulations.

[s 102L]

New Zealand proceedings

102L This Division does not affect the operation of the Trans-Tasman Proceedings Act 2010. [s 102L am Act 36 of 2010 s 3 and Sch 2 item 16, opn 11 Oct 2013]

DIVISION 3 — SPLIT COURT [Div 3 insrt Act 138 of 2003 s 3 and Sch 2 item 7 opn 14 Jan 2004]

[s 102M] court

Determination that there is to be a split

102M (1) If proceedings are to be heard and determined by 2 or more Judges, then a directing Judge may determine: (a) that the Family Court is to be a split court; and (b) which form of electronic communication is to be used to facilitate the proceedings. [page 1007] (2) In subsection (1):

directing Judge means: (a) the Chief Justice; or (b) the Presiding Judge in respect of the proceedings. electronic communication means: (a) video link; or (b) audio link; or (c) other appropriate means of communication.

[s 102N]

Conditions for split court

102N (1) Conditions to be satisfied before direction under section 102M may be given A direction must not be made under subsection 102M(1) in respect of facilitating the sitting of a split court by a form of electronic communication unless the directing Judge is satisfied: (a) that each courtroom is equipped with facilities that enable eligible persons present in the courtroom to communicate with eligible persons present in the other courtrooms: (i) using the particular form of electronic communication; and (ii) as required by the proceedings before the court; and (b) that such conditions of a kind referred to in section 102F (if any) as are prescribed by the Rules of Court in relation to the particular form of electronic communication are met. (2) Judges may impose own conditions Each Judge of the split court may, in relation to the Judge’s courtroom, impose such other conditions in respect of the form of electronic communication to

be used to facilitate the split court as the Judge considers appropriate. (3) Eligible persons For the purposes of the application of this section to particular proceedings, eligible persons are such persons as a Judge of the split court considers should be treated as eligible persons for the purposes of the proceedings as facilitated in the Judge’s courtroom. (4) In this section: communicate with, in relation to eligible persons, means: (a) in the case of video link — seeing and hearing the eligible persons; and (b) in the case of audio link — hearing the eligible persons; and (c) in the case of other appropriate means of communication — as provided for in the applicable Rules of Court. courtroom means the courtroom or other place where a Judge of the split court is sitting. electronic communication means: (a) video link; or (b) audio link; or (c) other appropriate means of communication.

[page 1009]

PART XIA — SUPPRESSION AND NONPUBLICATION ORDERS [Pt XIA insrt Act 186 of 2012 s 3 and Sch 2 item 1, opn 12 Dec 2012]

DIVISION 1 — PRELIMINARY

[s 102P]

Definitions

102P In this Part: information includes any document. news publisher means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium. non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded. publish means disseminate or provide access to the public or a section of the public by any means, including by:

(a) publication in a book, newspaper, magazine or other written publication; or (b) broadcast by radio or television; or (c) public exhibition; or (d) broadcast or publication by means of the internet. suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

[s 102PA]

Powers of a court not affected

102PA This Part does not limit or otherwise affect any powers that a court has apart from this Part to regulate its proceedings or to deal with a contempt of the court.

[s 102PB]

Other laws not affected

102PB This Part does not limit or otherwise affect the operation of a provision made by or under any Act (other than this Act) that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

[s 102PC] 102PC

Relationship with section 121 This Part and section 121 do not limit each other. [page 1010]

DIVISION 2 — SUPPRESSION AND NON-PUBLICATION ORDERS

[s 102PD] justice

Safeguarding public interest in open

102PD In deciding whether to make a suppression order or non-publication order, the court concerned must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

[s 102PE]

Power to make orders

102PE (1) A court exercising jurisdiction in proceedings under this Act may, by making a suppression order or nonpublication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or (b) information that relates to the proceedings and is: (i) information that comprises evidence or information about evidence; or

(ii) information obtained by the process of discovery; or (iii) information produced under a subpoena; or (iv) information lodged with or filed in the court. (2) The court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

[s 102PF]

Grounds for making an order

102PF (1) The court may make a suppression order or nonpublication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice; (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c) the order is necessary to protect the safety of any person; (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency). (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

[s 102PG]

Procedure for making an order

102PG (1) The court may make a suppression order or nonpublication order on its own initiative or on the application of: (a) a party to the proceedings concerned; or (b) any other person considered by the court to have a

sufficient interest in the making of the order. (2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order: (a) the applicant for the order; [page 1011] (b) a party to the proceedings concerned; (c) the Government (or an agency of the Government) of the Commonwealth or a State or Territory; (d) a news publisher; (e) any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made. (3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded. (4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order. (5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made.

[s 102PH]

Interim orders

102PH (1) If an application is made to the court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined. (2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

[s 102PI]

Duration of orders

102PI (1) A suppression order or non-publication order operates for the period decided by the court and specified in the order. (2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. (3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

[s 102PJ]

Exception for court officials

102PJ A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity: (a) in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings; or (b) in compliance with any procedure adopted by the court for informing a news publisher of the existence and

content of a suppression order or non-publication order made by the court.

[s 102PK]

Contravention of order

102PK (1) A person commits an offence if: (a) the person does an act or omits to do an act; and (b) the act or omission contravenes an order made by a court under section 102PE. Penalty: Imprisonment for 12 months, 60 penalty units or both. [page 1012] (2) An act or omission that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence. (3) An act or omission that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court. (4) If an act or omission constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice. (5) Part XIIIA does not apply in relation to a contravention of an order made by a court under section 102PE.

[page 1013]

PART XIB — VEXATIOUS PROCEEDINGS [Pt XIB insrt Act 186 of 2012 s 3 and Sch 3 item 2, opn 11 June 2013] COMMENTARY TO PART XIB — VEXATIOUS PROCEEDINGS Part XIB was inserted by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (No 186 of 2012). The Explanatory Memorandum (EM) says that the provisions are intended to “provide a consistent and more comprehensive legislative framework for the federal courts to deal with vexatious proceedings brought by persons who have frequently instituted or conducted vexatious proceedings in Australian courts and tribunals, or who are acting in concert with others who have done so”. The provisions derive from the 2003 endorsement by SCAG of a model law dealing with vexatious proceedings, based in part on the Western Australian Vexatious Proceedings Restriction Act 2002.

____________________ DIVISION 1 — PRELIMINARY

[s 102Q]

Definitions

102Q (1) In this Part: appropriate court official means: (a) in relation to the Family Court of Australia — the Chief Executive Officer or Principal Registrar of the Court; and (b) in relation to the Federal Circuit Court of Australia — the Chief Executive Officer of the Court; and

(c) in relation to the Family Court of Western Australia — the Principal Registrar of the Court; and (d) in relation to any other court — the chief executive officer or principal registrar (however described) of the court. Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory. institute, in relation to proceedings, includes: (a) for civil proceedings — the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and (b) for proceedings before a tribunal — the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and (c) for criminal proceedings — the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and (d) for civil or criminal proceedings or proceedings before a tribunal — the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. proceedings: (a) in relation to a court — has the meaning given by subsection 4(1); and (b) in relation to a tribunal — means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in

connection with, a proceeding. [page 1014] proceedings of a particular type includes: (a) proceedings in relation to a particular matter; and (b) proceedings against a particular person. vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal; and (b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and (d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. vexatious proceedings order means an order made under subsection 102QB(2). (2) A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.

[s 102QA]

Powers of a court not affected

102QA This Part does not limit or otherwise affect any powers that a court has apart from this Part to deal with vexatious

proceedings. Note: For example, section 118 allows a court to dismiss particular proceedings if it is satisfied that the proceedings are frivolous or vexatious.

DIVISION 2 — VEXATIOUS PROCEEDINGS ORDERS

[s 102QB]

Making vexatious proceedings orders

102QB (1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied: (a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or (b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal. (2) The court may make any or all of the following orders: (a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person; (b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; (c) any other order the court considers appropriate in relation to the person. Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a) (b) (c) (d)

the Attorney-General of the Commonwealth or of a State or Territory; the appropriate court official; a person against whom another person has instituted or conducted vexatious proceedings; a person who has a sufficient interest in the matter. [page 1015]

(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (5) An order made under paragraph (2)(a) or (b) is a final order. (6) For the purposes of subsection (1), the court may have regard to: (a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and (b) orders made by any Australian court or tribunal; and (c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal); including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section. COMMENTARY TO SECTION 102QB [s 102QB.1] Overview of s 102QB The section says that in the circumstances set out the court can make certain orders. The circumstances

are set out in s 102QB(1), and notably include situations where the court is exercising jurisdiction under the Act and “a person has frequently instituted or conducted vexatious proceedings”. It is not necessary that the proceedings before the court should themselves be vexatious. The possible orders, set out in s 102QB(2), are orders staying or dismissing all or part of any proceedings in the court already instituted by the person, orders prohibiting the person from instituting proceedings, or proceedings of a particular type, under the Family Law Act, and — a wide power — “any other order the court considers appropriate in relation to the person”. The court may make such orders on the application of a party, or the Attorney-General, or of its own motion: see s 102QB(3). The court must give the person a hearing: see s 102QB(4). Orders under the section are final orders: s 102QB(5). The court may have regard not only to proceedings under the Family Law Act, but to other proceedings and other court orders: see (6). Read on its own, s 102QB(2) might appear to mean that the court could absolutely prohibit a person from instituting proceedings. However the provision relating to contravention proceedings for breach of a “vexatious proceedings order” under s 102QB provides the apparently missing element: the person may not institute the proceedings without the leave of the court: see s 102QD and the commentary thereto. The Explanatory Memorandum (EM) says (para 213): that s 102QB(2) provides the court with a broad discretion to make orders tailored to fit the circumstances of the particular person or proceedings. Orders could range from preventing any proceedings being instituted under the Family Law Act 1975 by that person at all (subject to the leave of a court — see Division 3), to a narrower order preventing that person from bringing certain kinds of proceedings under the Act (see definition of proceedings of a particular type in section 102Q), or just dismissing particular proceedings instituted by that person. Paragraph 102QB(2)(c) also makes it clear that a court can choose not to dismiss vexatious proceedings brought by a person, but deal with that person in another way. Some examples of what this might be are set out in the note under that clause.

Furthermore, a court could choose to deal with vexatious proceedings under its other general practice and procedure and case management powers (made clear by section 102QA), such as, for example, by striking out parts of a document filed with the court or ordering that a document be amended by a certain time. [page 1016] For a detailed review of the legislation, and an instructive example of its application, see Cannon v Acres [2014] FamCA 104 (Benjamin J). In that case, at [440], his Honour described the “legislative pathway” under s 102QB as follows: The approach to this determination I have adopted is: i) In accordance with s 102QB(1), I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals, ii) If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal, orders made by an Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and iii) If that threshold is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I considered the scope and nature of the orders sought and made.

____________________

[s 102QC] orders

Notification of vexatious proceedings

102QC (1) A person may request the appropriate court official of a court for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order made by the court. (2) If a person makes a request under subsection (1) and the person named in the request is or has been the subject of a vexatious proceedings order made by the court, the appropriate court official must issue to the person making the request a certificate: (a) specifying the date of the order; and (b) specifying any other information prescribed by the applicable Rules of Court. (3) This section is subject to any law of the Commonwealth, or order of the court, restricting the publication or disclosure of the name of a party to proceedings in the court. Note: Section 155 of the Evidence Act 1995 deals with adducing evidence of Commonwealth records. COMMENTARY TO SECTION 102QC [s 102QC.1] Overview of s 102 QC Section 102QC provides in substance that people can learn from the court whether a vexatious proceedings order has been made against a person, and the details of the order. The EM says (para 222) that it was included “as an alternative to the establishment of a register of vexatious proceedings orders”.

____________________ DIVISION 3 — PARTICULAR CONSEQUENCES OF

VEXATIOUS PROCEEDINGS ORDERS

[s 102QD] Proceedings in contravention of vexatious proceedings order 102QD (1) If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act: [page 1017] (a) the person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and (b) another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG. (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed. (3) Without limiting subsection (2), the court may make: (a) an order declaring proceedings are proceedings to which subsection (2) applies; and (b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs. (4) The court may make an order under subsection (3) on its own initiative or on the application of any of the following: (a) the Attorney-General of the Commonwealth or of a State

or Territory; (b) the appropriate court official; (c) a person against whom another person has instituted or conducted vexatious proceedings; (d) a person who has a sufficient interest in the matter.

COMMENTARY TO SECTION 102QD [s 102QC.1] Overview of s 102QD This section creates the obligation not to institute proceedings in contravention of a vexatious proceeding. It provides, in substance, that if such an order prohibits a person from bringing certain proceedings, the person must not do so without the leave of the court: see s 102QD(1)(a). The section also prohibits another person acting in concert with the person: see s 102QD(1)(b). As to obtaining leave of the court, see s 102QE, below. By virtue of s 102QD(2), in such case “the proceedings are stayed”. That is, they are stayed by operation of this provision, without the need for a separate order staying them. The court can make orders declaring that s 102QD(2) applies to certain proceedings, and a costs order and “any other order in relation to the stayed proceedings that it considers appropriate”: see s 102QD(3). Orders under s 102QD(3), like vexatious proceedings order themselves, can be made by the court of its own initiative or on the application of certain persons: see s 102QD(4).

____________________

[s 102QE] Application for leave to institute proceedings 102QE (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or (b) acting in concert with another person who is subject to an order mentioned in paragraph (a). (2) The applicant may apply to the court for leave to institute

proceedings that are subject to the order. (3) The applicant must file an affidavit with the application that: (a) lists all the occasions on which the applicant has applied for leave under this section; and [page 1018] (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order. COMMENTARY TO SECTION 102QE [s 102QC.1] Overview of s 102 QE Section 102QE provides for a person affected by a vexatious proceedings order to seek leave to bring proceedings. See also s 102QG, which deals with the granting of an application for leave. The person may apply for leave (s 102QE(2)), and must, by s 102QE(3), file an affidavit that lists all previous applications for such leave; lists “all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section”; and “discloses all relevant facts about the application, whether supporting

or adverse to the applications that are known to the applicant”. The applicant must not at this stage serve the application or the affidavit on anyone: see s 102QC(4). This is, of course, to prevent the application itself unnecessarily vexing another party.

____________________

[s 102QF]

Dismissing application for leave

102QF (1) The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3). (2) The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings. (3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant). (4) The court may make an order under this section in Chambers. COMMENTARY TO SECTION 102QF [s 102QC.1] Overview of s 102QF Section 102QF allows the court to dismiss an unmeritorious application for leave without troubling other parties. It may do so if it considers that the affidavit does not substantially comply with subs 102QE(3): see s 102QF(1). And it must do so if it considers that the proceedings (ie the proceedings in respect of which leave is sought) are vexatious proceedings: s 102QF(2). By s 102QF(3), the court may dismiss the application without an oral hearing; and it may make the order in chambers: s 102QF(4).

____________________

[s 102QG]

Granting application for leave

102QG (1) Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must: (a) order that the applicant serve: [page 1019] (i)

the person against whom the applicant proposes to institute the proceedings; and (ii) any other person specified in the order; with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and (b) give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party. (3) The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate. (4) The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.

COMMENTARY TO SECTION 102QG [s 102QC.1] Overview of s 102QG Section 102QG deals with the granting of leave on an application under s 102QE. Before granting leave, it must order that the applicant serve the respondent and any other person specified with the application, the affidavit in support of it, and a notice that the person is entitled to be heard; and must give the applicant and the other party or parties an opportunity to be heard: see s 102QG(1). Subsection s 102QG(2) makes provision for the court to receive as evidence records of other relevant proceedings. The court may grant the application without or without conditions: see s 102QG(3). It may grant leave only if satisfied that the proceedings (ie the proceedings in respect of which leave is sought) are not vexatious proceedings.

____________________

[page 1021]

PART XII — RECOGNITION OF DECREES [s 103]

Decrees under this Act

103 A decree under this Act has effect throughout Australia and the external Territories. [s 103 am Act 63 of 1976 s 34] COMMENTARY ON SECTION 103 [s 103.1] Recognition of decrees under the Act This section provides that a decree under the Family Law Act has effect throughout Australia and the external territories. “Australia” is defined in s 4(1) to include Norfolk Island and s 7 provides that the Family Law Act extends to Norfolk Island. It dispenses with the rules of conflict of laws and provides for recognition throughout Australia and its territories of decrees validly made according to the law under which they are pronounced: see Nygh P E, Conflict of Laws in Australia, 4th ed, 1984, at p 328. Decrees made under the repealed Matrimonial Causes Act 1959 are also enttitled to the effect given decrees made under the Family Law Act by s 103: see s 3(2)(c)(i).

____________________

[s 104]

Overseas decrees

104 (1) [Interpretation] In this section: applicant, in relation to a divorce or the annulment of a

marriage or the legal separation of the parties to a marriage, means: (a) the party at whose instance the divorce, annulment or legal separation was effected; or (b) where the divorce, annulment or legal separation was effected at the instance of both the parties — each of the parties. [def am Act 98 of 2005 s 2 and Sch 1, cl 108–110, opn 3 Aug 2005]

marriage includes a purported marriage that is void. relevant date, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means the date of the institution of the proceedings that resulted in the divorce, annulment or legal separation. [def am Act 98 of 2005 s 2 and Sch 1, cl 111–112, opn 3 Aug 2005]

respondent, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means a party to the marriage, not being a party at whose instance the divorce, annulment or legal separation was effected. [def am Act 98 of 2005 s 2 and Sch 1, cl 113–114, opn 3 Aug 2005] [subs (1) am Act 72 of 1983 s 55]

(2) [Person deemed national] For the purposes of this section, a person who is a national of a country of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction. [subs (2) am Act 72 of 1984 s 3 and Sch]

(3) [Overseas decree may be recognised] A divorce or the annulment of a marriage, or the legal separation of the parties to a

marriage, effected in accordance with the law of an overseas jurisdiction shall be recognized as valid in Australia where: [page 1022] (a) the respondent was ordinarily resident in the overseas jurisdiction at the relevant date; (b) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either: (i) the ordinary residence of the applicant or of that applicant, as the case may be, had continued for not less than 1 year immediately before the relevant date; or (ii) the last place of cohabitation of the parties to the marriage was in that jurisdiction; (c) the applicant or the respondent or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date; (d) the respondent was a national of the overseas jurisdiction at the relevant date; (e) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either: (i) the applicant or that applicant, as the case may be,

was ordinarily resident in that jurisdiction at that date; or (ii) the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or (f) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of, and present in, the overseas jurisdiction at the relevant date and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which, at the relevant date, did not provide for divorce, the annulment of marriage or the legal separation of the parties to a marriage, as the case may be. [subs (3) subst Act 72 of 1983 s 55; am Act 72 of 1984 s 3 and Sch; Act 98 of 2005 s 2 and Sch 1, cl 115–116, opn 3 Aug 2005]

(4) [Overseas decree not recognised] A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall not be recognized as valid by virtue of subsection (3) where: (a) under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or (b) recognition would manifestly be contrary to public policy. [subs (4) am Act 72 of 1983 s 55; Act 98 of 2005 s 2 and Sch 1, cl 117, opn 3 Aug 2005]

(5) [Decree valid under private international law] Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognized as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognized as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions. [subs (5) am Act 72 of 1983 s 55; Act 98 of 2005 s 2 and Sch 1, cl 119, opn 3 Aug 2005]

[page 1023] (6) [Formal non-compliance with overseas law] Notwithstanding anything contained in this section, the annulment in accordance with the law of an overseas jurisdiction of a marriage solemnized under Part V of the Marriage Act 1961, being an annulment on the ground only of non-compliance with the formalities prescribed by the law of the jurisdiction in which the marriage was solemnized, shall not be recognized as valid in Australia. [subs (6) am Act 72 of 1984 s 3 and Sch; Act 181 of 1987 s 63 and Sch]

(7) [Findings of fact by overseas court] For the purposes of this section, a court in Australia, in considering the validity of a divorce or an annulment of a marriage, or a legal separation of the parties to a marriage, effected under a law of an overseas jurisdiction: (a) where the respondent appeared in the proceedings for the divorce, annulment or separation:

is bound by the findings of fact on the basis of (i) which a court of the overseas jurisdiction assumed jurisdiction to grant the divorce, annulment or separation; and (ii) may treat as proved any other facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction; or (b) where the respondent did not appear in the proceedings for the divorce, annulment or separation — may treat as proved any facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction. [subs (7) subst Act 72 of 1983 s 55; am Act 72 of 1984 s 3 and Sch; Act 98 of 2005 s 2 and Sch 1, cl 119–121, opn 3 Aug 2005]

(8) [Valid decree under overseas law] For the purposes of the preceding provisions of this section but without limiting the operation of those provisions, a divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall be deemed to have been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which, at the relevant date, it would have been recognized as valid by the law of the firstmentioned overseas jurisdiction. [subs (8) am Act 72 of 1983 s 55; Act 72 of 1984 s 3 and Sch; Act 98 of 2005 s 2 and Sch 1, cl 122, opn 3 Aug 2005]

(9) [Capacity to re-marry] Where a divorce or the annulment of a marriage is to be recognized as valid in accordance with this section, the capacity of a party to that marriage to re-marry in accordance with the law of Australia is not affected by the fact

that the validity of the divorce or annulment is not recognized under the law of some other jurisdiction. [subs (9) am Act 72 of 1984 s 3 and Sch; Act 98 of 2005 s 2 and Sch 1, cl 123–124, opn 3 Aug 2005]

(10) [Extent of this section] The preceding provisions of this section apply in relation to divorces, annulments and legal separations effected whether by decree, legislation or otherwise, whether before or after the commencement of this Act, and, for the purposes of this section, any decree, legislation or other process by which it is established that a purported marriage was or is to become void shall be deemed to be an annulment of the marriage. [subs (10) am Act 72 of 1983 s 55; Act 98 of 2005 s 2 and Sch 1, cl 125, opn 3 Aug 2005]

[page 1024] COMMENTARY ON SECTION 104 Overseas decrees to be recognised: overview of s 104 …. Effected in accordance with the law of an overseas jurisdiction …. Recognition on the basis of domicile …. Recognition on the basis of ordinary residence …. Circumstances in which foreign divorces, annulments and separations will be regognised: s 104(3) …. Non-recognition — s 104(4) …. Effected in accordance with’ the law of an overseas jurisdiction …. Recognition on the basis of nationality …. Judicial findings of overseas court — s 104(7) ….

[s 104.1] [s 104.2] [s 104.3] [s 104.4] [s 104.5] [s 104.6] [s 104.7] [s 104.8] [s 104.9]

Non-recognition — s 104(4) …. Capacity to remarry — s 104(9) …. Annulments — s 104(10) ….

[s 104.10] [s 104.11] [s 104.12]

[s 104.1] Overseas decrees to be recognised: overview of s 104 This section deals with the recognition of overseas divorces, annulments and legal separations. Although the heading of the section refers to “decrees”, the section is not limited to court decrees: see subs (10) The section is based upon the Hague Convention on Recognition of Divorces and Legal Separations, concluded on 1 June 1970. The recognition of a divorce or annulment is important because it establishes that the parties are entitled remarry. It is less clear what practical consequences, if any, arise under the modern law if an overseas “legal separation” is recognised, since it is a very long time since judicial separation has been a part of Australian law. There appear to be no reported cases on this topic. Subsection (3) is the heart of the section. It sets out the circumstances in which overseas annulments, divorces and legal separations will be recognised in Australia. Other provisions may be noted briefly. Subsections (1) and (2) contains definitions. Subsection (4) sets out some limited circumstances (denial of natural justice, and public policy) in which a decree will not be recognised. Subsection (5) provides that any decree that would be recognised under private international law will be recognised, even if none of the provisions of subs (3) apply. Subsection (6) also sets out a narrow exception to recognition, where a marriage under Pt V of the Marriage Act is annulled on the ground of non-compliance with formalities. Subsection (7) provides for factual determinations in the overseas court to be binding in the Australian court. Subsection (8) extends recognition to decrees of one country recognised in another. Subsection (9) provides that the capacity of a party to re-marry is not affected by the fact that the divorce or annulment is not recognised by the law of some other jurisdiction. Subsection (10) provides that the section applies not only to court decrees, but to divorces, annulments and legal separations “effected whether by decree, legislation or otherwise”.

[s 104.2] Effected in accordance with the law of an overseas jurisdiction These words mean in the first place that the divorce or annulment should be valid according to the law of the overseas jurisdiction: see Pemberton v Hughes [1899] 1 Ch 781. It need not be effected by a court of law, a dissolution or annulment effected by legislation, presidential decree or even by unilateral repudiation, such as the Muslim “Talak” will qualify: see Nygh P E, Conflict of Laws in Australia, 4th ed, 1984, pp 331–2, 335, 336, 347. [s 104.3] Recognition on the basis of domicile An overseas divorce or annulment will be recognised if the divorce or annulment was effected in accordance with the law of an overseas jurisdiction in which at the time of institution of proceedings the applicant or respondent was domiciled: see Nygh P E, Conflict of Laws in Australia, 4th ed, 1984, p 329. [s 104.4] Recognition on the basis of ordinary residence A period of ordinary residence may be required, depending on whether the connection or ordinary residence relied upon is between the applicant and the overseas jurisdiction or the respondent and the overseas jurisdiction. [page 1025] If the applicant’s residence is relied upon, it must be shown that not only was the applicant ordinarily resident in the overseas jurisdiction concerned at the date of institution of proceedings, but also either that this ordinary residence had continued for not less than one year immediately before the institution of proceedings or that the last place of cohabitation of the parties to the marriage was in that jurisdiction. If the respondent’s residence is relied upon, it is sufficient to show that the dissolution or annulment was effected in accordance with the law of the jurisdiction of the respondent’s ordinary residence at the time of the institution of proceedings without any period of residence being required: see Nygh P E, Conflict of Laws in Australia, 5th ed, 1991, pp 186–7.

[s 104.5] Circumstances in which foreign divorces, annulments and separations will be regognised: s 104(3) In general, an Australian court will recognise a divorce, annulment or legal separation effected in accordance with, or recognised as effective by, the law of an overseas jurisdiction in the circumstances set out in subs (3). Note that some of the terms used, eg “relevant date”, are defined in subs (1); note also subs (2) relating to the definition of “national”. The circumstances listed in subs (3) are mainly based on ordinary residence, domicile and nationality. Note that some paragraphs of subs (3) deal with the situation where the overseas decree was obtained jointly. Putting that aside for simplicity, the requirements of the various paragraphs may be summarised as follows. Ordinary residence of respondent Paragraph (a) is satisfied if the respondent was ordinarily resident in the overseas jurisdiction at the relevant date. Ordinary residence of applicant Paragraph (b) is satisfied if, first, the applicant was ordinarily resident in the overseas jurisdiction at the relevant date; and second, if either the applicant had been so resident for a year immediately before that date, or the last place of the parties’ cohabitation was in that jurisdiction. Domicile of applicant Paragraph (c) is satisfied if the applicant was domiciled in the overseas jurisdiction at the relevant date. Nationality of respondent Paragraph (d) is satisfied if the respondent was a national of the overseas jurisdiction at the relevant date. Nationality and residence of applicant Paragraph (e) is satisfied if at the relevant date the applicant satisfies a nationality and a residence requirement. The applicant must be a national of the overseas jurisdiction, and must have been ordinarily resident for a continuous period of one year before the relevant date (or for a period of one year, part of which fell within the two year period before the relevant date).

Nationality and presence where divorce not permitted in place of cohabitation Paragraph (f) deals with the situation where divorce was not permitted by the overseas jurisdiction in which the parties cohabited. In this case, it is enough that the applicant was a national of the overseas jurisdiction and was present in the jurisdiction at the relevant date. [s 104.6] Non-recognition — s 104(4) Dissolution or annulment may be denied recognition if the proceedings involved: (a) are a denial of natural justice; (b) the dissolution or annulment had been obtained by fraud; or (c) recognition would be manifestly contrary to public policy. Denial of natural justice relates to deficiencies in the procedures of the court. Fraud as regards foreign divorce decrees had traditionally been confined to fraud going to the jurisdiction of the foreign court rather than to the merits of the case. [page 1026] A dissolution or annulment may also be denied recognition if recognition would be manifestly contrary to public policy. Public policy is of course difficult to define. In the past, foreign divorces and annulments have been refused recognition because they were procured by duress (see: Meyer v Meyer [1971] 1 All ER 378) or because they were based on foreign laws which struck the recognizing court as being fundamentally unfair: see Gray v Formasa [1963] P 259; see also Lepre v Lepre [1965] P 52. The word “manifestly” itself does not have much legal meaning, but it serves to remind the courts that they must not deny recognition for reasons of personal or national prejudice. A decree could be refused recognition on the ground of public policy if the petitioner had resorted to the foreign jurisdiction solely for the purpose of obtaining the decree: see El Oueik v El Oueik (1977) 3 Fam LR 11,351; FLC 90–224; Peters v Peters [1968] P 275; see also Nygh P E, Conflict of Laws in Australia, 5th ed, 1991, pp 375–8.

[s 104.7] Effected in accordance with’ the law of an overseas jurisdiction The precise meaning of these words remains to be determined. They certainly require that the divorce or annulment should be valid according to the law of the overseas jurisdiction: see Pemberton v Hughes [1899] 1 Ch 781; (1899) 15 TLR 211. Recognition not limited to court decrees. By subs (10), recognition in accordance with the section will be extended to divorces and annulments effected by legislation, presidential decree or even by unilateral repudiation, such as the Muslim “Talak”. [s 104.8] Recognition on the basis of nationality Whether a person is a national of a foreign jurisdiction must be determined according to the law of that jurisdiction: see Oppenheimer v Cattermole (Inspector of Taxes) [1976] AC 249; [1975] 1 All ER 538; [1975] 2 WLR 347; [1975] STC 91. [s 104.9] Judicial findings of overseas court — s 104(7) When a court in Australia considers the validity of a dissolution or annulment of a marriage or a legal separation effected under a law of an overseas country and the respondent appeared in those proceedings, the Australian court: (a) is bound by the findings of fact of the overseas court on the basis of which it assumed jurisdiction; and (b) may treat as proved any other facts found by the overseas court. If the respondent did not appear in the proceedings for the dissolution, annulment or separation the court retains discretion to treat as proved any facts found by the overseas court. This section was amended by the Family Law Amendment Act 1983. There is now provision for discretion in the Australian court to treat as proved any facts found by an overseas court or otherwise established for the purposes of the overseas law where the respondent did not appear in the overseas proceedings. There is also provision in s 104(7) for the Australian court to be bound by the findings of fact on the basis of which the overseas court assumed jurisdiction to grant the overseas decree, and for a discretion in the Australian courts to treat as proved any facts found by the court where the respondent

appeared in the overseas proceedings: see Nygh P E, Conflict of Laws in Australia, 4th ed, 1984, pp 336–47. [s 104.10] Non-recognition — s 104(4) By subs (4), divorces and annulments will not be recognised where they involve a denial of natural justice or where recognition would be “manifestly contrary to public policy”. Public policy is of course difficult to define. In the past, foreign divorces and annulments have been refused recognition because they were procured by duress (see: Meyer v Meyer [1971] 1 All ER 378) or because they were based on foreign laws which struck the recognizing court as being fundamentally unfair: see Gray v Formasa [1963] P 259; [1962] 3 WLR 1246 see also Lepre v Lepre [1965] P 52; [1963] 2 All ER 49; [1963] 2 WLR 735. A decree could be refused recognition on the ground of public policy if the petitioner had resorted to the foreign jurisdiction solely for the purpose of obtaining the decree: see El Oueik v El Oueik (1977) 3 Fam LR 11,351; FLC 90-224; Peters v Peters [1968] P 275. [page 1027] The word “manifestly” presumably indicates that recognition should be refused only in clear cases, and serves to remind the courts that they must not deny recognition for reasons of personal or national prejudice. [s 104.11] Capacity to remarry — s 104(9) This section provides that a party whose dissolution or annulment is recognised in Australia may remarry according to Australian law even though the capacity of that party to do so is not recognised under the law of some other country. It overcomes the situation which arose in R v Brentwood; Superintendent Registrar of Marriages; Ex parte Arias [1968] 2 QB 956: see Nygh P E, Conflict of Laws in Australia, 5th ed, 1991, pp 319 and 322–3. [s 104.12] Annulments — s 104(10) This provision defines annulments: see Nygh P E, Conflict of Laws in Australia, 5th ed, 1991, p 367.

____________________

[s 104A]

Recognition in external Territories

104A (1) [Interpretation] In this section: external Territory does not include Norfolk Island. overseas jurisdiction does not include an external Territory. (2) [Validity of overseas dissolution] A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction that is recognised as valid in Australia shall be recognised as valid in every external Territory. [sub (3) am Act 98 of 2005 s 2 and Sch 1, cl 127, opn 3 Aug 2005]

(3) [Dissolution in external Territory] A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an external Territory that is recognised as valid in Australia shall be recognised as valid in every other external Territory. [def am Act 98 of 2005 s 2 and Sch 1, cl 127, opn 3 Aug 2005]

[page 1029]

PART XIII — ENFORCEMENT OF DECREES [s 105]

Enforcement generally

105 (1) [Enforced by courts having jurisdiction] Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act. Note: For example, the Federal Circuit Court of Australia can enforce decrees made by the Family Court of Australia. [subs (1) am Act 72 of 1983 s 76 and Sch; Act 194 of 1999 s 3 and Sch 11[90]; Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(2) [Proceedings to enforce another court’s decree] Except as prescribed, a court shall not entertain a proceeding under this Act for the enforcement of a decree made by another court unless the decree is registered in the first-mentioned court in accordance with the regulations. [subs (2) am Act 95 of 1976 s 6]

(2A) Subsection (2) does not prevent a court from making an order under paragraph 90KA(c) or 90UN(c). [subs (2A) insrt Act 143 of 2000 s 2 and Sch 2 item 11 opn 27 Dec 2000; am Act 115 of 2008 s 3 and Sch 1[79], opn 1 Mar 2009]

(3) [Enforcement of decrees against deceased estate] Where a person bound by a decree made under this Act has died, the decree may, by leave of: (a) the court by which it was made; or

any court in which the decree has been registered in (b) accordance with the regulations (whether the decree was registered before or after the death of the person); and on such terms and conditions as the court considers appropriate, be enforced, in respect of liabilities that arose under the decree before the death of that person, against the estate of that person. [subs (3) subst Act 72 of 1983 s 56; am Act 181 of 1987 s 63 and Sch] COMMENTARY ON SECTION 105 Introductory comment …. Repealed legislation …. Registration of decrees made in other courts — s 105(2) …. Method of registration …. Death of a person bound by decree — s 105(3) …. General principles — s 105(3) …. Relationship of ss 82(3) and 105(3) …. Courts having jurisdiction under the Act ….

[s 105.1] [s 105.2] [s 105.3] [s 105.4] [s 105.5] [s 105.6] [s 105.7] [s 105.8]

[s 105.1] Introductory comment This section provides that all decrees made under the Act may be enforced by any court having jurisdiction under the Act. “Decree” is defined in s 4(1) of the Act as “decree, judgment or order”. This means that any order whereby a party is ordered to do something, transfer property or pay money, is enforceable under Pt XIII. [page 1030] Section 105 confers power on the Family Court to enforce orders made by other courts exercising jurisdiction under the Family Law Act, or made in proceedings that are to be treated as if they were proceedings under the

Family Law Act (eg, certain proceedings under the Child Support (Assessment) Act 1989). Orders made in proceedings that do not fit this description cannot be enforced in reliance on s 105. In the particular context of child support, however, additional powers of enforcement may be available to the Family Court under the Family Law Rules 2004: see Deputy Child Support Registrar v Harrison (1995) 20 Fam LR 101; (1996) FLC 92– 656 for discussion. [s 105.2] Repealed legislation By virtue of s 3(2)(c), a decree, judgment or order made by a Supreme Court, a court of summary jurisdiction of a State or Territory before the commencement of the Family Law Act under the repealed Matrimonial Causes Act 1959, or under the superseded law of a State or Territory relating to matrimonial causes or maintenance, or made by a Supreme Court of a State or Territory after the commencement of the Act under the transitional provisions of s 9(1) of the Act, shall, with certain exceptions not relevant here, continue to have effect throughout Australia “as if the decree had been made under this Act”. This means that an order made under the repealed or superseded legislation can be registered and enforced in the Family Court: see In the Marriage of Pelbart (1976) 1 Fam LR 11,124; FLC 90–002; see also In the Marriage of Spry (1977) 3 Fam LN 50; FLC 90–301. It has, however, been held that the words “made under this Act” relate only to orders actually made by courts exercising jurisdiction under the Family Law Act: see In the Marriage of Smith (1976) 1 Fam LN 11; FLC 90–020; see also Mitchelson v Mitchelson (1977) 17 ALR 633; 3 Fam LR 11,344; Stone v Stone and Ralph (1977) 3 Fam LR 11,101; 30 FLR 520; In the Marriage of Douglas (1978) 4 Fam LR 107; FLC 90–427. [s 105.3] Registration of decrees made in other courts — s 105(2) Under s 105(2) a court shall not entertain proceedings for enforcement of a decree made in another court unless the decree has been first registered in the court of enforcement. See Family Law Regulations 1984 reg 17. It has been held that the registration of an order ancillary to a decree nisi under the repealed Act did not constitute registration of the decree nisi itself: see In the Marriage of Douglas (1978) 4 Fam LR 107; FLC 90–427; see,

however, Ulrick v Ulrick (1976) 2 Fam LR 11,286; (1977) FLC 90–242. [s 105.4] Method of registration A decree, judgment or order is registered by filing a sealed copy of the decree in any court having jurisdiction under the Act: see Family Law Regulations 1984 reg 17. [s 105.5] Death of a person bound by decree — s 105(3) This subsection was amended by the Family Law Amendment Act 1983 by omitting the previous subs (3) and substituting a new subs (3). The new subs (3) permits where a person bound by a decree under the Act has died, any court in which the decree is registered to grant leave pursuant to the subsection to enforce the decree to the extent permitted against the estate of the deceased person bound by it. The subsection previously only allowed enforcement of such decree in the court in which such decree was made. Section 105(3) provides that where a person bound by a decree made under the Act has died, the decree may be enforced but only in respect of liabilities that arose under the decree before the death. The enforcement is against the estate of the person. Leave of the court by which the decree was made, or by the court in which the decree is registered, is required before the enforcement. Enforcement is on such terms and conditions as the court thinks fit. Leave is required under this section to bring a contravention application against the executor of the estate of a person who died without complying with property orders: In the Marriage of Ebbage (2000) 27 Fam LR 209; FLC 93–057. [page 1031] [s 105.6] General principles — s 105(3) Section 105(3) relates only to enforcement against the estate of a person of liabilities that arose under an order made before that person’s death. It has no application to the enforcement, for the benefit of the estate of a deceased party against the surviving party, of obligations that arose under orders made in favour of the deceased party prior to his or her death: see In the Marriage of Rafter (1982)

FLC 91–261. Section 105(3) only relates to liabilities that arose under the decree before the death of the person. It does not aid in extending the operation of an order so as to provide, in relation to maintenance, for the collection of instalments of maintenance which would have fallen due after the date of death. The enforcement is against the estate of the deceased and the proper party to be served with the application for leave or the enforcement process would be the executor or administrator of the estate, or if an executor or administrator has not yet been appointed, then the statutory authority in whom the estate has vested pending the grant of probate or letters of administration. Section 105(3) is not a mere provision for procedural suspension of rights of enforcement. The section recognises that orders made under the Act ordinarily come to an end upon the death of one of the parties. Until an order is made under s 105(3) granting leave to enforce, there is no legally enforceable debt, even for arrears of maintenance which had fallen due prior to the death and there is therefore no debt which can be proved in the estate of the deceased. [s 105.7] Relationship of ss 82(3) and 105(3) Section 105(3) deals only with the enforcement against the estate of a deceased person of “liabilities that arose under the decree before the death of that person”. Section 82(3) provides, in effect, that an order made prior to 25 November 1983, requiring a deceased person to make payments for a period extending beyond his or her death, is binding upon the legal personal representative of the deceased person. It is submitted (SO’R) that s 105(3) should not be read as limiting s 82(3), and that s 82(3) permits enforcement outside the provisions of s 105(3). If, at the time of the death of the person liable to make payments under the order, arrears of maintenance are due and payable by him or her, nothing in s 82 operates to prevent the institution of proceedings for their recovery: see Jenkins v Public Trustee (WA) (1981) FLC 91–075. [s 105.8] Courts having jurisdiction under the Act The enforcement

proceedings must be taken in a court having jurisdiction under the Family Law Act. Since 1 June 1976 these courts are: (a) the Family Court of Australia; (b) the Family Court of Western Australia; (c) the Supreme Court of the Northern Territory; and (d) courts of summary jurisdiction in the States and Territories with the exception of the Perth metropolitan area, where the Family Court of Western Australia has exclusive jurisdiction. This means that proceedings for the enforcement of an order made in the Supreme Court of a State or Territory before 1 June 1976 cannot be brought in such court if the proceedings leading to such order had been completed before 1 June 1976: see Ulrick v Ulrick (1976) 2 Fam LR 11,286; (1977) FLC 90–242; see also Mitchelson v Mitchelson (1977) 17 ALR 633; 3 Fam LR 11,344. An order for enforcement made by a court which lacks jurisdiction is without effect: see Stone v Stone and Ralph (1977) 3 Fam LR 11,101; 30 FLR 520. An order made by a Supreme Court in a matter pending at 1 June 1976, and completed since then, can be enforced in that court: see In the Marriage of Brown (1978) 4 Fam LR 385.

____________________ [page 1032]

[s 106] Maintenance orders — more than 12 months in arrears 106 In determining whether to make an order enforcing a maintenance order, a court must not require that there be special

circumstances that justify enforcing the maintenance order merely because the maintenance payable under it is more than 12 months in arrears. [s 106 insrt Act 143 of 2000 s 3 and Sch 3 item 80 opn 27 Dec 2000]

[s 106A] court

Execution of instruments by order of

106A (1) If: (a) an order under this Act has directed a person to execute a deed or instrument; and (b) that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection; the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument. (2) If: (a) a provision of a maintenance agreement that has been registered under section 86 or approved by a court under section 87 requires a person to execute a deed or instrument; and (b) that person has refused or neglected to comply with that provision of the maintenance agreement or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection; the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person required

by that provision of the maintenance agreement to execute the deed or instrument and to do all acts and things necessary to give validity and operation to the deed or instrument. (3) The execution of a deed or instrument by a person appointed under this section to execute that deed or instrument has the same force and validity as if the deed or instrument had been executed by the person directed by an order referred to in paragraph (1)(a), or required by a provision of a maintenance agreement referred to in paragraph (2)(a), to execute it. (4) The court may make such order as it considers just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution. [s 106A insrt Act 143 of 2000 s 3 and Sch 3 item 80 opn 27 Dec 2000]

[s 106B]

Transactions to defeat claims

106B (1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (1A) If: (a) a party to a marriage, or a party to a de facto relationship, is a bankrupt; and (b) the bankruptcy trustee is a party to proceedings under this Act; [page 1033]

the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the bankrupt; and (d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. [subs (1A) insrt Act 20 of 2005 s 3 and Sch 1 cl 57, opn 18 Sep 2005; am Act 115 of 2008 s 3 and Sch 1[80], opn 1 Mar 2009]

(1B) If: (a) a party to a marriage, or a party to a de facto relationship, is a debtor subject to a personal insolvency agreement; and (b) the trustee of the agreement is a party to proceedings under this Act; the court may set aside or restrain the making of an instrument or disposition: (c) which is made or proposed to be made by or on behalf of, or by direction or in the interest of, the debtor; and (d) which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. [subs (1B) insrt Act 20 of 2005 s 3 and Sch 1 cl 57, opn 18 Sep 2005; am Act 115 of 2008 s 3 and Sch 1[81], opn 1 Mar 2009]

(2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged

with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order. [subs (2) am Act 20 of 2005 s 3 and Sch 1 cl 58, opn 18 Sep 2005]

(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition. (4AA) An application may be made to the court for an order under this section by: (a) a party to the proceedings; or (b) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or (c) any other person whose interests would be affected by the making of the instrument or disposition. [subs (4AA) insrt Act 20 of 2005 s 3 and Sch 5, opn 15 Apr 2005]

(4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1). [subs (4A) insrt Act 138 of 2003 s 3 and Sch 7 item 25 opn 27 Dec 2000; am Act 115 of 2008 s 3 and Sch 1[82], opn 1 Mar 2009]

(5) In this section: disposition includes: (a) a sale or gift; and

[page 1034] (b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust. [def subst Act 98 of 2005 s 2 and Sch 1, cl 20, opn 3 Aug 2005]

interest: (a) in a company includes: (i) a share in or debenture of the company; and (ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and (b) in a trust includes: (i) a beneficial interest in the trust; and (ii) the interest of a settlor in property subject to the trust; and (iii) a power of appointment under the trust; and (iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and (v) an interest that is conditional, contingent or deferred. [def insrt Act 98 of 2005 s 2 and Sch 1, cl 21, opn 3 Aug 2005] [s 106B insrt Act 143 of 2000 s 3 and Sch 3 item 80 opn 27 Dec 2000] COMMENTARY ON SECTION 106B PRELIMINARY Purpose of section ….

[s 106B.1]

Issues arising in s 106B proceedings …. History of section …. Earlier Australian legislation …. A “matrimonial cause” …. Constitutional validity …. Section 106B and s 114 ….

[s 106B.5] [s 106B.10] [s 106B.15] [s 106B.20] [s 106B.25] [s 106B.30]

WHEN IS SECTION 106B AVAILABLE? Introductory comments …. “In proceedings under this Act” …. “Instrument or disposition” …. Irrespective of intention …. Made etc on behalf of a party …. Made to defeat an order …. Likely to defeat an order …. When is an order “anticipated”? ….

[s 106B.40] [s 106B.45] [s 106B.50] [s 106B.55] [s 106B.60] [s 106B.65] [s 106B.70] [s 106B.75]

EXERCISE OF DISCRETION AND POSITION OF THIRD PARTIES Orders under s 106B may bind third parties …. Correct procedure …. “Bona fide purchaser or other person interested” …. Degree of protection for third parties …. Procedure relating to third parties ….

[s 106B.80] [s 106B.81] [s 106B.85] [s 106B.90] [s 106B.95]

SECTION 106B AND BANKRUPTCY Introductory comments …. Deed of assignment may be set aside …. Sequestration order cannot be set aside ….

[s 106B.100] [s 106B.105] [s 106B.110]

ORDERS UNDER SECTION 106B Orders for restitution ….

[s 106B.115] [page 1035]

Orders under s 106B(2) …. Re-opening case; fresh evidence …. Affidavit filed in s 79 proceedings ….

[s 106B.120] [s 106B.150] [s 106B.155]

PRELIMINARY [s 106B.1] Purpose of section Section 106B may be characterised as an “anti-avoidance” provision. It is a legislative response to the danger that parties will enter into transactions which will frustrate the operation of the Act. It gives the court power to restrain the making of such transactions, or, if they have already occurred, to set them aside. What is now s 106B was previously s 85. That section was repealed (by the Family Law Amendment Act No 143 of 2000) and re-enacted as what is now s 106B. For a more detailed historical account, see below. Most of the case law that is relevant to s 106B of course relates to the old s 85. For convenience, in the commentary below we will generally refer to s 106B, even where the relevant decision relates to s 85, and where quotations refer to s 85 we will substitute the reference to s 106B, in square brackets. Third parties The section almost always involves third parties, namely the other party or parties to the transaction in question. “Section 106B by its very nature envisages that an order can be made thereunder ordering a transferee, who is not a party to the marriage, to reconvey property. Indeed it envisages that even if the transferee is a bona fide purchaser for value such an order could in appropriate circumstances and subject to appropriate conditions be made”: In the Marriage of Whitaker (1980) 5 Fam LR 769 at Fam LR 774; FLC 90–813 per Nygh J. Illustrations H and W have separated. H wishes to prevent W from obtaining a share in his property. He transfers his property to his new partner, so that he will have no property available to the wife in proceedings under s 79. W can commence proceedings under s 79, and apply for an order under s 106B to set aside the transfer in order that the property would revest in H, and thus be available to satisfy her claim under s 79. For examples of the successful use of s 106B, see In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517 (FC); Loder v Aysom (1987) 12 Fam LR 644; (1988) FLC 91–954

(FC); In the Marriage of Collins (1987) 11 Fam LR 382; FLC 91–800 (FC). A striking illustration of the scope of the section is Re Twigg and Keady (1996) 21 Fam LR 82; FLC 92–712. In that case, a Family Court litigant was in dispute with her solicitors over costs. She paid money recovered in Family Court proceedings to certain third parties. The litigant subsequently became bankrupt, and the solicitors sought to have the payments to the third parties set aside under s 106B, on the basis that the payments were likely to defeat anticipated orders for costs. The Full Court held that, in principle, s 106B applied in such a case, and that the court had power to direct the money to be paid into court, thereby preserving it from the effects of bankruptcy. Preliminary issue? The Full Court has discussed the question whether a s 106B application should be dealt with as a preliminary issue: In the Marriage of Gould (1993) 17 Fam LR 156; FLC 92–434. In appropriate circumstances good case management and fairness to the parties may suggest that the jurisdictional basis of the s 106B claim be determined as a preliminary issue; but where the claims against third parties coincide with major aspects of the claims between the spouses, it may be impractical and inappropriate to conduct separate trials in relation to what may be fundamentally the same issues. [s 106B.5] Issues arising in s 106B proceedings Availability It is first necessary to consider whether s 106B is available. It is available only if (i) the application is made “in proceedings under the Act”, (ii) it relates to an “instrument or disposition”, which is (iii) made or proposed to be made by or on behalf of a party, or by direction [page 1036] of a party, or in the interest of a party, and which is (iv) made or proposed to be made in order to defeat an existing or anticipated order in the proceedings, or irrespective of intention, likely to defeat any such order. These ingredients are considered in detail in the commentary below. If they are all established, then the question is whether the court in its discretion will make an order.

Exercise of discretion and position of third parties If s 106B is available, the court will consider whether to exercise its discretion to make an order. A major factor here will be the interests of any bona fide purchaser or other person interested: the court is required to have regard to the interests of such persons: subs (3). This is considered under heading EXERCISE OF DISCRETION AND POSITION OF THIRD PARTIES. Related matters If the court decides to make an order, various consequential issues may arise: these are considered under the heading ORDERS UNDER SECTION 106B. [s 106B.10] History of section In the original Family Law Act, s 85 provided: “In proceedings under this Part, the court … anticipated order in those proceedings for costs, maintenance or the declaration or alteration of any interests in property or which, irrespective of intention, is likely to defeat any such order.” An amendment in 1983 replaced the phrase “under this Part” with the phrase “under this Act”, and omitted the italicised words. Before this amendment, s 85 in terms applied only if there were in existence proceedings under Pt VIII (other than s 85 proceedings): see In the Marriage of Whitaker (1980) 5 Fam LR 769; FLC 90–813; In the Marriage of Page (1978) 4 Fam LR 663; FLC 90–525; In the Marriage of Rickie (1979) 4 Fam LR 737; FLC 90–626; In the Marriage of Schmidt (A Mastrone, Intervener) (1980) 6 Fam LR 488; FLC 90–873. The amendment enabled the court to deal with transactions likely to defeat any order of the court in all proceedings under the Act, Rules, or Regulations. Its operation is no longer limited to Pt VIII. [s 106B.15] Earlier Australian legislation Matrimonial Causes Act 1959 (Cth) With an important qualification, s 85 was in its original form similar to s 120 of the Matrimonial Causes Act 1959. The qualification is that s 120 applied only if the instrument or disposition in question was “made or proposed to be made to defeat” an order: see for

example Laws v Laws (1964) 6 FLR 202; Walker v Walker (1966) 9 FLR 59; Burns v Burns (1967) 10 FLR 441. The Family Law Act significantly extended the reach of the anti-avoidance provision since it provided that orders could be made in relation to instruments or dispositions that were likely to defeat an order, whether or not it could be proved that they had such an intention. This was a significant change, because it may often be difficult to establish such an intention. Earlier state laws The same comment applies to the earlier equivalent provision of the New South Wales legislation, discussed in Broun et al, Australian Family Law and Practice, para 45–000: Matrimonial Causes Act 1899 (NSW) s 58; Fullicks v Fullicks (1929) 46 WN (NSW) 158; Hipgrave v Hipgrave (1934) 51 WN (NSW) 79. Relevance of authorities under repealed legislation It has been held by the Full Court of the Family Court that authorities under the Matrimonial Causes Act 1959 (Cth) may be of relevance to s 106B: In the Marriage of Collins (1987) 11 Fam LR 382 at 389; FLC 91–800 (FC). The same presumably applies (RC) to authorities under the old New South Wales Act mentioned above. [s 106B.20] A “matrimonial cause” Proceedings under s 106B constitute a matrimonial cause under para (f) of the definition of that term in s 4. See generally In the Marriage of Ioppolo and Conti (1987) 11 Fam LR 866; FLC 91–852 (FC). [page 1037] [s 106B.25] Constitutional validity In a carefully reasoned decision, the Full Court has upheld the validity of s 85 (now s 106B): In the Marriage of Gould (1993) 17 Fam LR 156; FLC 92–434. The validity of the section had previously been assumed by the Full Court of the Family Court: In the Marriage of Collins (1987) 11 Fam LR 382 at 389; FLC 91–800 (FC); In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958 at 976; FLC 91–114 (FC) per Simpson J. No constitutional issue was raised in Loder v Aysom

(1988) 12 Fam LR 659; FLC 91–955 (HC). In Gould, the Full Court held not only that the section fell within the constitutional powers relating to marriage and matrimonial causes, but also that it did not violate s 51(xxxi), which forbids acquisitions of property other than on just terms. The Full Court held that an order made under s 106B against a third party would not constitute an acquisition of property within the meaning of s 51(xxxi), and if it did it would not be on other than “just terms”: 17 Fam LR 156 at 179–86 (Fogarty J); at 158–9 (Nicholson CJ and Finn J). Section 106B can be considered (RC) as valid under the “marriage power” (Constitution s 51(xxi)) in its usual application to property and spousal maintenance matters, or under other applicable provisions in the unlikely event that it were to be applied to other types of matters (for eaxmple, Constitution s 51(xxxii) [Matters referred by the States] in relation to child custody). It may also be regarded as falling within the “incidental” power: Constitution s 51(xxxix). Any doubts about the validity of s 106B would rest on the fact that it can affect the rights of third parties, and may arguably be difficult to characterise as a law with respect to marriage. The question how far the rights of third parties can be affected under the Family Law Act has troubled the courts on several occasions. See in particular Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000. Ascot, however is not authority on the point, since the High Court there said that its decision was not based on constitutional grounds, and the decision did not concern s 106B: see In the Marriage of Collins (1987) 11 Fam LR 382 at 387–8; FLC 91–800 (FC). It is submitted (RC) that s 106B is likely to be held valid by the High Court, although it is just possible that the court would hold that in its application to transactions that were merely likely to defeat an order, as distinct from those that were intended to do so, the connection with “marriage” is too remote for the law to come within s 51(xxi). In the absence of any High Court decision it is clear that the Family Court will — and should (RC) — continue to treat s 106B as valid. [s 106B.30] Section 106B and s 114 There may be considerable overlap between the court’s powers under s 106B to restrain a proposed alienation

and its injunctive powers under s 114. Practitioners will sometimes have to consider which is the more appropriate section. One important advantage of s 106B is that it unequivocally gives the court power to make orders against, and interfering with the rights of, third parties. As the commentary to s 114 indicates, the capacity of orders under s 114 to bind third parties is a question of considerable difficulty. It has been held that injunctions may be granted under s 114(3) to support a s 106B application: In the Marriage of Collins (1987) 11 Fam LR 382; FLC 91–800. In that case the Full Court said at Fam LR 390: “For practical purposes [s 106B] of the Act would be denuded of its efficacy in many cases if the recipient of a relevant disposition could not be made subject to an injunction under s 114(3) of the Act having the effect of preserving the fruits of the disposition.” See also In the Marriage of Buckeridge (1981) 6 Fam LR 718; FLC 91– 005, where Barblett J made orders under s 114(3) to preserve property pending the hearing of an application under s 106B. The appeal decision appears to cast no doubt on this use of s 114: In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958; FLC 91–114 (FC). WHEN IS SECTION 106B AVAILABLE? [s 106B.40] Introductory comments Ingredients of s 106B It is useful to consider systematically the several ingredients of s 106B in the form of the following questions, which will form the basis of this part of the commentary: [page 1038] 1. 2. 3.

Are there “proceedings under the Act?” Is there an “instrument or disposition?” Is it made or proposed to be made by or on behalf of a party, or by direction of a party, or in the interest of a party?

4.

Is the instrument or disposition: (a) made or proposed to be made in order to defeat an existing or anticipated order in the proceedings; or (b) irrespective of intention, likely to defeat any such order?

These questions are based on the wording of the section. For judicial analysis along similar lines, see In the Marriage of Health (1983) 9 Fam LR 97; FLC 91–362 at Fam LR 104 per Nygh J; In the Marriage of D (1984) 10 Fam LR 73 at 82; FLC 91–593 per Gee J. Onus of proof The onus is of course on the applicant to establish that s 106B applies and that the court should exercise its discretion in a particular way. See ANZ Banking Group v Harper (1988) 11 Fam LR 649 at 653; FLC 91– 938 at 76,781 (FC), citing Hickox v Hickox [1964] ALR 1095 and Cameron v Cameron [1968] VR 459; (1968) 12 FLR 22. Further alienation by third party In some cases, the third party will have made or will be threatening to make a further alienation. It is possible to attack such a disposition or instrument under s 106B, since that section is not limited to dispositions made by a party to the marriage. However the requirements of s 106B must be met in relation to each disposition or instrument attacked, and it may be difficult to establish that the disposition by the third party is made by or on behalf of, or in the interests of, the party to the marriage: see In the Marriage of Whitaker (1980) 5 Fam LR 769 at 774– 5; FLC 90–813 per Nygh J. Use of ss 106B and 80 It has been said by the Full Court that “the proper exercise of the powers under s 106B is not confined simply to setting aside the instrument in question. It necessarily extends to the making of such further orders as are ancillary to or necessary to give effect to the primary order and that may attract other provisions of the Act, including one or more of the powers in s 80(1)”: see In the Marriage of Davidson (1994) 17 Fam LR 656 at 668; FLC 92–469. [s 106B.45] “In proceedings under this Act”

Introductory comments As noted, above, until 1983 the opening words of the section were “In proceedings under this Part” (ie proceedings under Pt VIII). Decisions before that date must be treated accordingly. Need for other proceedings The opening words, “In proceedings under this Act”, mean that there must be other proceedings under the Act before an application can be made under s 106B: In the Marriage of Page (1978) 4 Fam LR 663; FLC 90–525; In the Marriage of Rickie (1979) 4 Fam LR 737; FLC 90–626; In the Marriage of Cullen (1980) 6 Fam LR 480; FLC 90–899; In the Marriage of Schmidt (A Mastrone, Intervener) (1980) 6 Fam LR 488 at Fam LR 492; FLC 90–873. An application under s 106B cannot be based on anticipated proceedings; there must actually be other proceedings: see for example, Cullen, above, per Treyvaud J at Fam LR 484. These authorities are equally applicable since the amendment which substituted the phrase “under this Act” for the phrase “under this Part”. Completed proceedings sufficient In In the Marriage of Whitaker (1980) 5 Fam LR 769; FLC 90–813, Nygh J held that the opening words of s 106B include completed proceedings. Nygh J noted that on a literal interpretation the phrase is confined to current proceedings, but relied on the fact that the section refers to an existing order and on the reasoning in Taylor v Taylor (1979) 5 Fam LR 289; FLC 90–674 per Mason J at 298, and In the Marriage of Rodway and Napier (1979) 5 Fam LR 585; FLC 90–722. [page 1039] Proceedings under the repealed Act sufficient It has been held that the opening words of s 106B include proceedings instituted and completed under the previous legislation, the Matrimonial Causes Act 1959 (Cth): In the Marriage of Whitaker (1980) 5 Fam LR 769 at 773; FLC 90–813. For decisions to the same effect dealing with similar provisions in earlier legislation: see Jones v Jones (1962) 79 WN (NSW) 716 (leave for appeal refused (1962) 108 CLR 664); Acheson v Acheson (1985) 11 WN (NSW) 185.

Connection between the other proceedings and the s 106B application It has been held that there must be a connection between the other proceedings and the s 106B application. A transaction “cannot be set aside under [s 106B] unless there are on foot proceedings seeking orders which the transaction anticipated and was designed to defeat”: Cullen, above, per Treyvaud J at 6 Fam LR 483. This matter is considered further below. [s 106B.50] “Instrument or disposition” Introductory comment It is necessary to show that what is attacked under s 106B is “an instrument or disposition”. Disposition defined — s 106B(5) The composite term “instrument or disposition” is not defined. However “instrument” is defined. Under para (a), it includes a sale and a gift. In 2005 the definition was extended, by the addition of para (b), to include the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust. Paragraph (b) of the definition of “disposition” is not retrospective; that is, it applies only to dispositions that occur on or after the commencement of the 2005 amendment (3 August 2005). Ordinary meaning In In the Marriage of Bassola (No 2) (1985) 10 Fam LR 413; FLC 91–623, Connor J said that the word “disposition” should be given its ordinary meaning, namely “any form of alienation” and is not limited to assignments, sales or gifts of property. See also In the Marriage of Hudson (1986) 11 Fam LR 189; FLC 91–768 at Fam LR 191 per Gee J. See also KD Bassi and KD Sales Force Specialists Pty Ltd v Maas (1999) 25 Fam LR 678; FLC 92–867 (FC). Series of steps It has been held that a disposition may consist of a number of steps taken in completing a transaction provided that there is a causal chain between the first step and the final disposition of property in the disponee: Official Trustee in Bankruptcy and Bassola (1986) 11 Fam LR 557; FLC 91– 760 (FC) per Murray J. See also Cameron v Cameron [1968] VR 459; (1968) 12 FLR 22; In the Marriage of Hudson (1986) 11 Fam LR 189; FLC 91–768; In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517 (FC);

ANZ Banking Group v Harper (1988) 11 Fam LR 649 at 653; FLC 91–938 (FC). Involuntary alienations It has been said that the reference in s 106B(5) to the (voluntary) transactions of gift and sale does not mean that all involuntary alienations necessarily fall outside the scope of s 106B: Official Trustee in Bankruptcy and Bassola (1986) 11 Fam LR 557; FLC 91–760 (FC) per Murray J at FLC 75,560. However Murray J also said that in the context of the subsection “the disposition must have a disponor, namely one of the parties to the marriage, and a disponee”; the words of the section require “some control management or arrangement on the part of the disponor which vests the property in the disponee”. Decisions on specific transactions In the following decisions the court has determined whether specific types of alienations fall within s 106B. Mortgage A mortgage may be a “disposition” under s 106B: In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517 (FC). Equitable charge An equitable charge may be a “disposition” under s 106B: In the Marriage of D (1984) 10 Fam LR 73; FLC 91–593. [page 1040] Allotment of shares See paragraph (b) of the definition of “Disposition” in subs (5), effective from 3 August 2005. It had previously been hald that where a transaction which makes an allotment of shares in a family company was a sham, being designed to substantially diminish the value of a party’s shares in the company, and hence reduce that party’s overall net worth in anticipation of an application under s 79, the transaction may be set aside under the section: In the Marriage of Turnbull (1990) 15 Fam LR 81; (1991) FLC 92–258. Forgiveness of a debt The forgiveness of a debt for the payment of money is a transaction capable of coming within s 106B: In the Marriage of Hudson

(1986) 11 Fam LR 189; FLC 91–768 (Gee J). Bankruptcy It has been held that s 106B can be used to set aside a deed of assignment under Pt X of the Bankruptcy Act 1966 (Cth), but not to set aside a sequestration order. See below, under the heading SECTION 106B AND BANKRUPTCY. Disclaimer of interest in deceased estate The written request by a husband to the trustee of his deceased mother’s estate was found to be a transaction to defeat a claim and hence capable of being set aside under s 106B (or s 80(1) (k): Seggio v Durante (2012) FLC ¶93-498; [2012] FamCAFC 27; BC201250085). [s 106B.55] Irrespective of intention It is explicit in s 106B that there is no need to show that the transaction of disposition in question was intended to defeat an existing or anticipated order. It is sufficient to show that it is “likely” to defeat such an order. See Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083; FLC 91–753; In the Marriage of Ioppolo and Conti (1987) 11 Fam LR 866; FLC 91–852 and In the Marriage of Gelley (No 2) (1992) 15 Fam LR 483; FLC 92–291. [s 106B.60] Made etc on behalf of a party Party to the marriage It has been held that in s 106B “party” means a party to the marriage, not a party to the s 106B proceedings: In the Marriage of Whitaker (1980) 5 Fam LR 769; FLC 90–813. Disposition by third party It is possible to attack under s 106B a disposition by a third party to a fourth, provided that the terms of s 106B are met in relation to the subsequent disposition: see In the Marriage of Whitaker, above, at Fam LR 774–5; In the Marriage of Gould (1993) 17 Fam LR 156; FLC 92–434 at Fam LR 161. Not limited to “sham” or “alter ego” cases The section is not confined to cases where the transaction can be characterised as a “sham” or where the third party may be said to be acting as the “alter ego” of a party to the marriage. Subject to the safeguards in subs (3) it can also apply “to other

transactions, including transactions involving a bona fide third party”: see Gould, at Fam LR 166–8. Party’s control There is little case law on the meaning of the words “by or on behalf of, or by direction or in the interest of, a party”. In Official Trustee in Bankruptcy and Bassola (1986) 11 Fam LR 557; FLC 91–760 (FC) however, Murray J said that “the disposition must have a disponor, namely one of the parties to the marriage, and a disponee”; the words of the section require “some control management or arrangement on the part of the disponor which vests the property in the disponee”. Interest of a party It is submitted (RC) that the phrase “or in the interest of” indicates that a transaction made in the interest of or for the benefit of a party (and otherwise falling within s 106B) will fall within the section even if the party could not be shown to have had any influence or control over the making of the transaction. [page 1041] [s 106B.65] Made to defeat an order Although in practice it is often easier to establish that a transaction was likely to defeat an order than to establish that it was intended to do so, proof of such a purpose will of course suffice to render s 106B applicable, whether or not it can be shown that the transaction was likely to have that effect. See Halabi and Artillaga (1993) 17 Fam LR 675 at 679–80; (1994) FLC 92–470 where Nicholson CJ, discussing In the Marriage of Whitaker (1980) 5 Fam LR 769 at 773; FLC 90–813 and In the Marriage of Gelley (No 2) (1992) 15 Fam LR 483; FLC 92–291 said that he had “some difficulty” in accepting a proposition that where an instrument is made with an intention of defeating an anticipated order it cannot be set aside unless it is also shown that it was likely to do so. It was held in relation to the previous legislation that it is enough that the party intended to defeat the order and that such intention has a substantial influence on the party’s decision to make the instrument or disposition: it is immaterial whether there were other intentions, and which intention was dominant. Further, in the case of a disposition consisting of a series of transactions, it is enough that the

intention existed at any stage. See Murtagh v Murtagh [1960] NZLR 895; Cameron v Cameron [1968] VR 459; (1968) 12 FLR 22 per Lush K, discussing by Baker J in In the Marriage of Abdullah (1981) 6 Fam LR 654 at 661–2; FLC 91–003. Meaning of “likely” In In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517, the Full Court considered the various meanings of the word “likely” but did not say which meaning it preferred. In the Marriage of D (1984) 10 Fam LR 73 at 82–3; FLC 91–593, Gee J referred to the remarks of Elliott J in In the Marriage of Pflugradt (1981) 7 Fam LR 188; FLC 91– 052 and suggested that the question is whether a reasonable person, in the position of the respondent when the disposition was made would objectively regard there as being more than a 50% chance that the order would be defeated. [s 106B.70] Likely to defeat an order Diminishing pool of assets The Full Court has held that assuming all other aspects of the section are satisfied an applicant may establish a claim under s 106B by showing that the transaction would have the effect of diminishing the pool of assets available to meet anticipated orders: In the Marriage of Gould (1993) 17 Fam LR 156; FLC 92–434 at Fam LR 168. It is not necessary, in other words, that the transaction attacked under s 106B should involve a specific item of property that would be the subject of an anticipated s 79 order. Whether causal connection required In In the Marriage of Whitaker (1980) 5 Fam LR 769; FLC 90–813, Nygh J said that the disposition in question must be shown to have the likely effect of defeating an order. If the order would in any event have been defeated by other circumstances, it cannot be said that s 106B applies. See also Halabi and Artillaga (1993) 17 Fam LR 675 at 679–80; (1994) FLC 92–470; In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517 (FC). However, the Full Court referred to these decisions and said that it would prefer to leave for consideration at another time the question whether it is always necessary for there to be a causal connection between the disposition and the likelihood of the defeat of the

order. [s 106B.75] When is an order “anticipated”? Meaning of “anticipated” “Anticipated” has been said to mean to be objectively foreseen, or to be expected as being likely or reasonably probable. It is an objective test, not the subjective test of whether anyone actually thought an order would be made: In the Marriage of Pflugradt (1981) 7 Fam LR 188; FLC 91–052; In the Marriage of Menz (1980) 6 Fam LR 325; FLC 90–852; In the Marriage of Holley (1982) FLC 91–257; In the Marriage of Cullen (1980) 6 Fam LR 480; FLC 90–899; In the Marriage of Abdullah (1981) 6 Fam LR 654; FLC 91–003. It has been said that the question is whether a reasonable person in the respondent’s position would have considered that there was a real chance, as distinct from a remote possibility, that such a situation would occur: In the Marriage of D (1984) 10 Fam LR 73; FLC 91–593. Hence, where a disposition occurred six years before the institution of property proceedings, and at a time when the marriage had not [page 1042] broken down, it was held not to be foreseeable that an order in property proceedings was likely to be made: see In the Marriage of Toohey (1991) 14 Fam LR 843; FLC 92–244. Orders sought in proceedings It has been held that orders may be “anticipated” in proceedings if they are asked for in the proceedings: Ganas v Ganas (1971) 18 FLR 298 at 300. An order under s 74 or s 79 may be anticipated as soon as an application is made for such relief: Kriwoschejew v Kriwoschejew (1975) 6 ALR 260. Before proceedings instituted It has been held that there can be an anticipated order even though the transaction in question was made at a time before the relevant proceedings had been commenced: In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958; FLC 91–114 (FC); Hadley v Hadley (1967) 10 FLR 459.

No proceedings contemplated It cannot be said that an order is anticipated when no proceedings are contemplated at all: In the Marriage of Ivanfy (1978) 4 Fam LR 542; FLC 90–512; In the Marriage of Holley (1982) FLC 91–257. EXERCISE OF DISCRETION AND POSITION OF THIRD PARTIES [s 106B.80] Orders under s 106B may bind third parties It is clear that orders under s 106B may be made against third parties, and divest them of property or interests acquired under the transaction in question: In the Marriage of Collins (1987) 11 Fam LR 382; FLC 91–800 (FC); In the Marriage of Whitaker (1980) 5 Fam LR 769; FLC 90–813; In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517 (FC); In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958 at 976; FLC 91–114 (FC) per Simpson J. [s 106B.81] Correct procedure Nicholson CJ has held in Halabi and Artillaga (1993) 17 Fam LR 675 at 681; (1994) FLC 92–470 that: “… the proper approach is to first determine whether the requirements of [subs (1)] have been satisfied, and if so, to treat the disposition as not having been made for the purpose of arriving at an appropriate order pursuant to s 79, and then having done so, to determine whether, having regard to the rights of the bona fide purchaser or person interested under [subs (3)] a discretion should be exercised to set the instrument or disposition aside. The exercise of such a discretion may well depend upon whether if this is not done there are sufficient funds available to the party who has made the disposition to satisfy the order without setting the instrument or disposition aside.” [s 106B.85] “Bona fide purchaser or other person interested” Introductory comment Section 106B(3) refers to a “bona fide purchaser or other person interested”, and the court has ruled on the meaning of this phrase. Bona fide purchaser “… the test of bona fides is whether the [respondent] at

the time [of making the disposition] was aware or should have been aware by making due inquiry, that the disposition would be likely to defeat the claim of the [applicant]”: In the Marriage of Heath (No 2) (1984) 9 Fam LR 642 at 647; FLC 91–517 (FC). See also In the Marriage of D (1984) 10 Fam LR 73; FLC 91–593. “Bona fide” does not qualify “person interested” The phrase “bona fide purchaser or other person interested” is to be read disjunctively; “bona fide” does not qualify “person interested”: Balnaves v Balnaves (1988) 12 Fam LR 488; FLC 91–952 at Fam LR 501. Relevance of bona fides to discretion However the bona fides of a “person interested” will have an impact on the extent to which the court will extend to that person the protection which subs (3) allows: Balnaves v Balnaves (1988) 12 Fam LR 488; FLC 91–952 at Fam LR 501. [page 1043] Person interested The word “interested” indicates the acquisition of an interest, not merely an involvement or curiosity, and a person involved in a sham transaction may not fall within the term “Person interested”: see In the Marriage of Heath (1983) 9 Fam LR 97; FLC 91–362 per Nygh J at Fam LR 106–7. The Full Court dismissed the appeal and cast no doubt on this aspect of Nygh J’s reasoning: In the Marriage of Heath (No 2), above. A person interested will include a beneficiary under a trust whose distributions are in issue: see In the Marriage of Gelley (No 2) (1992) 15 Fam LR 483; FLC 92– 291. [s 106B.90] Degree of protection for third parties No absolute protection Section 106B(3) does not give absolute protection to the rights of a bona fide purchaser or other person interested. The court must as a matter of discretion decide what degree of protection to afford to the third party: see In the Marriage of Heath (No 2) (1984) 9 Fam LR 642; FLC 91–517 (FC).

Third party rights to be respected The court has stressed that it should be very reluctant to interfere with the bona fide rights of third parties. Nygh J has said that the court “should never interfere with the rights of a bona fide purchaser where it is possible to meet the claim of the applicant by other means”: see In the Marriage of Heath (1983) 9 Fam LR 97 at 110; FLC 91– 362 (Nygh J); Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083 at 1087; FLC 91–753. See also In the Marriage of Gelley (No 2) (1992) 15 Fam LR 483; FLC 92–291. In refusing leave to appeal, the High Court indicated that it considered the protection of the rights of third parties to be one of public importance, but did not find it appropriate to deal with it: Loder v Aysom (1988) 12 Fam LR 659; FLC 91–955 (HC). Sham transactions The court will look at commercial realities and will not allow a “blatant sham transaction” to defeat the operation of the Act: Balnaves v Balnaves (1988) 12 Fam LR 488; FLC 91–952 (FC). Of course, it is not necessary for the purpose of s 106B to establish that a transaction is a sham: see for example, Loder v Aysom (1987) 12 Fam LR 644; (1988) FLC 91–954 (FC). Notice to third party The applicant for an order under s 106B will not be allowed to set aside a transaction where the applicant was in position to prevent the transaction by giving notice to the third party, but failed to do so: Commonwealth Bank of Australia v Staatz (1988) 12 Fam LR 745; FLC 91– 942 (FC) (W obtained injunction preventing H from further encumbrancing land. W failed to give notice to the bank, and H obtained further advances. The court declined to set these transactions aside under s 106B). [s 106B.95] Procedure relating to third parties Introductory comments Natural justice obviously requires that any third party liable to be affected by an order under s 106B should be able to participate in the proceedings (RC): see In the Marriage of Ioppolo and Conti (1987) 11 Fam LR 866; FLC 91–852. When a party to a marriage seeks an order under s 106B in relation to a third party, the correct procedure is “to name that person as an additional respondent in the proceeding and set out the nature of the claim and the basis of it in the ordinary way in the

application”. See generally In the Marriage of Gould (1993) 17 Fam LR 156 at 187–91; FLC 92–434. The Full Court there upheld the correctness of the decisions of the Full Court in In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958; FLC 91–114 and In the Marriage of Barro (1982) 8 Fam LR 855; (1983) FLC 91–300 in preference to the approach in In the Marriage of Harris; Re Banaco Pty Ltd (1980) 6 Fam LR 450; FLC 90–906. Third party may intervene A third party whose interests are affected by s 106B proceedings is entitled to apply to intervene, and (RC) it is difficult to imagine such an application being refused: see Kriwoschejew v Kriwoschejew (1975) 6 ALR 260; In the Marriage of Ivanfy (1978) 4 Fam LR [page 1044] 542; FLC 90–512. It may be advantageous for the third party to intervene rather than be a passive victim of the dispute between the parties to the marriage (IK). For a case in which the third party intervened and had the application struck out, see Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083; FLC 91–753. See also In the Marriage of Hudson (1986) 11 Fam LR 189; FLC 91–768. Consequences of intervention In In the Marriage of Ioppolo and Conti (1987) 11 Fam LR 866; FLC 91–852, Nygh J said that “if the third party seeks and obtains leave to intervene under s 92, that party becomes a party to the principal proceedings whether the intervention is strictly necessary or not. The great advantage of such intervention is the ability to obtain an order for costs against the party who is not the applicant under [s 106B(1)]”. No power to compel intervention The court has no power to compel a third party to intervene: In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958; FLC 91–114 (FC). This is of limited practical importance (RC) since the third party, as noted, above, becomes a party to the s 106B application when named as a respondent. SECTION 106B AND BANKRUPTCY

[s 106B.100] Introductory comments Applications for financial adjustment under the Family Law Act are at risk of being defeated by the bankruptcy of the respondent, since under the Bankruptcy Act 1966 (Cth) the bankrupt’s property vests in the Official Trustee. Can s 106B be used to set aside the bankruptcy or otherwise make orders that will have the effect of re-vesting the bankrupt spouse’s property in the spouse so it is available to satisfy s 79 orders? [s 106B.105] Deed of assignment may be set aside It has been held that s 106B can be used to set aside a deed of assignment under Pt X: In the Marriage of Milland (1981) 7 Fam LR 478; FLC 91–065 (FC); In the Marriage of Holley (1982) FLC 91–257 (FC). In Milland, above, the wife commenced proceedings for property alteration under s 79, and then the husband made a deed of assignment under Pt X of the Bankruptcy Act 1966 (Cth), by which deed he assigned all his assets to the trustee for the benefit of his creditors. The wife applied for an order under s 106B to set aside the deed. The Full Court held that the trial judge had jurisdiction to make the order. Although the deed had certain consequences by virtue of the Bankruptcy Act, it fell within the terms of s 106B and s 106B should not be construed so as to preclude any order which interfered with the operation of another statute. Whether it would be appropriate to make the order would depend on the facts. The court would on the hearing consider such matters as the effect of creditors of setting aside the deed, and whether the wife would have had a remedy under the Bankruptcy Act 1966. For discussion as to the exercise of discretion to set aside such a deed, see In the Marriage of Holley (1982) FLC 91–257 at 77,439 (FC) (discretion to be exercised “with care and circumspection”). [s 106B.110] Sequestration order cannot be set aside It is not possible, however, to use s 106B to set aside a sequestration order. In In the Marriage of Wallmann (1981) 7 Fam LR 945; (1982) FLC 91–204 a sequestration order had been made against the husband and under the Bankruptcy Act 1966 (Cth) this order vested the husband’s property in the trustee. At the time there were pending property proceedings brought by the wife. The trustee intervened, and sought an order dismissing the wife’s property application. The wife argued, inter alia, that the Family Court could set aside the

sequestration order under s 106B. Murray J held however that it was not open to the court to do this. In Official Trustee in Bankruptcy and Bassola (1986) 11 Fam LR 557; FLC 91–760 (FC), the wife applied for property orders under s 79 relating to the matrimonial home. While these proceedings were pending the husband was made a bankrupt on his own petition. His interest in the home was thereby vested in the Official Receiver under the Bankruptcy Act 1966. The wife obtained an order under s 106B purporting to set aside the disposition of the husband’s interest in the house. The Official Trustee, who had intervened to oppose the s 106B application, successfully appealed. The Full Court held that to set aside the disposition in favour [page 1045] of the Official Trustee would have no effect: since the husband would remain bankrupt, the interest would automatically re-vest in the Official Trustee by virtue of the Bankruptcy Act 1966. Since Parliament would not have wished to give the Family Court power to do something that would have no effect, it could be concluded that “disposition” in s 106B does not include the filing of a debtor’s petition and the consequent vesting of his or her property in the Official Trustee. Nygh J added that the divestiture consequent on being made bankrupt could not be described as a disposition within s 106B since it was not effected by or on behalf of the debtor husband nor could it be described as being in his interests. In any case, the discretion should not be exercised to make an order under s 106B since that would be useless. ORDERS UNDER SECTION 106B [s 106B.115] Orders for restitution Power under s 106B to make restitution orders The Full Court has said that if a transaction is set aside, the court may order the repayment of any amount paid by a party to the proceedings to a third party: In the Marriage of Collins (1987) 11 Fam LR 382; FLC 91–800 (FC). In that case the Full Court (Ellis, Simpson and Buckley JJ) said at Fam LR 389:

“… the law and practice in respect of s 120 of the [Matrimonial Causes Act 1959 (Cth)] proceeded on the basis that there was power to order restitution in an appropriate case. The Family Court has consistently adopted the same approach … [Section 106B] of the Act enables the court not only to set aside a disposition, but also, inter alia, to order the repayment of any amount paid by a party to the proceedings to a third party. It would be an affront to common sense to construe [s 106B] in the restricted manner urged by counsel for the husband.” This decision was followed by a majority of the Full Court in In the Marriage of Ioppolo and Conti (1987) 11 Fam LR 866; FLC 91–852 at 76,444–5 (Nygh J) and 76,435 (Simpson J). Barblett J, in the minority on this point, considered that the only power to order repayment must be found in s 106B(2): see FLC at 76,441–2. He distinguished Benjamin on the ground that the order there was for repayment by a party to the marriage to the third party, and Collins on the ground that the order in that case fell within s 106B(2). In his view the purpose of s 106B(2) was not to provide a method of debt collection for a party, but to allow the property to be disposed of by the court’s order in the substantive proceedings. There was therefore, in Barblett J’s view, “no power to order repayment where such an order is unnecessary to do justice in the substantive proceedings”. When orders will be made In Ioppolo, above, Barblett J took the view that the court could order restitution only under s 106B(2), and this provision restricted the court to making orders that would assist the claims of applicants whose claims would otherwise have been defeated by the disposition. Nygh J, while disagreeing as to the court’s power, said that “there may be some merit in that argument”. It is submitted (RC) that even if there is power to do so, as Ioppolo holds, in the exercise of its discretion the court should not make orders under s 106B where such orders are not made for the purpose of preventing a claim being defeated by the disposition in question. When to apply for such orders It is wise (RC) to apply for such orders at the hearing of the s 106B application. There is a danger that any later application for consequential orders will be too late, the s 106B proceedings having been completed and the trial judge becoming functus officio: see Ioppolo, above.

Flexible power The making of such orders is discretionary; the court has a flexible control over the financial position: Benjamin v Benjamin (1976) 11 ALR 211 at 216 per Glass J. [s 106B.120] Orders under s 106B(2) Introductory comments The court may set aside or restrain the making of an instrument or disposition under s 106B(1). Section 106B(2) provides that having done so, the court may order [page 1046] that any money or property dealt with by the instrument or disposition may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs. It may also order that the proceeds of a sale shall be paid into court to abide its order. There was a similar provision in the previous legislation: Matrimonial Causes Act 1959 (Cth) s 120(2). See also In the Marriage of Ioppolo and Conti (1987) 11 Fam LR 866; FLC 91–852, considered above. Not an independent power In In the Marriage of Hudson (1986) 11 Fam LR 189 at 191; FLC 91–768, Gee J held that s 106B(2) cannot operate independently of s 106B(1), and could not be used if the disposition in question did not fall within s 106B(1). Examples Examples of the use of s 106B(2) (or the equivalent provision in the previous legislation) include Hickox v Hickox [1964] ALR 1095, (bona fide purchaser retains title to property, but property charged with payment of applicant’s maintenance and costs); In the Marriage of Ivanfy (1978) 4 Fam LR 542; FLC 90–512 (purchase price of a property to be paid into court). [s 106B.150] Re-opening case; fresh evidence On the circumstances in which fresh evidence might be introduced at the end of the hearing, see In the Marriage of Gelley (No 1) (1992) 15 Fam LR 474; FLC 92–290.

[s 106B.155] Affidavit filed in s 79 proceedings It has been held that an affidavit filed in connection with related s 79 proceedings may be relied on in s 106B proceedings: In the Marriage of Gelley (No 1) (1992) 15 Fam LR 474; FLC 92–290.

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[s 107] People not to be imprisoned for failure to comply with certain orders 107 (1) A person must not be imprisoned or otherwise placed in custody because of a contravention of an order for the payment of money made in a matrimonial cause or de facto financial cause. [subs (1) am Act 115 of 2008 s 3 and Sch 1[83], opn 1 Mar 2009]

(2) This section does not affect the operation of: (a) Division 13A of Part VII; or (b) Part XIIIA; or (c) Part XIIIB. [subs (2) subst Act 138 of 2003 s 3 and Sch 7 item 26 opn 27 Dec 2000] [s 107 subst Act 143 of 2000 s 3 and Sch 1 item 8 opn 27 Dec 2000] COMMENTARY ON SECTION 107 Introductory comments …. Imprisonment possible for non-payment of money orders — subs (2) …. When is imprisonment appropriate? ….

[s 107.1] [s 107.5] [s 107.10]

[s 107.1] Introductory comments Other relevant provisions Section 107 needs to be read together with s 35 and the provisions of Pt XIIIA, which give the courts power to deal with contravention of orders and contempt of court.

Policy of section Section 107 expresses the policy of the Act that imprisonment is not generally an appropriate response to breaches of court orders consisting of non-payment of money. See for example, In the Marriage of Helliar (No 3) (1980) 5 Fam LR 756; FLC 90–805, where the Full [page 1047] Court (citing In the Marriage of Sahari (1976) 2 Fam LR 11,126; FLC 90– 086) said “the spirit and philosophy of the Family Law Act, as evidenced by ss 70, 107 and 114, as well as by the many provisions aimed at encouraging conciliation, discourage resort to the contempt power where it is appropriate to use other remedies first”. There has been considerable discussion in Australia and overseas of this policy issue. The arguments are very well set out in Australian Law Reform Commission, Contempt, ALRC 35, 1987, paras 733–6. Earlier law From the start the Act was equivocal on whether imprisonment was an available and appropriate response to non-payment of money orders. It provided general contempt powers, and the prohibition in s 107, leaving it to the courts to resolve the contradiction. After a predictable period of uncertainty, the Family Court decided that s 107 did not limit the contempt powers, but that the power of imprisonment should be reserved for extreme cases: see In the Marriage of Helliar (No 3) (1980) 5 Fam LR 756 at 758; FLC 90–805, where the authorities are cited. The court’s approach was confirmed by the 1983 amendments. These inserted into s 108 — the main contempt provision — the words “notwithstanding any other provision of law”. At the same time, s 107 was amended by the insertion of s 107(3), providing that the section did not affect the operation of ss 70(6), 108 or 114(4): see Helliar, above. The substance of these provisions remains: s 107(2) now protects the operation of Pt XIIIA, which replaced the contempt and quasi-contempt provisions. [s 107.5] Imprisonment possible for non-payment of money orders —

subs (2) Despite the words of s 107(1) it is clear that penalties under Pt XIIIA (which include punishment for contravention of orders and contempt of court) are available in relation to non-payment of money orders. In this respect the Act as amended in 1990 continues the previous law: see above. [s 107.10] When is imprisonment appropriate? Imprisonment as a “last resort” Prior to the 1990 amendments, it had become settled law that while imprisonment was available in relation to nonpayment of money orders, the courts should be reluctant to impose it, reserving it for particularly serious cases: see In the Marriage of Helliar (No 3) (1980) 5 Fam LR 756; FLC 90–805; In the Marriage of Alexander (1982) 8 Fam LR 289; FLC 91–244. There is nothing in the 1990 amendments to suggest any significant change in this well-established policy. It is submitted that in determining seriousness the court would normally consider the extent of the contravention of the order, the seriousness of its impact on the payee, and whether there were other aggravating or mitigating circumstances. Significance of s 107 It may be that in fact s 107(1) is of rather modest significance, since the policy of reserving imprisonment to serious cases is a general one, not confined to money orders. See for example, In the Marriage of Harper (1982) 8 Fam LR 521 which did not involve s 107.

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[s 108] 108

Contempt [s 108 rep Act 182 of 1989 s 15]

[s 109] Inter-state enforcement of child bearing expenses order 109 (1) This section applies to the following orders made under the law of a State or Territory: (a) orders of a kind that may be made under section 67D;

(b)

orders for the payment of an amount in relation to the maintenance of a child.

[subs (1) subst Act 181 of 1987 s 56; am Act 167 of 1995 s 41]

(2) [Enforcement by interstate court] The regulations may make provision for and in relation to the enforcement in a State or Territory by a court having jurisdiction under this Act of orders to which this section applies made by a court in another State or Territory. [page 1048] COMMENTARY ON SECTION 109 PRELIMINARY Introductory comment …. Procedure ….

[s 109.1] [s 109.2]

PRELIMINARY [s 109.1] Introductory comment This provision was amended by the 1987 Amendment Act. It provides for the making of regulations for the interstate enforcement of orders commonly known as “affiliation orders”. [s 109.2] Procedure See reg 18, Family Law Regulations.

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[s 109A]

Rules of Court relating to enforcement

109A (1) The power of the Judges, or a majority of them, under section 123 to make Rules of Court extends to making Rules of Court for or in relation to, or for or in relation to anything incidental to, the enforcement by the court of:

(a) an order under this Act affecting children; or (b) an order under this Act (within the meaning of Part XIIIA); or (c) the Child Support (Registration and Collection) Act 1988; or (d) the Child Support (Assessment) Act 1989; and, in particular, for or in relation to any of the specific matters mentioned in subsection (2). [subs (1) am Act 46 of 2006 s 3 and Sch 9 item 63, opn 1 July 2006]

(2) The specific matters are as follows: (a) requiring a person to do any one or more of the following: (i) to attend before a court or Registrar and answer questions or produce documents; (ii) to deliver a document or article to, or to a person specified by, a court or Registrar; (iii) to transfer the ownership of specified property to another person; (iv) to give another person possession (including exclusive possession) of specified property; (v) to deliver a specified chattel to another person; (vi) to do, or abstain from doing, any other act; (b) prescribing the practice and procedure to be followed for a hearing before a court or Registrar for the purpose of giving effect to a requirement made as mentioned in subparagraph (a)(i); (c) taking any one or more of the actions mentioned in subsection (3) in respect of a person who:

(i)

fails to pay the amount of a fine imposed under Division 13A of Part VII or under Part XIIIA; or (ii) fails to pay an amount payable under a bond entered into under Division 13A of Part VII or under Part XIIIA; or (iii) fails to pay under section 66L an amount of maintenance for a person over the age of 18 years; or [page 1049] (iv) fails to pay an amount payable under a registered maintenance liability under the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989; or (v) fails to comply with a requirement made as mentioned in paragraph (a); (d) delegating to a Registrar all or any of the powers conferred on a court under Rules of Court made under this section. (3) Subject to subsection (4), the actions in respect of a person the taking of which may be provided for by Rules of Court as mentioned in paragraph (2)(c) are as follows: (a) the issue of a warrant for the arrest of the person; (b) the issue of a warrant of execution against property of the person; (c) the making of an order authorising the taking of possession of property of the person;

(d) the making of an order for the sequestration, and if necessary the sale, of property of the person; (e) the making of an order for the attachment, by garnishment or attachment of earnings, of debts owed to the person; (f) the appointment of a receiver of property of the person. (4) A reference in paragraph (2)(c) to a failure to pay an amount is a reference to any such failure irrespective of the length of the period during which the failure has continued, and includes a reference to a failure to pay part of an amount. (5) In this section: property means real or personal property. Note: Powers to make Rules of Court are also contained in sections 26B and 37A. [s 109A insrt Act 143 of 2000 s 3 and Sch 1 item 9 opn 27 Dec 2000]

[s 109B] Rules of Court relating to enforcement — Federal Circuit Court 109B (1) Section 109A applies to the making of Rules of Court under section 81 of the Federal Circuit Court of Australia Act 1999 in a corresponding way to the way in which it applies to the making of Rules of Court under section 123 of this Act. [subs (1) am Act 13 of 2013 s 3 and Sch 1 item 304, opn 12 Apr 2013]

(2) For the purposes of the application of section 109A in accordance with subsection (1): (a) the reference in subsection 109A(1) to the court is to be read as a reference to the Federal Circuit Court of Australia; and (b) each reference in subsection 109A(2) to a court is to be

read as a reference to the Federal Circuit Court of Australia; and (c) each reference in subsection 109A(2) to a Registrar is to be read as a reference to a Registrar of the Federal Circuit Court of Australia. [subs (2) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(3) Section 109A has no effect in relation to the Federal Circuit Court of Australia except as provided by subsections (1) and (2) of this section. [subs (3) am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013] [s 109B insrt Act 194 of 1999 s 3 and Sch 11[92]; am Act 13 of 2013 s 3 and Sch 1 item 303, opn 12 Apr 2013]

[page 1051]

PART XIIIAA — INTERNATIONAL CONVENTIONS, INTERNATIONAL AGREEMENTS AND INTERNATIONAL ENFORCEMENT [Pt XIIIAA insrt Act 143 of 2000 s 3 and Sch 3 item 81 opn 27 Dec 2000]

DIVISION 1 — INTERNATIONAL MAINTENANCE ORDERS AND AGREEMENTS ETC [Div title insrt Act 69 of 2002 s 3 and Sch 1 item 22, opn 1 Aug 2003]

[s 110] Overseas enforcement of maintenance orders etc 110 (1) [Interpretation] In this section: jurisdiction with restricted reciprocity means a country, or part of a country, outside Australia declared by the regulations to be a jurisdiction with restricted reciprocity for the purposes of this section. maintenance order means: (a) an order or determination (however described) with respect to the maintenance of a party to a marriage; (b) an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, other than an order or determination of the kind referred to in paragraph (c);

(c) an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, being an order or determination that is expressed to continue in force until a day that is later than, or for a period that extends beyond, the day on which the child will attain that age, where the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is mentally or physically handicapped; (d) an order or determination (however described) with respect to the maintenance of a child who has attained the age of 18 years, being an order or determination that is expressed to continue in force until a day, or for a period, specified in the order or determination, where the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is mentally or physically handicapped; and (e) to the extent provided by the regulations, an order made under section 67D, or an order or determination (however described) that deals with matters of a kind in relation to which orders may be made under that section. [def am Act 34 of 1997 s 3 and Sch 7; am Act 73 of 2008 s 3 and Sch 4[292] [293], opn 4 July 2008]

reciprocating jurisdiction means a country, or part of a

country, outside Australia declared by the regulations to be a reciprocating jurisdiction for the purposes of this section. [subs (1) am Act 72 of 1983 s 59; Act 72 of 1984 s 3 and Sch; Act 181 of 1987 s 57; Act 182 of 1989 s 16]

[page 1052] (2) [Regulations may make certain provisions] The regulations may make provision for and in relation to: (a) the registration in, and enforcement by, courts having jurisdiction under this Act of maintenance orders made by courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity; (aa) the institution and prosecution, by an officer of a court having jurisdiction under this Act, a prescribed authority of the Commonwealth, of a State or Territory, or of another country or a part of another country, or a person for the time being holding a prescribed office under a law of the Commonwealth, of a State or Territory, or of another country or a part of another country, in his, her or its discretion, of proceedings: (i) on behalf of the person entitled to moneys payable under a maintenance order made by a court or authority of a reciprocating jurisdiction or of a jurisdiction with restricted reciprocity, for the enforcement by a court having jurisdiction under this Act of that maintenance order; or (ii) for the making of orders for the confirmation of provisional orders made by courts of reciprocating

(ab)

(b)

(ba)

(c)

(d)

jurisdictions or of jurisdictions with restricted reciprocity, being provisional orders referred to in paragraph (d); the institution and prosecution, by an authority entitled to moneys payable under a maintenance order, in the authority’s discretion, of proceedings for the enforcement of that maintenance order by a court having jurisdiction under this Act; the transmission to appropriate courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity of maintenance orders made by courts having jurisdiction under this Act for the purpose of securing the enforcement of those orders in those jurisdictions; the making of provisional maintenance orders, and the transmission of such orders to appropriate courts of reciprocating jurisdictions or jurisdictions with restricted reciprocity, for the purposes of obtaining the confirmation, and securing the enforcement, of those orders in those jurisdictions, and the effect in Australia of those orders; the making of orders (including provisional orders) for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section or of maintenance orders or provisional maintenance orders transmitted to other jurisdictions in accordance with regulations under this section, and the effect in Australia of orders under this paragraph; the making of orders for the confirmation of provisional

orders made by courts in reciprocating jurisdictions or in jurisdictions with restricted reciprocity, being provisional maintenance orders or provisional orders varying, discharging, suspending or reviving maintenance orders, and the effect in Australia of orders under this paragraph; and (e) the making of orders for giving effect to process certified or approved by a court in the United States of America, being process relating to the provision of maintenance, and the effect in Australia of orders under this paragraph. [subs (2) am Act 63 of 1976 s 37; Act 72 of 1984 ss 3, 59 and Sch; Act 168 of 1986 s 3 and Sch; Act 181 of 1987 s 63 and Sch; Act 182 of 1989 s 16]

[page 1053] (3) [Reciprocating jurisdictions] The regulations may make different provision under this section in relation to reciprocating jurisdictions from the provision made in relation to jurisdictions with restricted reciprocity. [subs (3) am Act 72 of 1984 s 3 and Sch] COMMENTARY ON SECTION 110 PRELIMINARY Introductory comment …. Regulations ….

[s 110.1] [s 110.2]

MAINTENANCE Definition of maintenance order …. Section 109 ….

[s 110.3] [s 110.4]

JURISDICTION Reciprocating jurisdiction …. What is a jurisdiction with restricted reciprocity? …. Registration of orders from reciprocating jurisdictions and transmission of Australian orders to those jurisdictions — s 110(2) …. Reciprocating jurisdictions and jurisdictions with restricted reciprocity — s 110(3) ….

[s 110.5] [s 110.6]

[s 110.7] [s 110.8]

PRELIMINARY [s 110.1] Introductory comment This provision provides for the making of regulations for the enforcement of overseas maintenance orders and the enforcement overseas of maintenance orders made by courts having jurisdiction under the Act. On the registration and enforcement in Australia of child maintenance orders made by a court of a reciprocating jurisdiction for the purpose of s 110 of the Act, see the extensive discussion in Horridge v Attorney-General (Cth) (1995) 18 Fam LR 829; FLC 92–597. [s 110.2] Regulations See regs 22, 25, 26, 27, 28A, 29, 30, 31, 32, 36, 37, 38, 39. MAINTENANCE [s 110.3] Definition of maintenance order The definition of a maintenance order was amended by the Family Law Amendment Act 1983. Under the previous definition, a maintenance order was limited to an order with respect to the maintenance of a party to a marriage or of a child of a marriage who had not attained the age of 18 years, or to the extent provided by the regulations, or an order of a kind referred to in s 109. The definition has now been extended to include orders in respect of children over the age of 18 years where the maintenance order is necessary for the completion of education including vocational training or apprenticeship, or where the child is mentally or physically handicapped. The definition was amended by the 1987 Amendment Act to provide that it

includes all orders for the maintenance of a child and not only a child of the marriage. [s 110.4] Section 109 Regulation 22 provides that “a maintenance order” has the same meaning as in s 110 and, for the purposes of para (e) of the definition of “maintenance order” in that section, includes an order of a kind referred to in s 109 of the Act: see s 109 and Sheppard v Foyle (1984) 9 Fam LR 876; FLC 91–533, upheld by the Full Court (March 1985, unreported). [page 1054] JURISDICTION [s 110.5] Reciprocating jurisdiction A reciprocating jurisdiction is one which has maintenance laws which provide for the making of maintenance or affiliation orders on similar principles to Australian law, with the consequence that such orders can be enforced in Australia without the need to investigate the nature of the order. In April 1989 Sweden became the first country with a civil code system of justice to become a reciprocating jurisdiction. For a list of reciprocating jurisdictions see Sch 2 to the Family Law Regulations. [s 110.6] What is a jurisdiction with restricted reciprocity? Introductory comment Section 110 provides that the regulations may make provisions, inter alia, in relation to jurisdictions with restricted reciprocity. The Regulations make no such provisions and thus the provisions of s 110 relating to such jurisdictions have no present operation. No such jurisdictions currently prescribed The term “jurisdiction with restricted reciprocity” is defined in s 110(1) to mean a country or part thereof declared by the regulations to be a jurisdiction with restricted reciprocity. At present, the Regulations contain no such declarations and thus at present no country or part of a country is a jurisdiction with restricted reciprocity.

Former jurisdictions with restricted reciprocity Jurisdictions which were formerly listed in reg 143 of the repealed regulations as being jurisdictions with restricted reciprocity are now listed in the Family Law Regulations (reg 25 and Sch 2) as reciprocating jurisdictions. [s 110.7] Registration of orders from reciprocating jurisdictions and transmission of Australian orders to those jurisdictions — s 110(2) Section 110(2) empowers the making of regulations for: The registration in and enforcement by courts having jurisdiction under the Family Law Act, of maintenance orders made by courts of reciprocating jurisdictions or of jurisdictions with restricted reciprocity: para (a). The regulations do not contain a list of any jurisdictions with restricted reciprocity. The institution of proceedings following the registration of an order of a reciprocating jurisdiction: para (aa). The transmission to courts of reciprocating jurisdictions, or of jurisdictions with restricted reciprocity, of maintenance orders made in Australia for the purpose of enforcing those orders: para (b). The making of provisional maintenance orders and the transmission of such orders to courts of reciprocating jurisdictions, or of jurisdictions with restricted reciprocity, for the purposes of obtaining the confirmation of and the enforcement of those orders: para (ba). The making of orders, including provisional orders for the variation discharge suspension or revival of maintenance orders registered in accordance with regulations made under this section, or provisional maintenance orders transmitted to other jurisdictions in accordance with the regulations: para (c). The making of orders for the confirmation of provisional orders made by courts in reciprocating jurisdictions or jurisdictions with restricted reciprocity being provisional maintenance orders or provisional orders varying discharging suspending or reviving maintenance orders: para (d). The making of orders to give effect to petitions for maintenance remitted by courts of the United States: para (e) and see reg 28A. Paragraph (e) was added by the Statute Law Miscellaneous

Provisions Act No 2 1986. Prior to this amendment Australian courts could only deal with final orders of State courts of the United States because there is no provision under the uniform scheme operating in that country for the making of provisional orders if the respondent is not present in the jurisdiction. See generally regs 25 to 32 and regs 36 to 39. [page 1055] [s 110.8] Reciprocating jurisdictions and jurisdictions with restricted reciprocity — s 110(3) Pursuant to s 110(3), regulations may be made which make different provision in relation to reciprocating jurisdictions from the provisions made in relation to jurisdictions with restricted reciprocity. To date no regulations in relation to jurisdictions with restricted reciprocity have been made.

____________________

[s 110A] Registration and enforcement in Australia of overseas maintenance agreements etc 110A The regulations may make provision for and in relation to the registration and enforcement in Australia of: (a) overseas maintenance agreements; or (b) overseas administrative assessments of maintenance liabilities. [s 110A insrt Act 143 of 2000 s 3 and Sch 3 item 82 opn 27 Dec 2000]

[s 110B] Transmission of agreements etc to overseas jurisdictions 110B

The regulations may make provision for and in relation

to the transmission, to appropriate courts or authorities of prescribed overseas jurisdictions, of: (a) agreements registered under section 86; or (b) agreements approved by courts under section 87; or (c) financial agreements made as mentioned in subsection 90B(1) that contain matters referred to in paragraph 90B(2)(b); or (d) financial agreements made as mentioned in subsection 90C(1) that contain matters referred to in paragraph 90C(2)(b); or (e) financial agreements made as mentioned in subsection 90D(1) that contain matters referred to in paragraph 90D(2)(b); or (f) administrative assessments of maintenance liabilities; for the purpose of securing the enforcement of those agreements or assessments in those jurisdictions. [s 110B insrt Act 143 of 2000 s 3 and Sch 3 item 82 opn 27 Dec 2000]

[s 111] Convention on Recovery Abroad of Maintenance 111 The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Recovery Abroad of Maintenance signed at New York on 20 June 1956 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia. [s 111 am Act 72 of 1983 s 60; Act 143 of 2000 s 3 and Sch 3 item 84 opn 27 Dec 2000]

COMMENTARY ON SECTION 111 Introductory comment …. Purpose …. General ….

[s 111.1] [s 111.2] [s 111.3]

[s 111.1] Introductory comment Australia, acceded to the Convention on Recovery Abroad of Maintenance on 15 March 1985. Part IV of the Family Law Regulations came into operation on that date. [page 1056] [s 111.2] Purpose This section was amended by the Family Law Amendment Act 1983 by the insertion of the words “… or to obtain for Australia any advantage or benefit” after the word “Australia” (first occurring). The section now clarifies the regulation making power to permit regulations to be made to enable Australia to accede to the Convention on Recovery Abroad of Maintenance signed at New York on 20 June 1956. [s 111.3] General Australia became a party to this Convention on 14 March 1985. See regs 40 to 56 and Schs 3 and 4. The Convention countries are listed in Sch 3 to the Family Law Regulations. For an English text of the Convention on Recovery Abroad of Maintenance see Sch 4 to the Family Law Regulations.

____________________

[s 111A] Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations 111A The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage

or benefit, under the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at The Hague on 2 October 1973 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia. [s 111A insrt Act 72 of 1983 s 61; Act 143 of 2000 s 3 and Sch 3 item 85 opn 27 Dec 2000] COMMENTARY ON SECTION 111A Introductory comment ….

[s 111A.1]

[s 111A.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1983. It permits regulations to be made to enable Australia to accede to the Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at The Hague on 2 October 1973.

____________________

[s S111AA] Zealand

Maintenance obligations with New

111AA (1) This section has effect despite anything in Part VII. (2) A court must not determine an application for payment of child or spousal maintenance (whether under this Act or the regulations) if: (a) the person seeking payment is habitually resident in New Zealand; and (b) determining the application would require the court to make a decision mentioned in Article 1.2 of the Australia-New Zealand Agreement.

Note: Article 1.2 of the Agreement is as follows: For the purposes of this Agreement a decision shall include: (a) a child support assessment issued by an administrative authority; (b) an agreement to make payments for the maintenance of a child or spouse which has been registered with an administrative authority; (c) an assessment, order or agreement suspending, modifying or revoking a decision of the kind referred to in (a) or (b); (d) an order for child maintenance made by a judicial authority; (e) an order for spousal maintenance made by a judicial authority; (f) an agreement to make payments for the maintenance of a child or spouse which has been registered with a judicial authority;

[page 1057] (g) an order or agreement suspending, modifying or revoking a decision of the kind referred to in (d), (e) or (f); (h) a liability to pay an amount to an administrative authority for the maintenance of a child or as contribution to the cost of government benefits paid to a payee for the maintenance of a child.

(3) In this section: Australia-New Zealand Agreement means the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000.

[s 111AA insrt Act 82 of 2007 s 3 and Sch 2[110], opn 19 July 2007]

[s 111AB] Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations 111AB The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations, which was concluded and entered into force on 12 December 2002. [s 111AB insrt Act 82 of 2007 s 3 and Sch 2[110], opn 19 July 2007]

DIVISION 2 — INTERNATIONAL CHILD ABDUCTION [Div title insrt Act 69 of 2002 s 3 and Sch 1 item 23, opn 1 Aug 2003]

[s 111B] Convention on the Civil Aspects of International Child Abduction 111B (1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia. [subs (1) am Act 167 of 1995 s 42; Act 143 of 2000 s 3 and Sch 3 item 86 opn 27 Dec 2000]

(1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision: (a) relating to the onus of establishing that a child should not be returned under the Convention; and (b) establishing rebuttable presumptions in favour of returning a child under the Convention; and (c) relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention. [subs (1A) insrt Act 143 of 2000 s 3 and Sch 3 item 87 opn 27 Dec 2000; am Act 46 of 2006 s 3 and Sch 8 item 96, opn 1 July 2006]

[page 1058] (1B) The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes. [subs (1B) insrt Act 143 of 2000 s 3 and Sch 3 item 87 opn 27 Dec 2000]

(1C) A Central Authority within the meaning of the regulations may arrange to place a child, who has been returned to Australia under the Convention, with an appropriate person, institution or other body to secure the child’s welfare until a court exercising jurisdiction under this Act makes an order (including an interim order) for the child’s care, welfare or development.

[subs (1C) insrt Act 143 of 2000 s 3 and Sch 3 item 87 opn 27 Dec 2000]

(1D) A Central Authority may do so despite any orders made by a court before the child’s return to Australia. [subs (1D) insrt Act 143 of 2000 s 3 and Sch 3 item 87 opn 27 Dec 2000]

(1E) Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of: (a) whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or (b) if the child was removed to Australia — when that happened; or (c) whether the child has been wrongfully removed to, or retained in, Australia. [subs (1E) insrt Act 143 of 2000 s 3 and Sch 3 item 87 opn 27 Dec 2000]

(2) Because of amendments of this Act made by the Family Law Reform Act 1995: (a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and (b) a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child. [subs (2) insrt Act 167 of 1995 s 42]

(3) The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection. [subs (3) insrt Act 167 of 1995 s 42]

(4) For the purposes of the Convention: (a) each of the parents of a child should be regarded as having rights of custody in respect of the child unless the parent has no parental responsibility for the child because of any order of a court for the time being in force; and (b) subject to any order of a court for the time being in force, a person: (i) with whom a child is to live under a parenting order; or (ii) who has parental responsibility for a child under a parenting order; should be regarded as having rights of custody in respect of the child; and (c) subject to any order of a court for the time being in force, a person who has parental responsibility for a child because of the operation of this Act or another Australian law and is responsible for the day-to-day or long-term care, welfare and development of the child should be regarded as having rights of custody in respect of the child; and [page 1059] (d) subject to any order of a court for the time being in force, a person: (i) with whom a child is to spend time under a parenting order; or (ii) with whom a child is to communicate under a

parenting order; should be regarded as having a right of access to the child. Note: The references in paragraphs (b) and (d) to parenting orders also cover provisions of parenting agreements registered under section 63E (see section 63F, in particular subsection (3)). [Note subst Act 46 of 2006 s 3 and Sch 8 item 99, opn 1 July 2006] [subs (4) subst Act 143 of 2000 s 3 Sch 3 item 88 opn 27 Dec 2000; am Act 46 of 2006 s 3 and Sch 8 items 97–98, opn 1 July 2006]

(5) Subsection (4) is not intended to be a complete statement of the circumstances in which, under the laws of the Commonwealth, the States and the Territories, a person has, for the purposes of the Convention, custody of, or access to, a child, or a right or rights of custody or access in relation to a child. [subs (5) insrt Act 167 of 1995 s 42]

(5A) Subsections (1A) and (2) to (5) do not, by implication, limit subsection (1). [subs (5A) insrt Act 143 of 2000 s 3 and Sch 3 item 89 opn 27 Dec 2000]

(6) Expressions used in this section have the same meaning as they have in Part VII. [subs (6) insrt Act of 1995 s 42] [s 111B insrt Act 72 of 1983 s 61] COMMENTARY ON SECTION 111B Regulations made …. Validity of section and regulations ….

[s 111B.1] [s 111B.4]

[s 111B.1] Regulations made Regulations have been made under this section. They are the Family Law (Child Abduction Convention) Regulations, reproduced in this Volume under guide card FAMILY LAW REGULATIONS. The date on which the Convention entered into force for

Australia, and therefore the date on which the regulations came into operation, was 1 January 1987. [s 111B.4] Validity of section and regulations Section 111B is an exercise of the “external affairs” power of the Commonwealth (s 51(xxix)), and the Hague Convention (Child Abduction) Regulation are validly made under it: McCall and State Central Authority; Attorney-General (Cth) (Intervener) (1994) 18 Fam LR 307; (1995) FLC 92–551, (FC, special leave refused by the High Court); and see De L v Director-General, New South Wales Dept of Community Services (1996) 20 Fam LR 390; FLC 92–706 (High Court), where s 111B and the regulations were treated as valid, although the question of validity was not put squarely in issue: see per Kirby J at Fam LR 409.

____________________ DIVISION 3 — INTERNATIONAL AGREEMENTS ABOUT ADOPTION ETC [Div title insrt Act 69 of 2002 s 3 and Sch 1 item 24, opn 1 Aug 2003]

[s 111C] International agreements about adoption etc 111C (1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993. [subs (1) am Act 143 of 2000 s 3 and Sch 3 item 90 opn 27 Dec 2000]

[page 1060]

(2) The regulations do not come into force until the day on which the Convention enters into force for Australia. (3) The regulations may make such provision as is necessary or convenient to give effect to any bilateral agreement or arrangement on the adoption of children made between: (a) Australia, or a State or Territory of Australia; and (b) a prescribed overseas jurisdiction. [subs (3) insrt Act 89 of 1998 s 3 and Sch 1; Act 143 of 2000 s 3 and Sch 3 item 90 opn 27 Dec 2000]

(4) Regulations made for the purposes of subsection (3) may, in particular: (a) provide for the recognition of adoptions made under a law of the prescribed overseas jurisdiction; and (b) provide that the regulations do not affect the operation of laws of a State or Territory that relate to adoptions; and (c) if a State or Territory has made such a bilateral agreement or arrangement on behalf of other States or Territories — give effect to the agreement or arrangement so far as it relates to all of those States or Territories, or to such of them as the regulations specify. [subs (4) insrt Act 89 of 1998 s 3 and Sch 1]

(5) Regulations made for the purposes of this section may: (a) confer jurisdiction on a federal court (other than the High Court) or a court of a Territory; or (b) invest a court of a State with federal jurisdiction. Such jurisdiction is in addition to any other jurisdiction provided for under this Act.

[subs (5) insrt Act 89 of 1998 s 3 and Sch 1]

(6) Regulations made for the purposes of subsection (5) may make different provision in respect of matters arising in relation to different States or Territories. (This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.) [subs (6) insrt Act 89 of 1998 s 3 and Sch 1]

(7) Subsections (4), (5) and (6) of this section do not, by implication, limit subsections (1) and (3) of this section. [subs (7) insrt Act 89 of 1998 s 3 and Sch 1]

(7A) The power of the Judges, or a majority of them, under section 123 to make Rules of Court extends to making Rules of Court for or in relation to the making of adoption orders. [subs (7A) insrt Act 143 of 2000 s 3 and Sch 3 item 91 opn 27 Dec 2000]

(8) In this section, despite subsection 4(1), Territory includes each external Territory. [subs (8) insrt Act 89 of 1998 s 3 and Sch 1] [s 111C insrt Act 167 of 1995 s 43] COMMENTARY ON SECTION 111C The Intercountry Adoption Convention implemented by Regulations: subs (1) …. Bilateral arrangements: subs (3) ….

[s 111C.1] [s 111C.20]

[s 111C.1] The Intercountry Adoption Convention implemented by Regulations: subs (1) Section 111C(1) provides in effect that regulations may be made to implement the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. Such [page 1061]

regulations have been made: they are the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998. They are printed under the guide card FAMILY LAW REGULATIONS. The text of the Convention itself is set out in Sch 1 to the Regulations. [s 111C.20] Bilateral arrangements: subs (3) Section 111C(3) provides in substance that regulations may be made to give effect to any bilateral agreement or arrangement on child adoption. Regulations have been made under this section. They are the Family Law (Bilateral Arrangements — Intercountry Adoption) Regulations 1998, and they commenced on 14 July 1998. They are printed under the guide card FAMILY LAW REGULATIONS. In substance the regulations provide for the recognition in Australia of adoptions in the other country. The People’s Republic of China is the only prescribed overseas jurisdiction.

____________________

DIVISION 4 — INTERNATIONAL PROTECTION OF CHILDREN [Div 4 insrt Act 69 of 2002 s 3 and Sch 1 item 25, opn 1 Aug 2003]

COMMENTARY ON DIVISION 4 Introduction to Div 4: The Child Protection Convention implemented Division 4 (ss 111 CA–111CZ) implements the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Regulations have been made under s 111CZ: they are the Family Law (Child Protection Convention) Regulations 2003. They commenced on 1 August 2003. They are printed under the guide card FAMILY LAW REGULATIONS. The text of the Convention itself is set out in Sch 1 to the Family Law Act 1975. See generally The Hon Dr Peter Nygh, “The New Hague Convention on Child Protection” (1997) 11 AJFL 5–10 and the other sources cited in Zegna

v Zegna [2015] FamCA 340; BC201550364 (Watts J).

____________________

Subdivision A — Preliminary [s 111CA]

Definitions

111CA (1) In this Division: another country means a Convention country or a nonConvention country. Australia includes the external Territories. central authority of a Convention country means: (a) if there is one central authority of the Convention country under Article 29 of the Child Protection Convention — the Convention country’s central authority; or (b) otherwise — the central authority designated, under Article 29 of the Child Protection Convention, as the Convention country’s central authority to which any communication may be addressed for transmission to the appropriate central authority of the Convention country. Child Protection Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996, a copy of the English text of which is set out in Schedule 1.

[page 1062] Commonwealth central authority means the Secretary of the Attorney-General’s Department. Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child. Commonwealth property protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act for appointing, or deciding the powers of, a guardian of the child’s property. competent authority: (a) competent authority of Australia means an entity that has responsibility or authority under the law in force in Australia, or part of Australia, to take measures or make decisions about: (i) protecting the person of a child; or (ii) appointing or deciding the powers of a guardian of a child’s property; and (b) competent authority of a Convention country means an entity that has responsibility or authority under the law in force in the Convention country to take, or make decisions about, a foreign measure relating to a child; and (c) competent authority of a non-Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:

(i) protecting the person of a child; or (ii) appointing or deciding the powers of a guardian of a child’s property. Convention country means a country, other than Australia, for which the Child Protection Convention has entered into force. country of refuge of a child means a country in which the child is present as a refugee child. entity includes the following: (a) an individual; (b) a corporation; (c) an unincorporated body; (d) a government authority or body; (e) a court or tribunal. foreign measure means: (a) a foreign personal protection measure; or (b) a foreign property protection measure. foreign personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for protecting the person of the child. foreign property protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for appointing, or deciding the powers of, a guardian of the child’s property.

[page 1063] non-Convention country means a country for which the Child Protection Convention has not entered into force. parental responsibility has the same meaning as in the Child Protection Convention. refugee child means a child: (a) who is a refugee; or (b) who is internationally displaced due to disturbances occurring in his or her country of habitual residence; or (c) whose country of habitual residence cannot be determined. Territory includes each external Territory. (2) Unless the contrary intention appears, expressions used: (a) in this Division; or (b) in regulations made for the purposes of this Division; have the same meaning as they have in the Child Protection Convention.

[s 111CB] Relationship between this Division and other provisions 111CB (1) This Division has effect despite the rest of this Act, except sections 69ZK and 111B and the regulations made for the purposes of section 111B. (2) This Division, except section 111CZ, has effect subject to sections 69ZK and 111B and the regulations made for the

purposes of section 111B. (3) Section 111CZ, and regulations made for the purposes of that section, have effect despite section 69ZK.

Subdivision B — Jurisdiction for the person of a child [s 111CC]

Application of this Subdivision

111CC This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child: (a) a central authority or competent authority of a Convention country; (b) a competent authority of a non-Convention country.

[s 111CD] child

Jurisdiction relating to the person of a

111CD (1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to: (a) a child who is present and habitually resident in Australia; or (b) a child who is present in Australia and habitually resident in a Convention country, if: (i) the child’s protection requires taking the measure as a matter of urgency; or (ii) the measure is provisional and limited in its territorial effect to Australia; or (iii) the child is a refugee child; or

(iv)

a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or [page 1064]

(v) a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or (vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or (c) a child who is present in a Convention country, if: (i) the child is habitually resident in Australia; or (ii) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or (iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or (iv) a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or (v) the child is habitually resident in a Convention country and the court is exercising jurisdiction in

proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or (d) a child who is present in Australia and is a refugee child; or (e) a child who is present in a non-Convention country, if: (i) the child is habitually resident in Australia; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or (f) a child who is present in Australia, if: (i) the child is habitually resident in a non-Convention country; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child. (2) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention. (3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if: (a) one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with

parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised. (4) Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH. COMMENTARY ON SECTION 111CD Restrictions on exercise of jurisdiction relating to children: s 111CD ….

[s 111CD.1] [page 1065]

[s 111CD.1] Restrictions on exercise of jurisdiction relating to children: s 111CD Reflecting the Convention, s 111CD sets out limits on the circumstances in which, in relation to a child not habitually resident in Australia, the court can exercise “jurisdiction for Commonwealth personal protection measure”. That term is defined in s 111CA, and is taken to include parenting proceedings: Duckworth v Jamison (2014) 51 Fam LR 471; [2014] FamCA 308; BC201451361 and Zegna v Zegna [2015] FamCA 340; BC201550364. As the late Dr Peter Nygh explained in an early publication, Article 5 of the Convention determines that the primary basis for the jurisdiction of judicial and administrative authorities is the habitual residence of the child. If that habitual residence changes, the authorities of the State of the new habitual residence have jurisdiction. See The Hon Dr Peter Nygh, “The New Hague Convention on Child Protection” (1997) 11 AJFL 5–10. That basis is apparent in s 111CD(1)(a). The “divorce-related” exception to the general rule that jurisdiction

should be exercised by courts of the child’s habitual residence: s 111CD(1)(b)(vi) and (c)(v). Article 10 of the Convention, Dr Nygh wrote, “… introduces a jurisdiction which is independent of the habitual residence of the child and is, while it lasts, exclusive of it. That is the so-called divorcerelated jurisdiction” (quoted in Zegna, below). For Australian law, that exceptions to the main rule are contained in paras (b)–(f), which set out the limited circumstances in which a court may exercise jurisdiction under the Family Law Act when a child is habitually resident in another Convention country. Subparagraph (b)(vi) and (c)(v) contain this divorce-related exception to the general rule. Subparagraph (b)(vi) applies where the child is present in Australia, and (c)(v) applies where the child is both present and habitually resident in a Convention country. The relevant words of the exception are: … the Court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)). Different views have been expressed about the correct interpretation of these words. In Duckworth v Jamison (2014) 51 Fam LR 471, Tree J gave them a wide interpretation, so that the court could exercise jurisdiction not only concerning decrees of divorce, legal separation or annulment, but concerning “the overall process by which the court addresses all issues arising from separation, including the division of the parties’ property, parenting issues and any other thing associated with or incidental to the divorce, annulment or legal separation”. However in Zegna v Zegna [2015] FamCA 340; BC201550364, after a careful examination, Watts J disagreed, concluding that s 111CD(1)(c)(v) is to be construed narrowly. The words “proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage” describe proceedings which end the parties’ relationship in a formal sense or otherwise formally deal with the parties’ status: see Zegna v Zegna [2015] FamCA 340; BC201550364at [65]. The provision therefore “provides an exception allowing the court to exercise jurisdiction in circumstances where the court is dealing with the end of a married couple’s relationship during applications for divorce or annulment or proceedings seeking a declaration about the validity of a marriage, a divorce

or an annulment” [63]. His Honour said at [64]: I do not accept it is the intent of the Child Protection Convention nor of the subsequent Australian legislation to broaden the opportunity for the exercise of jurisdiction to circumstances where parenting proceedings are recommenced, or where the parties are engaging in litigation in respect of financial matters or even more generally where, for example, the court is exercising accrued jurisdiction or original jurisdiction in bankruptcy or corporations law. Watts J also pointed out that by subs (3) the exception is “a limited temporal one to allow the divorce court to entertain applications relating to children instituted at the time the divorce, [page 1066] annulment or the validity of a marriage, divorce or annulment, is being considered”. It is submitted, with respect (RC), that the interpretation in Zegna appears to be the better view. Other requirements of the divorce-related exception: s 111CD(3) Even where circumstances fall within the requirements of s 111CD(1)(b)(vi) or (1) (c)(v), the court can only exercise jurisdiction if the various requirements of s 111CD(3) are also met. Acceptance of court’s exercise of jurisdiction: s 111CD(3)(c) The requirement of paragraph (c), namely the “acceptance” of the court’s jurisdiction, was considered in Duckworth v Jamison (2014) 51 Fam LR 471; [2014] FamCA 308; BC201451361 and Zegna v Zegna [2015] FamCA 340; BC201550364. The term is to be distinguished from a submission to jurisdiction that might under some rules of private international law give a court jurisdiction it might otherwise lack: see Duckworth, above, at [78]. Section 111CD(3)(c) provides, in effect, that the court is permitted to exercise its validly invoked jurisdiction only if the parents agree to it so exercising its jurisdiction: see Duckworth, above at [80].

____________________

[s 111CE] Limitation when a child is wrongfully removed from or retained outside a Convention country 111CE A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth personal protection measure relating to a child if: (a) the child has been wrongfully removed from or retained outside a Convention country; and (b) an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

[s 111CF] Limitations when prior proceedings pending in a Convention country 111CF (1) This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CD(1)(a), subparagraph 111CD(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CD(1)(c) or (d). (2) The court must not exercise that jurisdiction to take a Commonwealth personal protection measure relating to a child if: (a) a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of the proceedings before the court; and (b) any of the following applies: (i) the child is habitually resident in the Convention

(ii) (iii)

(iv)

(v)

country; the child is present in the Convention country and is a refugee child; a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority of the Convention country assuming jurisdiction; the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); [page 1067]

(vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (3) Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if: (a) one or both of the child’s parents are habitually resident in the Convention country when the proceedings

referred to in that subparagraph commence; and (b) one or both of the parents has parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised. (4) Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought.

[s 111CG] If a court is asked to assume jurisdiction 111CG (1) A court may, if it considers that it is in the child’s best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth personal protection measure relating to the child. (2) A court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate: (a) to request, under Article 9 of the Child Protection

Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth personal protection measure relating to the child; (b) to report to the court about the outcome of the request. (3) The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child’s best interests.

[s 111CH] Limitation if a competent authority of a Convention country is asked to assume jurisdiction 111CH (1) The court may order, or invite the parties to proceedings before the court to ask the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention: (a) to assume jurisdiction under Article 8 of the Convention for protecting the person of the child; and (b) as the competent authority considers necessary, to take measures to protect the person of the child; and (c) to report to the court about the outcome of the request. (2) In addition, the court may make any other order it considers necessary for an order under subsection (1). [page 1068] (3) The court may only make the order or issue the invitation

under subsection (1) if the court considers that the competent authority is better placed to assess the child’s best interests. (4) The court may accept or reject a request under Article 9 of the Child Protection Convention made by, or at the invitation of, a competent authority of a Convention country described in Article 8, paragraph 2 of the Convention, for the competent authority to assume jurisdiction to take a measure for protecting the person of the child. (5) If the competent authority assumes jurisdiction under the request, a court must not exercise jurisdiction in accordance with paragraph 111CD(1)(a), subparagraphs 111CD(1)(b)(iii) to (vi), or paragraph 111CD(1)(c) or (d), while the competent authority continues to exercise its jurisdiction.

[s 111CI] When a certain Commonwealth personal protection measure lapses 111CI (1) A Commonwealth personal protection measure relating to a child that is taken by a court exercising jurisdiction in accordance with subparagraph 111CD(1)(b)(i) or (ii) lapses if: (a) a foreign personal protection measure relating to the child is taken by a competent authority of a Convention country; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to the competent authority of the Convention country by,

or at the invitation of, a competent authority of the country of the child’s habitual residence; (iv) a competent authority of the country of the child’s habitual residence agrees to the competent authority of the Convention country assuming jurisdiction; (v) a competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (2)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (2) Subparagraph (1)(b)(v) only applies if: (a) one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are started; and (b) one or both of the parents has parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of

their marriage have not been finalised. [page 1069] (3) A Commonwealth personal protection measure relating to a child that is taken by a court exercising jurisdiction in a case of urgency, or in the taking of a measure of a provisional character, lapses if: (a) a measure required by the situation for protecting the person of the child is taken by a competent authority of a non-Convention country; and (b) the measure is registered: (i) in accordance with regulations made for the purposes of section 70G; or (ii) under a law of a State or Territory.

Subdivision C — Jurisdiction for decisions about a guardian of a child’s property [s 111CJ]

Application of this Subdivision

111CJ This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to appoint, or determine the powers of, a guardian of a child’s property: (a) a central authority or competent authority of a Convention country; (b) a competent authority of a non-Convention country.

[s 111CK] Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property 111CK (1) A court may exercise jurisdiction for a Commonwealth property protection measure only in relation to: (a) a child who is habitually resident in Australia; or (b) a child who is habitually resident in a Convention country, if: (i) the protection of the child’s property in Australia requires taking the measure as a matter of urgency; or (ii) the measure is provisional and limited in its territorial effect to property in Australia; or (iii) a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or (iv) a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or (v) the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or (vi) the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or (c) a child who is present in Australia and is a refugee child;

or (d) a child who is present in a non-Convention country, if: (i) the child is habitually resident in Australia; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or (e) a child who is present in Australia, if: (i) the child is habitually resident in a non-Convention country; and (ii) any of paragraphs 69E(1)(b) to (e) applies to the child. [page 1070] (2) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention. (3) A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) for a Commonwealth property protection measure relating to a child if: (a) one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the court to take the measure is accepted by the parents and each other person with

parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised. (4) Paragraphs (1)(a) to (c) are subject to the limitations in sections 111CL, 111CM and 111CO.

[s 111CL] Limitation when a child is wrongfully removed from or retained outside a Convention country 111CL A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CK(1)(a), (b) or (c) to take a Commonwealth property protection measure relating to a child if: (a) the child has been wrongfully removed from or retained outside a Convention country; and (b) an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

[s 111CM] Limitations when prior proceedings pending in a Convention country 111CM (1) This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CK(1)(a), subparagraph 111CK(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CK(1)(c). (2) The court must not exercise that jurisdiction to take a

Commonwealth property protection measure relating to a child if: (a) a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of proceedings before the court; and (b) any of the following applies: (i) the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to a competent authority of the country of the child’s habitual residence or country of refuge; (iv) a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority assuming jurisdiction; [page 1071] (v) the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

(3) Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if: (a) one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are commenced; and (b) one or both of the parents have parental responsibility for the child; and (c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised. (4) Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought.

[s 111CN] If a court is asked to assume jurisdiction 111CN (1) A court may, if it considers that it is in the child’s best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth property protection measure relating to the child. (2) A court may order, or invite the parties to proceedings

before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate: (a) to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth property protection measure relating to the child; (b) to report to the court about the outcome of the request. (3) The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child’s best interests.

[s 111CO] Limitation if a competent authority of a Convention country is asked to assume jurisdiction 111CO (1) The court may order, or invite the parties to proceedings before the court to ask the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention: (a) to assume jurisdiction under Article 8 of the Convention for appointing, or deciding the powers of, a guardian of the child’s property; and [page 1072] (b) as the competent authority considers necessary, to take a

measure appointing, or deciding the powers of, a guardian of the child’s property; and (c) to report to the court about the outcome of the request. (2) In addition, the court may make any other order it considers necessary for an order under subsection (1). (3) The court may only make the order or issue the invitation under subsection (1) if the court considers that the competent authority is better placed to assess the child’s best interests. (4) The court may accept or reject a request under Article 9 of the Child Protection Convention made by, or at the invitation of, a competent authority of a Convention country described in Article 8, paragraph 2 of the Convention, for the competent authority to assume jurisdiction to take a measure for the protection of the child’s property. (5) If the competent authority assumes jurisdiction under the request, a court must not exercise jurisdiction in accordance with paragraph 111CK(a) or subparagraphs 111CK(1)(b)(iii) to (vi) or paragraph 111CK(1)(c), while the competent authority continues to exercise its jurisdiction.

[s 111CP] When a certain Commonwealth property protection measure lapses 111CP (1) A Commonwealth property protection measure relating to a child that is taken by a court exercising jurisdiction in accordance with subparagraph 111CK(1)(b)(i) or (ii) lapses if: (a) a foreign property protection measure relating to the child is taken by a competent authority of a Convention country; and (b) any of the following applies:

the child is habitually resident in the Convention country; (ii) the child is present in the Convention country and is a refugee child; (iii) a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child’s habitual residence; (iv) a competent authority of the country of the child’s habitual residence agrees to the competent authority of the Convention country assuming jurisdiction; (v) a competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (2)); (vi) the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention. (2) Subparagraph (1)(b)(v) only applies if: (a) one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are started; and (b) one or both of the parents have parental responsibility for the child; and (i)

[page 1073]

(c) the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and (d) the exercise of jurisdiction to take the measure is in the best interests of the child; and (e) the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised. (3) A Commonwealth property protection measure relating to a child that is taken by a court exercising jurisdiction in a case of urgency, or in the taking of a measure of a provisional character, lapses if: (a) a measure required by the situation for the appointment, or the determination of the powers, of a guardian for a child’s property is taken by a competent authority of a non-Convention country; and (b) the measure is registered: (i) in accordance with regulations made for the purposes of section 70G; or (ii) under a law of a State or Territory.

Subdivision D — Applicable law [s 111CQ]

Meaning of law

111CQ In this Subdivision: law does not include choice of law rules.

[s 111CR]

Applicable law generally

111CR (1) This section applies to a court exercising jurisdiction in accordance with Subdivision B or C. (2) The court must apply the law of Australia in exercising that jurisdiction. (3) However, the court may in exceptional circumstances apply or take into account the law of another country with which: (a) a child has a substantial connection; or (b) a child’s property is substantially connected; if the court considers the protection of the person of the child, or the child’s property, requires the court to do so. (4) In subsection (2): law of Australia means: (a) law in force throughout Australia; or (b) law in force in a part of Australia; and includes the principles and rules of the common law and of equity as so in force.

[s 111CS] Applicable law concerning parental responsibility 111CS (1) The principles set out in this section apply despite anything in this Act. (2) The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by operation of law (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence.

[page 1074] (3) The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by an agreement or a unilateral act (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence when the agreement or act takes effect. (4) The exercise of parental responsibility for a child is governed by the law applying in the country of the child’s habitual residence. (5) If a child’s country of habitual residence changes to another country: (a) parental responsibility for the child that exists under the law applying in the country in which the child was habitually resident continues to exist; and (b) the circumstances in which parental responsibility for the child is attributed by operation of law to a person who does not already have such responsibility are governed by the law applying in the country of the new habitual residence; and (c) the exercise of parental responsibility for the child is governed by the law applying in the country of the new habitual residence. (6) Despite subsections (2) to (5), if: (a) the law that applies because of this section is the law of a non-Convention country; and (b) the choice of law rules of that non-Convention country designate that the law of another non-Convention

country applies; and (c) the other non-Convention country would apply its own law; the law of that other non-Convention country applies instead. (7) The parental responsibility referred to in subsection (2), (3), (4) or (5) may be ended, or the conditions of its exercise changed, by a measure taken in accordance with section 111CD or s111CK. (8) A court need not apply a principle set out in subsection (2), (3), (4) or (5) if, on the application of an interested person, the court considers that doing so would be manifestly contrary to public policy having regard to the best interests of the child concerned.

Subdivision E — Recognition of foreign measures [s 111CT]

Effect of registered foreign measures

111CT (1) This section applies to a foreign measure that is registered in a court in accordance with regulations made for the purposes of section 111CZ. (2) The foreign measure: (a) has the same force and effect as a Commonwealth personal protection measure or a Commonwealth property protection measure (as appropriate); and (b) prevails over any earlier inconsistent measure in force in Australia, including: (i) an order registered under section 70D or 70G; or (ii) any other order made, or agreement registered, under this Act.

Subdivision F — Co-operation [s 111CU] child

Obligation to obtain consent to place

111CU (1) A court must obtain the consent of a competent authority of a Convention country before placing a child in a foster family, or in institutional care, in the Convention country. [page 1075] (2) Before placing a child, the court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to consult a competent authority of the Convention country concerned. (3) If the court orders the Commonwealth central authority to consult, then the court must provide the Commonwealth central authority with a report on the child and the reasons for the proposed placement.

[s 111CV] Obligation to inform competent authority about serious danger to a child 111CV (1A) This section covers: (a) a court; and (b) the Registrar or a Deputy Registrar of a Registry of the Family Court of Australia; and (c) the Registrar or a Deputy Registrar of a Registry of the Family Court of a State; and

(d) (e) (f) (g) (h) (i)

a Registrar of the Federal Circuit Court of Australia; and a family consultant; and a family counsellor; and a family dispute resolution practitioner; and an arbitrator; and the provider of a course, program or service which a person is ordered to participate in under this Act.

[subs (1A) insrt Act 46 of 2006 s 3 and Sch 4 item 67, opn 1 July 2006; am Act 13 of 2013 s 3 and Sch 2 item 2, opn 12 Apr 2013]

(1) A court or person covered by this section must inform a competent authority of another country about any information the court or person may have about any serious danger to a child: (a) whose residence has moved from Australia to the other country; or (b) who is present in the other country. [subs (1) am Act 46 of 2006 s 3 and Sch 4 item 68, opn 1 July 2006]

(2) Subsection (1) has effect despite any obligation of confidentiality imposed on the court or a person by this Act, any other law or anything else (including a contract or professional ethics). (3) A person is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of the provision of information under subsection (1). (4) Evidence of the provision of information under subsection (1) is not admissible in any: (a) court (whether or not exercising jurisdiction under this Act); or (b) tribunal or other body concerned with professional

ethics; except where that evidence is given by the person who provided the information. (5) [subs (5) rep Act 46 of 2006 s 3 and Sch 4 item 69, opn 1 July 2006]

[s 111CW] Court proceedings dealing with whom a child spends time with 111CW (1) A court hearing proceedings under Part VII (Children) or regulations made for the purposes of section 111B dealing with: [page 1076] (a) whom a child is to spend time with; or (b) whom a child is to communicate with; must admit into evidence and consider the findings (if any) of a competent authority of a Convention country on the suitability of a parent as a person for the child to spend time with or communicate with. (2) The court may adjourn the proceedings pending the outcome of a request by a parent of the child to a competent authority of a Convention country for a finding on the suitability of the parent as a person for the child to spend time with or communicate with. (3) On the application of a parent who is an Australian resident seeking to have, or to continue to have, a child spend time with or communicate with the parent, a court may: (a) admit evidence; and (b) make a finding on the suitability of that parent as a

person for the child to spend time with or communicate with; and (c) specify conditions on which the child is to spend time with or communicate with the person. [s 111CW subst Act 46 of 2006 s 3 and Sch 8 item 100, opn 1 July 2006]

[s 111CX] Jurisdiction for a location order or a Commonwealth information order 111CX A court may make a location order under section 67M or a Commonwealth information order under section 67N for the purposes of the Child Protection Convention.

[s 111CY] Giving information to central authorities and competent authorities in Convention countries 111CY (1) This section applies to: (a) a court; and (b) the Commonwealth central authority; and (c) central authorities of Australia appointed as mentioned in Article 29, paragraph 2, of the Child Protection Convention; and (d) other competent authorities of Australia. (2) If it would be consistent with this Division or the Child Protection Convention to do so, the court or authority may give information to: (a) a court or an authority of Australia to which this section applies; or (b) a central authority or other competent authority of a

Convention country.

Subdivision G — Regulations [s 111CZ] Regulations to implement the Convention 111CZ (1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Child Protection Convention. (2) Regulations made for the purposes of this section may, in particular: [page 1077] (a) provide that the regulations do not affect the operation of laws of a State or Territory that relate to the implementation of the Child Protection Convention; and (b) provide that specified provisions of the Child Protection Convention have the force of law in Australia; and (c) include a list of Convention countries or territorial units of Convention countries. (3) Regulations made for the purposes of this section may: (a) confer jurisdiction on a federal court (other than the High Court) or a court of a Territory; or (b) invest a court of a State with federal jurisdiction. Such jurisdiction is in addition to any other jurisdiction provided for under this Act.

(4) Regulations made for the purposes of subsection (3) may make different provision in respect of matters arising in relation to different States or Territories. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901. (5) Subsections (2), (3) and (4) do not, by implication, limit subsection (1). DIVISION 5 — OTHER MATTERS [Div title insrt Act 69 of 2002 s 3 and Sch 1 item 25, opn 1 Aug 2003]

[s 111D] evidence

Regulations may provide for rules of

111D (1) Regulations made for the purposes of Part XIIIAA may make provision in relation to the rules of evidence that are to apply in proceedings under those regulations. (2) Such provisions have effect despite any inconsistency with the Evidence Act 1995 or with any other law about evidence. [s 111D insrt Act 143 of 2000 s 3 and Sch 3 item 92 opn 27 Dec 2000]

[s 112] Arrangements with States and Northern Territory 112 2000]

[s 112 rep Act 143 of 2000 s 3 and Sch 3 item 93 opn 27 Dec

[page 1079]

PART XIIIA — SANCTIONS FOR FAILURE TO COMPLY WITH ORDERS, AND OTHER OBLIGATIONS, THAT DO NOT AFFECT CHILDREN [Pt XIIIA insrt Act 182 of 1989 s 17] Heading am Act 143 of 2000 s 3 and Sch 1 item 10 opn 27 Dec 2000

DIVISION 1 — INTERPRETATION

[s 112AA]

Interpretation

112AA In this Part: access order [def rep Act 167 of 1995 s 44]

applicable Rules of Court means: (a) in the case of the Federal Circuit Court of Australia — Rules of Court made under the Federal Circuit Court of Australia Act 1999 to the extent to which those Rules of Court relate to this Act; or (a) in any other case — Rules of Court made under this Act. [def insrt Act 143 of 2000 s 3 and Sch 1 item 11 opn 27 Dec 2000; am Act 13 of 2013 s 3 and Sch 1 item 305, Sch 2 item 2, opn 12 Apr 2013]

applied provisions, in relation to a sentence passed or an order made pursuant to paragraph 112AD(2)(b), means the

provisions of the laws of a State or Territory, as modified by regulations under subsection 112AG(5), that, because of regulations under that subsection, apply in relation to the sentence or order. [def am Act 143 of 2000 s 3 and Sch 1 item 12 opn 27 Dec 2000]

contact order [def rep Act 143 of 2000 s 3 and Sch 1 item 13 opn 27 Dec 2000]

court enforceable agreement means: (a) [repealed] (b) so much of a maintenance agreement as a court has, pursuant to paragraph 87(11)(c), ordered may be enforced as if it were an order of the court; or (c) a maintenance agreement registered in a court under subsection 86(1), or deemed, by subsection 87(6), to be registered in a court. [def am Act 167 of 1995 s 44; Act 143 of 2000 s 3 and Sch 1 item 14 opn 27 Dec 2000]

maintenance order, in relation to a court, means an order made by the court under this Act that deals with the maintenance of a person other than a child. [def insrt Act 143 of 2000 s 3 and Sch 1 item 15 opn 27 Dec 2000]

order under this Act, in relation to a court, means: (a) an order (however described) made by the court under this Act (other than a parenting order); or (b) an injunction granted by the court under section 90SS or 114 except in so far as the injunction is for the protection of a child; or (c) an undertaking given to, and accepted by, the court in proceedings under this Act other than proceedings that

relate wholly or partly to, or to the making of, a parenting order; or [page 1080] (d) a subpoena issued under the applicable Rules of Court in proceedings under this Act other than a subpoena issued in, and so issued to a party to, proceedings that relate wholly or partly to, or to the making of, a parenting order; or (e) a court enforceable agreement; or (f) a bond: (i) entered into under an order of a court under this Act other than an order under Division 13A of Part VII; or (ii) entered into for the purposes of subsection 112AE(5); and includes an order, injunction, agreement or bond that: (g) is an order under this Act made by another court because of paragraph (a), (b), (e) or (f); and (h) has been registered in the first-mentioned court. [def subst Act 143 of 2000 s 3 and Sch 1 item 16 opn 27 Dec 2000; am Act 115 of 2008 s 3 and Sch 1[84], opn 1 Mar 2009] [s 112AA am Act 23 of 1992 Sch]

COMMENTARY ON SECTION 112AA Introductory comments …. “Order under this Act” …. Orders to which Pt XIIIA specifically does not apply …. Whether sanctions for other children-related orders fall within Pt XIIIA …. Undertakings …. Bonds …. Registered orders of other courts applying the Family Law Act: paras (g) and (h) ….

[s 112AA.1] [s 112AA.5] [s 112AA.6] [s 112AA.7] [s 112AA.10] [s 112AA.11] [s 112AA.15]

[s 112AA.1] Introductory comments Section 112AA is a definition section, defining key terms used in Pt XIIIA. Only those definitions requiring some comment will be discussed. Before the 2000 Act, Pt XIIIA dealt with sanctions for non-compliance with orders of all kinds made under the Act. As a result of the 2000 amendments, however, broadly speaking sanctions relating to children’s orders are now dealt with in Pt VII Div 13A, and sanctions relating to other orders under the Act continue to be dealt with under Pt XIIIA. [s 112AA.5] “Order under this Act” Introductory comment This is a critical definition, since the operative provisions in Pt XIIIA provide sanctions for failure to comply with breach of certain orders made under the Act. This definition tells us what orders are involved. Parenting orders and other children orders excluded The term “order under this Act” is defined to mean something quite different, namely, in summary, orders under the Act other than parenting orders and some other orders relating to children. This awkward and confusing terminology results from the 2000 Act, which amended Pt XIIIA to eliminate references to orders relating to children. Broadly speaking, the provisions for sanctions relating to these orders have been relocated to Div 13A of Pt VII (Children), which deals with sanctions relating to parenting orders and Pt XIIIA provides for

sanctions relating to breach of other orders. A more detailed treatment is provided in the following paragraphs. [s 112AA.6] Orders to which Pt XIIIA specifically does not apply The definition specifically provides (by way of express exceptions) that the following orders are not covered by Pt XIIIA. [page 1081] A parenting order “Parenting order” is defined in s 64B. It includes orders dealing with parental responsibility and orders dealing with the persons with whom a child is to live, or have contact. An injunction under s 114 or s 90SS in so far as it is for the protection of a child The scope of this provision would seem to be rather limited, since injunctions for the protection of children would generally be made under s 68B (in Pt VII Div 13A). The application of this provision might be troublesome if an injunction were to be granted (as the provisions seems to assume it might be) partly to protect a child and partly for some other purpose. To avoid such difficulties, it might be desirable (RC) to avoid making orders or granting injunctions under s 114 or 90SS that have both child-related and other purposes, and instead make separate orders or injunctions, using both s 114 (or 90SS) and s 68B, even if there is some overlap in the restrictions that the orders create… An undertaking given to and accepted by a court in proceedings that relate wholly or in part to a parenting order, or to the making of a parenting order An example would be an undertaking, given and accepted in parenting proceedings, not to allow a child to have contact with a particular person, or not to change a child’s residence, or a child’s surname, without giving prior notice to the other party. Proceedings for contravention of such an undertaking could be brought under Pt VII Div 13A. A subpoena issued in proceedings that relate wholly or in part to a parenting order, or to the making of a parenting order Thus, for example,

contravention proceedings alleging a failure to comply with a subpoena to produce documents in connection with parenting proceedings, or proceedings for property orders and parenting orders, would fall outside Pt XIIIA but could be taken under Pt VII Div 13A. A court enforceable agreement Defined earlier in s 112AA. A bond entered into under an order under Div 13A of Pt VII That is, a bond entered into following proceedings for sanctions arising from noncompliance with orders relating to children under Pt VII. [s 112AA.7] Whether sanctions for other children-related orders fall within Pt XIIIA On a literal reading of the provisions, Pt XIIIA applies to all proceedings for sanctions for non-compliance with all orders under the Act, other than those specifically excluded under paras (a)–(h) of s 112AA, of which the relevant ones are summarised above. But there are other orders that could be made under Pt VII (children). For example, a person could be in breach of an injunction under s 68B for the protection of a child. Should proceedings for a sanction be brought under Pt XIIIA? A literal reading of s 112AA would suggest the answer is yes. But it seems unlikely that this was intended, because there are detailed provisions for contravention proceedings of a s 68B injunction in Pt VII Div 13A; and because s 112AA goes to the trouble of excluding an injunction under s 114 that is for the protection of children. Even if the literal words of Pt XIIIA would include contravention proceedings in relation to some categories of some child-related orders, it seems obviously desirable that any such proceedings that fall within the scope of Pt VII Div 13A should be brought under that Division. Contravention proceedings for the breach of orders made under Pt VII but are neither excluded by s 112AA and nor provided for in Pt VII Div 13A can be dealt with under Pt XIIIA, even if they relate to children. An example is a breach of a recovery order made under s 67U. Such an order is not included in the s 4 definition of ‘orders affecting children’ and thus cannot be the subject of contravention proceedings under Pt VII Div 13A (see s 70NAA(1) and the s 4 definition of ‘primary order’ and, eg s 70NEA). Proceedings for

breach of such a recovery order would therefore fall under Pt XIIIA. [s 112AA.10] Undertakings The express inclusion of undertakings confirms previous case law, stressing the seriousness of undertakings, and stating that they have the same force as an [page 1082] injunction and that a breach of them is contempt: In the Marriage of Shulsinger (1976) 2 Fam LR 11,611 at 11,617; FLC 90–207; In the Marriage of Arthur (1986) 10 Fam LR 732; FLC 91–717 (undertaking to registrar). Undertakings going beyond court’s jurisdiction Difficulties can arise in unusual cases where the undertaking relates to a matter in respect of which the court could not have issued an order: see the arguments raised in In the In the Marriage of Opperman (1978) 4 Fam LR 135; 33 FLR 248; FLC 90–275 and In the Marriage of Shulsinger (1976) 2 Fam LR 11,611; FLC 90–207. It is submitted, however, that the contempt lies in the breach of an undertaking to the court (which will normally have acted in reliance on the undertaking), and does not depend on whether the undertaking should have been accepted by the court. Where objection is taken to the undertaking, the proper course would surely be to apply for discharge from the undertaking. The propriety of the court’s acceptance of the undertaking may, however, be relevant to whether any penalty should be imposed: see In the Marriage of Shulsinger at Fam LR 11,611. [s 112AA.11] Bonds The section includes bonds (Including bonds under s 112AE(5) (release from prison)), but excludes bonds entered into under a Part VII Div 13A order. [s 112AA.15] Registered orders of other courts applying the Family Law Act: paras (g) and (h) Despite the odd choice of language (‘because of’) and the misleading format (it makes no sense to say that an order under this act ‘means . (g) is an order .’) the wording is presumably intended to include any orders of the kinds described in the previous paragraphs made by another

court and registered in the court in which the Pt XIIIA proceedings have been filed (RC). If so, it would have been clearer to have deleted the words after para (f) and instead provided: “(g) an order, injunction, agreement or bond made by another Court, of a kind described in paragraphs (a) to (f), and which has been registered in the first-mentioned Court.” It is disappointing that the drafting problem persists so long after Finn J described the earlier ver-sion of the section as “extremely difficult to understand”: Harvey v Cresswell (1991) 104 FLR 121; 14 Fam LR 809; (1991) FLC 92-232.

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[s 112AB]

Meaning of contravene an order

112AB (1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if: (a) where the person is bound by the order — he or she has: (i) intentionally failed to comply with the order; or (ii) made no reasonable attempt to comply with the order; or (b) in any other case — he or she has: (i) intentionally prevented compliance with the order by a person who is bound by it; or (ii) aided or abetted a contravention of the order by a person who is bound by it. (2) [subs (2) rep Act 143 of 2000 s 3 and Sch 1 item 17 opn 27 Dec 2000] COMMENTARY ON SECTION 112AB Introductory comments ….

[s 112AB.1]

Section does not apply to parenting orders …. Contravention and reasonable excuse …. Contravention by person who is bound by an order …. Intentional failure to comply ….

[s 112AB.2] [s 112AB.5] [s 112AB.8] [s 112AB.10] [page 1083]

No reasonable attempt to comply …. Contravention by person who is not bound by an order ….

[s 112AB.15] [s 112AB.20]

[s 112AB.1] Introductory comments Section 112AB(1) specifies the circumstances in which a person shall be taken to have contravened an order under the Act. Its importance lies in the fact that s 112AD provides a range of sanctions where a person has without reasonable excuse “contravened an order under this Act”. Such a contravention is thus a necessary condition to the application of sanctions under Pt XIIIA. [s 112AB.2] Section does not apply to parenting orders Like other sections in this Part, despite its wording, s 112AB does not apply to parenting orders and certain orders relating to children. See s 112AA, defining “order under this Part”, and accompanying commentary. [s 112AB.5] Contravention and reasonable excuse The provisions of Pt XIIIA follow the ALRC recommendations in providing first for what is a contravention of court orders, and then dealing separately with the question of whether penalties should be imposed: see ALRC 35, para 698. Penalties can be imposed under s 112AD(1) only where there is a contravention of an order as defined in s 112AB and no “reasonable excuse” as defined in s 112AC. [s 112AB.8] Contravention by person who is bound by an order Section 112AB(1)(a) deals with what is contravention by a person who is bound by an order under the Act. Such a person contravenes the order if and only if he or she has intentionally failed to comply with it or made no reasonable

attempt to do so. [s 112AB.10] Intentional failure to comply There will be intentional failure to comply only if the respondent knows of the order: see In the Marriage of Sahari (1976) 2 Fam LR 11,126 at 11,138; FLC 90–086. See also In the Marriage of Georgopoulos (1982) 8 Fam LR 807; FLC 91–305; In the Marriage of Angelis (1978) 4 Fam LR 337; FLC 90–503. [s 112AB.15] No reasonable attempt to comply The above authorities also suggest that a respondent who did not know of an order could not be said to have “made no reasonable effort to comply with the order”. Clearly, however, it is not possible to escape sanctions by closing one’s eyes to the order. Thus if a respondent were to refuse to read an order or respond in any way to efforts to explain its terms, it could readily enough be said that the respondent had made no reasonable effort to comply with it. In Fauna Holdings Pty Ltd v Mitchell (2000) 27 Fam LR 81; FLC 93–053, the Full Court held that s 112AB(1)(a)(i) requires that the act be intentional as distinct from “casual, accidental or unintentional”. It does not require that the person intended to breach the order and defy the authority of the court. The Full Court there declined to reconsider the correctness of earlier statement to the same effect: In the Marriage of Hay (1998) 23 Fam LR 247; FLC 92–819, Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383 at 399–400; FLC 92–866. There is older authority to the effect that an attempt to do something that is forbidden by a court order (the respondent had placed an advertisement seeking to contact a child when the order was that she should not contact the child) is not a contravention of the order: Mileham v Talbot (unreported, 24 June 1997, No SA 9 of 1997, FC). However such conduct today would be likely to constitute a contravention because of the words of s 112AB(1)(a)(ii) (“made no reasonable attempt to comply with the order”). [s 112AB.20] Contravention by person who is not bound by an order Introductory comment Section 112AB(1)(b) deals with what is contravention by a person who is not bound by an order under the Act. Such a person contravenes the order if and only if he or

[page 1084] she has intentionally prevented compliance with the order by a person who is bound by it, or aids and abets a contravention of the order by a person who is bound by it. Aid or abet It is submitted that these words bear their ordinary meaning under the criminal law.

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[s 112AC] Meaning of reasonable excuse for contravening an order 112AC (1) The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2). [subs (1) am Act 167 of 1995 s 46; Act 143 of 2000 s 3 and Sch 1 item 18 opn 27 Dec 2000]

(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if: (a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and (b) the court is satisfied that the respondent ought to be excused in respect of the contravention. (3) [subs (3) rep Act 143 of 2000 s 3 and Sch 1 item 19 opn 27 Dec 2000]

(4) [subs (4) rep Act 143 of 2000 s 3 and Sch 1 item 19 opn 27 Dec

2000]

(5) [subs (5) rep Act 143 of 2000 s 3 and Sch 1 item 19 opn 27 Dec 2000] COMMENTARY ON SECTION 112AC Reasonable excuse — purpose and structure of s 112AC …. Inclusive definition …. Not applicable to children orders …. Reasonable excuse that respondent did not understand obligations, and ought to be excused: subs (2) ….

[s 112AC.1] [s 112AC.2] [s 112AC.3] [s 112AC.10]

[s 112AC.1] Reasonable excuse — purpose and structure of s 112AC Under s 112AD, a person cannot be penalised for contravening an order unless the court is satisfied that the person has contravened the order without reasonable excuse. Section 112AC sets out some circumstances that constitute a reasonable excuse. [s 112AC.2] Inclusive definition The section clearly provides that the circumstances constituting a reasonable excuse are not limited to those set out in subs (2). Thus circumstances falling outside subs (2) might constitute a reasonable excuse. “The circumstances in which a person may be taken to have had, for the purposes of Pt XIIIA, a reasonable excuse include but are not limited to those specified in s 112AC: s 112AC(1)”: Northern Territory of Australia v GPAO (1999) 161 ALR 318; 24 Fam LR 253 at 258; FLC 92– 838, per Gleeson CJ and Gummow J. This is an important point. It is a bad mistake to assume that because a respondent cannot find something in s 112AC to support a defence of reasonable excuse, no such defence exists. An example of such a circumstance, perhaps, would be that the person was unable to comply with an order. [s 112AC.3] Not applicable to children orders Despite the general reference to “an order under this Act”, s 112AC, like the rest of Pt XIIIA, does not apply to sanctions for parenting orders and certain other orders

relating to children: see s 112AA and commentary thereto. [s 112AC.10] Reasonable excuse that respondent did not understand obligations, and ought to be excused: subs (2) Introductory comments The respondent has a reasonable excuse under subs (2) if he or she contravened the order because, or substantially because, he or she did not then understand the obligations on the person bound by the order, and the court is satisfied that the respondent ought to be excused. [page 1085] Mistaken belief need not be on reasonable grounds There is no explicit requirement that the respondent’s mistake should be reasonable, although where it is unreasonable the respondent may have difficulty persuading the court that he or she “ought to be excused” under para (b).

____________________ DIVISION 2 — SANCTIONS FOR FAILURE TO COMPLY WITH ORDERS

[s 112AD] orders

Sanctions for failure to comply with

112AD (1) If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances. [subs (1) subst Act 143 of 2000 s 3 and Sch 1 item 20 opn 27 Dec 2000]

(1A) The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court. [subs (1A) subst Act 143 of 2000 s 3 and Sch 1 item 20 opn 27 Dec 2000]

(2) The sanctions that are available to be imposed by the court are: (a) to require the person to enter into a bond in accordance with section 112AF; or (b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or (c) to fine the person not more than 60 penalty units; or (d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE. [subs (2) subst Act 143 of 2000 s 3 and Sch 1 item 20 opn 27 Dec 2000; am Act 138 of 2003 s 3 and Sch 7 item 27 opn 14 Jan 2004]

(2A) The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent. [subs (2A) subst Act 143 of 2000 s 3 and Sch 1 item 20 opn 27 Dec 2000]

(3) An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event. [subs (3) am Act 34 of 1997 s 3 and Sch 7; Act 143 of 2000 s 3 and Sch 1 item 21 opn 27 Dec 2000]

(4) Where a court makes an order under subsection (1), the

court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened. [subs (4) am Act 34 of 1997 s 3 and Sch 7; Act 143 of 2000 s 3 and Sch 1 item 21 opn 27 Dec 2000]

(5) [subs (5) rep Act 143 of 2000 s 3 and Sch 1 item 22 opn 27 Dec 2000] COMMENTARY ON SECTION 112AD Introductory comments …. Section 112AD inapplicable to parenting and children’s orders …. Related provisions …. Definitions of terms used in s 112AD …. Constitutional basis …. Part XIIIA a self-contained code …. Onus of proof ….

[s 112AD.1] [s 112AD.3] [s 112AD.4] [s 112AD.5] [s 112AD.10] [s 112AD.12] [s 112AD.18] [page 1086]

Civil standard applies as result of Evidence Act 1995 (Cth) …. Courts of summary jurisdiction: standard of proof …. Sanctions under s 112AD: subs (2) …. Maintenance orders and imprisonment: subs (2A) …. Extra-territoriality …. Timing of orders: subs (3) …. Other orders: subs (4) ….

[s 112AD.20] [s 112AD.25] [s 112AD.28] [s 112AD.30] [s 112AD.35] [s 112AD.37] [s 112AD.38]

[s 112AD.1] Introductory comments Section 112AD is the key section in Pt XIIIA. It provides that the court may make an order imposing one or more of various specified sanctions on persons who have, without reasonable excuse, contravened orders under the Family Law Act (other than children orders: see s 112AD.3].

History of section Section 112AD was amended by the 2000 Act. The main changes were: To modify the section having regard to the fact that Pt XIIIA now does not apply to parenting and certain other orders relating to children: see s 112AA. This involved removing from the section a number of provisions relating to contravention of such orders. To provide that contravention proceedings can be dealt with even if the respondent has complied with the order before the contravention proceedings come to court: subs (1A). This is a new provision. To change the word “recognizance” to “bond”, and to use the penalty points system rather than specify in the Act such penalties as fines in particular amounts. [s 112AD.3] Section 112AD inapplicable to parenting and children’s orders Despite the general reference to “an order under this Act”, s 112AD, like the rest of Pt XIIIA, does not apply to sanctions for parenting orders and certain other orders relating to children: see s 112AA and commentary thereto. [s 112AD.4] Related provisions Section 112AD must be read with ss 112AB and 112AC, which deal respectively with what constitutes contravention of an order and what counts as a “reasonable excuse”. The following sections of Div 2 make detailed provision concerning associated issues. For convenience, some key points are noted briefly here: The provisions of Div 2 apply to what might be called “ordinary” contraventions of orders. Where a contravention “involves a flagrant challenge to the authority of the court”, Div 3 — Contempt, may be relevant. The provisions of Div 2 do not limit the operation of s 105, which deals with the enforcement of orders: s 112AO. Imprisonment is to be a last resort, and is limited to 12 months: s 112AE. There is provision for arrangements to be made with the states and territories to allow the court to make orders or impose sentences of a kind provided for under the laws of the state or territory, such as

community service orders: s 112AG. Where an act is both a contravention of an order under the Family Law Act and a criminal offence, the person may be charged with the offence, in which case the Family Law Act proceedings will be adjourned or dismissed; but a person cannot be punished twice for the same offence: s 112AM. A sentence under Pt XIIIA is not a “federal sentence” within the meaning of the Crimes Act 1914 (Cth), and neither state remission provisions nor the sentencing principles of the Crimes Act 1914 apply to a sentence under the Part: In the Marriage of Schwarzkopff (1992) 15 Fam LR 545; FLC 92–303 (FC). [s 112AD.5] Definitions of terms used in s 112AD Some of the terms used in s 112AD are defined elsewhere: “contravened an order”: see s 112AB. [page 1087] “without reasonable excuse”: see s 112AC. “order under this Act”: see s 112AA. [s 112AD.10] Constitutional basis The provisions of Pt XIIIA would appear to come with para (f) of “matrimonial cause” as defined in s 4. They would appear to fall within Constitution s 51(xxxix), the “incidental” power. [s 112AD.12] Part XIIIA a self-contained code It has been held that Pt XIIIA should be seen as a self-contained code under which the court may impose “sanctions”. The provisions are “careful to avoid the language of the criminal law, and should not be regarded as part of the criminal law of the Commonwealth”. Consequently, the imposition of a sentence under the Part is not a “federal sentence” within the Crimes Act 1914 (Cth), and neither state remission provisions nor the sentencing principles of the Crimes Act 1914 apply to a sentence under the Part. See In the Marriage of Schwarzkopff (1992) 15 Fam LR 545; FLC 92–303 (FC).

[s 112AD.18] Onus of proof Legal onus on applicant It is submitted that the wording of s 112AD is such that the court may impose a penalty only if it is affirmatively satisfied that the respondent has (i) contravened an order under the Act and (ii) has no reasonable excuse for such contravention. See generally In the Marriage of Sutcliffe (1988) 12 Fam LR 794; (1989) FLC 92–004 (Nicholson CJ, Strauss and Nygh JJ), where there was an extensive discussion of the issue. Tactical onus may arise for respondent In Sutcliffe, above, the Full Court said that where a knowing contravention had been established and an excuse was offered, the prosecution was not required to establish facts from which the absence of reasonable excuse could be inferred: the “tactical” onus of adducing such evidence rested on the respondent. [s 112AD.20] Civil standard applies as result of Evidence Act 1995 (Cth) It has been held by the Full Court that the effect of s 140 of the Evidence Act 1995 (Cth) is to make the standard of proof for all civil proceedings covered by the Act the civil standard on the balance of probabilities; and proceedings under s 112AD are civil proceedings, since they do not constitute an offence against or arising under Australian law. However the Full Court also drew attention to s 140(2), saying that the degree of satisfaction which the civil standard of proof calls for may vary having regard to the gravity of the facts to be proved: In the Marriage of Lindsey (1995) 19 Fam LR 649 at 655–60; FLC 92–638. See also to the same effect In the Marriage of Reilly (1995) 19 Fam LR 213; FLC 92–616 (Halligan JR). As to the standard of proof applicable in proceedings under s 112AP (contempt), see the commentary to that section. [s 112AD.25] Courts of summary jurisdiction: standard of proof The position relating to the standard of proof has been held to be different in the case of s 112AD proceedings in courts of summary jurisdiction, and appeals from them, because the substantive provisions of the Evidence Act 1995 (Cth) do not apply to them: see s 4(1) and (5) of the Evidence Act 1995 (Cth). The standard of proof in those proceedings is that standard established under the relevant state or territory law. See the reasoning in In the Marriage of

Reilly (1995) 19 Fam LR 213; FLC 92–616, and In the Marriage of Lindsey (1995) 19 Fam LR 649; FLC 92–638. [s 112AD.28] Sanctions under s 112AD: subs (2) Subsection (2) sets out exhaustively the sanctions that can be ordered under s 112AD, namely: (a) a bond (formerly known as a recognisance) in accordance with s 112AF; (b) a sentence in accordance with s 112AG (community service orders etc); (c) a fine of up to 60 penalty points; (d) a sentence under s 112AE (imprisonment) (subject to subs (2A)). [page 1088] [s 112AD.30] Maintenance orders and imprisonment: subs (2A) Introduction Subsection (2A) provides that a sentence of imprisonment under s 112AE cannot be imposed unless the court is satisfied that the contravention was “intentional or fraudulent”. This is a new provision, added by the 2000 Act. Its meaning and application remain to be seen. It would seem to mean that imprisonment under s 112AE is not available when the person has made no reasonable attempt to comply with a maintenance order, since such a person would have contravened the order under s 112AB(1)(a)(ii), but the contravention would not be “intentional” under s 112AD(2A), unless the contravention could be described as fraudulent. This would seem to cover the ordinary case of a person who simply does not pay. Maintenance order In Pt XIIIA, “maintenance order” does not include orders for child maintenance: see s 112AA. Related provision: s 107 Reference should also be made to s 107 and the commentary thereto.

[s 112AD.35] Extra-territoriality As to whether the breach must be in Australia, see In the Marriage of Ibbotson and Wincen (1994) 18 Fam LR 164; FLC 92-496 (FC). [s 112AD.37] Timing of orders: subs (3) Orders under subs (1) may be expressed to take effect immediately or at the end of a specified period or on the occurrence of a specified event. It is submitted that “or” should not be read disjunctively here. For example, the order might provide that a penalty will be imposed if after a specified period the respondent has not done something. See generally Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383; FLC 92–866. [s 112AD.38] Other orders: subs (4) The court may make other orders to ensure compliance with the order that was contravened. There appears to be no limitation on the nature of such orders, except that they must be appropriate for the purpose of securing compliance with the contravened order.

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[s 112AE]

Sentences of imprisonment

112AE (1) A sentence of imprisonment imposed on a person pursuant to paragraph 112AD(2)(d) shall be expressed to be: (a) for a specified period of 12 months or less; or (b) for a period ending when the person: (i) complies with the order concerned; or (ii) has been imprisoned pursuant to the sentence for 12 months or such lesser period as is specified by the court; whichever happens first. [subs (1) am Act 143 of 2000 s 3 and Sch 1 item 23 opn 27 Dec 2000]

(2) A court shall not sentence a person to imprisonment pursuant to paragraph 112AD(2)(d) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2). [subs (2) am Act 143 of 2000 s 3 and Sch 1 item 23 opn 27 Dec 2000]

(3) If a court sentences a person to imprisonment pursuant to paragraph 112AD(2)(d), the court shall: (a) state the reasons why it is satisfied as mentioned in subsection (2); and (b) cause those reasons to be entered in the records of the court. [subs (3) am Act 143 of 2000 s 3 and Sch 1 item 23 opn 27 Dec 2000]

[page 1089] (4) The failure of a court to comply with subsection (3) does not invalidate a sentence. (4A) A court that sentences a person to imprisonment under paragraph 112AD(2)(d) may: (a) suspend the sentence upon the terms and conditions determined by the court; and (b) terminate a suspension made under paragraph (a). [subs (4A) insrt Act 98 of 2005 s 2 and Sch 1, cl 9, opn 3 Aug 2005]

(5) A court, when sentencing a person to imprisonment under paragraph 112AD(2)(d) may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a

specified part of the term of imprisonment. [subs (5) subst Act 143 of 2000 s 3 and Sch 1 item 24 opn 27 Dec 2000]

(6) A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years. [subs (6) subst Act 143 of 2000 s 3 and Sch 1 item 24 opn 27 Dec 2000]

(7) Without limiting the circumstances in which a court may discharge an order under section 112AK, a court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned. (8) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order does not affect the person’s liability to make the payment. [subs (8) insrt Act 143 of 2000 s 3 and 1 item 25 opn 27 Dec 2000] COMMENTARY ON SECTION 112AE Introductory comments …. Sentencing principles ….

[s 112AE.1] [s 112AE.2]

[s 112AE.1] Introductory comments Section 112AE makes detailed provision relating to the imposition of a sentence of imprisonment under s 112AD(2)(a). It is sufficient to note the main points: Twelve months maximum The maximum sentence is 12 months: subs (1), in respect of each offence under s 112AD: see In the Marriage of Schwarzkopff (1992) 15 Fam LR 545; FLC 92–303 (FC). Recognisance The court may order that the person be released, either

immediately or after serving a specified period of the sentence, upon entering a recognisance to be of good behaviour for a period of up to two years: subss (5) and (6). Release where person will comply with order The court may order the release of a person sentenced to imprisonment if it is satisfied that if released the person will comply with the order concerned (ie the order that was contravened): subs (7). This is a discretionary matter: a court would not be bound to release a person even if it was satisfied under subs (7). Separate breaches Separate sentences may be imposed for each of several breaches dealt with at one time: see In the Marriage of Schwarzkopff (1992) 15 Fam LR 545 at 553–4; FLC 92–303 (FC). [page 1090] [s 112AE.2] Sentencing principles General principles Imprisonment is to be a “last resort”, in that the court should not sentence a person to imprisonment unless satisfied that it would not be appropriate to deal with the contravention under any of the other paragraphs of s 112AD(2). Further, it should state its reasons for being so satisfied, although failure to do so does not invalidate the sentence: subss (3) and (4). On sentencing generally, see In the Marriage of Schwarzkopff (1992) 15 Fam LR 545 at 554–5; FLC 92–303; In the Marriage of Williams (1992) 16 Fam LR 217; (1993) FLC 92–339; In the Marriage of Ibbotson and Wincen (1994) 18 Fam LR 164; FLC 92–496 (FC).

____________________

[s 112AF]

Bonds

112AF (1) This section provides for bonds that a court may require a person to enter into under paragraph 112AD(2)(a).

(2) A bond is to be for a specified period of up to 2 years. (3) A bond may be: (a) with or without surety; and (b) with or without security. (4) The conditions that may be imposed on a person by a bond include a condition requiring the person to be of good behaviour. (5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed requirement; and (b) the consequences that may follow if the person fails: (i) to enter into the bond; or (ii) having entered into the bond — to act in accordance with the bond. [s 112AF subst Act 143 of 2000 s 3 and Sch 1 item 26 opn 27 Dec 2000] COMMENTARY ON SECTION 112AF Bonds ….

[s 112AF.1]

[s 112AF.1] Bonds Meaning of terms Briefly, a bond is an obligation entered before a court, to secure the performance of some act, such as to appear in court, or be of good behaviour; a surety is a person who binds himself or herself to perform the obligations of another; a security is property or money against which a person has a right of resort for the satisfaction of some demand. Specified period The bond must be for a specified period of up to two years: subs (2). Sureties, security The bond may be with or without sureties, and with or

without security: subs (3). Conditions There is no limit to the conditions that can be imposed, but they include conditions requiring counselling, and to be of good behaviour: subs (4). Explanation The court is under an obligation to explain the purpose and effect of the recognisance, and the consequences of failing to enter into it, or of failing to comply with its conditions: subs (5).

____________________ [page 1091]

[s 112AG]

Additional sentencing alternatives

112AG (1) Subject to this section, where: (a) under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to impose a sentence by order or make an order of a kind to which subsection (3) applies in respect of a person convicted of an offence against the law of the State or Territory; and (b) an arrangement under section 112AN in respect of the State or Territory makes provision for and in relation to the carrying out of sentences imposed, or orders made, of that kind under this Division; a court exercising jurisdiction in the State or Territory may, pursuant to paragraph 112AD(2)(b), impose a sentence or make an order of that kind. [subs (1) am Act 143 of 2000 s 3 and Sch 1 item 27 opn 27 Dec 2000; Act

138 of 2003 s 3 and Sch 7 item 28 opn 14 Jan 2004]

(2) A sentence imposed on a person, or an order directed to a person, pursuant to paragraph 112AD(2)(b): (a) shall be such that the total number of hours during which the sentence or order regulates the conduct of the person does not exceed the maximum period in relation to the State or Territory in which the sentence is imposed or the order is made; and (b) ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order. [subs (2) am Act 143 of 2000 s 3 and Sch 1 item 27 opn 27 Dec 2000]

(3) This subsection applies to sentences or orders of the following kinds: (a) a sentence or order known as: (i) a community service order; (ii) a work order; (iii) a sentence of periodic detention; (iv) an attendance centre order; (v) a sentence of weekend detention; (vi) an attendance order; or (vii) a community based order; (b) a sentence or order that is similar to a sentence or order referred to in paragraph (a); (c) a sentence or order prescribed for the purposes of this subsection. (4) Where a court proposes to impose a sentence on a person, or make an order directed to a person, pursuant to paragraph 112AD(2)(b), it shall, before doing so, explain or cause to be

explained to the person, in language likely to be readily understood by the person: (a) the purpose and effect of the proposed sentence or order; (b) the consequences that may follow if the person fails to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the applied provisions; and (c) if the proposed sentence or order may be revoked or varied under the applied provisions — that the proposed sentence or order may be so revoked or varied. [subs (4) am Act 143 of 2000 s 3 and Sch 1 item 27 opn 27 Dec 2000]

(5) Where a court exercising jurisdiction under section 112AD in a particular State or Territory imposes a sentence or makes an order pursuant to paragraph 112AD(2)(b), the [page 1092] provisions of the laws of the State or Territory with respect to a sentence or order of that kind that is imposed or made under those laws shall, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, apply in relation to the sentence or order. [subs (5) am Act 143 of 2000 s 3 and Sch 1 item 27 opn 27 Dec 2000]

(6) In this section: maximum period, in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory. participating State means a State in relation to which an

agreement under section 112AN is in force. participating Territory means a Territory in relation to which an agreement under section 112AN is in force. COMMENTARY ON SECTION 112AG Introductory comments ….

[s 112AG.1]

[s 112AG.1] Introductory comments Section 112AG provides for the court to impose a sentence not otherwise listed in s 112AD but provided for in the law of a participating state or territory. The section will only operate where arrangements have been made with particular states and territories as provided in s 112AN: see subs (1)(b). For details of such arrangements, see commentary to s 112AN. Background The following extract from the second reading speech of the Minister for Justice, Senator Michael Tate, explains the background and purpose of this section: “A major addition to the range of sentencing options is the inclusion of community-based corrections, such as community service orders. There are a range of such penalties now available to the courts when sentencing a person for offences under the criminal law. The amendments will make such sanctions available in response to civil offences for the first time. The novel use of such sanctions in the civil area was recommended by the Australian Law Reform Commission, and has the support of the Family Law Council. The practical availability of community-based sanctions will depend on negotiations with the states and territories … “An important issue for the courts to consider in determining whether to impose an alternative sentencing option will be whether such a sanction should be an alternative to imprisonment or an alternative to other options. In the Bill no attempt has been made to fetter the discretion of courts in this area. However the government will monitor the use of sentencing alternatives carefully as there could be significant resource implications if an expectation were development that sanctions such as community service orders were the standard sanctions for non-compliance. In the government’s view such a

sanction should be sparingly used.” Senator Tate also said that negotiations with the states and territories would deal with which sanctions would be made available by each state and territory, the number of hours that may be served, and payment by the Commonwealth to the states and territories for the use of their services.

____________________

[s 112AH] Failure to comply with sentence passed, or order made, pursuant to paragraph 112AD(2)(b) 112AH (1) This section applies where a court has, pursuant to paragraph 112AD(2)(b): (a) imposed a sentence on a person; or [page 1093] (b) made an order directed to a person. [subs (1) am Act 143 of 2000 s 3 and Sch 1, item 28, opn 27 Dec 2000]

(2) If the court (whether or not constituted by the judge or magistrate who imposed the sentence or made the order) is satisfied that the person has, without reasonable excuse, failed to comply with: (a) the sentence or order; or (b) any requirements made in relation to the sentence or order by or under the applied provisions; the court may take action under subsection (8). [subs (2) subst Act 98 of 2005 s 2 and Sch 1, item 12, opn 3 Aug 2005; am

Act 189 of 2011 s 3 and Sch 2[29], opn 7 Dec 2011; Act 13 of 2013 s 3 and Sch 1 item 306, opn 12 Apr 2013]

(3) [subs (3) rep Act 98 of 2005 s 2 and Sch 1, item 12, opn 3 Aug 2005] (4) [subs (4) rep Act 98 of 2005 s 2 and Sch 1, item 12, opn 3 Aug 2005] (5) [subs (5) rep Act 98 of 2005 s 2 and Sch 1, item 12, opn 3 Aug 2005] (6) [subs (6) rep Act 98 of 2005 s 2 and Sch 1, item 12, opn 3 Aug 2005] (7) [subs (7) rep Act 98 of 2005 s 2 and Sch 1, item 12, opn 3 Aug 2005] (8) The court may: (a) without prejudice to the continuance of the sentence or order, impose a fine not exceeding 10 penalty units on the person; or (b) revoke the sentence or order and, subject to subsection (9), deal with the person, for the contravention in respect of which the sentence was passed or the order was made, in any manner in which he or she could have been dealt with for that contravention if: (i) the sentence had not been imposed, or the order had not been made; and (ii) the person was before the court under section 112AD in respect of the contravention. Note: For the value of a penalty unit, see subsection 4AA(1) of the Crimes Act 1914. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 93B, opn 27 Dec 2000] [subs (8) am Act 143 of 2000 s 3 and Sch 3 item 93A, opn 27 Dec 2000]

(9) In dealing with the person as mentioned in paragraph (8)(b), the court shall, in addition to any other matters that it considers should be taken into account, take into account: (a) the fact that the sentence was imposed or the order was

made; (b) anything done under the sentence or order; and (c) any fine imposed, and any other order made, for or in respect of the contravention. (10) [subs (10) rep Act 98 of 2005 s 2 and Sch 1, item 13, opn 3 Aug 2005] COMMENTARY ON SECTION 112AH Introductory comments ….

[s 112AH.1]

[s 112AH.1] Introductory comments Section 112AH deals, in substance, with a situation where a court has made a community service order, and the person has not complied with it: see ss 112AD(2)(b) and 112AG. It provides, in effect, that in such situations the court may impose a fine not exceeding 10 penalty units on the person. Alternatively, the court may revoke the original community service order and deal with the person afresh for the original contravention, as if the person had not been dealt with, and was before the court under s 112AD for the original [page 1094] contravention. In doing this, it may take into account the fact that the sentence was imposed or the order was made; anything done under the sentence or order; and any fine imposed, and any other order made, in respect of the contravention: see subs (9). The section was amended in 2005. However it applies retrospectively; that is, it applies to failures to comply with orders etc that occur on or after the commencement of the 2005 amendments (3 August 2005).

____________________

[s 112AJ]

Compensatory access orders

112AJ

[s 112AJ rep Act 167 of 1995 s 49]

[s 112AK]

Variation and discharge of orders

112AK (1) Subject to this section, an order made under section 112AD may be varied or discharged: (a) if the court that made the order is the Family Court — by the Family Court; or (b) in any other case — by the court that made the order or the Family Court. (2) A variation of an order under section 112AD shall be such that the order, as varied, is an order that could have been made under that section in respect of the contravention in respect of which the first-mentioned order was made. (3) If a court discharges an order under section 112AD it may, subject to this Division, make another order under that section in respect of the contravention in respect of which the firstmentioned order was made. (4) Where a court varies or discharges an order made under section 112AD, the court may give such directions as to the effect of the variation or discharge as the court considers appropriate. COMMENTARY ON SECTION 112AK Variation and discharge of orders ….

[s 112AK.1]

[s 112AK.1] Variation and discharge of orders Introductory comments Section 112AK provides for orders made under s 112AD to be varied or discharged. Which court? — subs (1) Orders made by the Family Court can be varied or discharged by the Family Court; other orders can be varied or discharged by

the court that made the order or by the Family Court. What variations? — subs (2) The variation shall be such that as varied, the order is such as could have been for the original contravention. Further order after discharge — subs (3) If the court discharges an order, it can make another order under s 112AD in respect of the contravention. Directions — subs (4) The court may give directions as to the effect on a discharge or variation.

____________________

[s 112AL] Welfare of child the paramount consideration 112AL

[s 112AL rep Act 167 of 1995 s 50]

[page 1095]

[s 112AM] other laws

Relationship between Division and

112AM (1) This section applies where an act or omission by a person: (a) constitutes a contravention of an order under this Act; and (b) is also an offence against any law. (2) If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 112AD in respect of the contravention of the order shall either:

adjourn those proceedings until the prosecution has been (a) completed; or (b) dismiss those proceedings. (3) The person may be prosecuted for, and convicted of, the offence. (4) Nothing in this section renders the person liable to be punished twice in respect of the same act or omission. (5) [subs (5) rep Act 143 of 2000 s 3 and Sch 1 item 30 opn 27 Dec 2000] COMMENTARY ON SECTION 112AM Introductory comments …. Relation between Div 2 and criminal proceedings …. Relationship between Divs 2 and 3 ….

[s 112AM.1] [s 112AM.10] [s 112AM.15]

[s 112AM.1] Introductory comments An act or omission may be both a contravention to which Div 2 applies and a breach of the criminal law of a state or territory, or the Commonwealth; and it may also be a contempt under Div 3. This section deals with such situations. [s 112AM.10] Relation between Div 2 and criminal proceedings Person may be prosecuted — subs (3) The provisions of the Family Law Act do not prevent the person from being prosecuted in respect of an act or omission which constitutes a contravention of an order under the Family Law Act. Effect of prosecution on Family Law Act proceedings — subs (2) The Family Court (or other court in which proceedings under this Division are pending) shall either adjourn the proceedings until the prosecution has been completed or dismiss the proceedings. Exercise of discretion Previous case law relating to contempt provides useful guidance as to the exercise of discretion in these cases. Subject to

differences arising from the different emphases in Div 2 and Div 3, similar considerations will apply when a person is brought before the court for contempt in respect of an act which is a criminal offence: see commentary to s 112AP, below, where the question and the case law is considered. Protection against double jeopardy — subs (4) It seems clear that a person who has been punished under the criminal law cannot be penalised under Div 2: subs (4). See In the Marriage of Berry (1977) 6 Fam LN 17 (Watson J), (respondent had been fined for assault; could not be required to enter recognisance in respect of the contempt, since that would be a second punishment prohibited by s 114(6)). [s 112AM.15] Relationship between Divs 2 and 3 Introductory comment Where a contravention of an order within Div 2 also “involves a flagrant challenge to the authority of the court” it may also be dealt with as a contempt: see Div 3, s 112AP. The Act does not expressly state whether it is possible to proceed both under Div 2 and Div 3 in respect of the same contravention. [page 1096] No Div 2 proceedings following contempt proceedings Nothing in s 112AM renders a person liable to be punished twice in respect of the same act or omission: subs (4). It would seem to follow, since Div 2 and Div 3 both involve punishment, that a person dealt with for contempt under s 112AP cannot then be dealt with under Div 2. May contempt proceedings follow Div 2 proceedings? A more difficult question is whether a person dealt with under Div 2 for a contravention may later be dealt with for contempt under s 112AP. It seems that the answer is yes: see commentary to s 112AP.

____________________

[s 112AN] Arrangements with States and Territories for carrying out of sentences and orders 112AN (1) The Governor-General may make arrangements with the relevant authority of a State or a Territory (other than Norfolk Island) for: (a) the exercise of powers, and the performance of functions, by officers of the State or Territory; and (b) the making available of facilities of the State or Territory; for and in relation to the carrying out of sentences imposed, and orders made, under this Division. [subs (1) am Act 59 of 2015 s 3 and Sch 2 item 152, opn 1 July 2016]

(2) In this section: relevant authority means: (a) in relation to a State — the Governor of the State; (b) in relation to the Australian Capital Territory — the Chief Minister of the Australian Capital Territory; (c) in relation to the Northern Territory — the Administrator of the Northern Territory. (d) [repealed] [subs (2) am Act 59 of 2015 s 3 and Sch 2 items 153, 154, opn 1 July 2016] COMMENTARY ON SECTION 112AN Arrangements with states and territories for community service orders etc ….

[s 112AN.1]

[s 112AN.1] Arrangements with states and territories for community service orders etc

Introductory comments Section 112AN provides for arrangements to be made between the Governor-General and the relevant authority of a state or territory relating to the carrying out of sentences and orders under this division. See also s 112AG. Arrangement made with Tasmania An arrangement pursuant to s 112AN(1) was made between the Commonwealth and Tasmania on 2 August 1990, and came into force on 16 August 1990. The arrangement defines “additional sentencing order” as meaning either “a community service order” or any other order or sentence specified or referred to in s 112AG(3) that has been agreed in correspondence between the Commonwealth and Tasmania to be taken to be an additional sentencing order for the purposes of the arrangement. The main provision of the arrangement is as follows: Powers, Functions and Facilities The State shall by its officers exercise the powers and perform the functions and shall make available facilities of the State for or in relation to the carrying out of sentences imposed and [page 1097] orders made of the kind referred to in subs 112AG(3) of the Act so far as the same are available under the law of the State and, without derogating from the generality of the foregoing, shall provide or undertake the following: (a) community service work to be performed pursuant to an additional sentencing order; (b) a pre-sentence report in relation to an additional sentencing order as required by the law of the State; (c) supervision of an additional sentencing order in accordance with the standard required by the law of the State; (d) laying information for any breach of an additional sentencing

order under the relevant law of the State including all work incidental thereto; (e) instructions to the Commonwealth Director of Public Prosecutions or his representative to prosecute for breaches of an additional sentencing order; and (f) any other functions and facilities to enable an additional sentencing order to be complied with under the law of the State. The arrangement also makes provision for payment by the Commonwealth to Tasmania at the rate of $8 per hour of additional sentencing (cl 5). Inquiries Inquiries about the arrangement should be made to the officers in charge. The arrangement provides that the Senior Assistant Secretary, Family Law Branch, Commonwealth Attorney-General’s Department, or other person nominated by the secretary, has responsibility to administer the arrangement on behalf of the Commonwealth. For Tasmania it is the Manager (Community Corrections) in the Department of Community Services, or other person nominated by the Secretary of the State Department. Arrangement with Australian Capital Territory An arrangement pursuant to s 112AN(1) was made between the Commonwealth and the Australian Capital Territory on 27 February 1991 and came into force on 13 March 1991. The definitions in the arrangement, and its main provisions, are in the same terms as those of the arrangement with Tasmania referred to, above, although the rate of payment by the Commonwealth to the Australian Capital Territory is at the higher rate of $10 per hour. Inquiries Inquiries about the arrangement should be made to the officers in charge. The arrangement provides that the Assistant Secretary, Family Law Branch, Commonwealth Attorney-General’s Department, or nominee, has the responsibility for the administration of the agreement on behalf of the Commonwealth. For the Australian Capital Territory the Director, Adult Corrective Services, Department of Justice and Community Services has the responsibility for the administration of the arrangement. Arrangement with Western Australia An arrangement pursuant to s

112AN(1) was made between the Commonwealth and Western Australia on 21 March 1991 and came into force on 5 April 1991. The definitions in the arrangement, and its main provisions are in the same terms as those of the arrangement with Tasmania referred to, above. The rate of payment by the Commonwealth to Western Australia is at the rate of $8 per hour. Inquiries Inquiries about the arrangement should be made to the officers in charge. The arrangement provides that the Assistant Secretary, Family Law Branch, Commonwealth Attorney-General’s Department, or nominee, has the responsibility for the administration of the agreement on behalf of the Commonwealth. For Western Australia the Director of Community Based Corrections in the Department of Corrective Services has the responsibility for the administration of the arrangement. Arrangement with South Australia An arrangement pursuant to s 112AN(1) was made between the Commonwealth and South Australia on 29 January 1991 and came into force on 12 February 1991. The definitions in the arrangement, and its main provisions are in the same terms [page 1098] as those of the arrangement with Tasmania referred to, above. The rate of payment by the Commonwealth to South Australia is at the rate of $8 per hour. Inquiries Inquiries about the arrangement should be made to the officers in charge. The arrangement provides that the Assistant Secretary, Family Law Branch, Commonwealth Attorney-General’s Department, or nominee, has the responsibility for the administration of the agreement on behalf of the Commonwealth. For South Australia the Director, Community Corrections in the Department of Correctional Services has the responsibility for the administration of the arrangement. Arrangement with Queensland An arrangement pursuant to s 112AN(1) was made between the Commonwealth and Queensland on 29 January 1991

and came into force on 12 February 1991. The definitions in the arrangement, and its main provisions are in the same terms as those of the arrangement with Tasmania referred to, above. The rate of payment by the Commonwealth to Queensland is at the rate of $8 per hour. Inquiries Inquiries about the arrangement should be made to the officers in charge. The arrangement provides that the Assistant Secretary, Family Law Branch, Commonwealth Attorney-General’s Department, or nominee, has the responsibility for the administration of the agreement on behalf of the Commonwealth. For Queensland the Director, Community Corrections in the Department of Correctional Services has the responsibility for the administration of the arrangement. Arrangement with Victoria An arrangement pursuant to s 112AN(1) was made between the Commonwealth and Victoria on 18 April 1991 and came into force on 2 May 1991. The definitions in the arrangement, and its main provisions are in the same terms as those of the arrangement with Tasmania referred to, above. The rate of payment by the Commonwealth to Victoria is at the rate of $8 per hour. Inquiries Inquiries about the arrangement should be made to the officers in charge. The arrangement provides that the Assistant Secretary, Family Law Branch, Commonwealth Attorney-General’s Department, or nominee, has the responsibility for the administration of the agreement on behalf of the Commonwealth. For Victoria the Director, Policy and Research Division in the State Attorney-General’s Department has the responsibility for the administration of the arrangement.

____________________

[s 112AO] Division does not limit operation of section 105 112AO Nothing in this Division is intended to limit the operation of section 105. COMMENTARY ON SECTION 112AO Section 105 not limited ….

[s 112AO.1]

[s 112AO.1] Section 105 not limited Nothing in the Division limits s 105, which provides for enforcement of orders under the Family Law Act.

____________________

[page 1099]

PART XIIIB — CONTEMPT OF COURT [Pt XIIIB insrt Act 143 of 2000 s 3 and Sch 1 item 32 opn 27 Dec 2000]

[s 112AP]

Contempt

112AP (1) Subject to subsection (1A), this section applies to a contempt of a court that: (a) does not constitute a contravention of an order under this Act; or (b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court. [subs (1) am Act 143 of 2000 s 3 and Sch 1 item 33 opn 27 Dec 2000]

(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court. [subs (1A) insrt Act 143 of 2000 s 3 and Sch 1 item 34 opn 27 Dec 2000]

(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court. (3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge. [subs (3) am Act 194 of 1999 s 3 and Sch 11[93]]

(4) Where a natural person is in contempt, the court may punish

the contempt by committal to prison or fine or both. (5) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both. (6) The court may make an order for: (a) punishment on terms; (b) suspension of punishment; or (c) the giving of security for good behaviour. (7) Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term. (8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person’s liability to make the payment. [subs (8) insrt Act 143 of 2000 s 3 and Sch 1 item 35 opn 27 Dec 2000]

(9) In this section: order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA. [subs (9) insrt Act 143 of 2000 s 3 and Sch 1 item 35 opn 27 Dec 2000; am Act 46 of 2006 s 3 and Sch 9 item 64, opn 1 July 2006] COMMENTARY ON SECTION 112AP PRELIMINARY Introductory comments …. No inherent contempt powers ….

[s 112AP.1] [s 112AP.5] [page 1100]

General law of contempt applies …. Standard of proof: criminal standard applicable …. Which court? …. Procedural requirements to be complied with …. No warning required …. WHAT CONSTITUTES CONTEMPT Contempts other than contraventions of court’s orders …. Contempts involving contravention of orders and flagrant challenge to court’s authority …. Purging contempt ….

[s 112AP.10] [s 112AP.12] [s 112AP.15] [s 112AP.18] [s 112AP.20]

[s 112AP.25] [s 112AP.30] [s 112AP.62]

CONTEMPT AND OTHER LAWS Contempt and criminal law …. Contempt and Div 2 ….

[s 112AP.35] [s 112AP.40]

SENTENCING Penalties — natural person …. Penalties — corporations …. Associated orders …. Discharge from prison …. Exercise of sentencing discretion ….

[s 112AP.45] [s 112AP.50] [s 112AP.55] [s 112AP.60] [s 112AP.65]

PRELIMINARY [s 112AP.1] Introductory comments Section 112AP gives to courts exercising jurisdiction under the Family Law Act a general contempt power. In combination with s 35, it is the only source of such power. Section 112AP is now the only provision of the Act dealing with contempt, reflecting the “tidying up” effect of the 1989 amendments to the Act. Since many aspects of contempt are common to both Divs 2 and 3, a general treatment appears, above, in the Introduction to Part XIIIA. The following commentary deals with matters specific to s 112AP. Section 35 Section 35 provides that subject to this and any other Act, the Family Court has the same power to punish contempts as is possessed by the

High Court. It is clear that this provision must be read subject to s 112AP, and does not give the Family Court a contempt jurisdiction that exceeds the limitations indicated in s 112AP. In particular, it is submitted that s 35 does not allow the court to punish as contempt a contravention of an order that does not involve a flagrant challenge to the authority of the court: see s 112AP(1)(b). See also commentary to s 35. [s 112AP.5] No inherent contempt powers It has been held that the Family Court has no inherent power to punish for contempt, its powers arise exclusively under statute: see In the Marriage of Vergis (1977) 3 Fam LR 11,398; FLC 90–275 per Emery J. It follows that the scope of the contempt power is limited by s 112AP. Thus, for example, it would not be possible for the Family Court to deal with a person for contempt on the ground that the person contravened a court order, where the contravention did not involve a flagrant challenge to the authority of the court: see s 112AP(2). [s 112AP.10] General law of contempt applies It is submitted that subject to the specific provisions of the Act the general law of contempt applies to contempts of courts exercising jurisdiction under the Family Law Act. Although in some respects there will be a distinctive body of contempt under the Family Law Act, the main purpose of s 112AP is to make the general law of contempt applicable to courts exercising jurisdiction under the Family Law Act. It follows that texts and authorities on the law of contempt will in general apply to the Family Law Act. Leading discussions of contempt law include: Australian Law Reform Commission, Contempt, ALRC 35,

____________________ [page 1101] 1987; A G Shott, Australian Supplement to Borrie and Lowe’s Law of Contempt, Butterworths, Sydney, 1988; J C Miller, Contempt of Court, 2nd ed, 1989 (UK). See also, above, Introduction to Part XIIIA.

[s 112AP.12] Standard of proof: criminal standard applicable The Full Court has held that the standard of proof applicable in proceedings under s 112AP is the criminal standard of proof beyond reasonable doubt: In the Marriage of Tate (2002) 29 Fam LR 195; FLC 93–107 (Ellis and Holden JJ; Kay J not finding it necessary to decide the point). Their Honours followed Witham v Holloway (1995) 183 CLR 525; 131 ALR 401 (HC) after a consideration of the relevant legislative provisions. (Note that the standard has been held to be the civil standard in relation to s 112AD: see the commentary to that section). [s 112AP.15] Which court? A court having jurisdiction under the Act may punish for contempt of that court: subs (2). ALRC’s contrary view As indicated in the passage quoted above, the ALRC considered that in these cases it would not be appropriate for the court whose authority was challenged to deal with the contempt proceedings. The argument was that in such circumstances, as distinct from cases in which a person was punished for disobedience to a court order, the court could not be seen as an independent arbiter of a dispute in which it had no interest: para 561. Applying this approach to family law, the commission wrote that where there had been a flagrant challenge to the Family Court, “the Family Court could not be seen as wholly fair and impartial in dealing with the matter itself”: see ALRC 35, para 642. This view, however, has not prevailed: the Family Court can punish for such contempt. Contempts involving contravention of court orders In the case of a contempt that is a contravention of an order, involving a flagrant challenge to the authority of the court (subs (1)(b)) there may be room for argument if a person is brought before Court A for contempt of an order by Court B. However the correct interpretation in that case is probably that the act involved a flagrant challenge to the authority of Court A. [s 112AP.18] Procedural requirements to be complied with It is well established that in contempt proceedings procedural requirements must normally be strictly adhered to: see LGM & CAM (Contempt) [2008] FamCAFC 1; (2008) 38 Fam LR 229; FLC 93-355, at paragraph 123 (Finn

J); Bande v Cade (2011) 45 Fam LR 376; [2011] FamCAFC 93; BC201150225 (FC). [s 112AP.20] No warning required It has been held that as a matter of law a person can be guilty of contempt without any warning that a proposed course of action or inaction may lead to contempt proceedings, although the absence of such warning may be relevant to penalty: In the Marriage of Nieuwstraten (1987) 11 Fam LR 681; FLC 91–826. WHAT CONSTITUTES CONTEMPT [s 112AP.25] Contempts other than contraventions of court’s orders The section provides that a court having jurisdiction under the Family Law Act may punish a person for contempt of that court: subs (2). The section applies to all contempts that do not constitute contraventions of orders (such being dealt with under Div 2). It also applies to contraventions that involve a flagrant violation of the authority of a court: see below. Examples Examples of contempt which does not involve a contravention of the court’s order include intentional disruption of court proceedings, language or behaviour grossly insulting to the court, physical attacks on court personnel, attempts to bribe or otherwise exert pressure on judges to decide a case in a certain way, and so on. For an extensive discussion of such forms of contempt, see ALRC 35, especially Pts 2 and 3. Reported cases on the use of the contempt power in family law include: In the Marriage of L (1982) 8 Fam LR 360; FLC 91–245 (party refused to [page 1102] answer questions on whereabouts of children); In the Marriage of G (1981) 7 Fam LR 267; FLC 91–042 (child abduction); In the Marriage of Cummings (1976) 2 Fam LR 11,243; FLC 90–100 (breach of non-molestation injunction); In the Marriage of Mulally (1989) 13 Fam LR 499 (solicitor litigant refused in court to comply with order); Re South Australian Telecasters Ltd (1998) 23 Fam LR 692; FLC 92–825 (television program

calculated to lower authority of court and to bring pressure to bear on judicial officer); S v A Solicitor and A Firm of Solicitors (1998) 23 Fam LR 641 (correspondence with registrar not a contempt under s 112AP). Further reading For further details on contempt law, see ALRC 35, and Shott, Australian Supplement to Borrie and Lowe’s Law of Contempt, Butterworths, Sydney, 1988. [s 112AP.30] Contempts involving contravention of orders and flagrant challenge to court’s authority Introductory comments Contravention of orders of courts exercising jurisdiction under the Family Law Act is generally covered by the provisions of Div 2, and is not contempt of court. However where a contempt also “involves a flagrant challenge to the authority of the court” it may be dealt with under s 112AP as a contempt of court. The section applies to a contempt of a court that involves two components. It must be a contempt that: constitutes a contravention of an order; and involves a flagrant challenge to the authority of the court. “Orders” defined The phrase “order under this Act” is defined in s 112AA. It includes an order however described, an injunction, an undertaking, a court enforceable agreement, and a recognisance entered into pursuant to a court order under the Act or entered into for the purposes of s 112AE(5). It includes such orders made by another court and registered in a second court, so that the second court can impose penalties. See s 112AA and commentary thereto. Onus and standard of proof The onus of proof rests upon the applicant, who must establish all elements of the offence beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; (1995) 131 ALR 401; 69 ALJR 847; [1995] HCA 3; Tate and Tate (2002) 169 FLR 190; 29 Fam LR 195; (2002) FLC 93-107; (2002) FamCA 356; Abduramanoski v Abduramanoska (2005) 191 FLR 360; 33 Fam LR 1; (2005) FLC 93-215; [2005] FamCA 88, especially at paragraph [48], referring to s.141 of the Evidence Act 1995 (Cth). See also LGM v CAM (2006) 200 FLR 360; 35 Fam LR 124; (2006)

FLC 93-267, [2006] FamCA 435 (Mead), where it was held that an essential element is knowledge of both the terms of the order breached and of their meaning. (The High Court allowed an appeal from this decision, but only on the point that the Full Court had erred in holding that the rule about legal professional privilege prevented the court from being able to find that the respondent had the necessary knowledge of the order): Mead (2007) 235 ALR 197; 81 ALJR 1185; 36 Fam LR 608; [2007] HCA 25. LGM v CAM (2006) 200 FLR 360; 35 Fam LR 124; (2006) FLC 93-267, [2006] FamCA 435 at para [62], Bryant CJ and Warnick J said “We conclude that, in proceedings under s 112AP of the Act, the contempt can only be found to have been proved beyond reasonable doubt in the Briginshaw sense if each element of the contempt created by the section is thus established. Those elements include knowledge of the order which the wife in this case is alleged to have breached in circumstances constituting a “flagrant challenge to the authority of the court”. It is submitted, however (RC), that the phrase “beyond reasonable doubt in the Briginshaw sense” is confusing and should not be relied upon: there is nothing to suggest that their Honours intended to do more than refer to the criminal standard of proof. (See on this point the High Court transcript of the special leave application in Mead, 2 March 2007.) Knowledge of the order breached The respondent must be proved to have known “not only the contents or terms of the order but also their meaning”: LGM v CAM (2006) 35 Fam LR 124; FLC 93-267; [2006] Fam CA 435; (FC), para [63] (Holden and Coleman JJ), holding on the facts that [page 1103] it was not open to the trial judge to find that the respondent wife had the necessary knowledge of the orders. That decision illustrates that this requirement is of particular importance where the order is made “in terms which a lay person of reasonable intelligence could not be presumed beyond reasonable doubt in the Briginshaw sense to know and understand”. The respondent wife was not in court when the orders were made, nor were the

orders served on her. Holden and Coleman JJ noted that it any communications between the wife’s lawyers and the wife about the meaning of the orders would have been the subject of legal professional privilege: see especially at paragraph [68]. May J, dissenting, relying on passages from Weissensteiner v R (1993) 178 CLR 217; 117 ALR 545 (HC), considered that it was open to the trial judge to infer that the respondent wife was aware of the orders (which had been sought by her lawyers) from her choice not to give evidence or permit her solicitor to do so. “Flagrant challenge to the authority of the court” This phrase is not defined in the Act. The Macquarie Concise Dictionary gives “glaring; notorious; scandalous”. The Australian Law Reform Commission recommended the offence of “flagrant challenge” to the court’s authority. The following passage from ALRC 35, para 561, indicates what the Commission had in mind: Except in a very few cases, where overt defiance of the court is a pronounced element in the situation, it is not the judge or the court that the law is protecting, but the successful party. Therefore, the Commission recommends that the summary procedure be retained as the normal means of punishing disobedience of an order made in favour of a party to civil proceedings … On the very rare occasions that the conduct of the respondent in contempt proceedings arising out of disobedience amounts to a flagrant challenge of the court’s authority it would be inappropriate for the relevant court to impose punishment for the disobedience. In such a case, the focus of the proceedings shifts from merely upholding the rights of the aggrieved party to upholding the authority of the court … State of mind of respondent The authorities are clear that, as it was put in In the Marriage of English (1986) 10 Fam LR 808; FLC 91–729, at Fam LR 814–15; FLC 75–294: it must be established that the respondent knew of the undertaking or order and that his act or omission in breach of that order or undertaking was a wilful, that is, a deliberate act by him as distinct from accidental or inadvertent. It is not necessary in addition to establish that the conduct was contumacious; that is, it is unnecessary to show that the act or

omission was done with a deliberate intention to break or disregard the undertaking or order. This statement has been followed: see In the Marriage of Hay (1998) 23 Fam LR 247; FLC 92–819; Bande v Cade (2011) 45 Fam LR 376; [2011] FamCAFC 93; BC201150225 (FC). In this respect, s 112AP(1)(b) has been held not to depart from the previous general principle that the conduct in question need not be “contumacious” for the purposes of civil contempt. It is clear following the decision in Tate that the mere fact that the proceedings may have concluded will not preclude the court dealing with contempt since it has, at least as a secondary purpose, punishment of the contemnor. See also Bande v Cade (2011) 45 Fam LR 376; [2011] FamCAFC 93; BC201150225 (FC). Whether there was a deliberate intention to breach the order may be very relevant, however, to the question of penalty: In the Marriage of Hay (1998) 23 Fam LR 247; FLC 92–819; Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383; FLC 92–866 (FC). A single breach may suffice The Full Court has held that a flagrant challenge to the authority of the court may be evidenced by one breach; repeated breaches are not a prerequisite. See In the Marriage of Ibbotson and Wincen (1994) 18 Fam LR 164; FLC 92–496 (FC). See also In the Marriage of Hay (1998) 23 Fam LR 247; FLC 92–819 (party obtained $400,000 secured advance in breach of a restraining injunction: held to be contempt under s 112AP). For an example of a single breach falling within the section, and a detailed discussion of sentencing, see Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383; FLC 92–866 (FC). See also In the Marriage of Tate (No 3) (2003) 30 Fam LR 427; FLC 93-138 (FC). [page 1104] Can an attempt to contravene an order be a contempt under s 112AP(1) (b)? In Mileham v Talbot (unreported, 24 June 1997, No SA 9 of 1997), the

Full Court (Lindenmayer, Finn and Dessau JJ) considered contravention proceedings against a person who placed an advertisement seeking to contact a child when an order had been made forbidding her from contacting the child. The Full Court held that there was no contravention, there being “nothing in the Family Law Act which constitutes an attempt to contravene an order an offence or a contravention of such an order”. Such an action would now constitute a contravention for the purpose of Part XIIIA, because s 112AB(1)(a)(ii) provides that a person is taken to have contravened an order under the Act if the person has “made no reasonable attempt to comply with the order”, and also under Part VII Div 13A: s 70NC. However there is no equivalent provision in relation to s 112AP, and thus the proposition in Mileham v Talbot (that an attempt does not constitute a contravention) probably applies. If so, a person who makes an attempt to contravene an order, however flagrant, will not have committed a contempt under s 112AP(1)(b). [s 112AP.62] Purging contempt Especially when the contempt consists of a failure to perform some action, it is common to allow the person to purge his or her contempt, for example by performing the act in question. See generally In the Marriage of Mulally (1989) 96 FLR 398; 13 Fam LR 499; (1990) FLC 92-106; DPP v Channel Four Television (1993) 2 All ER 517; Balogh v Crown Court at St Albans (1975) QB 73; [1974] 3 All ER 283. In some situations, making compensation may be of particular importance in relation to purging contempt: see LGM v CAM (2006) 35 Fam LR 124; FLC 93-267; [2006] Fam CA 435; (FC), para [63] (contempt), at paragraphs 66 - 87. CONTEMPT AND OTHER LAWS [s 112AP.35] Contempt and criminal law Introductory comments The same act may constitute both an offence under a law of a state or territory or the Commonwealth, and a contempt of court. Questions arise as to whether a person can be dealt with both for contempt and under the appropriate criminal law, and if so, whether there are any rules about the sequence of such proceedings.

Person convicted may also be dealt with for contempt It has been held that the fact that the person has been convicted under the criminal law does not prevent the Family Court from dealing with the person for contempt: In the Marriage of Russell (1983) 9 Fam LR 259; FLC 90–279, following In the Marriage of Sahari (1976) 2 Fam LR 11,126; FLC 90–086 (FC). See also ALRC 35, paras 34–5, 611–13. Family court’s discretion If it appears that a person brought before the Family Court for contempt has committed an act that is also a breach of the criminal law, the Family Court has a discretion whether to proceed or adjourn so that the criminal law can take its course. Where the offence is a serious one, involving “public concern”, it may well be appropriate for the Family Court to stay its hand and await the outcome of the criminal proceedings. On the other hand, in altercations between spouses, especially where children are involved, the Family Court may be a more appropriate forum. Difficulties can arise in such proceedings because it may be difficult for the respondent to defend himself or herself “without being caught in the snare of selfincrimination”. These should be taken into account when the court decides whether or not to proceed with the contempt matter. In appropriate cases the Family Court may decline to proceed with the contempt matter unless the applicant undertakes not to pursue the criminal matter. See generally Sahari, above, at 11,139–42. [s 112AP.40] Contempt and Div 2 Can there be double jeopardy between Divs 2 and 3? Section 112AP contains no equivalent to s 112AM(4). Does it follow that a person can be punished twice for the same act or omission, in the (no doubt rare) case where an act is a flagrant challenge to the authority of the court as well as being a contravention under Div 2? [page 1105] Arguments One view might be that the court should presume in the absence of explicit words that the legislature did not intend to depart from the spirit of

the principle against double jeopardy. On the other hand, it is arguable that s 112AM(4) does not preclude a person from being dealt with for contempt under s 112AP: what renders the person liable to double punishment is s 112AP, not s 112AM, and therefore s 112AM(4) does not apply. Further, it is perhaps a coherent legislative scheme that having dealt with contravention of an order as such the court could, in separate proceedings, go on to consider the separate question whether the flouting of the court’s authority requires punishment. See for example, Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 per Barwick CJ at 489: “A contempt in procedure by disobedience of an order of the court or by breach of an undertaking given to it may be accompanied by such contumacy or defiance on the part of the party against whom the contempt proceedings are brought as evidences a criminal as well as a civil contempt. There is no reason in such a case why the same proceedings taken at the instance of the aggrieved suitor may not result in orders which are coercive of compliance with the court’s orders or of an undertaking given to it and at the same time punitive of the criminal contempt …” (quoted in In the Marriage of McJarrow (1980) 6 Fam LR 746; FLC 90–913 at 750) Conclusion It is submitted that it is possible for a person who has been punished for a contravention under Div 2 to be punished further for the same act if it falls within s 112AP. Of course, the court should consider in each case whether further punishment is merited. Which proceeding should go first? More important, perhaps, consistently with the analysis in Sahari, above, it might well be desirable in such cases that the more serious matter, the contempt under s 112AP, should be dealt with first. If the person is punished under s 112AP he or she could not then be punished further under Div 2: see s 112AM(4). SENTENCING [s 112AP.45] Penalties — natural person The court may punish by committal to prison or by fine, or both: subs (4). No upper or lower limit is set to these penalties.

[s 112AP.50] Penalties — corporations The court may punish a corporation that is in contempt by sequestration or fine, or both: subs (5). No limit is set to the amount of any such fine. [s 112AP.55] Associated orders The court may make order for punishment on terms, or suspension of punishment, or giving of security for good behaviour: subs (6). [s 112AP.60] Discharge from prison The court may order the discharge of a person from prison before the expiry of the term of imprisonment: subs (7). [s 112AP.65] Exercise of sentencing discretion Early authorities emphasised that the court’s punitive powers should be used “sparingly and only in exceptional circumstances”: see for example, In the Marriage of Sahari (1976) 2 Fam LR 11,126; FLC 90–086 (FC) and In the Marriage of Cummings (1976) 2 Fam LR 11,243; FLC 90–100 (FC). It may be, however, that the court is now more likely to emphasise the need to deter contempt in the interests of the public, and to mark out disapproval of blatant, conscious and deliberate breaches. See In the Marriage of Ibbotson and Wincen (1994) 18 Fam LR 164 at 176–9; FLC 92–496 (FC), where the authorities are cited. See also [s 112AE.2]. Compare, however, Kendling and Another v Kendling (Contempt) (2008) 220 FLR 399; (2008) 40 Fam LR 134; BC200851265, in which the Full Court upheld an appeal against a sentence of imprisonment and took into account that the respondent had purged his contempt, that the wife had not suffered (the contempts involved breach of orders in a property case), and the respondent’s age, health and lack of relevant prior convictions. The Full Court has identified two main purposes of contempt proceedings: first to persuade a party to comply and secondly to punish non-complying parties: In the Marriage of Tate (No 3) (2003) 30 Fam LR 427; FLC 93-138; Tate and Tate [2003] FamCA 112. In that case the court [page 1106] identified the need for both individual and general deterrence to protect the

system. The judgment adopted the distinction identified by the Australian Law Reform Commission between non-compliance in general civil matters and non-compliance in family law matters noting at [62]: “… the purpose of punishment in family law proceedings was not so much upholding the court’s authority as an end in itself, but in fulfilling the expectations of the litigants themselves that court orders will be obeyed and imposing sanctions if this does not occur.” It is clear following the decision in Tate that the mere fact that the proceedings may have concluded will not preclude the court dealing with contempt since it has, at least as a secondary purpose, punishment of the contemptor. It has been suggested recently, however, that there is, or should be, a general rule that a deliberate intention to breach the injunction should be established before imposing a term of imprisonment: see In the Marriage of Hay (1998) 23 Fam LR 247; FLC 92–819. Other factors in imposing a term of imprisonment will include whether the breach results in any significant detriment to the other party; whether there is a continuing need to ensure compliance with the order; and whether the breach in question involves any violence or interference with another party: see Hay, above. For a detailed discussion, see Rutherford v Marshal of the Family Court of Australia (1999) 25 Fam LR 383; FLC 92–866 (FC). See also Fauna Holdings Pty Ltd v Mitchell (2000) 27 Fam LR 81; FLC 93–053 (FC).

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[page 1107]

PART XIV — DECLARATIONS AND INJUNCTIONS [s 112A] 112A

Interpretation In this Part, marriage includes a void marriage.

[s 112A insrt Act 72 of 1983 s 63] COMMENTARY ON SECTION 112A [s 112A.1] Introductory comment This section was inserted in the Act by the Family Law Amendment Act 1983. It provides that “marriage” includes a void marriage, putting beyond doubt that courts exercising jurisdiction under the Family Law Act can entertain proceedings for, in particular, injunctions in circumstances in which the marriage is void.

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[s 113]

Proceedings for declarations

113 In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified. COMMENTARY ON SECTION 113 Introductory comment …. Relief sought …. General principles …. Consequential orders under section 113 ….

[s 113.1] [s 113.2] [s 113.3] [s 113.4]

Distinction between section 113 declaration and decree of nullity of marriage under section 51 …. Property proceedings under “matrimonial cause” — paragraph (ca)(ii) …. Transsexuals and marriage ….

[s 113.5] [s 113.6] [s 113.7]

[s 113.1] Introductory comment This section, when read with para (b) of the definition of matrimonial cause in s 4(1) of the Act, gives the Family Court power to make declarations as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise. Such a power has been exercised by the ordinary courts before the Family Law Act and by the Family Division of the High Court in England: see P W Young, Declaratory Orders, 2nd ed, 1984, para 2402. The effect of s 113 is that in Australia such applications can only now be filed in the Family Court of Australia or the Family Court of Western Australia or the Supreme Court of the Northern Territory. The jurisdiction has not been given to the Federal Magistrates Court: s 39(5AA). [s 113.2] Relief sought In an application under s 113, the applicant may seek a declaration that a purported marriage, whether celebrated in Australia or abroad, is valid or invalid, or that a purported dissolution or annulment of a marriage, whether pronounced in Australia or abroad, is valid or invalid. The section can also be invoked to test the validity of a decree absolute despite the provisions of s 93: see In the Marriage of Spratley (1976) 3 Fam LR 11,131; (1977) FLC 90–222, and the extensive discussion in Price v Underwood [2009] FamCAFC 127; (2009) 41 Fam LR 614 (FC). [s 113.3] General principles Relief under s 113 is purely discretionary. Section 113 provides that “… the court may make such declaration as is justified”: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90– 307; see also In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91–347. [page 1108]

The term “justified” has its usual meaning of showing a satisfactory reason for making a declaration. The discretion is to make such a declaration as is justified in the sense that it is warranted, or that there are adequate grounds for making it: see In the Marriage of Espie, above. Thus where a decree absolute was issued by administrative error, it was held that a declaration was justified, and the decree absolute was declared to be void and of no effect: In the Marriage of Wardale (1990) 14 Fam LR 195; FLC 92–151. In the early years of the Family Law Act, the jurisdiction to make orders relating to property was more limited than it later became. One basis for jurisdiction was that the property proceedings were in relation to proceedings for “principal relief”, a term that includes applications under s 113. Ingeniously, it was held that property proceedings could be brought in relation to an application for a declaration of the validity of a marriage (even where there was no real dispute about the marriage): In the Marriage of Read (1977) 2 Fam LR 11,596; FLC 90–201. This fiction had a short life. It was duly held that there must be a bona fide dispute about the validity of the marriage, dissolution or annulment. As a matter of law the court should not declare valid a marriage, the validity of which has never been in doubt or where the relief of a declaration can have no effect on the parties, or their status or on any other matter: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307. See also the discussion in In the Marriage of Savage and Hodgson (1982) 8 Fam LR 658; FLC 91–281; In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91–347. See further below, [s 113.6]. It has been held that the court should not exercise its discretion to make the declaration sought where: (a) where there is no dispute and no issue to be determined as where the validity of the marriage in question was never in doubt; (b) where the question is hypothetical, such as where a declaration is sought of the validity of a marriage yet to be celebrated; (c) where the relief sought can have no significant effect, such as where it cannot be shown that the declaration will have any effect on the legal status of the parties; or (d) where the relief is sought for no other reason than to attract the Family Court property jurisdiction under the relevant paragraph of

the definition of matrimonial cause in s 4(1): see In the Marriage of Savage and Hodgson (1982) 8 Fam LR 658; FLC 91–281. [s 113.4] Consequential orders under section 113 Section 113 does not expressly empower a court to make any consequential order when it makes a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage: see In the Marriage of Hodgens (1983) 10 Fam LR 538; (1984) FLC 91–502. However, if a court makes a declaration that a decree absolute of dissolution of marriage or a decree of nullity of marriage made under the Act is void for any reason, the court has inherent power to set the decree aside: see In the Marriage of Hodgens, above. By s 9(3) of the Act an appeal does not lie from a decree of dissolution of marriage after the decree has become absolute. [s 113.5] Distinction between section 113 declaration and decree of nullity of marriage under section 51 A decree of nullity of marriage is simply a declaration that a valid marriage does not exist. There is, therefore, no difference in substance between a declaration of invalidity of marriage under s 113 and a decree of nullity of marriage under s 51. However, a declaration of invalidity of marriage under s 113 is a discretionary remedy, whereas a decree of nullity of marriage is a nondiscretionary remedy. Also, while a decree of nullity can be made only on specified grounds, the validity a purported marriage that has some alleged defect that is not among those grounds can be tested in proceedings under s 113. Thus in Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR 158; FLC 93–087 the applicants obtained a declaration of the validity of their marriage, the court holding that the husband was a man for the purpose of the law of marriage. [page 1109] Any person can commence proceedings for a declaration under s 113; however, by the definition of “matrimonial cause” in para (a)(ii) in s 4(1),

proceedings for a decree of nullity of marriage must be between the parties to the marriage. So far as spouses to a marriage are concerned, a declaration under s 113 or a decree of nullity under s 51 are alternative forms of relief. [s 113.6] Property proceedings under “matrimonial cause” — paragraph (ca)(ii) Prior to the Family Law Amendment Act 1983, the question often arose in what circumstances (if any) proceedings for a declaration under s 113 could properly support property proceedings by virtue of the definition of matrimonial cause in para (ca) in s 4(1). As a result of the Family Law Amendment Act 1983, property proceedings can now be commenced under the Act whenever these proceedings can be classified as “arising out of the marital relationship”: see s 4, “matrimonial cause” para (ca)(i). Property proceedings under the Act no longer need to be associated with any proceedings for principal relief. If, however, a party wishes to commence property proceedings under “matrimonial cause” para (ca)(ii), then the proceedings for a declaration under s 113 cannot properly be used to attract property jurisdiction if there is no issue or dispute concerning the validity of a marriage. Proceedings for a declaration under s 113 cannot be employed as a mere device to attract property jurisdiction: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307. It has been held, however, that proceedings for a declaration may be used to attract property jurisdiction under the Act even where there is no dispute between the parties about the validity of the marriage in respect of an overseas decree of dissolution, where the institution of proceedings for a declaration was the only way to attract the property jurisdiction of the Act and thereby do justice between the parties: see In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91–347. [s 113.7] Transsexuals and marriage The validity of marriages involving a transsexual person has been the subject of decisions in various countries, and in the European Court of Human Rights, but arose for determination for the first time in Australia in Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR 158; FLC 93–087. That was an application for a declaration of the validity of a marriage between a woman and a postoperative female to male transsexual. The Attorney-General intervened to

oppose the application. Chisholm J upheld the validity of the marriage and granted the declaration. The decision involved a wide review of the authorities and of expert medical evidence. It followed Australian authorities to the effect that the ordinary meaning of the words “man” and “woman” referred to the reassigned sex of post-operative transsexuals, and concluded that there was no reason why the words should have a different meaning for the purpose of the law of marriage. Chisholm J criticised and declined to follow the English decision of Corbett v Corbett [1971] P 83 in which Ormrod J had held that the sex of a person must be determined on the basis of certain biological features at birth, at least where those features were congruent (as they were in Re Kevin). The Full Court dismissed the appeal: Attorney-General (Cth) v Kevin (2003) 30 Fam LR 1; FLC 93–127.

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[s 114]

Injunctions

*114 (1) [Power to grant injunctions in s 4(1)(e) proceedings] In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including: [page 1110] (a) an injunction for the personal protection of a party to the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from

(c)

(d) (e) (f)

entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated; an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; an injunction for the protection of the marital relationship; an injunction in relation to the property of a party to the marriage; or an injunction relating to the use or occupancy of the matrimonial home.

[subs (1) subst Act 72 of 1983 s 64; am Act 181 of 1987 ss 58, 63 and Sch]

(2) [Relief from marital obligations] In exercising its powers under subsection (1), the court may make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights. (2A) In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may: (a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and (b) if it makes an order or grants an injunction under paragraph (a) — make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from

entering or remaining in: (i) that residence; or (ii) a specified area in which that residence is situated; and (c) make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them. Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM. Note 1: This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition. Note 2: The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection. [subs (2A) insrt Act 115 of 2008 s 3 and Sch 1[84A], opn 1 Mar 2009]

(3) [Injunctions in aid of jurisdiction] A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the [page 1111] enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers

appropriate. [subs (3) am Act 181 of 1987 s 63 and Sch]

(4) If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt’s creditors. [subs (4) subst Act 20 of 2005 s 3 and Sch 1 cl 59, opn 18 Sep 2005]

(5) Subsection (4) does not limit subsection (3). [subs (5) insrt Act 20 of 2005 s 3 and Sch 1 cl 59, opn 18 Sep 2005]

(6) If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement. [subs (6) insrt Act 20 of 2005 s 3 and Sch 1 cl 59, opn 18 Sep 2005]

(7) Subsection (6) does not limit subsection (3). [subs (7) insrt Act 20 of 2005 s 3 and Sch 1 cl 59, opn 18 Sep 2005] *Editor’s note: Section 68 of the Family Law Amendment Act, No 181 of 1987, provides: Savings provisions in relation to injunctions 68 (1) Notwithstanding the amendments of section 114 of the Principal Act made by this Act, that section continues to apply in relation to proceedings instituted before the commencement of this Act as if those amendments had not been made. (2) Notwithstanding the amendments of section 114 of the Principal Act made by this Act, sections 114 and 114AA of the Principal Act continue to apply in relation to injunctions granted under the first-mentioned section (whether before or after the commencement of this Act) as if those amendments had not been made.

COMMENTARY ON SECTION 114 Introductory comment ….

[s 114.1]

Distinction between an order and an injunction …. Introductory comment to section 114(1) …. List of circumstances in which an order or injunction can be made under section 114(1) …. What is meant by the term “proper” in section 114(1)? …. Meaning of “with respect to” and “in relation to” …. Paragraph (e) does not require a subsisting valid marriage …. Meaning of “in circumstances” in section 4(1)(e) …. Circumstances arising out of the marital relationship …. Examples of circumstances arising out of marital relationship …. Injunction for personal protection of a party …. Injunctions to restrain entry upon certain property — s 114(1)(b) and (c) and section 114(2A)(b) …. Injunction for exclusive use or occupation of a matrimonial home …. Onus of establishing case for exclusion …. The balance of convenience and its relevance …. Guidelines, exclusive occupation …. Relevance of ownership …. Conduct of the applicant …. Effect of injunction for exclusive occupation …. Injunctions and property — s 114(1) and s 114(2A)(e) …. Extent to which an injunction under s 114(1) or 114(2A) can affect the property of a party to the marriage …. Payment of mortgage debt …. Injunctions to restrain dealings with property …. Injunction restraining a party in position as director/trustee — s 114(1) …. [s 114.26] Injunction restraining party in position as director/trustee — s 114(2A) ….

[s 114.2] [s 114.3] [s 114.4] [s 114.5] [s 114.6] [s 114.7] [s 114.8] [s 114.9] [s 114.10] [s 114.11] [s 114.12] [s 114.13] [s 114.14] [s 114.15] [s 114.16] [s 114.17] [s 114.18] [s 114.19] [s 114.21] [s 114.22] [s 114.23] [s 114.24] [s 114.25] [s 114.26]

[page 1112] Injunction against third party — s 114(1) and s 114(2A) …. Restoration of property to a party to a marriage …. Restraining proceedings before a state court — s 114(3) …. Power to relieve a party from any obligation to perform marital services, or to render conjugal rights — s 114(2) …. Interlocutory injunction — Prima facie case — Serious question …. Interlocutory injunctions and undertakings as to damages …. Risk of danger or injury …. Injunction by way of ancillary relief — s 114(3) …. Injunctions and third parties …. Examples of injunctions against third parties …. Third party rights a sham or device …. An order against a third party is an order against a party …. Orders not affecting interests of third party …. Do the ordinary principles of equity concerning the issue of injunctions apply to s 114? …. Relevance of the welfare of children in proceedings for an injunction under s 114 …. Exercise of power under s 114 — discretionary …. Relevance of s 43 ….

[s 114.27] [s 114.28] [s 114.29]

[s 114.30] [s 114.31] [s 114.31A] [s 114.32] [s 114.33] [s 114.34] [s 114.35] [s 114.36] [s 114.37] [s 114.38] [s 114.40] [s 114.41] [s 114.42] [s 114.43]

[s 114.1] Introductory comment There are two sources of power to grant injunctions in respect of parties to a marriage under the Family Law Act, namely s 114(1) and (3). Section 114(1) gives the court exercising jurisdiction under the Act power to issue injunctions, in appropriate circumstances, in independent proceedings. An injunction issued under s 114(1) does not have to be directly associated with any other form of

matrimonial relief. Section 114(3) gives the court exercising jurisdiction under the Act power to issue injunctions which are in support of or in aid of some other form of matrimonial relief. The injunctive power under s 114(3) can only be used in proceedings to which s 114(1) does not apply. An injunction cannot be issued under s 114(3) ancillary to proceedings under s 114(1): see In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91– 067. Section 114(1) gives the court power to make both orders and injunctions. Section 114(3) gives the court power to make injunctions only. The power to grant an injunction in respect of parties to a de facto relationship is found in s 114(2A). [s 114.2] Distinction between an order and an injunction There is no definition of “injunction” in the Act. In its ordinary meaning the word refers to orders expressed in positive as well as negative terms — as in the case of mandatory injunctions: see Re Bell; Ex parte Lees, above. In Re Bell; Ex parte Lees (1980) 30 ALR 489; 6 Fam LR 208; FLC 90– 850, Gibbs and Stephen JJ held that s 114(3) did not justify an order against a solicitor to disclose the address of his client to the solicitors for the client’s spouse, although Gibbs and Stephen JJ did consider that a mandatory injunction could be issued under s 114(3). Wilson and Aickin JJ held that such an order was justified under s 114(3). In the Marriage of Burridge (1980) 6 Fam LR 513; FLC 90–902, Nygh J preferred the views of Wilson and Aickin JJ and held that, to come within s 114(3), an order did not have to fall within the scope of a mandatory injunction according to traditional equity terms. Section 114(3) permits the granting of injunctive relief where such relief could not previously have been granted. At present, the distinction between an injunction and an order for the purposes of s 114 is unclear. [page 1113]

[s 114.3] Introductory comment to section 114(1) A court exercising jurisdiction under the Act may, by the terms of s 114(1), make an order or grant an injunction under this section only in proceedings of the kind referred to in para (e) of the definition of matrimonial cause in s 4(1). Paragraph (e) of the definition of matrimonial cause in s 4(1) reads: “… proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship”. The court may therefore make an order or grant an injunction under s 114(1) which is independent of, or not directly associated with, any other form of matrimonial relief. Proceedings under s 114(1) constitute a matrimonial cause because of the definition of matrimonial cause in para (e) of s 4(1): see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; see also In the Marriage of McCarney (1977) 2 Fam LR 11,670; FLC 90–200; In the Marriage of Gibb (1979) 5 Fam LR 694; FLC 90–694. It is the “circumstances” and not “proceedings” that have to arise out of the marital relationship: see In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711. [s 114.4] List of circumstances in which an order or injunction can be made under section 114(1) Section 114(1) confers a general power on courts exercising jurisdiction under the Act to make such order or grant such injunction as it thinks proper with respect to the matter to which the proceedings relate: see R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616. Section 114(1) further lists six purposes for which an injunction under the section can be used and s 114(2) provides another purpose for which the powers under s 114(1) can be used. The court may grant an injunction with respect to: (a) the personal protection of a party to the marriage; (b) the restraint of a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides;

(c) the restraint of a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are situated; (d) the restraint of a party to the marriage from entering the place of work of the other party to the marriage; (e) the restraint of a party to the marriage from entering the place of work; (f) protection of the marital relationship; (g) the property of a party to the marriage; (h) the use or occupancy of the matrimonial home; (i) relieving a party to a marriage from any obligation to perform marital services or render conjugal rights. The purposes listed in s 114(1) and (2) are not exhaustive as the second part of s 114(1) is preceded by the word “including”. Orders and injunctions may be granted under s 114(1) in other circumstances: see In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806; see also In the Marriage of Aldred (1984) 9 Fam LR 539; FLC 91–510. [s 114.5] What is meant by the term “proper” in section 114(1)? The term “proper” means “reasonable and just in the circumstances”: see In the Marriage of Farr (1976) 2 Fam LR 11,300; FLC 90–133; see also In the Marriage of Page (1980) 6 Fam LR 669; (1981) FLC 91–025; see, however, In the Marriage of Rowe (1980) 6 Fam LR 435; FLC 90–895 in which Wood SJ said it means “in conforming to the demands and usages of society”. As to an injunction which is not proper, see Re C and V (1983) 9 Fam LR 31; FLC 91–333. See also In the Marriage of F (1989) 13 Fam LR 189; FLC 92–031, where the court refused to grant an injunction to restrain an estranged wife from having an abortion. [s 114.6] Meaning of “with respect to” and “in relation to” These expressions require that there be a nexus between the purpose of the orders and injunctions issued under the section and the particular matters referred to. There must be an “appropriate relationship”: see In the Marriage of Savage

and Hodgson (1982) 8 Fam LR 658; FLC 91–281. [page 1114] Paragraph (ca) of the definition of matrimonial cause in s 4(1) also contains the expression “in relation to” and the phrase “in relation to” in s 4(1)(ca) and (f) both appear to mean much the same thing: see In the Marriage of McCarney (1977) 2 Fam LR 11,670; FLC 90–200. However, the words “in relation to” have a different meaning to the words “with respect to”: see In the Marriage of Reid (1982) 8 Fam LR 11 at 16; FLC 91–211. An order with respect to property is an order on the subject of that property which says something about the title, possession or use of that property directly. An order is in relation to property if it uses that property as a measuring stick for other rights: see In the Marriage of Reid (1982) 8 Fam LR 11; FLC 91–211. It has been said that the phrase “in relation to” means “incidental to” (see In the Marriage of Aldred (1984) 9 Fam LR 539; FLC 91–510) and that it is an expression of wide and general import and should not be read down in the absence of some compelling reason for doing so: see Fountain v Alexander (1982) 150 CLR 615; 8 Fam LR 67; FLC 91–218; see also In the Marriage of Espie (1983) 9 Fam LR 123; FLC 91–347. The court has power under s 114(1) to restrain a party to proceedings from exercising a controlling power in companies so as to affect or dispose of the company’s assets, on the basis that this is an injunction in relation to the property of a party to a marriage: see In the Marriage of Aldred, above. [s 114.7] Paragraph (e) does not require a subsisting valid marriage The words “parties to a marriage” include parties whose marriage has been dissolved or annulled in Australia or elsewhere: see s 4(2). It includes a marriage which has been declared void ab initio on grounds such as bigamy: see In the Marriage of Lynch and Slater (1977) 3 Fam LR 11,515; FLC 90– 309.

There may be circumstances arising out of the marital relationship which would require the court to grant an injunction under s 114(1), even though the parties may have long since been divorced: see In the Marriage of Gibb (1979) 5 Fam LR 694; FLC 90–694; see also McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90–655 at 78,468. [s 114.8] Meaning of “in circumstances” in section 4(1)(e) The words “provide a temporal limitation”. At the time that the need for the order arises, the marital relationship must provide the very circumstance which requires the making of the order. There are two limitations upon what can be done under para (e) of s 4(1): (a) there must be a “marital relationship”; and (b) it must be in relation to circumstances arising out of that which requires the intervention of the court: see McLean v McLean (No 2) (1979) 5 Fam LR 197; FLC 90–655. [s 114.9] Circumstances arising out of the marital relationship The phrase “circumstances arising out of the marital relationship” is wide in scope: see R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616; see also In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711. These words define the limits of power under s 114(1); see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627 at 78,262. The circumstances described in para (e) must include circumstances in which it would be appropriate to make an injunction of the nature indicated by s 114(1): see R v Dovey; Ex parte Ross, above. Every dispute between the parties to a marriage does not necessarily involve circumstances arising out of the marital relationship. The words “marital relationship” do not concern an area of fact, but instead refer to that body of law which defines the nature and extent of the marital relationship, provided always that the body of law involved is within the legislative competence of the Commonwealth Parliament. Circumstances arise out of the marital relationship if they involve those special rights, duties, powers and liabilities that exist at law solely between spouses as opposed to those which can otherwise exist between strangers: see In the Marriage of Mills (1976) 1 Fam LR 11,592 at 11,594; FLC 90–079; see also In the Marriage of Murkin

(1980) 5 Fam LR 782; FLC 90–806. [page 1115] Events which raise issues of criminal law, industrial law or fiscal law cannot be brought within the matrimonial relationship simply because the circumstances involve a husband and wife and their children: see In the Marriage of Murkin, above; see also In the Marriage of Farr (1976) 2 Fam LR 11,300; FLC 90–133. The claim must be one which a spouse brings as a spouse and which is not a claim arising out of the general law of tort, contracts or property which happens to be between spouses: see In the Marriage of Murkin, above; see also In the Marriage of Farr, above; In the Marriage of Bak (1979) 6 Fam LR 411; (1980) FLC 90–877. It has been held that the mere fact that there is a dispute between spouses does not mean that there are “circumstances arising out of the marital relationship”: see In the Marriage of Mills (1976) 1 Fam LR 11,592; FLC 90–079. On the other hand, it has also been said that the moment that the marital difficulty or breakdown occurs, events thereafter involving disputes between husband and wife arising because of that difficulty or breakdown, must be circumstances which arise out of the marital relationship whether or not fiscal, property, criminal or some other area of law is involved: but the spouses must be able to find their remedies within the boundaries of the Family Law Act: see In the Marriage of Farr (1976) 2 Fam LR 11,300; FLC 90–133. If the dispute must involve issues which arise from the legal relationship between husband and wife it does not matter that there are also other issues or matters involved which concern other areas of the law: see R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616; see also In the Marriage of Badcock (1979) 5 Fam LR 672; FLC 90–723 at 78,893; see also In the Marriage of Grist and Ford (1978) 4 Fam LR 498; FLC 90–515; In the Marriage of Gibb (1979) 5 Fam LR 694; FLC 90–694. Paragraph (ca)(i) of the definition of matrimonial cause in s 4(1) uses the

phrase “proceedings arising out of the marital relationship”. Paragraph (e) of s 4(1) uses the phrase “circumstances arising out of the marital relationship”. Other relevant authorities are: In the Marriage of Mazein (1976) 1 Fam LR 11,417; FLC 90–053; In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062; In the Marriage of D’Agostino (1976) 2 Fam LR 11,322; 30 FLR 510; FLC 90–130; In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299; In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; In the Marriage of Wolifson (1977) 3 Fam LR 11,627; In the Marriage of Grist and Ford (1978) 4 Fam LR 498; FLC 90–515; In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027; In the Marriage of Craven (1980) 5 Fam LR 641; FLC 90–802; In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711; In the Marriage of Bak (1979) 6 Fam LR 411; (1980) FLC 90–877; In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050; In the Marriage of Yates (1982) 8 Fam LR 273; FLC 91–227; In the Marriage of Rickie (1979) 4 Fam LR 737; FLC 90–626; In the Marriage of Borzak (1979) 5 Fam LR 571; FLC 90–688; In the Marriage of F (1989) 13 Fam LR 189; FLC 92–031. If proceedings instituted in another court have a direct causal relationship with the dissolution of marriage and relate to property jointly held by the parties the disposition of which would be determined one way or the other as a result of the dissolution of the marriage, then such proceedings are circumstances which arise out of the marital relationship (see In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91–087) and fall within the exclusive jurisdiction of the Family Court. However, it may be different if the proceedings for dissolution of marriage follow the institution of proceedings by a party in another court as it cannot be said that there is a causal connection between the institution of proceedings for principal relief and the proceedings in the other court: see In the Marriage of Rennie and Higgon, above; see also In the Marriage of Baba and Jarvinen (1980) 6 Fam LR 276; FLC 90–882. [s 114.10] Examples of circumstances arising out of marital relationship A dispute between parties to a marriage concerning the ownership, use and occupation of a matrimonial home involves circumstances arising out of the

marital relationship: see R v Dovey; Ex parte Ross [page 1116] (1979) 5 Fam LR 1; FLC 90–616 at 78,191; see also In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711; In the Marriage of D’Agostino (1976) 2 Fam LR 11,322; 30 FLR 510; FLC 90–130; In the Marriage of McCarney (1976) 2 Fam LR 11,680; FLC 90–105; In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; In the Marriage of Cullen (1980) 6 Fam LR 480; FLC 90–899. The threat of disclosure of marital confidences and communications to a newspaper: see In the Marriage of Gibb (1979) 5 Fam LR 694; FLC 90–694. [s 114.11] Injunction for personal protection of a party Section 114(1)(a) is a source of power to issue a non-molestation injunction. Section 114(1), however, cannot be used to obtain a non-molestation injunction solely against a third party unless there is an appropriate connection with circumstances arising out of the marital relationship: see In the Marriage of Vodeniciotis (1978) 4 Fam LR 743; (1979) FLC 90–617. There is no equivalent provision for parties to a de facto relationship. Personal protection The expression “personal protection” refers to the protection of the physical integrity of a party, such as are secured by nonmolestation orders: see In the Marriage of Murkin (1980) 5 Fam LR 782; FLC 90–806; see also In the Marriage of Harris; Re Banaco Pty Ltd (1980) 6 Fam LR 450; FLC 90–906. Undue interference Section 114(1) may be used to protect a party not only from abuse or threatened physical or mental harm, but also to prevent undue interference by one party with the other or the children, such as an order to restrain a party from commencing frivolous legal proceedings which may be having an adverse effect on the mental health of the other party and/or the children: see In the Marriage of Wilmoth (1981) 6 Fam LR 807; FLC 91– 030; see also In the Marriage of Plows (No 2) (1979) 5 Fam LR 590; FLC

90–712. The words “personal protection” do not only refer to physical protection, but also include such matters as the protection of the right of a party to lead his or her own life without undue interference from the other party: see In the Marriage of Kemsley (1984) 10 Fam LR 125; FLC 91–567 at 79,590; see also Vaughan v Vaughan [1973] 3 All ER 449. An order might be for the personal protection of a party if it prevented the other party from interfering with the employment or business or social life of a party or if it were designed to safeguard the mental or emotional well-being of a party: see In the Marriage of Kemsley, above. Question of fact Whether any particular conduct amounts to molestation is a question of fact: see Parry v Crooks (1981) 6 Fam LR 824; (1982) FLC 91– 258. Molesting The term “molesting” is wide enough to amount to abusing, intimidating or harassing: see Parry v Crooks (1981) 6 Fam LR 824; (1982) FLC 91–258. The term “molest” does not necessarily mean either violence or threats of violence: see Horner v Horner [1982] 2 All ER 495; [1982] Fam 90. The word “molest” is wide enough to include non-consensual sexual intercourse: see R v McMinn [1982] VR 53 at 57. Annoy In In the Marriage of English (1986) 10 Fam LR 808; FLC 91–729, the Full Court held that an order or injunction should not be made or received which contains the term annoy because such a concept is so wide and obscure and carries with it such elements of subjectivity that it would be very difficult to predict beforehand the conduct or class of conduct which would constitute a breach of it; and that it would involve the court in contempt proceedings, attempting to discern whether it may properly be said that the conduct in question “annoyed” the other party. In In the Marriage of English, above, the Full Court said that the terms assault, molest and harass each carry with them some concept of objective, discernible conduct. [s 114.12] Injunctions to restrain entry upon certain property — s 114(1)

(b) and (c) and section 114(2A)(b) By s 114(1)(b) and (c) (for married couples) and s 114(2a)(b) (for de facto couples) a court may grant an injunction to restrain a spouse from entering: (a) the matrimonial home (or residence of the de facto couple); [page 1117] (b) the premises in which the other party to the marriage or relationship resides; (c) any specified area in which is situated either the matrimonial home or the premises in which the other party to the marriage resides or the de facto residence or whom in which the other party to the de facto relationship resides; (d) the place of work of the other party to the marriage. [s 114.13] Injunction for exclusive use or occupation of a matrimonial home The most common use of s 114(1) is the making of orders for exclusive possession of the matrimonial home. It has been said to be a very serious matter to turn a husband or wife out of the matrimonial home: see In the Marriage of O’Dea (1980) 6 Fam LR 675; FLC 90–896. The court should keep in mind the need to preserve and protect the institution of marriage in s 43(a) and the means available under the Act for assisting the parties to consider the improvement of their relationship in s 43(d): see In the Marriage of Lee (1977) 3 Fam LR 11,609 at 11,614; FLC 90–314. An application for exclusive occupation of a property involves two basic questions, namely: (a) should the property be occupied by one party only; and (b) which party should leave the property or which party have exclusive occupation of the property. [s 114.14] Onus of establishing case for exclusion The onus of establishing a case for exclusion rests upon the party seeking the exclusion order: see In

the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062. [s 114.15] The balance of convenience and its relevance An injunction or order for exclusive occupation should not depend merely on balance of convenience or hardship: see In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062; see also In the Marriage of Dean (1977) 2 Fam LR 11,691; FLC 90–213; In the Marriage of O’Dea (1980) 6 Fam LR 675; FLC 90–896; In the Marriage of Rowe (1980) 6 Fam LR 435; FLC 90–895; In the Marriage of Page (1980) 6 Fam LR 669; (1981) FLC 91–025; In the Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC 91–319. The balance of convenience may, however, properly decide the matter where there is intense disharmony between parties to a marriage or where each would have an equally good case for excluding the other: see In the Marriage of Healey (1979) FLC 90–706; see also In the Marriage of Dean (1977) 2 Fam LR 11,691; FLC 90–213. One view is that the applicant would need to show that it is impossible for the parties to live in the same house, there being on foot an imperative or inescapable or otherwise, intolerable situation: see In the Marriage of Lee (1977) 3 Fam LR 11,609; FLC 90–314; see also In the Marriage of Dean, above and In the Marriage of Gillie (1978) 4 Fam LR 127; FLC 90–442. Another view is that the court must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to remain in the property together. It is an objective test and each case must be determined on its own particular facts: see In the Marriage of Rowe (1980) 6 Fam LR 435; FLC 90–895; see also In the Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC 91–319 at 78,170. However, the court ought not to order that a party be removed from a property unless it is of the opinion that such a course is necessary rather than merely convenient: see In the Marriage of Lee (1977) 3 Fam LR 11,609; FLC 90–314; see also In the Marriage of Dean (1977) 2 Fam LR 11,691; FLC 90– 213; In the Marriage of Rowe, above. [s 114.16] Guidelines, exclusive occupation In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062, the Full Court said that matters which should be considered by a court include:

Means and needs of parties This includes a consideration of the income and financial resources of the parties, the presence and availability of alternative accommodation and the degree to which the home is an essential part of any business owned or run by a party: see In the Marriage of Gillie (1978) 4 Fam LR 127 at 132; FLC 90–442. [page 1118] Needs of children Where there are children of the marriage who need parenting, the predominant consideration has usually been that the party who has the care and control of the children should continue to reside in the parties’ home with them: see In the Marriage of Stone (1976) 2 Fam LR 11,235; FLC 90–134; see also In the Marriage of Gillie (1978) 4 Fam LR 127; FLC 90–442; In the Marriage of Jolly (1978) 4 Fam LN 24; FLC 90– 458; In the Marriage of Briers (1978) 4 Fam LN 52; FLC 90–483, but this is not a conclusive consideration: see In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062. Hardship to either party or to the children This means that the court should consider the position of both parties and the alternatives which face them if an order for exclusion is, or is not, made: see In the Marriage of Dean (1977) 2 Fam LR 11,691 at 11,695; FLC 90–213. The court must balance the hardship to each party of granting or refusing an order, and form its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. Conduct of the parties The conduct of one party which may justify the other in leaving the home or in asking for the expulsion of the other party. Misconduct may establish a situation of necessity and also indicate who, in fairness, should be required to leave. It is not, however, sufficient to exclude one spouse from the home simply to allow the other spouse to live more peacefully in the former’s absence: see In the Marriage of Dean (1977) 2 Fam LR 11,691; FLC 90–213; In the Marriage of Healey (1979) FLC 90–706 conduct which is only annoying behaviour is insufficient. However, physical assaults putting a party in fear of life and limb would be sufficient: see In the

Marriage of Wolifson (1977) 3 Fam LR 11,627. It was suggested that conduct was an essential matter to be taken into account in making an exclusion order. It is submitted (SO’R) that as a result of the decision of the Full Court, In the Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC 91–319, conduct is no longer an essential consideration. It is only one matter to be taken into account. These considerations, however, are not exhaustive: see In the Marriage of Dean, above; see also In the Marriage of Jolly, above. Further considerations In Plowman v Plowman (1970) 16 FLR 447 at 457, Carmichael J said that considerations which the court may consider relevant are: (a) can the wife be adequately housed elsewhere? (b) is the money available either from the wife’s own resources and/or the husband’s to provide that housing? (c) for whom, husband or wife, is it less convenient to have to live away from the matrimonial home? (d) what are the interests of any children of the parties and what would be in their paramount interest? (e) what are the relevant proprietary rights of the spouses? (f) would a non-molestation order be an appropriate alternative to an order for expulsion? (g) is there possible use of improper methods, either by way of intimidation or fraudulent condonation, to prevent the wife from pursuing her rights if the spouses continue to reside in the one home? (h) is it unjust to force a husband to establish for himself another home, or otherwise accept inferior accommodation without just cause? It is submitted that such a consideration may no longer be relevant in the light of the Full Court decision In the Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC 91–319; see also In the Marriage of Borzak (1979) 5 Fam LR 571; FLC 90–688.

Guidelines only In In the Marriage of Fedele (1986) 10 Fam LR 1069; FLC 91–744, the Full Court held that the many decisions of the court lay down useful guidelines, but they should be treated as guidelines only and should not be seen as laying down a fixed list of criteria which must be established for an application for exclusive occupation to be successful. [page 1119] [s 114.17] Relevance of ownership It does not matter in whose name the property is. The property may be the property of a third party company and a party is restrained in his or her capacity as a director of a company: see In the Marriage of Harris (1980) 5 Fam LR 852; FLC 90–812. [s 114.18] Conduct of the applicant It was considered that the conduct of the applicant was a relevant consideration and that the cause of the problem leading a spouse to seek exclusive use and occupation of a home should not be that of the spouse’s own making: see In the Marriage of Gillie (1978) 4 Fam LR 127; FLC 90–442; In the Marriage of Rowe (1980) 6 Fam LR 435 at 444; FLC 90–895, Pawley J said that if a party, by acting unreasonably, brings upon himself or herself a degree of hardship, it would not be proper within the meaning of s 114(1) for a court to order the spouse of that person to vacate the home. It would be improper that a person may arbitrarily put an end to the marriage relationship without any sufficient fault or misconduct on the part of his or her spouse and then be put into exclusive possession of the home on the balance of convenience or even to alleviate a degree of hardship likely to be suffered by that person or even a child. In In the Marriage of Davis (1982) 8 Fam LR 975; (1983) FLC 91–319, the Full Court said that in applications for exclusive occupancy of a home it is no longer necessary that an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of a home with the other party, or that there has been some conduct of the other party which justifies his expulsion from the home. No distinction in law should be drawn between the situation where a spouse left the home and is seeking to return and a situation where both parties at the time of the hearing of the application

resided in the home with one seeking to exclude the other. It is submitted that In the Marriage of Rowe, above, has been overruled by In the Marriage of Davis, above. [s 114.19] Effect of injunction for exclusive occupation In In the Marriage of Kemsley (1984) 10 Fam LR 125 at 131; FLC 91–567 at 79,591, the Full Court said that ordinarily, and in the absence of express provision in an order, an order for sole occupancy of a home should not be seen as conferring any more than a personal right of occupancy for the purpose of providing accommodation for a party and children. It is doubtful if such an order would entitle a party who has the benefit of the order to “set up house” in a home in a de facto relationship. [s 114.21] Injunctions and property — s 114(1) and s 114(2A)(e) Prior to the Family Law Amendment Act 1983 the question of the extent of the powers of the Family Court to make an order affecting property under s 114(1) was very important, for it was only by the use of this section that one party to a marriage could seek to restrain the other party from selling, mortgaging, or otherwise dealing with property during the period from the date of separation until proceedings could be commenced for principal relief and thus, also, for property settlement. It was also only by reference to this provision that a party to a marriage could seek the right to exclusive occupation of a former matrimonial home until proceedings could be commenced for principal relief. Applications were based on s 114(1) because s 114(3) relates to proceedings which are already on foot. The definition of matrimonial cause in s 4(1) was amended by the Family Law Amendment Act 1983 to provide that proceedings for settlement of property could be commenced under the Act, at any time during the marriage, provided always that the proceedings arise out of the marital relationship (para (ca)(i)). The effect of the insertion of this “matrimonial cause” is that a party to a marriage who wishes to restrain his or her spouse from dealing with property pending the completion of proceedings for property settlement, or who wishes to make an application for an order for exclusive occupation of a matrimonial home until a final order is made, can now commence

property proceedings immediately, and therefore also obtain such an order under s 114(3). If, however, there is any delay in the institution of proceedings for property settlement, then the court may still resort to s 114(1). [page 1120] Section 114(2A)(e) provides the same relief to parties to a de facto relationship seeking to preserve the property of the parties or either of them pending final property orders. [s 114.22] Extent to which an injunction under s 114(1) or 114(2A) can affect the property of a party to the marriage Prior to the decision of the High Court in Mullane v Mullane (1983) 45 ALR 291; 8 Fam LR 777; FLC 91–303, there was a considerable doubt as to the extent of the power under s 114(1) to make an order affecting the property of a party to a marriage without impinging upon s 79. In In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062, the Full Court of the Family Court held that an injunction could be granted under s 114(1) in respect of property in circumstances where no proceedings had been commenced for principal relief. In In the Marriage of Farr (1976) 2 Fam LR 11,300; FLC 90–133, the court held that the test of whether an injunction could be granted in respect of property under s 114(1) without impinging upon s 79 was whether it would simply “affect”, or whether it would “alter” property rights. An order could not be made if it had the effect of altering the property rights of parties: see also In the Marriage of Mazein (1976) 1 Fam LR 11,417; FLC 90–053; In the Marriage of Davis, above and In the Marriage of Carroll (1979) 5 Fam LR 212. The test ultimately appeared to depend upon whether the order was on a “temporary and personal basis”. An order for the use and occupation of property or an order restraining a party from entering the property, if it affects or even alters temporarily a party’s ownership rights does not take it outside

the power conferred by s 114(1): see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; see also In the Marriage of Page (1978) 4 Fam LR 663; FLC 90–525; R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616; In the Marriage of Rickie (1979) 4 Fam LR 737; FLC 90–626; In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050; In the Marriage of King (No 2) (1977) 3 Fam LR 11,564; FLC 90–299; In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627. The decision of the High Court in Mullane v Mullane, above greatly simplified the question of the extent to which an injunction under s 114(1) could affect property under the Act. The High Court held that orders granting personal rights of occupation or restricting a proprietor’s personal rights of occupation of property are not orders which alter property interests for the purposes of s 79. An interest in property is a right of a proprietary nature, not a mere personal right. The effect of this decision is that the test is, whether the injunction creates merely personal rights (in which case it can be made under s 114(1)) or whether, instead, it alters the legal or equitable interests of a party in property: see also In the Marriage of Craven (1980) 5 Fam LR 641; FLC 90–802. The same principles would apply to the relationship between s 114(2A) and s 90SM. [s 114.23] Payment of mortgage debt The court may under s 114(1) or s 114(2A)(c) order a party to pay a mortgage debt secured on joint property from joint funds by way of injunction. Such an order is not a property order in the sense of an order which alters a party’s interest in property, in favour of another, even though part of the property of the parties is used: see In the Marriage of Hughes (1984) 9 Fam LR 610; FLC 91–549. [s 114.24] Injunctions to restrain dealings with property Introductory comment In R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616, the High Court said that the injunctive power in s 114(1) should be widely interpreted, and proceedings by a party to protect its rights when threatened by some action of the other party appear to lie at the very heart of the matters described in para (e) of s 4(1): see In the Marriage of Savage and Hodgson (1982) 7 Fam LR 803; FLC 91–222; In the Marriage of Esmore (1979) 5 Fam LR 762; FLC 90–711.

The court has, in a number of cases, said that in appropriate circumstances an injunction can be made under s 114(1) to restrain a spouse from dealing with his or her property until such time as an application can be made under s 79, provided always that such injunction does not alter interests in property: see In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; see [page 1121] also In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90– 627; In the Marriage of Bak (1979) 6 Fam LR 411; (1980) FLC 90–877; In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027; In the Marriage of Wray (1981) FLC 91–059; In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91–087. In In the Marriage of Sieling, above, the Full Court said that upon the breakdown of the marriage a party to the marriage has an “inchoate” right to a settlement of property and an injunction may be granted to restrain the other spouse from dealing with his or her property in order to prevent the frustration of a later claim under s 79. Prior to the Family Law Amendment Act 1983, an application under s 79 could not be made until proceedings for dissolution of marriage had been commenced. If the court could not, in the interim period, grant an injunction where such action was necessary to protect a future claim under s 79, a party’s right to bring such a claim may be frustrated and the remedies under s 85 rendered nugatory: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627 at 78,262. General principles The two requirements for an injunction to restrain a spouse from dealing with his or her property are: (a) an existing or potential claim to an order altering property interests under s 79 or s 90SM; and (b) a danger that the claim may be defeated or prejudiced unless such an injunction is granted. The most significant Full Court decision about the court’s approach to

these applications appears to be In the Marriage of Waugh (1999) 27 Fam LR 63; (2000) FLC 93–052, which has been the subject of useful discussion and clarification by the Full Court in M v DB (2006) 36 Fam LR 454; FLC 93293; [2006] FamCA 1380. In Waugh, the Full Court said in effect that there was a need for the applicant to show that the injunction was necessary, and went no further than was necessary, to prevent the abuse or frustration of the court’s process: at [46]. The Full Court treated authorities on Mareva orders as relevant to s 114: at [33] ff. Earlier decisions include In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027; see also In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050; In the Marriage of Aldred (1984) 9 Fam LR 539; FLC 91–510. The court must have regard to both the merits of the claim involved and the degree of danger of any prejudice to the claim that will exist should an injunction not be granted: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; see also In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856; In the Marriage of Stowe, above; In the Marriage of Martiniello, above; In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91–067; In the Marriage of Buckeridge (1981) 6 Fam LR 718; FLC 91–005. The court will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital (or de facto) relationship which make it necessary to restrain a spouse from using his or her property rights to the detriment of the other party. The applicant must be able to show a reasonable claim under s 79 or s 90SM: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; see also In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91-027; In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91–067; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856. It has been held that the court need only be satisfied that the applicant has a bona fide claim to eventually bring proceedings under s 79, and that the applicant’s entitlement to bring those proceedings and to obtain an order under s 79 needs to be protected by an injunction: see In the Marriage of Wray (1981) FLC 91–059. It is not clear if in this context “bona fide” means the same thing as “prima facie”. The same would apply to claims under s

90SM. [page 1122] It has been held that there must be an interest to which the applicant has a prima facie claim and which, if the order was not made, would be disposed of irretrievably: see In the Marriage of Rieck, above. There must also be a real danger that a claim will be defeated or prejudiced unless the injunction is granted. It must be established, for example, that unless an injunction is granted, the other party may dispose of or deal with the property or with company or trust property, in such a manner that there is a risk that any order made under s 79 (or s 90SM) will not be met: see In the Marriage of Stowe, above. Third party The court should also take into account whether and to what extent the proposed injunction will affect the position and rights of third parties. There must be no undue prejudice to third parties. However, it is no objection that a third party may be adversely affected by an injunction made against a party: see In the Marriage of Kalenjuk (1977) 3 Fam LR 11,137; FLC 90–218; see also R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616; In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856. Balance of hardship and convenience The court should also take into account the balance of hardship and the balance of convenience between the parties: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; In the Marriage of Smith and Saywell, above; In the Marriage of Wray (1981) FLC 91–059. Special interest in property The court should also take into account any special interest that the applicant may have in a particular piece of property: see In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027. Performance of other duties The court should also take into account whether the proposed injunction would adversely affect the spouse in the

performance of other duties which do not arise out of the marital (or de facto) relationship, especially duties owed to third parties: see R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616. There is no prima facie objection that an injunction affects a party to the marriage in the performance of other duties which do not arise out of the marital relationship: see R v Dovey; Ex parte Ross, above, and see [s 114.25]. Ordinary business dealings The court should not restrain a spouse from ordinary business dealings unless it can be shown that there is a real fear that a spouse will dissipate funds, or that there is some other good reason for such a restriction: see In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050. Minimum restrictions The court should impose the minimum restrictions that are necessary to protect the applicant’s claim under s 79 or s 90SM: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856. Usual conditions of order In summary, the usual conditions which apply to such an order are: (a) the order must be directed to a party to the marriage or de facto relationship; (b) the order must relate either to property of the parties or of one party or to property which it is claimed one or the other party has an interest in or power of control; (c) the order must be necessary to ensure that the property claim is not frustrated, there must be a real risk that a party’s entitlement will not be met if the injunction is not granted; (d) there must be no undue prejudice to third parties. See In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050; see also In the Marriage of Rickie (1979) 4 Fam LR 737; FLC 90–626; In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715; FLC 91–087; In the Marriage of Savage and Hodgson (1982) 8 Fam LR 658; FLC 91–281.

[page 1123] [s 114.25] Injunction restraining a party in position as director/trustee — s 114(1) A party may be restrained under s 114(1) in the exercise of fiduciary powers, for example, as a director or trustee: see R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616; see also In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91-027; In the Marriage of Martiniello (1981) 7 Fam LR 299; FLC 91–050. The court may restrain a party from exercising power in such a way as unfairly to disadvantage the other party. The court may direct a party in the positive exercise of powers provided that other people are no more indirectly affected as a consequence: see In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90–898; see also In the Marriage of Page (1978) 4 Fam LR 663; FLC 90–525; Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000. [s 114.26] [s 114.26] Injunction restraining party in position as director/trustee — s 114(2A) The drafting of s 114(2A) is narrower than that of s 114(1) and directed use and occupancy of property and the property of the parties. It does not contain the general power to grant such injunction as it considers proper with respect to the matter to which the proceedings relate. Arguably, the power to restrain a party in his/her capacity as director or trustee would be found in the power to make an order or grant an injunction with respect to the property of the parties. [s 114.27] Injunction against third party — s 114(1) and s 114(2A) The court, at least in certain circumstances, may make an injunction or order under s 114(1) against a third party: see s 90AA. However, if a restraining order is sought in relation to assets held by a third party pending the institution of property proceedings, there are considerable problems. On the limitations of s 114 in relation to third parties, see also the discussion in White v Green (No 2) (2009) 41 Fam LR 185 (Cronin J), espec at paragraphs [139]ff. If it is sought to affect a third party then usually the applicant should seek an injunction against the other party to the relationship under s 114(1) or s

114(2A), and that a direction that notice of any order be given to the third party: see Z Ltd v A–Z [1982] 2 WLR 288. [s 114.28] Restoration of property to a party to a marriage Under s 114(1) or s 114(2A) a party may seek an order for the restoration to him or her of property which belongs to a party: see In the Marriage of Burridge (1980) 6 Fam LR 513; FLC 90–902. [s 114.29] Restraining proceedings before a state court — s 114(3) Whether power to make such orders There is no absolute rule preventing the Family Court from restraining a person from taking proceedings in a state court, and such orders have been made: In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856; In the Marriage of Bak (1979) 6 Fam LR 411; (1980) FLC 90–877; see also Reynolds v Reynolds (1977) 3 Fam LR 11,529 at 11,540; (1979) FLC 90–728 (NSW Supreme Court, Waddell J). The High Court’s reasoning in Re LSH; Ex parte RTF (1987) 164 CLR 91; 75 ALR 469; 11 Fam LR 805; 61 ALJR 621; FLC 91–843 assumes that there is no general rule preventing such a restraining order. Whether the court has power to make any particular order depends, first, on whether the section purports to authorise the order and second, on whether to the extent that it does it falls within the legislative power of the Commonwealth, in this context the relevant power being the power to make laws relating to “marriage”: Constitution s 51(xxi). See Re LSH, above, especially per Mason CJ. Third parties Difficulties can arise where such orders are directed at or affect third parties: see generally [s 114.27] and [s 114.34] and Re LSH, above. Interlocutory orders There is power to make orders designed to protect the status quo pending the resolution of preliminary matters, such as whether facts exist which would enable the Family Court to exercise jurisdiction in the matter. See Re Ross-Jones and Marinovich; Ex parte Green

[page 1124] (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555; Re LSH, above. Further, “it does not matter that the terms of such an injunction travel beyond the terms of any injunction which the court is empowered to grant by way of final relief”: per Mason CJ at 11 Fam LR 812; and see at 11 Fam LR 820 per Deane J. However, where the court lacks power to make a final order, it may not make an interim order of the same kind. See Re LSH, above, at 11 Fam LR 812 per Mason CJ; at 11 Fam LR 824 per Dawson J; at 11 Fam LR 817 per Wilson J. See also In the Marriage of Hayes (1982) 7 Fam LR 808; FLC 91– 205. On this point, the High Court overrules In the Marriage of Kent and Pigot (1982) 8 Fam LR 537; FLC 91–240. Injunctions to restrain adoption proceedings In Re LSH; Ex parte RTF (1987) 164 CLR 91; 75 ALR 469; 11 Fam LR 805; 61 ALJR 621; FLC 91– 843, the High Court held (4–1) that the Family Law Act did not authorise the granting of a permanent injunction restraining a party to a marriage and another person from applying under state law for adoption of a child of the marriage. The majority based this conclusion on the provisions of the Act relating to “child of a marriage”. Different opinions were expressed on whether the marriage power (Constitution s 52(xxi)) could support such an order. This reasoning is (RC) undermined (except in Queensland and Western Australia) by the effect of the 1987 amendments, by which Pt VII of the Act became founded on the reference of power from the referring states, and the territories power in relation to the ACT and the NT. Such an order would now be sought under s 70C: see the commentary to that section. Whether such orders should be made In cases where the court has jurisdiction to make orders restraining parties from proceedings in another court, when should it do so? In the Marriage of McCarney (1977) 2 Fam LR 11,670; FLC 90–200, the Full Court said that it was undesirable that an injunction should ever be framed to restrain a person from proceeding in another court of competent jurisdiction to seek relief to which he is entitled by law. The courts should

avoid making orders in terms which may give the impression of a jurisdictional conflict between judicial bodies. In the Marriage of Esmore (1979) 5 Fam LR 762 at 764; FLC 90–711, Nygh J said that if the exercise of jurisdiction by a state court would defeat the rights of a party under the Family Law Act then the Family Court should act. Nygh J doubted the correctness of the obiter dictum of the Full Court in In the Marriage of McCarney, above, which he said was part of a very restrictive view of s 114 which was subsequently reversed by a later Full Court in In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627. The Family Court, however, ought to avoid making orders which in terms restrain a party from continuing proceedings validly instituted in another court, except when this extreme step is absolutely essential: see In the Marriage of Tansell (1977) 3 Fam LR 11,466 at 11,483; FLC 90–307 (FC); In the Marriage of Baba and Jarvinen (1980) 6 Fam LR 276 at 281; FLC 90– 882; see also In the Marriage of Rennie and Higgon (1981) 7 Fam LR 715 at 720; FLC 91–087. [s 114.30] Power to relieve a party from any obligation to perform marital services, or to render conjugal rights — s 114(2) This provision enables a court exercising jurisdiction under the Act to make a form of separation order: see Tansell v Tansell (1977) 3 Fam LR 11,441 at 11,452; FLC 90–280. Section 114(2) is dependent upon the power granted in s 114(1). Section 114(2) does not grant a power which is separate and distinct from the power granted to the courts by s 114(1). It provides that in exercising its powers under s 114(1) the court may make one of the orders referred to in s 114(2): see R v McMinn [1982] VR 53 at 63. Section 114(2) enables the court to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights: see R v McMinn, above; see also In the Marriage of Gillie (1978) 4 Fam LR 127; FLC 90–442; Tansell v Tansell (1977) 3 Fam LR 11,441; FLC 90–280 at 76,496. There is no equivalent provision for de facto spouses.

[page 1125] [s 114.31] Interlocutory injunction — Prima facie case — Serious question In Beecham Group Ltd V Bristol Laboratories Pty Ltd (1968) 118 CLR 618, the High Court said that an applicant for an interlocutory injunction must establish a prima facie case in relation to the subject matter of the injunction. The term “prima facie” means that if the evidence remains as it is there is a probability that at the hearing the applicant will be held entitled to relief. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, the House of Lords said that the court must be satisfied that the claim is not frivolous or vexatious; that there is a serious question to be tried. In Ashburton Oil (NL) v Alpha Minerals (1971) 123 CLR 614, the High Court applied the test in the Beecham’s case, above. In the New South Wales Court of Appeal said that it Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729, should adhere to the formula in Beecham’s case, above. In Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 at 398 per Gibbs CJ inclined to the view of the House of Lords in the Beecham’s case, above and said “that the proper approach, in considering whether an interlocutory injunction should be granted, is first to inquire whether there is a serious question to be tried, and then to determine the matter on the balance of convenience”. The Full Court of the Federal Court in Epitoma Pty Ltd v Australasian Meat Industry Employees Union (No 2) (1984) 54 ALR 730 adopted an approach similar to that of Gibbs CJ. In In the Marriage of Aldred (No 2) (1985) 9 Fam LR 1091; FLC 91–602, the Full Court discussed the cases on the question of whether a prima facie case must be shown or whether it is only necessary that there be a serious question to be tried but did not decide on a particular approach. The Full Court said that in the circumstances of that case whichever approach was adopted, the requirement was met. [s 114.31A] Interlocutory injunctions and undertakings as to damages General equitable principles as applied in civil litigation state that a person seeking an interlocutory injunction must give an undertaking as to damages. The purpose of the undertaking is to assure the party against whom the

injunction has been granted that they will not suffer loss unduly if it later turns out that the applicant’s case is not well founded. It may be a consideration in deciding where the balance of convenience lies that the party giving the undertaking does not have, or may not have, the means to fulfill the undertaking. Applied rigorously, therefore, this principle may mean that the applicant’s impecuniosity may prevent them obtaining the injunction at all. However, in Blueseas Investments Pty Ltd v Mitchell (1999) 25 Fam LR 65; FLC 92–856; BC9905768, the Full Court held that this principle should not be applied with full force in family law litigation because it was often the case that the parties’ wealth was controlled by one rather than both parties. This meant that where the other requirements for the grant of an injunction were present, the impecuniosity of a party would not of itself prevent an injunction being granted. [s 114.32] Risk of danger or injury There is a further matter that the applicant must establish, namely a risk of injury if the injunction is not granted. If there is no such risk then the injunction should be refused: see In the Marriage of Aldred (No 2) (1985) 9 Fam LR 1091; FLC 91–602 at 79,872 (FC). Before a court grants an injunction, if no actual damage or injury is proved, there must be proof of apprehended danger and there must also be proof that the apprehended damage or injury will, if it comes, be very substantial: see Fletcher v Bealey (1885) 28 Ch D 688 at 698. The degree of probability of future injury is not an absolute standard; what is to be aimed at is justice between the parties, having regard to all the relevant circumstances: see Hooper v Rogers [1975] Ch 43 at 49. The court will take account of all relevant matters and will make such orders as appear most just in view of the various interests of the parties and of third persons. A court will not exercise its discretion by granting an injunction when the risk of injury which is complained of is merely insignificant or illusory: see Spry, Equitable Remedies, 2nd ed, p 353; see also In the Marriage of Aldred (No 2), above. [page 1126]

The Full Court said in In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027, in respect of an injunction in relation to property under s 114(1), that it is not sufficient to show that it may be proved later that the other party has a relevant interest in the property. Some other factor must be established, for example that unless the injunction is granted, the other party may dispose of or deal with the property or with the company or trust property, in such a way or manner that there is a risk that any order made under s 79 will not be met. This test of a “risk” was adopted by the Full Court in In the Marriage of Aldred (No 2), above, where it was held in relation to one injunction that the evidence did not provide a sufficient basis for finding that there was a real risk that the respondent would use his controlling interest in certain companies to reduce the value of the applicant’s shareholding, or to dispose of or otherwise deal with assets, in order to frustrate the applicant’s claim in so far as quantum of any award was concerned. [s 114.33] Injunction by way of ancillary relief — s 114(3) This provision provides that a court may grant an injunction by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree) in any case in which it appears to the court to be just or convenient to do so, and either unconditionally or on such terms and conditions as the court thinks appropriate. The matrimonial cause here falls within the definition of para (f) in s 4(1) namely, a proceeding in relation to concurrent, pending, or completed proceedings for other types of matrimonial relief. It is in similar terms to s 125 of the repealed Matrimonial Causes Act 1959. Provided that the making of an order would be incidental to such other proceedings, it is not necessary that the proceedings lie between parties to the marriage: see In the Marriage of Robertson (1977) 15 ALR 145; 2 Fam LR 11,699; 28 FLR 129; FLC 90–214. It is also not necessary that the proceedings lie in circumstances arising out of the marital relationship: see Sanders v Sanders (1967) 116 CLR 366 at 372; [1968] ALR 43; see also Antonarkis v Delly (1976) 1 Fam LR 11,334 at 11,338; FLC 90–063; In the Marriage of Kalenjuk (1977) 3 Fam LR 11,137; FLC 90–218. However, before the court may grant an injunction of the sort envisaged, it

must have before it proceedings, such as maintenance or property proceedings, other than proceedings falling within s 114(1). It may then grant an injunction as a step in the making, completion or enforcement of those proceedings. If the proceedings which are supported by an injunction under this section are dismissed for any reason, then the injunction must be discharged: see In the Marriage of Schmidt (A Mastrone, Intervener) (1980) 6 Fam LR 488; FLC 90–873. The relationship must be a relationship to concurrent pending or completed proceedings of a kind referred to in paras (a)–(d) inclusive. The court inquires whether the fulfilment of the applicant’s rights under the Act will be jeopardised if injunctive relief is not granted: see In the Marriage of Harris; Re Banaco Pty Ltd (No 2) (1981) 7 Fam LR 515; FLC 91–100; see also In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91– 067; In the Marriage of Stowe (1980) 6 Fam LR 757; (1981) FLC 91–027. The injunction must be relevant to the substantive proceedings. What is relevant depends on the nature of the substantive application. An order restraining dealing with an asset is not relevant to an application for dissolution: see In the Marriage of Harris; Re Banaco Pty Ltd (No 2), above. The onus rests on the applicant to show that the order sought is reasonably incidental to the main application. In property proceedings, the court may grant an injunction to preserve assets pending the determination of the substantive application. In aid of maintenance proceedings, the injunction may restrain a respondent from taking any action which may interfere with the use of a car or a home until means with which to acquire a reasonable substitute have been provided: see In the Marriage of Walton (1981) FLC 91–006; see also In the Marriage of Harris; Re Banaco Pty Ltd (No 2), above. The court may grant both interlocutory and permanent injunctions: see Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC 90–063. [page 1127] [s 114.34] Injunctions and third parties The extent of the power of the

Family Court to grant injunctions directed against or indirectly affecting third parties was, prior to the introduction of Part VIIIAA, the subject of considerable uncertainty. In Sanders v Sanders (1967) 116 CLR 366; [1968] ALR 43, the High Court held that an injunction could be granted against a third party. At 371–2 Barwick CJ (with whom McTiernan J agreed) said: “That paragraph may be exercised to maintain an existing situation until the court can decide what should be done upon the substantive application for maintenance, even though its exercise involves third parties, and the rights of any such party or parties in relation to one or both of the parties to the matrimonial cause, or in relation to the property of one or both of those parties. But, of course, it must be exercised in a proceeding under the Matrimonial Causes Act and must be in aid of the exercise of the court’s jurisdiction in those proceedings.” The statement by Barwick CJ in Sanders v Sanders, above, concerned s 124 of the repealed Matrimonial Causes Act 1959 which dealt with ancillary, and not, independent injunctions. The statement by Barwick CJ in Sanders v Sanders, above, was cited with approval by the High Court in Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC 90–063. The High Court upheld the power under s 124 to grant injunctions against third parties and said that the power extended to the granting of permanent injunctions. A wife obtained an order against her mother-in-law and the husband’s stepbrother to vacate the matrimonial home. Both Sanders v Sanders and Antonarkis v Delly, above, were referred to with approval by the High Court in R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616, a case decided under the Family Law Act. The statement of the law by Barwick CJ in Sanders v Sanders, above applies equally to injunctions under s 114 of the Act: see R v Dovey; Ex parte Ross, above; see also In the Marriage of Kalenjuk (1977) 3 Fam LR 11,137; FLC 90–218; In the Marriage of Vodeniciotis (1978) 4 Fam LR 743; (1979) FLC 90–617; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856; In the Marriage of Cullen (1980) 6 Fam LR 480; FLC 90–899. In In the Marriage of Cullen, above, Treyvaud J said that the statement of Barwick CJ in Sanders v Sanders, above, could be applied in relation to both s 114(1) and (3).

It also appears that the statement of the law by Barwick CJ in Sanders v Sanders, above applies to both interlocutory and permanent injunctions: see Antonarkis v Delly, above. It is clear, however, from both the statement of Barwick CJ in Sanders v Sanders, above and the decision of the High Court in Antonarkis v Delly, above that the court can issue an injunction in respect of third parties only in the course of proceedings under the Act and only if the injunction is in aid of the exercise of the court’s jurisdiction in such proceedings: see also Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000; see also In the Marriage of Paxton (1977) 6 Fam LR 417; (1980) FLC 90–879. Initially the Family Court was reluctant to issue an injunction against a party to the proceedings if it would also affect the rights of third parties: see In the Marriage of Page (1978) 4 Fam LR 663; FLC 90–525. However, in R v Dovey; Ex parte Ross (1979) 5 Fam LR 1; FLC 90–616, the High Court held that an injunction may be granted to restrain a husband from using his influence or control over a company which owned a matrimonial home so as to evict the wife. Gibbs J (as he then was) said (at Fam LR 6–7): “Once the proceedings are found to be of the kind referred to in para (c) or para (e) of the definition of matrimonial cause, the court has jurisdiction and the fact that the husband may be affected in the performance of other duties which do not arise out of the marital relationship, although relevant to the question how the jurisdiction should be exercised, is no ground for holding that jurisdiction does not exist.” Gibbs J did, however, observe that it certainly is a matter to be taken into account by the court in considering whether it should exercise its discretion in granting an injunction. In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90–898, the Full Court said that the principle in R v Dovey; Ex parte Ross, above, applied equally to mandatory injunctions as to prohibitory. [page 1128] After the decision of the High Court in R v Dovey the Family Court took a wider view of its powers under s 114. In In the Marriage of Paxton (1977) 6

Fam LR 417 at 420; (1980) FLC 90–879, the Full Court said that there is power in appropriate cases to grant an injunction against a third party in proceedings constituting a matrimonial cause. In In the Marriage of Smith and Saywell, supra, the Full Court said that the court may grant injunctions against third parties. The Full Court did, however, say that whilst the fact that a third party is likely to be affected directly or indirectly by an order made under s 114(3) did not oust the jurisdiction of the court to make the order, that factor was an important matter to be considered when the court was exercising discretion to grant the injunction. In In the Marriage of Burridge (1980) 6 Fam LR 513; FLC 90– 902, Nygh J said that an injunction under s 114(3) could issue against a third party. The position, therefore, was that the Family Court took the view that it had jurisdiction to grant an injunction against a third party, even if the rights of the third party were adversely affected. Ascot Investments case The wide approach taken by the Family Court was subsequently reversed by the High Court in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000. It also represented a change in the attitude of the High Court to such injunctions. The High Court held that though the court may grant an injunction which is directed to a third party, or which will indirectly affect the position of a third party, it cannot grant an injunction if its effect would be to deprive a third party of an existing right, or to impose on a third party a duty which the third party would not otherwise be liable to perform. In Ascot Investments Pty Ltd v Harper, Gibbs J (as he then was) said (at Fam LR 601; FLC 76,061): “The authorities to which I have referred [that is Sanders v Sanders; Antonarkis v Delly; R v Ross-Jones; Ex parte Beaumont and R v Dovey; Ex parte Ross] establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform. The general words of ss 80 and 114 must be understood in the context of the Act, which confers

jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties in the absence of clear and unambiguous words.” The court could not make an order which would adversely affect the rights of a third party either by making such an order directly against a third party, or indirectly by ordering a party to the marriage to do or admit an act or thing which would be to the detriment of a third party. The High Court in the Ascot Investments case distinguished Re Dovey, above, on the facts. Exceptions In the Ascot Investments case, Gibbs J did consider that an injunction can lie directly against a third party where: (a) the third party’s claim is a mere sham; or (b) the third party is completely controlled by one party to the proceedings so that in reality, an order against the third party is an order against the party. Gibbs J said (at Fam LR 602; FLC 76,061–2): “The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.” Except in the case of shams and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it. [page 1129] After the Ascot Investments case Subsequent to the decision of the High

Court in the Ascot Investments case a number of decisions of the Family Court sought to confine the restrictive view taken by the High Court in that case. In In the Marriage of Gillies (1981) 7 Fam LR 106; FLC 91–054, the Full Court said that an interlocutory order which restrains a third party, until further order, does not deprive the third party of an existing right or impose on the third party a duty which it would not otherwise be liable to perform. In the Ascot Investments case, Gibbs J did leave open, in that case, the question of whether an injunction would lie against a third party if the third party was acting simply in accordance with the request of a party to the marriage; however, he went on to say that in this difficult area it seemed wise to avoid unnecessary dicta, and to allow the court to explore the outer limits of the powers of the Family Court step by step, as cases calling for a decision arise. In In the Marriage of Harris; Re Banaco Pty Ltd (No 2) (1981) 7 Fam LR 515; FLC 91–100, the Full Court held that an injunction could lie against a third party who was neither a sham nor a puppet of a party to the proceedings if the injunction against the third party was interlocutory and not permanent, so that the third party could not claim that its rights were extinguished or defeated. The Full Court also said that there were special features from which it could be concluded that the third party ought not to be treated as a stranger to the marriage. There was a close association between the third party and the party to the proceedings: see also In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91–067; see also In the Marriage of Howard (1982) 8 Fam LR 441; FLC 91–279; In the Marriage of Gillies (1981) 7 Fam LR 106; FLC 91– 054. In In the Marriage of Pockran and Crewes (1982) 8 Fam LR 893; (1983) FLC 91–311, the Full Court set aside a permanent injunction that had been granted against an independent third party. In summary, the Family Court took the view that the restrictive approach of the High Court in the Ascot Investments case did not apply if the interference of the right or power of the third party was temporary and such right or power was not destroyed or abrogated. The lack of jurisdiction was confined to third party injunctions of a non-interim or non-interlocutory kind. However, in In the Marriage of Wagner (1984) 9 Fam LR 589; FLC 91–

518, Lindenmayer J distinguished in In the Marriage of Harris; Re Banaco Pty Ltd (No 2), above, on the facts and said that he was not persuaded that the remarks of Gibbs J in the Ascot Investments case were not applicable equally to consideration of interlocutory orders. Re Ross-Jones; Ex parte Green In Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555 four members of the High Court (Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed) said that the extent of the power of the Family Court to make an order or injunction which is directed to a third party, or which will indirectly affect the position of a third party, has been authoritatively determined by the Ascot Investments case. The High Court also overruled the decision of the Full Court in In the Marriage of Harris; Re Banaco Pty Ltd (No 2) (1981) 7 Fam LR 515; FLC 91–100. Gibbs CJ said (at (1984) 9 Fam LR 898; FLC 79,488): “The court has no wider jurisdiction to grant an interlocutory injunction than to grant a permanent injunction.” The High Court rejected the approach that the principles in the Ascot Investments case did not apply to interlocutory injunctions, because such orders interfered only temporarily with the rights of third parties. In Re Ross-Jones and Marinovich; Ex parte Green, the High Court also rejected the approach that a distinction should be drawn between cases in which the third party is a stranger to the parties to the marriage and those in which there is an association of some kind between the third party and one of the parties to the marriage. Gibbs CJ said (at Fam LR 898; FLC 79,488): “No distinction can, however, be drawn between the position of third parties who are strangers to the parties to the marriage and those who have some relationship or association with one of them. The fact that a third party is, for example, a parent of one of the parties to the marriage does not in itself expand the power of the court. Of course, if there is some relationship between the third party and one of the married parties, the case might come within one of the exceptions recognised in Ascot Investments.” [page 1130]

In Re Ross-Jones and Marinovich; Ex parte Green, Gibbs CJ did say at Fam LR 898; FLC 79,488 that it may be right to keep matters in statu quo by interlocutory injunction for a short period of time while the court is exercising its power to determine whether it has jurisdiction. [s 114.35] Examples of injunctions against third parties The following are examples of injunctions granted against third parties, although these examples are probably dubious following the decision of the High Court in Re Ross-Jones and Marinovich; Ex parte Green: (1) If the third party exercises legal rights not bona fide for its own purposes, but for the sole purpose of assisting a party to the proceedings and disadvantaging the other party and for that reason seeks to deprive, for example, a wife and child of accommodation, it may be that the court has jurisdiction to intervene by injunctive relief: see In the Marriage of Howard (1982) 8 Fam LR 441; FLC 91–279. (2) An injunction may be granted requiring a third party to temporarily lift a caveat in order to allow a transfer of title to land to be effected between parties to a marriage. The injunction is permissible provided that the caveator’s claim against the land is not in any way prejudiced by compliance with the terms of the injunction: see Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC 90–063. (3) A secured creditor, such as a mortgagee, may be restrained, temporarily and on appropriate terms, from exercising a power of sale over matrimonial assets: see In the Marriage of Wagner (1984) 9 Fam LR 589; FLC 91–518. (4) A secured creditor may be deprived of part of its security provided that it can be shown that the rest of it can be realised as readily as the part affected by the order and that such realisation will provide ample funds from which the creditor can be satisfied: see In the Marriage of Rieck (1981) 7 Fam LR 391; FLC 91–067. (5) An injunction may be granted restraining third parties from pursuing litigation in other courts where it involves issues overlapping with those before the Family Court. See In the

Marriage of Gillies (1981) 7 Fam LR 106; FLC 91–054; see also In the Marriage of Buckeridge (1981) 6 Fam LR 718; FLC 91–005; In the Marriage of Buckeridge (No 2) (1981) 7 Fam LR 958; FLC 91– 114. Such an injunction against a third party restraining the third party from continuing such proceedings in another court was not confined to third party interveners, and non-intervening third parties may be restrained provided proper notice is given of the proceedings in the Family Court and also an opportunity is given to present evidence and submissions: see In the Marriage of Gillies (1981) 7 Fam LR 106; FLC 91–054 at 76,439. The only possible exception to what was said by the High Court in Ascot Investments, above, and Re Ross-Jones and Marinovich; Ex parte Green, above, may be in circumstances where the third party has voluntarily intervened: see Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888 at 897; 59 ALJR 132; FLC 91–555 at 79,487) referring to In the Marriage of Gillies, above. [s 114.36] Third party rights a sham or device The position will be different if the rights of the third party may be shown to be a sham or device. Sham transactions will be disregarded. If the alleged rights, powers or privileges of the third party are only a sham and have been brought into being in appearance rather than reality as a device to assist one party to evade his or her obligations under the Act: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 602; 33 ALR 631; 6 Fam LR 591; FLC 91–000 at 76,061–2, see also Antonarkis v Delly (1976) 1 Fam LR 11,334; FLC 90–063; Re RossJones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555. If the transaction whereby the third party acquired an interest in the subject property is one which could be set aside under s 85, the court still has jurisdiction to do so. The obvious sham or device need not be set aside under s 85: see In the Marriage of Heath (1983) 9 Fam LR 97; FLC 91–362. [page 1131]

In other circumstances, the legally effective transaction must first be set aside under s 85 so as to extinguish the rights of the third party. It is not necessary to show any conspiracy between the respondent and the third party before such an order can be made; however, this can only be done when the rights of the third party have arisen since the breakdown of the marital relationship: see In the Marriage of Pflugradt (1981) 7 Fam LR 188; FLC 91–052. [s 114.37] An order against a third party is an order against a party The position will also be different if the third party, such as a company, is completely controlled by one party to a marriage so that in reality an order against the third party is an order against the party: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91– 000; see also In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; FLC 90–856; Re Ross-Jones and Marinovich; Ex parte Green (1984) 56 ALR 609; 9 Fam LR 888; 59 ALJR 132; FLC 91–555. The court, however, cannot ignore settled principles of company law and the law of trusts. The court could not order the transfer of assets of a company controlled by a party if this would reduce the asset backing for the shares held by the minority shareholders or the assets available to the creditors of the company: see In the Marriage of Yates (1982) 8 Fam LR 273; FLC 91–227. This may not be relevant if there are no other substantial shareholders. The court may order a party who controls a company to take the necessary steps to sell assets of the company so as to put the company in the position whereby it can pay out a loan account which the company owes to the respondent party: see In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90–898; see also In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108. [s 114.38] Orders not affecting interests of third party It is submitted that it follows from the present attitude of the High Court that orders may be made directly or indirectly against third parties where such orders would not extinguish the rights of the third party or impose on the third party a duty which it would not otherwise be liable to perform (SO’R).

A third party may not be affected if the order does no more than prevent it from paying out a claim which is due to one of the parties to the marriage pending the hearing. A third party may not be affected if the third party is ordered to pay out to a party to the marriage a debt which the third party owes to that party and which is due for payment and which the third party is able to pay: see In the Marriage of Tiley (1980) 6 Fam LR 528; FLC 90–898. The court, however, may not make such an order where the existence of the indebtedness is in dispute or there is some doubt as to the ability of the third party to pay the debt. The court may order a third party to assign property to a party which the third party holds in trust for or owes to a party to the marriage where the third party is a bare trustee without any discretion. An order may be made against a third party which is acting as a servant or agent of a party to the marriage. If the third party is the alter ego of a party to the marriage: see Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 33 ALR 631; 6 Fam LR 591; FLC 91–000; see also In the Marriage of W (1982) 8 Fam LR 323; FLC 91–238; Re Bell; Ex parte Lees (1980) 30 ALR 489; 6 Fam LR 208; FLC 90–850. [s 114.40] Do the ordinary principles of equity concerning the issue of injunctions apply to s 114? An injunction was originally an equitable remedy and a number of rules have evolved relating to the exercise of discretion as to whether to grant an injunction in particular circumstances. These principles are still applied by the ordinary civil courts notwithstanding the general fusion of law and equity. The question which arises is whether the principles of law and equity should be applied by courts exercising jurisdiction under the Family Law Act. The Family Court does ordinarily uphold the principles of equity relating to the issue of injunctions under s 114 where those principles are appropriate to the matter before the court: see In the Marriage of J (1979) 5 Fam LR 547; FLC 90–718 at 78,869; see also In the Marriage of McCarney (1977) 2 Fam LR 11,670; FLC 90–200.

[page 1132] However, the Family Court can extend or alter the principles of equity if it believes it is proper to do so: see In the Marriage of Thompson (1976) 2 Fam LR 11,442; FLC 90–206; Parry v Crooks (1981) 6 Fam LR 824 at 835; (1982) FLC 91–258. [s 114.41] Relevance of the welfare of children in proceedings for an injunction under s 114 Except in proceedings under s 114(3) which are in aid of parenting proceedings, the welfare of a child of a marriage is not the paramount consideration in proceedings under s 114: see In the Marriage of Davis (1976) 1 Fam LR 11,522; FLC 90–062 at 75,309. However, the need to provide a home for the children of a marriage may be a decisive issue: see In the Marriage of Page (1980) 6 Fam LR 669; (1981) FLC 91–025; see also In the Marriage of D’Agostino (1976) 2 Fam LR 11,322; 30 FLR 510; FLC 90– 130; In the Marriage of Briers (1978) 4 Fam LN 52; FLC 90–483; In the Marriage of Borzak (1979) 5 Fam LR 571; FLC 90–688. [s 114.42] Exercise of power under s 114 — discretionary The exercise of power under s 114 is discretionary: see In the Marriage of Rowe (1980) 6 Fam LR 435; FLC 90–895 at 75,642. The power to grant injunctions is a discretionary power not to be exercised lightly: see In the Marriage of Sieling (1979) 24 ALR 357; 4 Fam LR 713; FLC 90–627; In the Marriage of J (1979) 5 Fam LR 547; FLC 90–718. [s 114.43] Relevance of s 43 In deciding whether to make an order or injunction under s 114(1) and the terms of any such order or injunction, the court must have regard to the four principles set out in s 43: see In the Marriage of Dean (1977) 2 Fam LR 11,691; FLC 90–213; see also In the Marriage of Jolly (1978) 4 Fam LN 24; FLC 90–458; In the Marriage of Aly (1978) 4 Fam LR 565; FLC 90–519; In the Marriage of Stone (1976) 2 Fam LR 11,235; FLC 90–134; In the Marriage of Lee (1977) 3 Fam LR 11,609; FLC 90–314.

____________________

[s 114AA]

Powers of arrest

*114AA (1) Where: (a) an injunction is in force under section 114 for the personal protection of a person; and (b) a police officer believes, on reasonable grounds, that the person against whom the injunction is directed (in this section called the respondent) has, since the injunction was granted, breached the injunction by: (i) causing, or threatening to cause, bodily harm to the person referred to in paragraph (a); or (ii) harassing, molesting or stalking that person; the police officer may arrest the respondent without warrant. Note: Section 122AA authorises the use of reasonable force in making an arrest. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 95 opn 27 Dec 2000] [subs (1) subst Act 182 of 1989 s 19; Act 143 of 2000 s 3 and Sch 3 item 94 opn 27 Dec 2000]

[page 1133]

(2) [subs (2) rep Act 182 of 1989 s 19] (3) [Duties of arresting officer] Where a police officer arrests a person pursuant to subsection (1): (a) the police officer shall: (i) ensure that the person is brought

before the court that granted the injunction, or another court having jurisdiction under this Act, before the expiration of the relevant period; and (ii) take all reasonable steps to ensure that, before the person is so brought before a court, the person on whose application the injunction under section 114 was granted is aware that the first-mentioned person has been arrested and of the court before which the person is to be brought; and (b) the person shall not be released before the expiration of the relevant period except pursuant to an order of the court that granted the injunction or another court having jurisdiction under this Act; but nothing in this subsection authorizes the keeping of the person in custody after the expiration of the relevant period. [subs (3) am Act 181 of 1987 s 63 and Sch; Act 182 of 1989 s 19]

(4) [Determination of proceedings] Where a person is brought before a court in accordance with subsection (3), the court shall:

(a) if there is an application before the court for the person to be dealt with for breach of the injunction — forthwith proceed to hear and determine that application; or (b) if there is no application before the court as mentioned in paragraph (a) — order that the person be released forthwith. [subs (4) am Act 182 of 1989 s 19]

(5) [Duration of custody] Where: (a) a person is brought before a court in accordance with subsection (3); (b) the court proceeds to hear and determine an application for the person to be dealt with for breach of an injunction as mentioned in paragraph (4)(a); and (c) at the expiration of the relevant period the proceedings have not been determined; the person may be kept in custody after the expiration of the relevant period until: (d) the court gives its decision on the proceedings; (e) the court orders that the person be released; or

(f)

the court adjourns the hearing for a period of more than 24 hours; whichever happens first. (6) [subs (6) rep Act 182 of 1989 s 19] (7) [Interpretation] In this section: police officer [def rep Act 181 of 1987 s 59]

relevant period, in relation to a person’s arrest, means the period starting when the person is arrested and ending at the close of business on the next day that is not a Saturday, Sunday or public holiday. [def subst Act 143 of 2000 s 3 and Sch 3 item 96 opn 27 Dec 2000] [s 114AA insrt Act 72 of 1983 s 65] *Editor’s note: Section 68 of the Family Law Amendment Act, No 181 of 1987, provides: Savings provisions in relation to injunctions 68 (1) Notwithstanding the amendments of section 114 of the Principal Act made by this Act, that section continues to apply in relation to proceedings instituted before the commencement of this Act as if those amendments had not been made. (2) Notwithstanding the amendments of section 114 of the Principal Act made by this Act, ss 114 and 114AA of the Principal Act continue to apply in relation to injunctions granted under the first-mentioned section (whether before or after the commencement of this Act) as if those amendments had not been made.

[page 1134]

COMMENTARY ON SECTION 114AA Powers injunction for personal protection — overview of s 114AA …. The first requirement: an injunction in force for the personal protection of a person: s 114AA(1)(a) …. The second requirement: police officer reasonably believes the person has breached the injunction etc: s 114AA(1)(b) …. Duties of police officer — s 114AA(3)(a) …. Once brought before the court — s 114AA(4), (5) …. When the person may be released — s 114AA(3)(b) …. Determination of proceedings: — s 114AA(4) …. Duration of custody — s 114AA(5) ….

[s 114AA.1] [s 114AA.3]

[s 114AA.5] [s 114AA.8] [s 114AA.9] [s 114AA.10] [s 114AA.12] [s 114AA.15]

[s 114AA.1] Powers injunction for personal protection — overview of s 114AA Section 114AA of arrest where creates a power of arrest in certain circumstances when a s 114 injunction for personal protection is in force: s 114AA (1); sets out duties of the arresting officer and makes provision for when the person is to be released: s 114AA(3); provides for determination of the proceedings when the person is brought before the court: s 114AA(4); and specifies the duration of custody: s 114AA(5). [s 114AA.3] The first requirement: an injunction in force for the personal protection of a person: s 114AA(1)(a) Section 114AA(1) creates a power of arrest where there is a certain type of injunction in force — para (a), and a police officer has a certain reasonable belief — para (b). We consider these two requirements in turn. The first requirement is that there must be “an injunction is in force under s 114 for the personal protection of a person”. The Act does not define the words “for the personal protection of a person”. The term would clearly include an injunction under s 114(1)(a) (“for the personal protection of a party to the marriage”). The term would no doubt also include injunctions under other paragraphs of s 114(1) if in the circumstances they could be characterized as being made for a person’s

personal protection. On the meaning of “personal protection”, see also the commentary to s 114. Related provisions: injunctions in relation to children See also the power to make injunctions under s 68B, and in relation to such injunctions the associated power of arrest in s 68C. [s 114AA.5] The second requirement: police officer reasonably believes the person has breached the injunction etc: s 114AA(1)(b) The second requirement is that a police officer believes certain things on reasonable grounds. The components of this second requirement are (slightly abbreviated): A police officer believes, on reasonable grounds, that the person against whom the injunction is directed has breached the injunction in any of a number of ways, namely: by causing bodily harm to the person; or by threatening to cause bodily harm to the person; or by threatening to cause bodily harm to the person; or The component terms of this requirement (eg “harassing”) are not defined in the Act, and no doubt have their ordinary meaning. See generally the commentary to s 114, above. Such terms are frequently used in criminal laws and laws providing for protection against violence, and the case law on their meaning in those contexts may also assist. [s 114AA.8] Duties of police officer — s 114AA(3)(a) Section s 114AA(3) (a) sets out the duties of a police officer who arrests a person under (1). Those duties are, in brief: (i) To bring this person before the court (the court that granted the injunction or another court having jurisdiction under the Act) before the end of the “relevant period” (defined [page 1135] in s 114AA(7) as the period between the arrest and the close of

business on the next day that is not a Saturday, Sunday or public holiday), and (ii) To take reasonable steps to ensure that the person on whose application the injunction was made is aware that the person has been arrested, and of the court before which the person is brought. [s 114AA.9] Once brought before the court — s 114AA(4), (5) When a respondent is brought before a court by a police officer who has arrested such person, if there is an application before the court for this person to be dealt with for breach of the injunction, then the court shall forthwith proceed to hear and determine that application, or if there is no such application before the court, order that the respondent be released forthwith. If, once a respondent has been brought before a court, the court proceeds to hear and determine an application and at the expiration of the relevant period the proceedings have not been determined, the respondent may be kept in custody after the expiration of the relevant period until the court gives its decision, the court orders that the respondent be released, or the court adjourns the hearing for a period of more than 24 hours, whichever happens first. [s 114AA.10] When the person may be released — s 114AA(3)(b) Although the heading for subsection (3) as a whole is “Duties of arresting officer”, paragraph (b) deals with when the person is to be released rather than specifying the duties of the arresting officer. The subsection provides that the person shall not be released within the “relevant period” except by order of the court that granted the injunction or another court with jurisdiction under the Act. It adds that nothing in s 114AA (3) authorises the person to be kept in custody after the expiration of the period; but note the provisions of s 114AA(5), relating to the court’s powers to deal with the matter. [s 114AA.12] Determination of proceedings: — s 114AA(4) Section 114AA(4) provides that when a person is brought to the court under subs (3), if there is an application before the court for the person to be dealt with for breach of the injunction, the court must “forthwith” hear and determine that application. If there is no such application, the person is to be released

forthwith. [s 114AA.15] Duration of custody — s 114AA(5) Section 114AA(5) deals with the situation where the person has been brought to court under (3), and the court deals with an application for the person to be dealt with for breach of the injunction. If at the end of the “relevant period” the proceedings have not been determined, the person may be kept in custody until the court gives its decision in the proceedings; or the court orders that the person be released; or the court adjourns the hearing for more than 24 hours; whichever happens first.

____________________

[s 114AB]

Operation of State and Territory laws

114AB (1) [Effect on other laws operating concurrently] Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections. [subs (1) am Act 181 of 1987 s 60; Act 167 of 1995 s 51]

(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless: (a) where the person instituted a proceeding: (i) the proceeding has lapsed, been discontinued, or been dismissed; or

[page 1136] (ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and (b) where the person took other action — neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act. [subs (2) subst Act 37 of 1991 s 18; am Act 167 of 1995 s 51]

(3) [subs (3) rep Act 37 of 1991 s 18] COMMENTARY ON SECTION 114AB PRELIMINARY Preservation of state law …. Prescribed laws …. Double jeopardy ….

[s 114AB.1] [s 114AB.2] [s 114AB.3]

PRELIMINARY [s 114AB.1] Preservation of state law Section 114AB(1) provides that ss 68B, 68C, and 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a state or territory that is capable of operating concurrently with the section. The section does not render state law for personal protection invalid for inconsistency under s 109 of the Constitution: De Angelis v De Angelis (2000) 27 Fam LR 133; FLC 93–067. [s 114AB.2] Prescribed laws See reg 19, Family Law Regulations. [s 114AB.3] Double jeopardy In order to avoid the possibility of double jeopardy, this section provides that where a person has instituted a proceeding or taken any other action under a prescribed law of a state or territory in respect of a matter for which that person could institute

proceedings under ss 68B, 68C, 114 or 114AA, he or she is not entitled to institute proceedings under either of those sections in respect of the same matter.

____________________

[page 1137]

PART XIVA — THE AUSTRALIAN INSTITUTE OF FAMILY STUDIES [s 114A]

Interpretation

114A In this Part, unless the contrary intention appears: Board [def rep Act 82 of 2006 s 3 and Sch 8[1], opn 1 July 2006]

Director means the Director of the Institute. Institute means the Australian Institute of Family Studies established by this Part. member [def rep Act 82 of 2006 s 3 and Sch 8[2], opn 1 July 2006] [s 114A insrt Act 23 of 1979 s 21; am Act 76 of 1986 s 3 and Sch 1]

[s 114B]

Establishment of Institute

114B (1) [Title] There is established by this Part an Institute by the name of the Australian Institute of Family Studies. [subs (1) am Act 76 of 1986 s 3 and Sch 1]

(1A) There is to be a Director of the Institute. [subs (1A) insrt Act 82 of 2006 s 3 and Sch 8[3], opn 1 July 2006]

(1B) The Institute consists of: (a) the Director; and (b) the staff referred to in section 114M.

Note: The Institute does not have a legal identity separate from the Commonwealth. [subs (1B) insrt Act 82 of 2006 s 3 and Sch 8[3], opn 1 July 2006]

(1C) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013): (a) the Institute is a listed entity; and (b) the Director is the accountable authority of the Institute; and (c) the persons referred to in subsection (1B) are officials of the Institute; and (d) the purposes of the Institute include: (i) the functions of the Director referred to in subsection (2); and (ii) the function of the Institute referred to in subsection (2A). [subs (1C) insrt Act 62 of 2014 s 3 and Sch 6 item 42, opn 1 July 2014]

(2) [Functions] The functions of the Director are: (a) to promote, by the conduct, encouragement and coordination of research and other appropriate means, the identification of, and development of understanding of, the factors affecting marital and family stability in Australia, with the object of promoting the protection of the family as the natural and fundamental group unit in society; and (b) to advise and assist the Minister in relation to the making of grants, and with the approval of the Minister to make grants, out of moneys available under appropriations made by the Parliament, for purposes

related to the functions of the Institute and the supervising of the employment of grants so made. [subs (2) am Act 72 of 1983 s 66; Act 76 of 1986 s 3 and Sch 1; Act 182 of 1989 s 24 and Sch; Act 82 of 2006 s 3 and Sch 8[4], opn 1 July 2006]

[page 1138] (2A) The function of the Institute (other than the Director) is to assist the Director in the performance of his or her functions. [subs (2A) insrt Act 82 of 2006 s 3 and Sch 8[5], opn 1 July 2006]

(3) [Minister may request particular activities] The Minister may: (a) request the Director to arrange for the Institute to engage in a particular activity (whether research or otherwise) in relation to a particular matter that is within the functions of the Institute; and (b) after consultation with the Director, specify the priority that is to be given to the activity. [subs (3) insrt Act 76 of 1986 s 3 and Sch 1; am Act 182 of 1989 s 24 and Sch; Act 82 of 2006 s 3 and Sch 8[6] and [7], opn 1 July 2006]

(4) [subs (4) rep Act 82 of 2006 s 3 and Sch 8[8], opn 1 July 2006]

[s 114BA] 114BA

Institute to be a body corporate [s 114BA rep Act 82 of 2006 s 3 and Sch 8[9], opn 1 July

2006]

[s 114BB] 114BB

Powers of Institute [s 114BB rep Act 82 of 2006 s 3 and Sch 8[9], opn 1 July

2006]

[s 114C]

Minister may give directions to Director

114C (1) Subject to subsection (2), the Minister may, by legislative instrument, give directions to the Director as to the performance of his or her functions. (2) Directions given by the Minister under subsection (1) must be of a general nature only. (3) The Director must comply with any direction given by the Minister under subsection (1). [s 114C subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114D]

Appointment of Director

114D (1) The Director is to be appointed by the Minister by written instrument. Note: The Director is eligible for reappointment: see section 33AA of the Acts Interpretation Act 1901. [subs (1) am Act 46 of 2011 s 3 and Sch 2[589], opn 27 Dec 2011]

(2) The Director is to be appointed on a full-time basis. [s 114D subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114E]

Term of appointment

114E The Director holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. [s 114E subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114F] 114F Director:

Acting appointments The Minister may appoint a person to act as the

(a) during a vacancy in the office of Director, whether or not an appointment has previously been made to the office; or [page 1139] (b) during any period, or during all periods, when the Director is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.

(2) [subs (2) rep Act 46 of 2011 s 3 and Sch 2 [592], opn 27 Dec 2011] [s 114F subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006; am Act 46 of 2011 s 3 and Sch 2[590]–[591], opn 27 Dec 2011]

[s 114G]

Director’s remuneration

114G (1) The Director is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Director is to be paid the remuneration that is prescribed. (2) The Director is to be paid the allowances that are prescribed. (3) This section has effect subject to the Remuneration Tribunal Act 1973. [s 114G subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114H]

Outside employment

114H The Director must not engage in paid employment outside the duties of the Director’s office without the Minister’s

approval. [s 114H subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114J]

Leave of absence

114J (1) The Director has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant the Director leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines. [s 114J subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114K] 114K

Disclosure of interests [s 114K rep Act 62 of 2014 s 3 and Sch 9 item 17, opn 1 July

2014]

[s 114L]

Other terms and conditions

114L The Director holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister. [s 114L subst Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114LA]

Resignation

114LA (1) The Director may resign his or her appointment by giving the Minister a written resignation. (2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day. [s 114LA insrt Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[page 1140]

[s 114LB]

Termination of appointment

114LB (1) The Minister may terminate the appointment of the Director for misbehaviour or physical or mental incapacity. (2) The Minister may terminate the appointment of the Director if: (a) the Director: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the Director is absent, except on leave of absence, without reasonable excuse; or (c) the Director fails, without reasonable excuse, to comply with section 114H (outside employment); or (d) the Director fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section. [subs (2) am Act 62 of 2014 s 3 and Sch 9 item 18, opn 1 July 2014] [s 114LB insrt Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114LC]

Annual reports

114LC

[s 114LC rep Act 62 of 2014 s 3 and Sch 9 item 19, opn 1

July 2014]

[s 114LD]

Delegation

114LD (1) The Director may delegate all or any of his or her functions or powers under this Part to an SES employee, or an acting SES employee, of the Institute. The delegation must be in writing. Note: For other powers of delegation, see see section 110 of the Public Governance, Performance and Accountability Act 2013 and section 78 of the Public Service Act 1999. [subs (1) am Act 62 of 2014 s 3 and Sch 9 item 20, opn 1 July 2014]

(2) In performing a delegated function or exercising a delegated power, a delegate must comply with any written directions of the Director. [s 114LD insrt Act 82 of 2006 s 3 and Sch 8[9], opn 1 July 2006]

[s 114M]

Staff

*114M (1) The staff of the Institute are to be persons engaged under the Public Service Act 1999. [page 1141] (2) For the purposes of the Public Service Act 1999: (a) the Director and the APS employees assisting the Director together constitute a Statutory Agency; and (b) the Director is the Head of that Statutory Agency. [subs (2) subst Act 146 of 1999 Sch 1]

(3) The Director may, with the approval of the Minister, engage persons to assist the Institute as consultants or otherwise. [subs (3) am Act 82 of 2006 s 3 and Sch 8[10], opn 1 July 2006]

(4) The terms and conditions of engagement of persons under subsection (3) are as determined by the Director from time to time. [s 114M subst Act 167 of 1995 s 52]

[s 114MA] 114MA

Money payable to Institute

[s 114MA rep Act 82 of 2006 s 3 and Sch 8[11], opn 1 July

2006]

[s 114MB] 114MB

Estimates

[s 114MB rep Act 152 of 1997 s 3 and Sch 2]

[s 114MC] 114MC

Contracts

[s 114MC rep Act 82 of 2006 s 3 and Sch 8[11], opn 1 July

2006]

[s 114MD] 114MD

Application of money

[s 114MD rep Act 82 of 2006 s 3 and Sch 8[11], opn 1 July

2006]

[s 114ME]

Investment of money

114ME

[s 114ME rep Act 152 of 1997 s 3 and Sch 2]

[s 114MF]

Exemption from taxation

114MF 2006]

[s 114MF rep Act 82 of 2006 s 3 and Sch 8[11], opn 1 July

*Editor’s note: Section 68 of the Family Law Reform Act 1995 No 167 provides as follows: (2) An engagement of a person to assist the Institute (as a consultant or otherwise, but not as a member of staff) under subsection 114M(1) of the Principal Act as in force before the commencement of this section continues to have effect after that commencement as if it were an engagement under subsection 114M(1) of the Principal Act as in force after that commencement.

[page 1143]

PART XIVB — ORDERS OF NON-JUDICIAL OFFICERS OF STATE COURTS OF SUMMARY JURISDICTION [Repealed] [Pt XIVB rep Act 151 of 2006 s 3 and Sch 1 Pt 1 item 6, opn 7 Dec 2006]

EDITOR’S NOTE: Part XIVB was repealed by the Judiciary Legislation Amendment Act 2006, which came into force on 7 December 2006. The effect of Pt XIVB was to deal with a narrow and specific technical problem, namely that consent and other orders made by registrars of state local courts were probably invalid because they did not comply with the restrictions of s 39(2) (d) of the Judiciary Act 1903. As the EM to the 2006 Act neatly put it, Pt XIVB provided “that the rights and liabilities of all persons are the same as if each such order had been an order made by the court in the exercise of its federal jurisdiction.” The 2006 Act essentially repeats the provisions of the repealed Pt XIVB, but applies them more generally than to orders made under the Family Law Act. It also seeks to prevent the problem from arising in the future, by repealing s 39(2)(d) of the Judiciary Act. The repeal of Pt XIVB therefore does not change the previous position in relation to family law orders made by registrars or other officers of state local courts that are inconsistent with the restrictions of the now-repealed s 39(2)(d): the parties should continue to treat those orders as if they had been validly made.

For details, see the Judiciary Legislation Amendment Act 2006, printed under the Guidecard “Related Commonwealth Legislation”. [page 1145]

PART XV — MISCELLANEOUS [s 115]

Family Law Council

*115 (1) [Established by Attorney-General] The AttorneyGeneral may establish a Family Law Council consisting of persons appointed by the Attorney-General in accordance with subsection (2). [subs (1) am Act 181 of 1987 s 63 and Sch]

(2) [Constitution] The Council shall consist of a Judge of the Family Court and such other judges, persons appointed or engaged under the Public Service Act 1999, officers of the Public Service of a State, family counsellors, family dispute resolution practitioners and other persons as the Attorney-General thinks fit. [subs (2) am Act 63 of 1976 s 39 and Sch; Act 167 of 1995 s 53; Act 146 of 1999 Sch 1; Act 46 of 2006 s 3 and Sch 4 item 70, opn 1 July 2006]

(3) [Advisory function] It is the function of the Council to advise and make recommendations to the Attorney-General, either of its own motion or upon request made to it by the AttorneyGeneral, concerning: (a) the working of this Act and other legislation relating to family law; (b) the working of legal aid in relation to family law; and (c) any other matters relating to family law. [subs (3) am Act 72 of 1983 s 68]

(4) [Appointment of Chairperson] The Attorney-General shall appoint one of its members to be Chairperson of the Council. [subs (4) am Act 182 of 1989 s 21]

(5) [Remuneration] A member of the Council shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, the member shall be paid such remuneration as is prescribed. [subs (5) subst Act 72 of 1983 s 68; am Act 181 of 1987 s 63 and Sch]

(5A) [Allowances] A member of the Council shall be paid such allowances as are prescribed. [subs (5A) insrt Act 72 of 1983 s 68]

(5B) [Effect subject to Act 215, 1973] Subsections (5) and (5A) have effect subject to the Remuneration Tribunal Act 1973. [subs (5B) insrt Act 72 of 1983 s 68; am Act 43 of 1996 s 3 and Sch 4]

(5C) [Tenure] Subject to this section, a member of the Council holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for reappointment. [subs (5C) insrt Act 72 of 1983 s 68; am Act 181 of 1987, s 63 and Sch]

(6) [Resignation] A member (including the Chairperson) may resign by writing signed and delivered to the Attorney-General. [subs (6) am Act 181 of 1987 s 63 and Sch; Act 182 of 1989 s 21]

[page 1146] (6A) [Misbehaviour, Incapacity] The Attorney-General may terminate the appointment of a member by reason of the

misbehaviour, or physical or mental incapacity, of the member. [subs (6A) insrt Act 72 of 1983 s 68]

(6B) [Other grounds for removal] If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Attorney-General shall terminate the appointment of that member. [subs (6B) insrt Act 72 of 1983 s 68; am Act 181 of 1987 s 63 and Sch]

(7) [Convening of meetings] Meetings of the Council shall be convened by the Chairperson or the Attorney-General. [subs (7) am Act 182 of 1989 s 21]

(8) [Record of meetings] The Council shall cause records to be kept of its meetings. (9) [Report] The Council shall, as soon as practicable after 30 June in each year, prepare and furnish to the Attorney-General a report of the operations of the Council during the year that ended on that 30 June. [subs (9) subst Act 72 of 1983 s 68]

(10) [Report to be tabled] The Attorney-General shall cause a copy of a report furnished under subsection (9) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Attorney-General. [subs (10) insrt Act 72 of 1983 s 68; am Act 181 of 1987 s 63 and Sch]

(11) [subs (11) rep Act 13 of 2013 s 3 and Sch 1 item 307, opn 12 Apr 2013]

[s 116] 116

Institute of Family Studies [s 116 rep Act 23 of 1979 s 22]

[s 116A] Financial assistance subject to conditions 116A

[s 116B] 116B

[s 116A rep Act 23 of 1992 Sch]

Payments subject to conditions [s 116B rep Act 23 of 1992 Sch]

[s 116C] Payments to legal practitioners by legal aid bodies 116C (1) [Amounts specified in regulations] The regulations may, in relation to matters included in a class of matters arising under this Act, under the regulations or under the applicable Rules of Court, fix or limit, or provide for the fixing or limiting of, the amounts that may be paid by relevant authorities to legal practitioners acting in such matters. [subs (1) am Act 165 of 1984 s 3 and Sch 1; Act 194 of 1999 s 3 and Sch 11[95]]

(2) [Authority liable to Commonwealth for overpayment] A relevant authority that pays, to a legal practitioner acting in a matter arising under this Act, an amount that exceeds the amount that the relevant authority is permitted, by regulations made under subsection (1), to pay to that legal practitioner in respect of that matter is, if the Minister [page 1147] so determines by instrument in writing, liable to pay to the Commonwealth such amount as the Minister specifies in the

instrument, not being an amount greater than the amount of the excess. [subs (2) am Act 165 of 1984 s 3 and Sch 1; Act 181 of 1987 s 63 and Sch]

(3) [Debt due to Commonwealth] An amount payable by a relevant authority to the Commonwealth in accordance with a determination of the Minister under subsection (2) is a debt due by the relevant authority to the Commonwealth. (4) [Crown of State, Territory bound] This section, and regulations made under subsection (1), bind the Crown in right of the Commonwealth, of each of the States and of the Northern Territory. [subs (4) am Act 59 of 2015 s 3 and Sch 2 item 155, opn 1 July 2016]

(5) [Interpretation] In this section: relevant authority means a person, authority or body (including an authority or body established by or under a law of a State or Territory) that, from time to time, receives relevant funding. relevant funding, in relation to a person, authority or body, means funding received, whether directly or indirectly, by the person, authority or body from the Commonwealth for the purposes of, or in connection with, the provision of legal assistance by the person, authority or body in connection with matters arising under this Act. [subs (5) am Act 165 of 1984 s 3 and Sch 1; Act 181 of 1987 s 63 and Sch] [s 116C insrt Act 67 of 1983 s 3]

[s 117]

Costs

117 (1) [Each party bears own costs] Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118,

each party to proceedings under this Act shall bear his or her own costs. [subs (1) am Act 181 of 1987 s 63 and Sch; Act 143 of 2000 s 3 and Sch 3 item 97 opn 27 Dec 2000; Act 46 of 2006 s 3 and Sch 1 item 40 and Sch 2 item 7, opn 1 July 2006; Act 82 of 2007 s 3 and Sch 2[111], opn 19 July 2007; Act 189 of 2011 s 3 and Sch 1 item 40, opn 7 June 2012]

(2) [Costs order as court thinks just] If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just. [subs (2) subst Act 72 of 1983 s 69; am Act 72 of 1983 s 76 and Sch; Act 181 of 1987 s 63 and Sch; Act 194 of 1999 s 3 and Sch 11[96]; Act 138 of 2003 s 3 and Sch 7 item 29 opn 14 Jan 2004; Act 189 of 2011 s 3 and Sch 1 item 41, opn 7 June 2012]

(2A) [Considerations relevant] In considering what order (if any) should be made under subsection (2), the court shall have regard to: (a) the financial circumstances of each of the parties to the proceedings; (b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; (c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

[page 1148] (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court; (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings; (f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and (g) such other matters as the court considers relevant. [subs (2A) insrt Act 72 of 1983 s 69; am Act 181 of 1987 s 63 and Sch; am Act 98 of 2005 s 2 and Sch 1, cl 5, opn 3 Aug 2005]

(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings. [subs (3) insrt Act 138 of 2003 s 3 and Sch 7 item 29A opn 14 Jan 2004; am Act 46 of 2006 s 3 and Sch 5 items 8–9, opn 1 July 2006]

(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if: (a) a party to the proceedings has received legal aid in respect of the proceedings; or (b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a

proportion of the costs of the independent children’s lawyer; the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer. [subs (4) insrt Act 138 of 2003 s 3 and Sch 7 item 29A opn 14 Jan 2004; am Act 46 of 2006 s 3 and Sch 5 items 10–11, opn 1 July 2006]

(4A) If: (a) under section 91B, an officer intervenes in proceedings; and (b) the officer acts in good faith in relation to the proceedings; the court must not, because of the intervention, make an order under subsection (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed. [subs (4A) insrt Act 189 of 2011 s 3 and Sch 1 item 42, opn 7 June 2012]

(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General. [subs (5) insrt Act 138 of 2003 s 3 and Sch 7 item 29A opn 14 Jan 2004; am Act 46 of 2006 s 3 and Sch 5 items 12–13, opn 1 July 2006] *Editor’s note: Section 21(2) of the Family Law Amendment Act 1989 No 182 of 1989 provides as follows: (2) The person who, immediately before the commencement of this Act, held office as Chairman of the Family Law Council continues, subject to the Family Law Act 1975 as in force after that commencement, to hold office as the Chairperson of the Family Law Council.

COMMENTARY ON SECTION 117

PRELIMINARY Introduction: general rule that each party to pay own costs …. Exceptions to general rule …. Parties’ entitlement to make submissions as to costs ….

[s 117.0] [s 117.1] [s 117.2] [page 1149]

Section applies to proceedings under regulations …. Power to make costs orders subject to s 117AA ….

[s 117.2A] [s 117.2B]

JURISDICTION Matrimonial cause …. Types of orders ….

[s 117.3] [s 117.4]

THE DISCRETION TO MAKE COSTS ORDERS Discretion to award costs …. Broad discretion …. List of relevant considerations: s 117(2A) ….

[s 117.5] [s 117.6] [s 117.7]

MATTERS RELEVANT TO EXERCISE OF DISCRETION Financial circumstances of the parties: s 117(2A)(a) …. Legal aid: s 117(2A)(b) …. Order in favour of assisted party …. Order against assisted person …. Conduct of the parties in proceedings: s 117(2A)(c) …. Failure to disclose …. False or misleading evidence and fraudulent behaviour …. Unreasonable and irrelevant evidence …. Amendments causing delay …. Pursuing unsuccessful issues …. Failure to obtain valuation ….

[s 117.9] [s 117.10] [s 117.11] [s 117.12] [s 117.13] [s 117.14] [s 117.15] [s 117.16] [s 117.17] [s 117.18] [s 117.19]

Failure to comply with previous court orders: s 117(2A) (d) …. Offers of settlement: s 117(2A)(f) …. Party wholly unsuccessful in proceedings: s 117(2A)(e) …. Such other matters as the court thinks relevant: s 117(2A)(g) …. SECURITY Security for costs: introductory comment …. Circumstances in which order for security made …. Circumstances of applicant …. Single judge unable to order security for appeal …. Review of a decision of a judicial registrar …. ORDERS IN FAVOUR OF OR AGAINST THIRD PARTIES AND LEGAL AID BODIES Costs and third parties …. Costs and legal aid bodies …. Independent children’s lawyers: costs orders for and against …. Independent children’s lawyer’s legal aid funding to be disregarded: subs (5) …. Legal aid authority cannot be required to fund proceedings ….

[s 117.20] [s 117.21] [s 117.22] [s 117.23]

[s 117.24] [s 117.25] [s 117.26] [s 117.26A] [s 117.26B]

[s 117.27] [s 117.28] [s 117.29] [s 117.29A] [s 117.30]

COSTS ORDERS AGAINST SOLICITORS AND COUNSEL Costs against lawyers: introductory comments ….

[s 117.31]

PROCEDURE AND ENFORCEMENT When court will deal with costs application …. Costs of enforcement proceedings …. Nature of solicitor’s lien …. Compromise which defeats solicitor’s lien ….

[s 117.34] [s 117.35] [s 117.36] [s 117.37]

PRELIMINARY [s 117.0] Introduction: general rule that each party to pay own costs Section 117(1) lays down the general rule that in proceedings under the Act each party shall bear his or her own costs. [page 1150] This is a radical reversal of the rule that applied under the repealed legislation that normally the successful party was entitled to costs: “This rule negates any principle that costs should follow the event or that the husband should bear the costs of the wife in matrimonial proceedings”: In the Marriage of Collins (1985) 9 Fam LR 1123 at 1128; FLC 91–603 (FC): see also Penfold v Penfold (1980) 144 CLR 311; 5 Fam LR 579; FLC 90–800 (HC); In the Marriage of Jensen (1982) 8 Fam LR 594; FLC 91–263 per Nygh J. Section 117(1) inapplicable to costs applications by or against nonparties Since it is limited to “each party to the proceedings” s 117(1) does not apply to costs applications involving other persons and it does not apply to an independent children’s lawyer, even though an independent children’s lawyer is somewhat analogous to a party: In the Marriage of McDonald (1994) 18 Fam LR 265; 122 FLR 401; (1994) FLC 92-508 per Mushin J; De Roma v De Roma [2013] FamCA 566; BC201350380 following Separate Representative v JHE and GAW (1993) 16 Fam LR 485; 114 FLR 1; (1993) FLC 92-376 (rightly, it is submitted (RC), treating the words “this purpose” in the second paragraph of Fam LR p 508 (FLC 79,904) as referring to s 117(2), not s 117(1)). Interveners are parties for costs purposes Even before In the Marriage of McAlpin (1993) 16 Fam LR 888; 114 FLR 452; (1993) FLC 92-411, it had been held that a person who intervenes in the proceedings becomes a party and may therefore be subject to an order for costs in the same manner as any other party: see In the Marriage of Collins (1985) 9 Fam LR 1123 at 1129; 75 FLR 84; (1985) FLC 91-603; Minister of Community Welfare v B Y (1988) 12 Fam LR 477; 93 FLR 104; (1988) FLC 91-973. See also B and B: Re Family

Law Reform Act 1995 (Costs) (1997) 22 Fam LR 453; 142 FLR 430; (1997) FLC 92-788 (FC) (whether costs should be awarded against the intervening Attorney-General). It is also possible for a costs order to be made in favour of an intervener: see In the Marriage of Riznic (1984) 10 Fam LR 385; (1984) FLC 91-589. Section 117(1) not limited to parties who are spouses or family members It has sometimes been suggested that in cases where a third party is involved, especially where the dispute is about money, it might be open to the court to apply the traditional rule that costs follow the event. An example might be a case where a trustee in bankruptcy is a party. This suggestion seems to be based on the view that the reasons why the Act departs from the rule that ordinarily costs for the event have to do with cases between parties to a marriage but no other types of cases. However, whatever the policy arguments might be, the section is expressed to apply to all proceedings under the Act, and there does not seem to be any authority to support the suggestion that the traditional rule applies in any category of case that falls within the words of s 117. Thus the approach set out in the section appears to be applicable in all such cases. [s 117.1] Exceptions to general rule Circumstances justifying an order Section 117(2) constitutes an important exception to the general rule: the court may make such orders as to costs as it thinks fit where it is “of opinion that there are circumstances that justify it in doing so”. Section 117(2A) sets out a list of matters relevant to the exercise of this power: see below, [s 117.4]. Frivolous or vexatious proceedings Section 118(2) provides, inter alia, that the court may make such order for costs as the court thinks fit where the proceedings are vexatious or frivolous: see below, commentary to s 118. [s 117.2] Parties’ entitlement to make submissions as to costs It is not generally open to the court to make an order for costs without giving the parties an opportunity to be heard, except in very unusual circumstances. To make an order for costs against a party without hearing submissions from

both parties on the question of costs will ordinarily constitute a denial of natural justice: In the Marriage of Black and Kellner (1992) 15 Fam LR 343; FLC 92–287 (FC). No judicial guidance has yet been given as to what might contribute a very unusual circumstance. [page 1151] Where costs are being awarded at the conclusion of an appeal, there has been some disagreement as to whether the term “proceedings” in s 117(2A) (f) refers only to the appeal proceedings, or includes the original proceedings that led to the appeal: see the difference of view expressed by Kay, Warnick and Lindenmayer JJ in In the Marriage of Dickson (No 2) (1999) 25 Fam LR 79; FLC 92–857. [s 117.2A] Section applies to proceedings under regulations By s 4, “this Act includes the regulations”. There is no reason to interpret the word “regulations” as restricted to the Family Law Regulations, as distinct from other regulations made under the Act. Thus the definition includes, for example, the Child Abduction Regulations. Proceedings under those regulations thus fall within the words “proceedings under this Act”. [s 117.2B] Power to make costs orders subject to s 117AA Section 117(1), set out above, states the principle that subject to various provisions each party shall bear his or her own costs; s 117(2) contains the power to make costs orders. However, it is subs (1), rather than subs (2), that is expressed to be subject to s 117AA. The question arises whether the provisions should nevertheless be interpreted so that the power to make costs orders, albeit in subs (2), should also be taken to be subject to s 117AA. To determine this, it is necessary to identify the operation of the relevant provisions. Section 117AA(1) and (2) restrict the power to make costs orders in a number of ways: see the commentary to that section. A consideration of the effect of these provisions indicates that s 117(2), as well as s 117(1), is intended to be subject to s 117AA. The significance of s

117(1), read with subs (2A), is to provide principles governing the exercise of discretion relating to costs orders whereas subs (2) provides the power to make costs orders. Section 117AA(1) deals in substance with the scope of the power, rather than the exercise of discretion. If s 117(2) were not taken to be qualified by s 117AA(2), for example, it would be possible for the court to make a costs order against a Central Authority even when it was operating in accordance with the Convention. This would be contrary to the clear intention of s 117AA(2). Thus, it would undermine the clear intention of the legislature if s 117(2) were to be treated as unqualified by s 117AA. Interpreting these provisions as a whole, and having regard to the evident intention of the legislature, indicates that s 117(2), as well as s 117(1), must be read subject to the provisions of s 117AA. See generally Director-General NSW Dept of Community Services v JLM (2001) 28 Fam LR 243; FLC 93– 090 (FC). On whether a judicial officer who dismisses all applications, neglecting to deal with a costs application is “functus officio” or able to correct the matter under the slip rule, see Sangara v Hamwood (2007) 39 Fam LR 237; 222 FLR 359; [2007] FamCA 1353 (Boland J). JURISDICTION [s 117.3] Matrimonial cause An application for costs in relation to proceedings is a matrimonial cause within the meaning of para (f) of the definition in s 4(1): see Barker v Barker (1976) 13 ALR 123; 2 Fam LR 11,453; In the Marriage of Collins (1985) 9 Fam LR 1123; FLC 91–603 (FC). Costs orders involving third parties See below, [s 117.27]–[s 117.29]. [s 117.4] Types of orders It is open to the court to make costs orders in various forms and on several different bases, of which the more important are as follows. Interim costs orders The court may make orders under s 117(2) requiring the payment of money to provide funds for one party to pursue claims for property settlement. The payment or transfer of property will be taken into account when the court finally determines the property application. Such

orders are sometimes called orders for “interim costs” but are really orders under which a party who does not have control of assets obtains an interlocutory order for a transfer of [page 1152] property or payment of money so that the party will have a fair opportunity of presenting his or her case. Such orders can also be made under s 80(1)(h): see In the Marriage of Poletti (1990) 15 Fam LR 794 (FC); In the Marriage of Wilson (1989) 13 Fam LR 205; FLC 92–033 (FC). Party and party basis The most common basis is that the costs be assessed “on a party and party basis”. It appears that an order for costs that does not specify some other basis will normally be taken to be an order on a party and party basis: see eg Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] Fam CA 1178; BC200750689. Costs orders are often expressed to be costs “as agreed or taxed”. Costs awarded on this basis are determined, in the absence of agreement, by a taxing officer who applies the detailed provisions of the rules setting out the scale of party and party costs: see Family Law Rules 2004 Ch 19. For an illustrative case on taxation of costs, see Fleming v Fleming (2009) 42 Fam LR 29; [2009] FamCA 552; BC200950450 (Murphy J). Solicitor and client basis An order that costs be paid “on a solicitor and client basis” usually leads to a larger amount than party and party costs. Except where there is a valid costs agreement, costs between solicitor and client are also determined by the scale in Sch 2 to the Rules, but the category of work that may be charged is more extensive. The court has power to make a costs order on a solicitor and client basis. Indemnity costs The most comprehensive type of order is referred to as an order for indemnity costs. The basic idea is, presumably, that the person in whose favour the order has been made should not be out of pocket. On the other hand, the court would not make an order that was in substance a blank cheque, enabling the beneficiary to claim any amount paid, however fanciful

or unreasonable: see, for example, In the Marriage of Munday and Bowman (1997) 22 Fam LR 321 at 323; FLC 92–784 at 84,661. The court needs to be satisfied that the amount to be paid is appropriate. Hence the rule that a party seeking indemnity costs must inform the court whether that party has a costs agreement, and if so the terms of the agreement: see Family Law Rules 2004, r19.08(3). There are substantial reasons for this rule, and it is ‘not only a matter of form of procedure’: LGM v CAM (Contempt) (No 2) (2008) FLC 93-355; [2008] FamCAFC 1 at [100], following Kohan, In the Marriage of (1992) 112 FLR 151; 16 Fam LR 245; (1993) FLC 92-340. Indemnity costs — when awarded The leading authorities on indemnity costs include In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92–340 (FC) and In the Marriage of Munday and Bowman (1997) 22 Fam LR 321; FLC 92–784 at 84,661 (Holden CJ), which contains a helpful review of the authorities and principles. The court has said that it should not lightly depart from the ordinary rules relating to costs between party and party and that the circumstances justifying the departure “should be of an exceptional kind”, indemnity costs being “still an exception in this and other jurisdictions”. An authority discussed in Munday and Bowman, at Fam LR 322; FLC 84,660, Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248, gives the following examples where indemnity costs might properly be awarded: (a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397. (b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud: see Fountain Selected Meats (Sales) Pty Ltd. (c) Evidence of particular misconduct causing loss of time to the court and to other parties: see Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (Fed C of A, French J, 3 May 1991, unreported).

(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions: see Ragatta Developments Pty Ltd v Westpac Banking Corporation (Fed C of A, Davies J, 5 March 1993, unreported). (e) An imprudent refusal of an offer to compromise. [page 1153] See also Rittman v Rittman (No 3) (2011) 46 Fam LR 147; [2011] FamCA 228; BC201150436; JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119; FLC 93–083; Starkey v Starkey (2009) 41 Fam LR 177 (Case Guardians: award of costs, but not indemnity costs). A striking example of the courts’ reluctance to order indemnity costs is Stephens v Stephens (2010) 44 Fam LR 117; [2010] FamCAFC 172; BC201050902. A good example of circumstances justifying indemnity costs, and a review of the authorities, is Medlon v Medlon (No 6) (2015) 54 Fam LR 1; [2015] FamCAFC 157; BC201550679 (Strickland J). Partial costs A court may order that a person pay some part of a party’s costs. It may be expressed, for example as one half or some other fraction of the costs of and incidental to the proceedings; or the costs of a particular part of the proceedings, for example a part associated with some delay caused by a party. It is possible, in principle, for the part to be assessed on a party and party, solicitor and client, or indemnity basis. Specific amount Costs may be ordered in a specific amount, as in the form that party A pay party B’s costs “fixed at $x”. Such orders have the great advantage that they avoid further argument about what the amount should be; such arguments may lead to a bill of costs being taxed, which can itself be a costly and time-consuming exercise. On the other hand, the court must have some acceptable basis for determining the amount, if there is no agreement. Costs order must be ascertainable In In the Marriage of Hogan (1986) 10 Fam LR 681 at 686; FLC 91–704 at 75,096, the Full Court held that the court

cannot make what is called an “open ended” order for costs and that an order for costs, whether interim or final, must be either certain and/or ascertainable. This is consistent, it is submitted, with the court making an order for a specific amount intended to enable a financially weaker party to properly prepare and present his or her case to the court, even where the precise amount that will be needed cannot yet be known. In Marriage of Gaudry (2004) 33 Fam LR 346; FLC 93-203, Scarlett FM refused to make an order for indemnity costs in the following circumstances. Orders were made for the sale of property and distribution of proceeds and, without explanation, the husband instigated the demolition of the house on the property. This diminished its value, and the wife obtained an order under s 79A making the necessary adjustment in her favour of the (diminished) proceeds of sale. In those proceedings the husband filed no evidence. The wife applied for indemnity costs in relation to the s 79A proceedings, and the husband made no submissions. The wife submitted that the husband’s conduct came within the principles on which indemnity costs could be awarded: his demolition of the house was in contempt and designed to prejudice the wife. The husband provided no evidence to the court — his conduct at the hearing centred not on the issue but to address “the applicant’s honesty or otherwise”. Although the Federal Magistrate cited Munday v Bowman (1997) 22 Fam LR 321; FLC 92-784, he refused indemnity costs. With respect, it is difficult to imagine a clearer case for indemnity costs, and it is submitted (RC) that it would be wrong to rely on this decision. THE DISCRETION TO MAKE COSTS ORDERS [s 117.5] Discretion to award costs Section 117(2) provides that, in proceedings under the Act, if the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to s 117(2A), make such order as to costs and security for costs, by way of interlocutory order or otherwise, as the court thinks just. In Penfold and Penfold (1980) 144 CLR 311; 5 Fam LR 579 at 583; FLC 90–800 the High Court said that s 117(1) is not paramount to s 117(2). As s 117(1) is expressed to be subject to s 117(2), the former must yield, whenever a judge finds in a particular case that there are circumstances that justify it in making an order: see In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449 at 467;

FLC 91–507 (HC) per Wilson J. In the absence of such circumstances s 117(1) will apply and each party should bear his or her own costs. [page 1154] Cases involving a child representative Subsections (3)-(5) make specific provision for cases in which a child representative has been appointed: see below at [s 117.29A]. Need for preliminary finding of justifying circumstances In Penfold and Penfold (1980) 144 CLR 311; 5 Fam LR 579; FLC 90–800, Stephen, Mason, Aickin and Wilson JJ said that s 117(2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Such a finding is thus an essential prerequisite to making an order for costs under s 117(2). Whether necessary to specify circumstances In Penfold and Penfold, above, the High Court said at Fam LR 582 that s 117(2) does not, as a matter of law, require a judge to specify the circumstances which justify the making of an order. It is not necessary that a judge make particular findings in relation to an order for costs: see also In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762 at 778; FLC 91–108 (FC); In the Marriage of Jensen (1982) 8 Fam LR 594 at 595; FLC 91–263 (Nygh J). In In the Marriage of Greedy (1982) 8 Fam LR 669 at 673; FLC 91–250, the Full Court said that the court does not have to spell out detailed reasons for its decision to order costs. An exercise of discretion to order costs will be upheld if it appears that there are reasons on which a judge could rely: see also In the Marriage of Mallet (1984) 156 CLR 605; 52 ALR 193; 9 Fam LR 449 at 467; FLC 91–507 (Wilson J). Appeal, where reasons not given In Penfold’s case, above, the High Court did say at Fam LR 582 that in the absence of reasons or findings by the trial judge, an appellate court may examine the circumstances and determine for itself whether the circumstances show that the discretion was wrongly exercised.

No need to show clear case, or exceptional circumstances In Penfold’s case, above at Fam LR 582, the High Court rejected the notion that there must be a clear case before an order may be made: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108 (FC). In Penfold’s case, Murphy J took the view that there must be an exceptional case. It is submitted (SO’R) that the view of Murphy J is not correct. There is no additional or special onus on an applicant for costs. All that is necessary is that there are justifying circumstances. In In the Marriage of Jensen (1982) 8 Fam LR 594 at 595; FLC 91–263, Nygh J said that it is not necessary that there be established special circumstances before an order can be made. Where an appeal has been wholly unsuccessful it may be appropriate for an order for costs to be made against the appellant: see Deputy Child Support Registrar v Gill (1992) 15 Fam LR 493; FLC 92–294. Children’s cases: no special requirement for costs orders There is no rule to the effect that special circumstances must be shown to justify a costs order in children’s matters: In the Marriage of I and I (No 2) (1995) 22 Fam LR 557; FLC 92–625, overruling In the Marriage of McDonald (1994) 18 Fam LR 265; FLC 92–508 on this point. “Order as to costs” The power is not just a power to make an order for costs, but is a power to make an order “as to” costs. Whereas the former is confined to orders to indemnify for costs actually incurred in the conduct of litigation, the latter is not: per Gaudron J in Re JJT; Ex parte Victoria Legal Aid (1998) 155 ALR 251; 23 Fam LR 1; FLC 92–812. However, the subject matter of the order must be costs: the power to make an order “as to” costs are not a power to make an order dealing with something other than costs: per Hayne J in Re JJT; Ex parte Victoria Legal Aid, above. [s 117.6] Broad discretion The Full Court has said that although the discretion under s 117(2) “is to be exercised having regard to the primary rule that each party should bear his or her own costs”, it is a “broad” discretion, to be exercised having regard to the factors set out in subs (2A), which factors are not to be read in a restrictive way, “the discretion remaining a broad one”: In the Marriage of Collins (1985) 9 Fam LR 1123 at 1128; FLC 91–603 (FC). Although the Full Court will be reluctant to interfere, it will do so when

the result is plainly unjust or if the discretion was exercised on wrong grounds: see In the Marriage of Higginbotham and Robinson (1991) 14 Fam [page 1155] LR 559; FLC 92–209 (FC) (appeal allowed against refusal to award costs where offer of settlement was nearly identical to result). See also In the Marriage of Harris (1991) 15 Fam LR 26; FLC 92–254 (FC) where an appeal against a costs order was not allowed even though, by contrast, the trial judge had awarded costs where the offer of settlement was reflected in the amount awarded. In this case the Full Court held that orders for costs are peculiarly matters which are within the discretion of the trial judge and that the Full Court should only interfere with a costs order in the rarest of cases. See also In the Marriage of McAlpin (1993) 16 Fam LR 888; FLC 92–411. Children’s matters: no different approach Mushin J in In the Marriage of McDonald (1994) 18 Fam LR 265 at 272–3; FLC 92–508 at 81,271, suggested that it was rare for costs orders to be made in children’s cases, and that where no particular factors existed, such as a totally unmeritorious case or the withholding of evidence, there would usually need to be a very significant disparity in financial circumstances between the parties before a costs order were made. However in In the Marriage of I and I (No 2) (1995) 22 Fam LR 557; FLC 92–625 the Full Court disagreed, saying that it saw nothing in the provisions of s 117 to justify the approach to the question of costs in custody or any other proceedings suggested by Mushin J (although the matters to which he referred were matters which, in an appropriate case, would be taken into account in determining whether the circumstances justified the making of an order for costs in a particular case). It re-affirmed the general discretion and quoted Penfold’s case, saying that “whether such matters exist or not, the other relevant matters referred to in s 117(2A) must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs. The financial circumstances of the parties are but one of those matters and those circumstances must be taken into account whether or not there is a very

significant disparity in financial circumstances between the parties”. [s 117.7] List of relevant considerations: s 117(2A) Introductory comment Subsection (2A) was added in 1983. It sets out the list of matters to which the court “shall” have regard in determining what order (if any) should be made under s 117(2). It differs from the provision it replaced in that the obligation to consider the factors listed is now mandatory. One effect of this is that a court may not have regard to one, or only some, of the factors to the exclusion of all the others: see In the Marriage of Brown (1998) 23 Fam LR 349; FLC 92–822. List does not limit the court It will be noted that the list is not intended to limit the matters to which the court will have regard, for para (g) includes on the list “such other matters as the court thinks relevant”. It is submitted (SO’R, RC) that the subsection is intended to assist the court and practitioners by providing a convenient checklist of important considerations, and in this respect is similar to s 64(1)(bb) (relating to custody), also added in 1983. Relevance of previous case law Matters on the list are the kinds of matters mentioned in previous case law on costs, and there is no reason to think that the amendment was intended to bring about any new approach to the exercise of discretion. Accordingly, in the following discussion reference will be made to the pre-1983 case law as well as the matters specifically mentioned in subs (2A). Costs order may be based on any one factor alone The Full Court has upheld an appeal from a decision to the effect that to justify a costs order something more must be shown than financial capacity: “Nowhere in subsection (2A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs”: LAC v TRF [2005] FamCA 158 at [41].

[page 1156] MATTERS RELEVANT TO EXERCISE OF DISCRETION [s 117.9] Financial circumstances of the parties: s 117(2A)(a) Introductory comment The financial circumstances of the parties was established by case law as a relevant matter, and has been confirmed as such by subs (2A)(a). Disparity in financial circumstances A disparity in the financial circumstances of the parties may justify an order for costs in favour of a party: see In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91– 108; In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073; In the Marriage of White (1982) 8 Fam LR 512; FLC 91–246 (FC); In the Marriage of Greedy (1982) 8 Fam LR 669; FLC 91–250 (FC); In the Marriage of Jensen (1982) 8 Fam LR 594 at 497; FLC 91–263 (Nygh J); In the Marriage of Marinko (1983) 8 Fam LR 849 at 850; FLC 91–307 (FC). Such a circumstance alone may, in an appropriate case, justify an order for costs, but will not justify a costs order where the financially weaker party has conducted the proceedings in an unjustifiable manner: see In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92–127. See also Medlon v Medlon (No 6) (2015) 54 Fam LR 1; [2015] FamCAFC 157; BC201550679 (Strickland J). After judgment In Marinko’s case, above, the Full Court, referring to White’s case, above, said at 8 Fam LR 851 that the court is not confined to a consideration of the parties’ financial circumstances before judgment and that it may be appropriate to look at the end result of the actual order before deciding whether to award costs. This is particularly so in circumstances where a party had to meet a substantial order which might reduce their ability to meet an order for costs. The Full Court has held that in some circumstances it is proper to take into account, in considering costs orders against an impecunious party, that some other persons might be expected to meet the order: see In the Marriage of McAlpin (1993) 16 Fam LR 888 at 897; FLC 92–411.

Broad brush approach normally appropriate It is not normally appropriate to engage in a detailed analysis. “An inquiry under s 117(2A)(a) where the financial circumstances of the parties may be relevant is an inquiry to enable the court to have some concept of the relative financial positions of the parties. It is not a search for minutiae nor is it to be seen as an appropriate exercise to conduct inconsequential arguments over the value of each party’s assets:” Browne v Green (2002) 29 Fam LR 428; FLC 93–115; [2002] FamCA 791. Thus in that case, where the wife had about $1 million and the husband about $3 million, the Full Court indicated that the question whether the husband’s wealth was greater than that of the wife by $2 million or $1.7 million was of relatively minor importance. [s 117.10] Legal aid: s 117(2A)(b) Introductory comment Prior to 1983 the court had taken legal aid into account: see Barker v Barker (1976) 13 ALR 123; 2 Fam LR 11,453 (FC); In the Marriage of Shulsinger (1976) 2 Fam LR 11,611; FLC 90–207 (FC). Subsection (2A)(b) confirms that the fact that a party is legally aided, and the terms of that legal aid, are matters which should be taken into account in connection with costs. Cases involving a child representative Subsections (3)-(5) make specific provision for cases in which a child representative has been appointed: see below. Obligation to consider legal aid The only change brought about by subs (2A)(b) appears to be that it is now wrong to say that the court may disregard legal aid: in this respect some of the statements in In the Marriage of Shulsinger, above, at Fam LR 11,619; FLC 76,077 may need to be reconsidered. It is submitted (SO’R, RC) that while it is true to say that the availability of legal aid is not a “predominant consideration in every case”, it is not now open to the court to disregard [page 1157]

it, as was suggested in that decision. Nor does it seem consistent with the terms of s 117 to suggest that legal aid has some special significance in maintenance and property cases: see In the Marriage of Schwarz (1985) 10 Fam LR 235 at 239; FLC 91–618 (FC). [s 117.11] Order in favour of assisted party As a general rule, a party cannot recover costs which the other party is not liable to pay: see Richardson v Richardson [1985] P 276; Farrell v Farrell [1921] SASR 168; In the Marriage of Conroy (1976) 2 Fam LR 11,223; In the Marriage of Conroy, O’Connor J said at 2 Fam LR 11,228 that in the exercise of discretion as to costs, it cannot be irrelevant that any order as to costs will not benefit the party in whose favour the order is made, and the failure to make an order will not make such a party any worse off financially. However, the position is different if the party in whose favour the order is made has to pay the amount awarded to a legal aid authority or is under some obligation to reimburse the authority. [s 117.12] Order against assisted person In In the Marriage of Schwarz (1985) 10 Fam LR 235; FLC 91–618 the Full Court said at Fam LR 239 that the fact that a party has few assets and is in receipt of legal aid is not by itself a barrier to the award of costs and that to refuse to make an order on the sole ground that a party is legally aided may cause a gross injustice to the other party. The Full Court also said that the fact that there may be no immediate prospect of recovery against the assisted party should not stand in the way of an order: see also [s 117.30] and [s 117.31], below. [s 117.13] Conduct of the parties in proceedings: s 117(2A)(c) Introductory comment The conduct of the parties in the proceedings is to be taken into account: subs (2A)(c). Conduct in relation to the proceedings Subsection (2A)(c) is limited to conduct of the parties “in relation to the proceedings”. However the court may take into account under para (g) conduct which it thinks relevant but which is not within para (c). Importance of conduct Conduct is a matter of great importance in costs, and

has been the subject of considerable case law. It is submitted (SO’R) that the most common situation where an order for costs is made is because of some particular aspect of the conduct of a party to the proceedings, which conduct has in some way led to an additional burden or cost being incurred by the other party. In In the Marriage of Jensen (1982) 8 Fam LR 594 at 595; FLC 91–263, Nygh J said that if as a result of non-cooperation, obstructiveness or otherwise, one of the parties causes the conduct of the proceedings to be unduly prolonged or made unduly expensive to the other side then an order for costs would be warranted: see also In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108 (FC). In Minister of Community Welfare v Y (1988) 12 Fam LR 477; FLC 91–973 the Full Court held, inter alia, that the Department of Community Welfare’s incompetent handling of the matter and the minister’s responsibility for his department’s actions were proper matters for the trial judge to take into account in awarding costs against the minister. The Full Court has emphasised that the weight to be given to nondisclosure or breach of rules may be greatly affected by the consequences for the trial. Breaches that extend or complicate the trial are likely to be treated as having more weight than those that do not: see Browne v Green (2002) 29 Fam LR 428; FLC 93–115; [2002] FamCA 791, especially at [52], [53]. Where a party made allegations of fault which were not relevant to the proceedings costs will properly be awarded against that party. An order against for costs will also be made where a party has conducted proceedings in an unjustifiable manner: see In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92–127, where the wife’s conduct of proceedings justified in a costs order against her even though the husband was in a stronger financial position. Where a party made allegations of fault which were not relevant to the proceedings costs will properly be awarded against that party. An order against for costs will also be made where a party has conducted proceedings in an unjustifiable manner: see In the Marriage of Fisher (1990) 99 [page 1158]

FLR 357; 13 Fam LR 806; (1990) FLC 92-127, where the wife’s conduct of proceedings justified in a costs order against her even though the husband was in a stronger financial position. See also Donaghey v Donaghey (Costs) (2012) 47 Fam LR 306; [2012] FamCA 231; BC201250252 (mother’s flagrant contravention of orders and secreting of her and the child’s whereabouts, and the considerable difficulties encountered and expense incurred as a result of (properly) pursuing legal remedies in respect of that conduct constituted “exceptional circumstances” so as to warrant indemnity costs: at [71]. Refusal to seek a reasonable order In In the Marriage of Greedy (1982) 8 Fam LR 669; FLC 91–250 it was suggested by the Full Court that the refusal to put forward an alternative order may be a factor which justifies an order for costs. An unreasonable denial of a claim which is not in itself grossly unreasonable may put a party at risk as to costs if the denial leads to the prolongation of the proceedings or adds to the costs or difficulties of the other party: see also In the Marriage of Marinko (1983) 8 Fam LR 849 at 851; FLC 91–307 (FC). Refusal to negotiate In In the Marriage of Greedy, above, the Full Court said at Fam LR 673 that there may be situations where refusal to negotiate or to make an offer may be a factor which justifies an order for costs. The Full Court said: “The policy of the Act is to encourage conciliation, and the failure of a party to take part in negotiations in a genuine manner may contribute to delay and cost and obstruct the proper resolution of a matter.” It is submitted (SO’R) that it is difficult to see how it would be possible to lead evidence of the refusal of a party to negotiate in a genuine manner in the face of the decision of the High Court in Rodgers v Rodgers (1964) 114 CLR 608; [1965] ALR 109; (1964) 38 ALJR 27. [s 117.14] Failure to disclose It is submitted (SO’R) that experience has shown that the failure by a party to disclose relevant material is one of the most common circumstances in which an order for costs is made. A failure to disclose material is sometimes deliberate, sometimes inadvertent and sometimes the result of the inexperience or ineptitude of the legal representative. Whatever may be the reason, a failure to disclose is, for the

other party, time consuming and expensive. It is submitted (SO’R) that if a failure to disclose relevant material has resulted in the other party incurring costs as a result of the failure to disclose then it does not matter what may have been the intention of the party who made the non-disclosure. See however In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; FLC 91–108 where the Full Court said that there may be circumstances where it would be unfair to award costs against a party simply because such party failed to keep proper records before separation. The Full Court seems to suggest that it all depends upon the circumstances of the case and that the conduct relied upon must bear some relation to the conduct of the proceedings. Non-disclosure of financial circumstances In Penfold and Penfold (1980) 144 CLR 311; 5 Fam LR 579; FLC 90–800 Murphy J said at Fam LR 583: “Presentation of a false statement of financial circumstances, which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs.” In Penfold’s case, the High Court, Stephen, Mason, Aickin and Wilson JJ at Fam LR 583, made it clear that if as a result of the failure to disclose financial circumstances by one party, the other party is compelled to establish the true financial position then an order for costs is justified: see In the Marriage of Tuck (1979) 7 Fam LR 492 at 506; (1981) FLC 91–021 (FC); In the Marriage of Greedy (1982) 8 Fam LR 669; FLC 91–250 (FC); In the Marriage of Marinko (1983) 8 Fam LR 849 at 850; FLC 91–307 (FC); In the Marriage of Briese (1985) 10 Fam LR 642 at 662 (Smithers J); Oriolo v Oriolo (1985) 10 Fam LR 665; FLC 91–653 (FC). Other relevant material It is submitted (SO’R) that the circumstance in which an order for costs may be made as a result of non-disclosure is not confined to non-disclosure of financial circumstances but extends to nondisclosure of what may be generally described as relevant [page 1159] material. See, for example, Minister of Community Welfare v Y (1988) 12 Fam LR 477; FLC 91–973, an access case in which the minister, an intervener, refused to disclose the identity of the person raising allegations

against the husband. Unsuccessful investigation A party who pursues an unsuccessful investigation of alleged non-disclosure by the other party, which investigation causes delay and cost, may be liable for costs: see In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073 and on appeal In the Marriage of Rouse (No 2) (1981) 7 Fam LN 22; (1982) FLC 91–226 (FC). [s 117.15] False or misleading evidence and fraudulent behaviour The giving of false or misleading evidence whether orally or in writing may, in an appropriate case, be a circumstance which justifies an order for costs: see Penfold and Penfold (1980) 144 CLR 311; 5 Fam LR 579; FLC 90–800 (HC). Where such evidence is fraudulent then an order for costs against the party who has been involved in the fraud will be a proper exercise of the court’s discretion: see Re Chemaisse and Commissioner of Taxation (1990) 13 Fam LR 724; FLC 92–133. [s 117.16] Unreasonable and irrelevant evidence Where a party is put to additional expense as a result of having to deal with evidence, whether orally or in writing, which is inordinate, of unnecesary length, prolix and/or irrelevant, then it may be appropriate to order costs: see In the Marriage of Ensabella (1980) 6 Fam LR 174; FLC 90–867 (Fogarty J). [s 117.17] Amendments causing delay If delay is caused by an amendment, then this may in certain circumstances justify an order for costs: see In the Marriage of Carter (1981) 7 Fam LR 41; 7 Fam LN 11; FLC 91–061. It is submitted (SO’R) that the most common situation which arises is where an amendment is made by a party to the orders sought in an application and the amendment is such that the other party cannot adequately deal with it in the time available prior to trial. [s 117.18] Pursuing unsuccessful issues An order for costs may be made where a considerable amount of time is wasted by the conduct of one party in pursuing at the hearing, or in preparation for the hearing, issues which are ultimately unsuccessful: see In the Marriage of Rouse (1981) 7 Fam LR 780; FLC 91–073 and on appeal In the Marriage of Rouse (No 2) (1981) 7 Fam

LN 22; (1982) FLC 91–226; see also [s 117.14], Unsuccessful investigation, above. Where a party is wholly unsuccessful in the proceedings, and no difficult question of law arose from the subject matter, then the court is justified in making an order for costs against the unsuccessful party: see In the Marriage of Vaughan (1990) 13 Fam LR 842; FLC 92–135; In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92–127; Deputy Child Support Registrar v Gill (1992) 15 Fam LR 493; FLC 92–294. [s 117.19] Failure to obtain valuation In certain circumstances a failure by a party to put a realistic value on an interest in property which then forces the other party to obtain such a valuation may be a circumstance which justifies an order for costs: see In the Marriage of Talbot (1979) 5 Fam LR 766; FLC 90–696. [s 117.20] Failure to comply with previous court orders: s 117(2A)(d) Introductory comment The court shall have regard to whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court: subs (2A)(d). Relationship of para (d) to paras (c) and (g) A party’s failure to comply with previous orders, necessitating the proceedings in question, would be covered in any case by para (g) and probably para (c). The fact that the legislature has given it prominence by enacting para (d) might be taken to indicate that it is to be regarded as a factor of considerable importance. [page 1160] Relationship with contempt powers The failure of a party to comply with previous orders may constitute contempt of court and the party would be liable to be dealt with accordingly. It is submitted that the wording of para (d) indicates that it should not be used as a way of punishing deliberate disobedience as such. What is important here is that proceedings were necessitated by the failure, so that the consequence might well be that the

disobeying party would be ordered to pay the costs of those proceedings. Thus it would be a wrong use of this paragraph, it is submitted (RC), for the court to order a disobeying party to pay the costs of proceedings other than those necessitated by the disobedience. Whether disobedience must be culpable It is submitted (RC) that under para (d) the court shall have regard to a party’s failure to comply with a previous order whether or not that failure is deliberate or culpable; however the degree of culpability may be taken into account in determining what significance to give to the failure. It may also be taken into account under para (g). [s 117.21] Offers of settlement: s 117(2A)(f) Settlement offers to be taken into account The court shall have regard to whether a written settlement offer has been made by one party to another, and the terms of such offer: s 117(2A)(f). This is a matter that has traditionally been regarded as highly relevant to costs, notably in provisions, in many jurisdictions, for the payment of money into court. There is an obvious public interest in this approach, which provides litigants with an incentive to settle cases and thus avoid or reduce the costs of litigation. In Robinson and Higginbotham (1991) 14 Fam LR 559 at 561; FLC 92-209 at 78,417, Nygh J said in relation to paragraph (f): “… it is quite clear that the purpose of that provision is to ensure that offers to settle, if made seriously, are considered seriously, to ensure that the cost of litigation is avoided, the workload of this court is lightened, and one other consideration is certainly that a party with greater wealth is not placed in a position whereby he or she can wear out the other by simple attrition …”. Relevance and importance of offers If a party made an offer of settlement during the proceedings and prior to the making of an order, which was equal or approximate to the order which was made by the court at the conclusion of the proceedings, then it is submitted (SO’R) that this may be a circumstance which justifies an order for costs. It is submitted (SO’R) that this is particularly so in proceedings in relation to financial matters. However offers of settlement will also be taken into account in parenting cases.

The Full Court has emphasised the importance of offers. In particular, in Browne v Green (2002) 29 Fam LR 428; FLC 93–115; [2002] FamCA 791, the Full Court said at [57]: “We think that whilst s 117(2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought to normally be given.” An example is Lad v Gittings (2014) 52 Fam LR 71; [2014] FamCA 439; BC201451537 (Austin J), in which the court ordered indemnity costs in circumstances where the husband was wholly successful and achieved a substantially better result than his offer and where the wife was in a stronger financial position. A party cannot reject or ignore a reasonable offer seriously made except at his or her peril as to costs. Thus if an offer is made and, not being accepted, is subsequently withdrawn with the effect that the orders made at the hearing give that party more than the offer sought, that party may be entitled to costs: see In the Marriage of Murray (1990) 14 Fam LR 311; FLC 92-173. See also In the Marriage of Steel (1992) 15 Fam LR 556; FLC 92-306 (FC). It has been held that words of limitation should not be read into the provision, nor should it be read as though offers in proceedings under the Act have the same consequences as payment into court in common law matters. Although the closer the offer is to the amount awarded by the court [page 1161] the more weight will be attached to the offer, this principle should not be rigidly applied and offers must be seen in the context of the case and the extent of the offeree’s knowledge of the financial situation. See In the Marriage of Pennisi (1997) 22 Fam LR 249 at 259–60; FLC 92-774 at 84,546–7 (FC). However a failure to accept an offer which in retrospect

should have been accepted may not, without more, justify the making of a costs order on any indemnity basis: JEL v DDF (Repayment on Appeal, and Costs) (2001) 28 Fam LR 119; FLC 93–083 (FC). Terms of offer In In the Marriage of Harris, above, the Full Court said at Fam LR 633 that an offer filed under this section should be expressed with precision and in terms which are objectively capable of being clearly understood. The expression should not be in esoteric language which is ambiguous or unclear. In Madin v Palis (2016) 55 Fam LR 59; [2016] FamCAFC 25; BC201650027, an offer of settlement was disregarded because it proposed to continue proceedings in circumstances where (because of a time limitation) the court had no jurisdiction to hear them. Obligation on the offeree In In the Marriage of Harris, above, the Full Court said at Fam LR 633 that where the offer is ambiguous or unclear, there is no obligation on the offeree to seek to clarify the terms of that notice, at least in the sense that the offeree may be disadvantaged on the issue of costs as a consequence of failing to do so. The Full Court, however, did say that where the suggested ambiguity or lack of clarity related only to an obvious typographical error or other similar misdescription, the offeree, in choosing to ignore the intent of the offer, may do so at some possible risk on the broad issue of costs. Effect of a counter offer Under the law of contract an offer is terminated by the making of a counter offer by the other party: see Hyde v Wrench (1840) 3 Beav 334; 49 ER 132. The question which arises is whether this principle of the law of contract applies to offers made under s 117C(1). In In the Marriage of Harris, above, the Full Court said that it is not a matter which is governed by the law of contract, that it is procedural and that similar considerations should apply as they do to payments into court in other jurisdictions. The Full Court referred to the judgment of Goddard LJ in Cumper v Pothecary [1941] 2 KB 58 at 67 and said that if the law of contract did apply, then the effect would be that any litigant who felt threatened by an offer in writing in the prescribed form could extinguish this threat merely by making a counter offer of a lesser amount.

Offer by party against whom order sought In In the Marriage of Harris, above, the Full Court, referring to s 117C(2A)(f), suggested at Fam LR 637 that the court is entitled to consider an offer made by a party against whom an order for costs is sought. The Full Court, however, did say that a court should be very cautious when exercising its discretion to make an order for costs, about considering offers in writing made by the party against whom the order for costs is sought, otherwise a respondent may be worse off by filing a notice of offer and may be discouraged from doing so. “Privileged” communication Where there have been settlement negotiations, whether or not they have been expressed to be “without prejudice”, evidence of the communication or document can be admitted if it is relevant to determining liability for costs. See s 131(2)(h) of the Evidence Act 1995 (Cth). This provision of the Evidence Act has applied to all hearings before federal and ACT courts which commenced on or after 18 April 1995. The Evidence Act relevantly provides: “Exclusion of evidence of settlement negotiations 131 (1) Evidence is not to be adduced of: (a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or [page 1162] (b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute. (2) Subsection (1) does not apply if: … (h) the communication or document is relevant to determining

liability for costs; …” The provision reversed the previous position whereby documents or communications prepared for bona fides negotiations for settlement were not admissible, without the consent of all parties, whether they were expressed to be “without prejudice” or not. For a discussion of the position prior to the Evidence Act see In the Marriage of Steel (1992) 15 Fam LR 556; FLC 92– 306; Rodgers v Rodgers (1964) 114 CLR 608; [1965] ALR 109; (1964) 38 ALJR 27; AMEV Finance v Artes Studios Thoroughbreds Pty Ltd (1988) 13 NSWLR 486. Reform In In the Marriage of Harris, above, the Full Court at Fam LR 637 was critical of the scheme provided by s 117C and the rules and suggested that consideration should be given to amendment of the section and the rules to deal with the matters which the Full Court were critical of and further, to give the court what the Full Court called “greater control over offers of settlement”. [s 117.22] Party wholly unsuccessful in proceedings: s 117(2A)(e) Introductory comment The court shall have regard to whether any party was wholly unsuccessful in the proceedings: subs (2A)(e). Relationship between para (e) and the general rule The general rule under the repealed legislation and in many other jurisdictions is of course that the successful party is entitled to costs; but s 117(1) has substituted a new general rule that the parties should bear their own costs: see above, [s 117.1]. There appears to be some tension between the general rule and para (e), since in so far as the latter suggests that the mere fact that one party has succeeded is a reason for awarding costs it appears to contradict subs (1). It is submitted (RC) that the best approach is for the court to keep in mind that subs (1) states the general rule while para (e) is merely one of a number of matters to which the court shall have regard. It follows that the mere fact that a party has been wholly successful does not justify the court in making an order for costs, since such a result would mean that the general rule would have given way to para (e). It would also appear to be inconsistent with at least the spirit

of the requirement in subs (1) that the court must find that there are circumstances justifying an order for costs. See also, above, [s 117.7]. This is consistent with the approach in Re Collins and the Victorian Legal Aid Commission (1984) FLC 91–508, where the court ordered costs not on the basis that a party was wholly unsuccessful but on the basis that the proceedings brought by the party had no prospect of success and it was wrong for the other party “to be left with the pyrrhic victory in the litigation but with a substantial bill of costs which he should never have had to incur” (at 79,147 per Fogarty J). An application for costs against a respondent to an appeal was refused where, although the respondent was ‘wholly unsuccessful’ as the appeal was allowed, the respondent had the benefit of a decision in relation to an issue on which there was no clear existing authority: Madin v Palis (2016) 55 Fam LR 59; [2016] FamCAFC 25; BC201650027. See also Medlon v Medlon (No 6) (2015) 54 Fam LR 1; [2015] FamCAFC 157; BC201550679. [s 117.23] Such other matters as the court thinks relevant: s 117(2A)(g) Introductory comment The court shall have regard to such other matters as it thinks relevant: s 117(2A)(g). This paragraph indicates that the list of factors is not meant to limit the court’s exercise of discretion. Matters which might fall within para (g) are considered earlier in this commentary. [page 1163] SECURITY [s 117.24] Security for costs: introductory comment The court may, in an appropriate case, order an applicant to give security for costs: s 117(2). See also Re Sheehan and Sheehan (1990) 13 Fam LR 736; 97 FLR 190; (1990) FLC 92-129. The need to establish circumstances justifying an order and the considerations listed under s 117(2A) apply to security as well as to other orders. [s 117.25] Circumstances in which order for security made Section 117

does not specify the circumstances in which an order for security for costs will be made. It is submitted (SO’R) that it will depend on the circumstances of each case but that there must be circumstances which justify the making of such an order. The overriding purpose of an order is to ensure that an unsuccessful party does not occasion injustice to the other. In In the Marriage of Luadaka (1998) 24 Fam LR 340; FLC 92-830 the Full Court, after an extensive review of the authorities, suggested that the following (non-exhaustive) factors are relevant to the exercise of the discretion to order security: (a) The history and conduct of all litigation between the parties (see also In the Marriage of Alexander (1977) 3 Fam LR 11,286; 29 FLR 239; FLC 90-257; In the Marriage of Brown (1991) 15 Fam LR 69; FLC 92–265; 105 FLR 329; Jackson v Hamer (1993) 17 Fam LR 34; FLC 92–419; 113 FLR 216), and in appropriate circumstances between the applicant and others: see Evans v Rochford (2003) 30 Fam LR 336; [2003] FamCA 314. (b) The merits of the claim of the party whose costs are sought to be secured (see also Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497; Parkinson & Co Ltd v Triplan Ltd [1973] QB 609; [1973] 2 All ER 273; [1973] 2 WLR 632; Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O’Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (1983) 7 ACLR 790; 70 FLR 261; 1 ACLC 924). However, the court will not engage in a detailed examination of a party’s likelihood of success unless it can be demonstrated that there is a high probability of success or failure: In the Marriage of Luadaka, above. The bona fides of the claim are also relevant: ibid. (c) The financial circumstances of the parties (see also In the Marriage of Alexander (1977) 3 Fam LR 11,286; 29 FLR 239; FLC 90–257; In the Marriage of Raja Bahrin (1986) 11 Fam LR 233). In In the Marriage of Luadaka, the Full Court held that orders for security will not be limited to those cases in which the applicant for security does not have the means to meet their own costs: such orders may be made even where the applicant for security does not have the necessary means.

(d) Any delay in bringing the application by the party against whom an order for security is sought (see also Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497). (e) The likelihood of higher than usual costs because of the way in which the relevant party has or is likely to present their case (see also Jackson v Hamer (1993) 17 Fam LR 34; FLC 92–419; 113 FLR 216). (f) Whether an order for costs will stifle the litigation. This is relevant but not conclusive: see Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304. (g) The likely amount of costs to be incurred and any possible difficulty in enforcing an order for costs after the event: In the Marriage of Luadaka, above. [s 117.26] Circumstances of applicant In B and B (Kidnapping) (1986) FLC 91–749, Gee J said at 75,480 that the applicant for an order for security for costs must establish that he or she has not the means or ability to provide for his or her own costs. This also was the view of Goldstein J in In the Marriage of Alexander (1977) 3 Fam LR 11,286; 29 FLR 239; FLC 90–257. It is submitted (SO’R) that in appropriate circumstances, an order may be made even if the applicant has the means to pay his or her own costs. [page 1164] Impecunious litigant As a general rule, in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person will not of itself be a basis for ordering that person to provide security. However, in the case of appeals, the fact that an applicant is impecunious is a significant factor to take into account in considering whether to exercise the discretion to order security, but is not the only or deciding factor. The court may be more disposed to make an order for security for costs if an appeal appears to have little merit or a poor prospect of success: Jones v Jones (2001) 27 Fam LR 632; FLC ¶93-080; [2001] Fam CA 460; MIL v EL (2005) 35 Fam LR 5; FLC

¶93-244; [2005] Fam CA 1257. [s 117.26A] Single judge unable to order security for appeal It has been held that having regard to s 4 (“court”) and s 28(3), s 117(2) does not confer jurisdiction on a single judge (as distinct from the Full Court) to make an order for security for the costs of an appeal to the Full Court from a decision of a judge exercising the original jurisdiction of the court. (Further, by purporting to do so, O 32 r 5 of the former 1984 Family Law Rules was invalid: In the Marriage of Finlayson (2001) 27 Fam LR 428; FLC 93–068 (FC)). [s 117.26B] Review of a decision of a judicial registrar As judicial registrars (and indeed registrars) exercise delegated jurisdiction from which a party is entitled to apply to have their matter determined de novo, the question arises as to whether the court should apply a less stringent test when determining applications for security for costs which may have the effect of permanently staying the proceedings. The Full Court, in Evans v Rochford (2003) 30 Fam LR 336; [2003] FamCA 314, concluded that the tests formulated in In the Marriage of Luadaka (1998) 24 Fam LR 340; FLC 92830 were appropriate, as they applied to applications for security at first instance. ORDERS IN FAVOUR OF OR AGAINST THIRD PARTIES AND LEGAL AID BODIES [s 117.27] Costs and third parties The court has jurisdiction to order costs against non-parties; however the discretion to order costs against non-parties should be exercised sparingly. Costs might be ordered, for example, where the party is insolvent and the non-party has played an active role in the proceedings and has an interest in the outcome. See In the Marriage of McAlpin (1993) 16 Fam LR 888; FLC 92–411. This decision followed Burns Philp and Co Ltd v Bhatat [1993] 1 VR 203 and Knight v FP Special Assets Ltd (1992) 174 CLR 178; 107 ALR 585 and did not follow the earlier decision of the Full Court in In the Marriage of Collins (1985) 9 Fam LR 1123; FLC 91–603.

[s 117.28] Costs and legal aid bodies Costs and legal aid bodies In In the Marriage of S (1980) 5 Fam LR 831; FLC 90–820, Nicholson CJ held that the power to order costs under s 117 included the power to order a legal aid body to pay the ongoing and future costs of a wife and of a separate representative in a children’s matter. However, that decision must now be read in the light of the High Court’s decision in Re JJT; Ex parte Victoria Legal Aid (1998) 155 ALR 251; 23 Fam LR 1; FLC 92–812 in which the High Court held that an order directed against a legal aid body to provide legal aid funding for a child representative was not an “order as to costs” within the language of the section. Hayne J indicated that a construction of s 117 that “would permit the Family Court to order a person not a party to the proceeding and not otherwise having any interest in the proceeding to incur expenditure for the conducting of litigation over which, by hypothesis, that person has no control” should not be adopted (at Fam LR 29). It remains possible that an order against a legal aid body to meet the existing (rather than future) costs of a previously assisted party, and where the grant of aid had been withdrawn because of a policy of “capping” grants of aid (as was the case in In the Marriage of S (1980) 5 Fam LR 831; FLC 90–820) would be an order “as to costs” within the statute, and would satisfy the requirement of a connection between the legal aid body and the proceedings. It has to be acknowledged, however, that any such argument is fraught with danger after Re JJT; Ex parte Victoria Legal Aid (1998) 155 ALR 251; 23 Fam LR 1; FLC 92–812. [page 1165] The Full Court has held that a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) cannot be granted in favour of an ICL funded by a Legal Aid Commission: see commentary to s 14 of that Act. [s 117.29] Independent children’s lawyers: costs orders for and against

Orders can be made under s 117(2) for or against an independent children’s lawyer There is power under s 117(2) to make orders for costs for or against the independent children’s lawyer: see subs (3) (operative from 14 January 2004), and the previous authorities: Separate Representative v JHE and GAW (1993) 16 Fam LR 485; 114 FLR 1; (1993) FLC 92-376; In the Marriage of Lyris and Hatziantoniou (1998) 24 Fam LR 391; (1998) FLC 92-840. Section 117(1) inapplicable to costs orders for and against independent children’s lawyers Since the subsection is limited to “each party to the proceedings” the rule in s 117(1) that each party should bear its own costs does not apply to costs applications involving an independent children’s lawyer, even though an independent children’s lawyer is somewhat analogous to a party: In the Marriage of McDonald (1994) 18 Fam LR 265; 122 FLR 401; (1994) FLC 92-508 (Mushin J); De Roma v De Roma [2013] FamCA 566; BC201350380 (Watts J, 2 August 2013), following Separate Representative v JHE and GAW (1993) 16 Fam LR 485; (1993) FLC 92-376 (rightly, it is submitted (RC), treating the words “this purpose” in the second paragraph of Fam LR p 508 (FLC 79,904) as referring to s 117(2), not s 117(1)). General principles applicable, subject to subsections (3)–(5) Subsections (3)–(5) make specific provision relating to the making of costs orders in cases involving independent children’s lawyers: see below. Subject to those provisions, in considering costs applications by or against independent children’s lawyers the court will have regard in the normal way to subss (2) and (2A). Subsections (3)–(5) do not apply retrospectively — that is, they do not apply where the proceedings commenced before 14 January 2004, even though the application for costs might have been made after that date: LAC v TRF (2005) 33 Fam LR 123; 191 FLR 294; [2005] FamCA 158. Costs applications against an independent children’s lawyer arising from proceedings commenced before 14 January 2004 must be determined according to the law prior to the operation of subss (3)–(5). Costs order not to be made in certain circumstances where it would

impose hardship: subs (4) Subsection (4) applies where (i) an independent children’s lawyer has been appointed and (ii) a party is legally aided, or would suffer financial hardship if ordered to bear a proportion of the independent children’s lawyer’s costs. In such situations, the court must not make a costs order against “a party” in favour of the independent children’s lawyer if the order would cause financial hardship to that party. [s 117.29A] Independent children’s lawyer’s legal aid funding to be disregarded: subs (5) Subsection (5) provides, in substance, that in considering what costs order should be made under subs (2) in proceedings in which an independent children’s lawyer has been appointed, the court “must disregard the fact that the independent children’s lawyer is funded [by legal aid]”. Although not expressly limited to costs applications by or against independent children’s lawyers, in practice it seems relevant only to such applications. The subsection, introduced in 2005 (with subss (3) and (4)), was intended to resolve uncertainties about the approach to costs orders by or against independent children’s lawyers. However judicial differences of opinion have continued, and the interpretation of the subsection presents continuing problems. Ambiguity of subsection 117(5) Judge Watts has held that s 117(5) is “ambiguous and/or obscure: De Roma at [40]. There are at least two possible interpretations. The first is that the court should disregard the fact that the independent children’s lawyer is funded, treating the independent children’s lawyer as unfunded. This interpretation would advantage the independent children’s [page 1166] lawyer in relation to costs applications. But a second interpretation is that the court should disregard only the fact that the funding is through legal aid. Doing that might mean that the court should treat the independent children’s lawyer as having funds, and disregard the fact that a costs order against the

independent children’s lawyer would take money out of the legal aid funds available to others. This interpretation would disadvantage the independent children’s lawyer in relation to costs applications. One way of putting the problem is that it is uncertain whether, especially in considering costs applications by an independent children’s lawyer, the court should have regard, among other things, to protecting the “public purse” by favouring costs applications by independent children’s lawyers. Competing judicial interpretations of subsection 117(5) In an ex tempore judgment, Dawe J appeared to take the second approach indicated above, holding that the provision meant that the court should not take into account the need to protect the public purse: Kest v Olsson [2012] FamCA 148; BC201250186 at [20], discussed in De Roma at [26]–[27]. In De Roma, Watts J, after a careful review of the authorities and the legislative background, took the first view, saying at [54] that the independent children’s lawyer was “to be treated as being unfunded”. His Honour said, at [44]: Having regard to extrinsic material and reading s 117(3), (4) and (5) together, it is clear that Parliament’s intention when introducing s 117(5) FLA was that (absent any other s 117(2A) FLA factors that pointed in the opposite direction) parties (usually parents) who could help pay for the Independent Children’s Lawyer, should. The result is that, whilst not determinative in a particular case, across all cases, the subsection is likely to lead to a general increase in the protection of the public purse. The section 75(3) analogy In De Roma at [45]–[47] Watts J noted that s 75(3), of the Act, which provides (in relation to maintenance that a court “shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit” was not ambiguous, although like s 117(5) it used the word “disregard” in the same way as s 117(5). However this analogy does not resolve the ambiguity in s 117(5). In the context of s 75(3), a person’s pension entitlement is clearly a financial resource. Taking it into account would disadvantage the pensioner in relation to a claim to maintenance. By contrast, taking into account the funding situation of an independent children’s lawyer in a costs application could be done in either of two ways. One would be to say the independent

children’s lawyer has substantial funds, a factor that would disadvantage the independent children’s lawyer in relation to costs, in the same way as s 75(3) disadvantages a person in relation to maintenance. The alternative way would be to say that the independent children’s lawyer’s funding is at the expense of other people who might want legal aid — a factor that would advantage the independent children’s lawyer in relation to costs. This alternative approach is not possible in relation to s 75(3). Earlier authorities The earlier authorities were re comprehensively reviewed by Watts J in De Roma, and a brief summary is sufficient here. There were two lines of authority. One line started with the decision by Lindenmayer J in In the Marriage of Telfer (1996) 20 Fam LR 619; 130 FLR 212; (1996) FLC 92-688 (Telfer), in which Lindenmayer J took into account the “heavy demands” on the “finite” funds of the legal aid authorities, and said that the funds “ought not to be exhausted in proceedings where there are other available means of providing the funds for the relevant children, and particularly where the necessity for that representation arises essentially out of conflict between the parties, rather than out of any deep-seated issues relating to the welfare of the children”. This approach was approved by the Full Court in Re David (No 2) Costs (1998) 23 Fam LR 139; 144 FLR 472; (1998) FLC 92-809 and implicitly, PJ and NW [2005] FamCA 162 at [66]– [68]. [page 1167] The other line of authority starts with In the marriage of McDonald (1994) 18 Fam LR 265; 122 FLR 401; (1994) FLC 92-508, (Mushin J) and includes two decisions by Faulks J to the effect that he did “not accept within the context of section 117 that it is appropriate that the public purse should in some way be protected or preferred to the means and assets of the parties”: Cripps v Cripps [2000] FamCA 1502 (Cripps) and Harris v Harris [2000] FamCA 2141 (Harris). Judge Faulks also criticised Lindenmayer J’s approach on the basis that there was no evidentiary basis for the statement that the legal aid funds were limited. The authorities are discussed

inconclusively by the Full Court in LAC v TRF [2005] FamCA 158, the Full Court sharing Faulks J’s concerns about the lack of evidentiary support for statements (in the Telfer line of cases) about the funds available to the legal aid authorities. In terms of consequences, the Telfer line of cases favoured the independent children’s lawyer in relation to costs applications (by assuming the legal aid funds are limited) and the McDonald/Cripps line was less favourable to the independent children’s lawyer (by not making that assumption). Judicial clarification or Legislative reform desirable It would obviously be desirable for the Full Court to resolve the competing views about the meaning of s 117(5). But it seems (RC) that the legislature’s intention is not made clear by requiring the court to disregard the independent children’s lawyer’s legal aid funding, and legislative reform might be a more attractive option. If the legislature wants to implement Recommendation 14 of the Family Law Council’s Report Involving and Representing Children in Family Law — see De Roma at [43] — the provision could be revised to say something like this: “On an application for costs by an independent children’s lawyer, unless having regard to the matters in subsection (2A) it is unjust to do so, the court should order one or more parties to pay the reasonable costs of the independent children’s lawyer where the party has a reasonable capacity to do so”. [s 117.30] Legal aid authority cannot be required to fund proceedings The Family Court has no power to require a legal aid authority to fund a party to proceedings, including a child representative. Such an order is not an order “as to costs”: see Re JJT; Ex parte Victoria Legal Aid (1998) 155 ALR 251; 23 Fam LR 1; FLC 92–812 and the commentary at [s 117.28]. COSTS ORDERS AGAINST SOLICITORS AND COUNSEL [s 117.31] Costs against lawyers: introductory comments The court has power to make an order that a lawyer of one party must pay costs incurred by the other party: Cassidy v Murray (1995) FLC 92-633. Although earlier views were to the effect that the power derives from the court’s disciplinary function - In the Marriage of Collins (1985) 9 Fam LR 1123 at 1129 - the

Full Court has held that it is “now settled law that power to award costs against solicitors in proceedings is contained in s 117(2) of the Family Law Act”: B v B.; Cassidy v Murray (1995) FLC 92-633, quoting Mason CJ and Deane J in Knight v FP Special Assets Limited and Or (1992) 174 CLR 178, 188. A costs order against a solicitor, like other costs orders, is for the purpose of compensation, not punishment, although it may be occasioned by misbehaviour that makes it appropriate that the respondent solicitor should bear the costs, rather than the litigant. Because it is compensatory, wrongful behaviour by a solicitor that caused no loss would not be the subject of a costs order. See Cassidy v Murray (1995) 19 Fam LR 492; (1995) FLC 92633, following Latoudis v Casey (1990) 170 CLR 534; approved in Ryan & CGU Professional Insurance & Rees & Rees [2010] FamCAFC 147 (FC). In Cassidy v Murray the Full Court summarised the principles as follows: 1. Pursuant to s 117(2) Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or a non-party. 2. The court should not make such an order without giving the person to be affected by the order an opportunity to be heard. 3. The court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct. 4. The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitor’s clients. [page 1168] 5.

6.

A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default of negligence, any of which are found by a court to be or a serious nature, maybe sufficient to justify an order. The jurisdiction is compensatory.

The matter is now dealt with in some detail in the Family Law Rules 2004: see Ch 19, especially r 19.10, and in the Federal Magistrates Court Rules, r 21. PROCEDURE AND ENFORCEMENT [s 117.34] When court will deal with costs application An application for costs may be made at any stage in a case, or within 28 days after orders have been made: see Family Law Rules 2004 r 19.08(2). In In the Marriage of Jensen (1982) 8 Fam LR 594 at 595; FLC 91–263, Nygh J said that it is generally undesirable to deal with an application for costs separately from the substantive hearing unless there are special circumstances. It is submitted (SO’R) that this approach is correct, but only if the court has delivered judgment and made orders. It is submitted that it is entirely inappropriate to deal with an application for costs until after judgment has been delivered and orders made. In In the Marriage of Greedy (1982) 8 Fam LR 669 at 673; FLC 91–250 the Full Court said that it is highly desirable that questions of costs be dealt with at the conclusion of the substantive matter immediately following the delivery of judgment. It is submitted (SO’R) that this approach is consistent with what was said by Stephen J in R v Lusink; Ex parte Shaw (1980) 6 Fam LR 230; FLC 90–884 (HC). [s 117.35] Costs of enforcement proceedings If a party who has the benefit of an order has to pay expenses to obtain the enforcement of the order when there has been default by the other party, then the court may make an order for costs of the enforcement proceedings. The court should readily make such an order if the benefit of the order has been reduced by the expenses incurred in obtaining enforcement of the order: see In the Marriage of Madden (1979) 5 Fam LR 520; FLC 90–710 (FC). [s 117.36] Nature of solicitor’s lien A solicitor’s lien arising out of work done does not confer on the solicitor an interest in an order for costs or any property recovered in the litigation. A solicitor’s lien is the right to seek in aid the jurisdiction of the court where the solicitor may, by the unconscionable conduct of the client, be deprived of his/her entitlement to costs and it is the right to ask the court to charge the property in favour of the

solicitor. The right to this protection by the courts will arise where there is a collusive arrangement to defeat the solicitor’s entitlement to costs. See Gadens Ridgeway v Paroulakis (1992) 15 Fam LR 586; FLC 92–311. See also Halsbury’s Laws of England, 4th ed, vol 44. [s 117.37] Compromise which defeats solicitor’s lien The existence of a solicitor’s lien does not prevent a client from entering into a compromise which has the effect of defeating the solicitor’s entitlement to costs unless that compromise is collusive and entered into for the purpose of depriving the solicitor of costs: Gadens Ridgeway v Paroulakis (1992) 15 Fam LR 586; FLC 92–311. Unless collusion can be shown to exist the court will not intervene: Re Williams v Lloyd; Ex parte Games (1864) 3 H 7; Gadens Ridgeway v Paroulakis, above.

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[s 117AA] Costs in proceedings relating to overseas enforcement and international Conventions 117AA (1) In proceedings under regulations made for the purposes of Part XIIIAA, the court can only make an order as to costs (other than orders as to security for costs): (a) in favour of a party who has been substantially successful in the proceedings; and [page 1169] (b) against a person or body who holds or held an office or appointment under those regulations and is a party to the proceedings in that capacity. Note: For another case where the court can also make an order as to costs, see subsection (3).

(2) However, the order can only be made in respect of a part of the proceedings if, during that part, the party against whom the order is to be made asserted a meaning or operation of this Act or those regulations that the court considers: (a) is not reasonable given the terms of the Act or regulations; or (b) is not convenient to give effect to Australia’s obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention. (3) In proceedings under regulations made for the purposes of section 111B, the court can also make an order as to costs that is:

(a) against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access (within the meaning of the Convention referred to in that section) to a child; and (b) in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child. [s 117AA insrt Act 143 of 2000 s 3 and Sch 3 item 98 opn 27 Dec 2000] COMMENTARY ON SECTION 117AA [s 117AA.1] This section makes provision for certain aspects of costs orders in relation to proceedings under regulations for the purpose of Pt XIIIAA. Pt XIIIAA deals with a number of international conventions and agreements and with international enforcement. It is necessary to read s 117AA in conjunction with s 117. Subsection (1) creates two separate restrictions on the power of the court to make costs orders in the relevant proceedings. The first is that the order for costs can be made only in favour of a party who has been substantially successful in the proceedings; the second is that a costs order against a person who holds an office or appointment under the regulations and is a party to the proceedings can be made only against the person in that capacity. This protects such persons from being personally liable under such a costs order. Subsection (2) is clearly intended to incorporate the substance of the High Court decision in De L v Director-General, NSW Dept of Community Services (No 2) (1997) 190 CLR 207; 143 ALR 171; 21 Fam LR 432; FLC 92–744; [1997] HCA 14; BC9701054. In substance, it creates immunity for the Central Authority in proceedings under the Child Abduction Convention providing that the Central Authority is operating within the Convention. Thus in the ordinary case, it would not be possible for a costs order to be made against the Central Authority simply on the grounds that the Central Authority was unsuccessful in the proceedings. Surprisingly, subs (2) do not appear to deal expressly with orders in relation to the whole of the proceedings, as distinct from orders relating to a

part of the proceedings. It seems likely, however, that the provision should be understood to include orders relating to the whole of the proceedings. It would seem very peculiar if the restriction applied to more limited orders but not to orders relating to costs of the whole of the proceedings. See DirectorGeneral NSW Dept of Community Services v JLM (2001) 28 Fam LR 243; FLC 93–090, in which the Full Court held that an application for costs by a mother must fail because of the qualified immunity under this section. Subsection (3) deals only with proceedings under the Child Abduction Regulations. It provides in substance that the court can make an order as to costs against a party who has wrongfully removed or retained a child, or prevented the exercise of access to a child, in relation to the necessary expenses incurred by the person who made the application under the Convention. It may be that this power existed under s 117 in any case, and that subs (3) only put the matter beyond doubt.

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[s 117AB] Costs where false allegation or statement made 117AB

[s 117AB rep Act 189 of 2011 s 3 and Sch 1 item 43, opn 7

June 2012]

[s 117AC]

Security for costs

117AC Despite section 117, a court must not make an order for security for costs in a proceeding involving a Convention country that is listed in Schedule 4A to the regulations. [s 117AC insrt Act 82 of 2007 s 3 and Sch 2[112], opn 19 July 2007]

[s 117A] Reparation for certain losses and expenses relating to children 117A (1) [Liability for reparation to Commonwealth, Individual] Where: (a) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened a parenting order to the extent to which the order provides that: (i) a child is to live with a person; or (ii) a child is to spend time with a person; or (iii) a child is to communicate with a person; (b) a person has been convicted of an offence against section 65Y or 65Z in respect of a child; (c) a court has found, for the purposes of Division 13A of Part VII, that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened an injunction granted, or an order made, under section 114; or (d) a person has been found to be in contempt of a court exercising jurisdiction under this Act by reason of having taken a child away from another person or having refused or failed to deliver a child to another person, a court having jurisdiction under this Act may, subject to subsection (2): (e) on the application of the Commonwealth — order the person to make reparation to the Commonwealth or to a

Commonwealth instrumentality, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the Commonwealth instrumentality, as the case may be, in recovering the child and returning the child to a person; or (f) on the application of any other person — order the firstmentioned person to make reparation to that other person, by way of money payment or otherwise, in respect of any loss suffered, or expense incurred, by that other person in recovering the child and, if applicable, returning the child to a person. [subs (1) am Act 182 of 1989 s 22; Act 167 of 1995 s 55; Act 138 of 2003 s 3 and Sch 7 item 30 opn 27 Dec 2000; Act 46 of 2006 s 3 and Sch 8 item 101, opn 1 July 2006]

(2) [Prior reparation order under Crimes Act] Nothing in subsection (1) empowers a court to order a person to make reparation to the Commonwealth, to a Commonwealth instrumentality or to another person in respect of any loss suffered, or any expense incurred, where a court has, under section 21B of the Crimes Act 1914, [page 1171] ordered the first-mentioned person to make reparation to the Commonwealth, to the Commonwealth instrumentality or to that other person, as the case may be, in respect of the same loss suffered or expense incurred. [s 117A insrt Act 72 of 1983 s 70]

[s 117B]

Interest on moneys ordered to be paid

117B (1) [Date from which interest payable] Subject to any order made by the court under subsection (2), where, in proceedings under this Act, a court makes an order for the payment of money (other than an order for the payment by way of maintenance of a periodic sum), interest is payable, at the rate prescribed by the applicable Rules of Court, from: (a) the date on which the order is made; or (b) the date on which the order takes effect; whichever is later, on so much of the money as is from time to time unpaid. [subs (1) am Act 194 of 1999 s 3 and Sch 11[97]]

(2) [Variation of interest period, rate] A court that makes an order for the payment of money as mentioned in subsection (1) may order that interest is not payable on the money payable under the first-mentioned order or may order: (a) that interest is payable at a rate specified in the order, being a rate other than the rate prescribed by the applicable Rules of Court; or (b) that interest is payable from a date specified in the order, being a date other than the date from which the interest would be payable under subsection (1). [s 117B insrt Act 72 of 1983 s 70; Act 194 of 1999 s 3 and Sch 11[98]] COMMENTARY ON SECTION 117B Payments liable for interest ….

[s 117B.1]

[s 117B.1] Payments liable for interest An order for the payment of interest will not ordinarily apply to a payment to be made subsequent to the realisation of jointly owned property where each of the parties is required to

join in the property’s sale and distribution of its proceeds: see In the Marriage of Jones (1990) 14 Fam LR 19; FLC 92–143.

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[s 117C]

Offers of settlement

117C (1) This section applies to proceedings under this Act other than the following proceedings: (a) proceedings under Part VI; (b) proceedings under Division 6, 9 or 13 of Part VII; (c) proceedings to enforce a decree or injunction made under Division 6, 9 or 13 of Part VII. (2) If: (a) a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and (b) the offer is made in accordance with any applicable Rules of Court; the fact that the offer has been made, or the terms of the offer, must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order. [page 1172] (3) A judge of the court is not disqualified from sitting in the proceedings only because the fact that an offer has been made is,

contrary to subsection (2), disclosed to the court. [s 117C subst Act 98 of 2005 s 2 and Sch 1, cl 6, opn 3 Aug 2005] COMMENTARY ON SECTION 117C Certain offers not to be disclosed …. Application of section …. Previous version of s 117C ….

[s 117C.1] [s 117C.5] [s 117C.10]

[s 117C.1] Certain offers not to be disclosed Introductory comments This section was inserted in 2005. It is significantly different from the previous version of s 117C (see below). In substance, the section provides that certain offers of settlement are not to be disclosed to the court, except in relation to costs. This means that the parties should not give evidence about such offers, or give any other indication about them, in the proceedings to which they relate, until the proceedings have been completed, and the question arises whether one party should pay some or all of the costs of the other party. The significance of settlement offers thus relates entirely to costs, a point made in relation to the previous version of s 117C by the Full Court: In the Marriage of Kowalski (1994) 18 Fam LR 193; FLC 92–501. The offer cannot affect the substantive proceedings, because it is not disclosed to the court until the substantive proceedings have been completed. After the substantive proceedings have been completed, and the outcome has been determined, it is open to the party who made the offer to use it to support an application for costs (or to resist an application for costs by the other party). Typically, where an offer is made and not accepted, and the outcome of the litigation is not more favourable to the other party than the offer, the court might well think it appropriate to make a costs order in favour of the party making the offer (because it would have been reasonable for the other party could have avoided the cost of the litigation by accepting the offer). See generally s 117 and the commentary thereto. [s 117C.5] Application of section

Certain proceedings excluded The section applies to proceedings under the Act with the exception of the proceedings specified in subs (1), mainly (in brief) proceedings about divorce and nullity (Pt VI), proceedings for parenting orders (Pt VII Div 6); and enforcement proceedings arising from such matters. Offer “to settle the proceedings” The use of this phrase may mean that the section applies only to offers that, if accepted, would resolve the whole of the proceedings, not just a part of them. Application of the section: offers in accordance with the Rules The section applies only to offers “made in accordance with any applicable Rules of Court”. See generally Ch 10.1 of the Family Law Rules 2004, which provide for the service of offers by one party on another. [s 117C.10] Previous version of s 117C Before the introduction of the present version, s 117C provided for the filing of offers, and the filing of withdrawals of offers. The present version of the section is simpler, and avoids some complications that arose under the previous version. Fortunately, the present section applies retrospectively, that is, it applies whether or not the offer was made before the 2005 version came into effect (3 August 2005). For historians; authorities on the earlier versions of s 117C include: In the Marriage of Murray (1990) 14 Fam LR 311; FLC 92–173; In the Marriage of Harris (1991) 15 Fam LR 26; FLC 92–254 (FC); and Camilleri and Camilleri [2002] FamCA 1157.

____________________ [page 1173]

[s 118]

Frivolous or vexatious proceedings

118 The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or

vexatious: (a) dismiss the proceedings; and (b) make such order as to costs as the court considers just. [s 118 subst Act 186 of 2012 s 3 and Sch 3 item 3, opn 11 June 2013] COMMENTARY ON SECTION 118 Introductory comment …. Purpose of the section …. “Frivolous or vexatious proceedings” …. Relevant Rules …. Inherent jurisdiction …. Application to institute proceedings …. Costs ….

[s 118.1] [s 118.2] [s 118.3] [s 118.4] [s 118.5] [s 118.6] [s 118.7]

[s 118.1] Introductory comment This section confers statutory power on the court to dismiss or make other orders in relation to frivolous or vexatious proceedings. The commentary to this section is mainly based on decisions prior to the Access to Justice (Federal Jurisdiction) Amendment Act 2012. As noted below, that Act recast s 118 and introduced a new Pt XIB, which makes much more detailed provision relating to vexatious proceedings. Although s 118 remains in force, in practice it is likely that most cases will be dealt with under the new Pt XIB, set out with commentary below. Decisions under s 118 may still be of some relevance but must, of course, now be read subject to the provisions in Pt XIB. The provisions of s 118 and Pt XIB are considered in detail in Cannon v Acres [2014] FamCA 104 (Benjamin J). History of s 118 Section 118 was repealed and re-enacted in its present form by the Access to Justice (Federal Jurisdiction) Amendment Act 2012. The previous version of s 118 had included (para (c) and subs (2) (see below). Those provisions were made unnecessary by the provisions of Pt XIB by the 2012 Act. Transitional Proceedings instituted before 11 June 2013 are governed by the

previous version of s 118, which was as follows: (1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious: (a) dismiss the proceedings; (b) make such order as to costs as the court considers just; and (c) if the court considers appropriate, on the application of a party to the proceedings — order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order; and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act. (2) A court may discharge or vary an order made by that court under paragraph (1)(c). [s 118.2] Purpose of the section In In the Marriage of Zabaneh (1986) 11 Fam LR 167 at 171; FLC 91–766 (FC), Evatt CJ said that it is the intention of the section that the court may make an order restraining a vexatious litigant from instituting unnecessary and harassing proceedings against the other party. The purpose is to protect a respondent from being brought to court. [s 118.3] “Frivolous or vexatious proceedings” The courts are normally extremely reluctant to invoke a power to discharge proceedings because they are frivolous or vexatious. As a general principle a party is entitled to have his or her day in court and the chances of success or failure [page 1174] must not be prejudiced: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129–30; see also Marsden v Winch (2013) 50 Fam LR 409; [2013] FamCAFC 177; BC201350601 at [126]– [158], and the authorities discussed therein.

Multifarious applications In In the Marriage of Zabaneh (1986) 11 Fam LR 167 at 172; FLC 91–766 (FC), Evatt CJ said that a party may be restrained from instituting proceedings to prevent multifarious overlapping applications, which amount in essence to a harassment of the other party, and an abuse of the process of the court, and which involve enormous expense for both the parties and the legal aid office. Improbable or false An action may not be vexatious simply because the court is satisfied that allegations made are improbable or false, because to entertain the question of truth or falsehood would be trying the action prematurely. The court will, however, deal with the matter if the facts or admissions in the offending pleading are inconsistent with prior admissions made by the relevant party: see Finneran v Eyre (1893) 9 WN (NSW) 148. Delay The court may dismiss proceedings brought solely for the purpose of delay. Bad faith The court may dismiss proceedings brought solely in bad faith. Already determined The court may dismiss proceedings where the matter has already been determined in previous litigation: see Commercial Banking Co of Sydney Ltd v Worrall (1917) 35 WN (NSW) 5; Scanlen’s New Neon Ltd v Tooheys Ltd (1944) 62 WN (NSW) 53. Reasonable cause of action In Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083 at 1084; FLC 91–753, Nygh J said that s 118 may not be a source of power to dismiss as frivolous and vexatious, pleadings which do not disclose a reasonable cause of action. Limitations on section: proceedings frivolous The power to make an order under subs (1)(c) can be exercised only where the proceedings before it (or have just been dismissed) are frivolous or vexatious: In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324 at 344; FLC 92–778 (FC). Note however the existence of the inherent power, discussed below. Limitations on section: no power to order stay It has been said by the Full

Court (obiter) that the power to make an order under subs (1)(c) is limited to preventing the institution of proceedings and does “not extend to staying proceedings which have already been brought (nor the bringing of an appeal in such proceedings)”: In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324 at 344; FLC 92–778 (FC). Note however the existence of the inherent power, discussed below. [s 118.4] Relevant Rules Family Law Rules See Family Law Rules 2004, r 11.04. High Court rules available where Family Law Rules insufficient The Family Law Act, s 38, provides that where the provisions of the family law rules are “insufficient”, the rules of the High Court, in so far as they are capable of application, apply in relation to matters of “practice and procedure”. Rules 8.07.1 and 8.07.2 of the High Court Rules 2004 provide that where any proceeding is pending in the court, the court may order a stay of proceedings, whether in the court or elsewhere, in whole or in part. Rule 27.09.4 provides that the court may stay a proceeding or a claim made in a proceeding on grounds that it does not disclose a cause of action, or is scandalous, frivolous or vexatious, or is an abuse of the process of the court. The court can also strike out or amend a pleading on similar grounds pursuant to r 27.09.5. Rule 6.06.1 provides that upon the application of designated persons the court, if satisfied that a person, alone or in concert with any other person, has frequently and without reasonable ground instituted or attempted to institute vexatious legal proceedings, may order that person shall not, without the leave of the court, begin any action, appeal or other proceedings in the court. Rule 6.06.2 provides that such [page 1175] leave shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court and there is a prima facie ground for the proceedings: Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083; FLC 91–753, and Lindon v Commonwealth (No 2) (1996) 136 ALR 251; 70

ALJR 541; [1996] HCA 14; BC9601768. The extent to which these High Court rules are applicable depends, inter alia, on the extent to which r 11.04 of the Family Law Rules 2004 is within the rule making power and is “insufficient”, and whether this is a matter of “practice and procedure”. In view of s 118, the inherent powers of the court and r 11.04 of the Family Law Rules 2004, there may now be no need to resort to the High Court Rules. [s 118.5] Inherent jurisdiction The Family Court, as a superior court of record, has an inherent jurisdiction: see Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083; FLC 91–753. The explicit provision in s 118 does not require the inherent power to be read down: see In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324 at 344; FLC 92–778 (FC); In the Marriage of Tansell (1977) 3 Fam LR 11,466; FLC 90–307; In the Marriage of Wilmoth (1981) 6 Fam LR 807 at 810; FLC 91–030, per Strauss J; Westpac Banking Corp v Aldred (1986) 10 Fam LR 1083; FLC 91–753. In Aldred’s case, Nygh J held at Fam LR 1084; FLC 75,491 that the inherent jurisdiction of the court is not confined to the dismissal of frivolous and vexatious proceedings in the strictest sense, but extends to the dismissal of actions which must fail or which cannot be proved and which are without a solid basis. Patently unmeritorious The court may strike out summarily, a case which is patently unmeritorious: see Westpac Banking Corp v Aldred, above. Failure to disclose a cause of action The court may permanently stay proceedings which fail to disclose a reasonable or probable cause of action: see Westpac Banking Corp v Aldred, above. Proceedings cannot succeed In In the Marriage of Hudson (1986) 11 Fam LR 189 at 190; FLC 91–768, Gee J said that the court has inherent jurisdiction to dismiss proceedings which must fail as being proceedings which cannot in law be proved or are without a solid basis. However the jurisdiction must be sparingly exercised and it must be demonstrated that the application is clearly untenable and cannot possibly succeed. This interpretation of the inherent jurisdiction of the court was approved in

Davidson v Shearer (1992) 15 Fam LR 635 where Lindenmayer J held that the court has an inherent jurisdiction to stay or dismiss proceedings which are an abuse of its process, in addition to its statutory jurisdiction to the same effect, and that the inherent jurisdiction was likely to be wider in scope that the statutory jurisdiction. [s 118.6] Application to institute proceedings In In the Marriage of Zabaneh, above, (FC), Evatt CJ said at Fam LR 171 that if an application for leave is made and the court is satisfied that there is a possible ground, on which leave should be given, then the other party should be given an opportunity to put forward reasons against the granting of leave before an order is finally confirmed. [s 118.7] Costs Section 118(1)(b) provides an exception to the general principle under the Act that each party shall bear his or her own costs.

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[s 119]

Married persons may sue each other

119 Either party to a marriage may bring proceedings in contract or in tort against the other party. COMMENTARY ON SECTION 119 Introductory comment …. Jurisdiction in tort and contract …. “The party to a marriage” — Definition ….

[s 119.1] [s 119.2] [s 119.4] [page 1176]

[s 119.1] Introductory comment At common law spouses were unable to sue each other in contract or in tort. This disability had been gradually removed under the legislation of several states and territories but, in some jurisdictions, notably New South Wales, there remained a general inability

for spouses to sue each other in tort except in cases arising out of the use of a registered motor vehicle: see s 16B of the Married Persons (Property and Tort) Act 1901 (NSW). Section 119 removes any disability which remains under the law of any state or territory. [s 119.2] Jurisdiction in tort and contract Section 119 removes the mutual immunity of husband and wife from suits for contract or tort against each other. It does not, however, invest the Family Court with jurisdiction to deal with matters of tort or contract: see In the Marriage of Saba (1984) 9 Fam LR 780; FLC 91–579; see also Barkley v Barkley (1976) 1 Fam LR 11,554; (1977) FLC 90–216. It clears up any lingering doubt as to the capacity of parties to sue one another (arising from the old common law concept that a husband and wife were one person and thus could not sue each other in tort): see In the Marriage of Madjeric (1984) 9 Fam LR 825; FLC 91–552. The High Court has rejected an argument that s 119 does not apply to the tort of deceit: Magill v Magill (2006) 36 Fam LR 1; FLC 98–033. Gleeson CJ said (citations omitted), at Fam LR 9: “Section 119 entirely abolished the old spousal immunity based upon the concept that, at law, husband and wife are one. The immunity disappeared from the law by degrees … With s 119, it went completely. Actions in contract or tort between spouses, or former spouses, are now common place.” In that case the High Court held that on the facts the elements of actionable deceit were not made out. There were also comments to the effect that false representations by one spouse to another concerning an extra marital relationship or its consequences were not actionable in deceit (at least where no child support issues were involved): see the joint judgment of Gummow, Kirby and Crennan JJ) and the judgment of Hayne. [s 119.4] “The party to a marriage” — Definition Pursuant to s 4(2) a party to a marriage includes a person who was a party to a marriage that has been dissolved or annulled.

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[s 120] Criminal conversation, adultery and enticement 120 After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage. COMMENTARY ON SECTION 120 Criminal conversation — Adultery and enticement — Introductory comment ….

[s 120.1]

[s 120.1] Criminal conversation — Adultery and enticement — Introductory comment In accordance with the general policy of the Family Law Act, s 120 abolishes the action for damages for adultery which existed under the repealed Matrimonial Causes Act 1959: s 44(2). Despite the prospective language of s 120, the introduction of the Family Law Act precluded the continuation of any action for damages which had been instituted under the previous law, since the Family Law Act made no provision for the continuation of such proceedings: see In the Marriage of Yule (1976) 1 Fam LR 11,502; FLC 90-081. This decision was upheld by the High Court in Yule v Junek (1978) 139 CLR 1; 3 Fam LR 11,640; FLC 90– 439. The High Court has pointed out that each of the three causes of action abolished by s 120 were once brought by an injured party against third parties, and thus s 120 is no bar to an action by one spouse against another for damages eg for the tort of deceit: Magill v Magill (2006) 36 Fam LR 1; FLC 98–033.

____________________ [page 1177]

[s 121] Restriction on publication of court proceedings 121 (1) [Account of proceedings identifying certain persons] A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies: (a) a party to the proceedings; (b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or (c) a witness in the proceedings; commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year. [subs (1) am Act 37 of 1991 s 20 and Sch; Act 143 of 2000 s 3 and Sch 3 item 100 opn 27 Dec 2000; Act 4 of 2016 s 3 and Sch 4 items 1, 166, opn 10 Mar 2016]

(2) [List of proceedings identifying parties] A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

[subs (2) am Act 37 of 1991 s 20 and Sch; Act 194 of 1999 s 3 and Sch 11[100]; Act 143 of 2000 s 3 and Sch 3 item 100 opn 27 Dec 2000; Act 4 of 2016 s 3 and Sch 4 items 1, 166, opn 10 Mar 2016]

(3) [Account identifying a person] Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if: (a) it contains any particulars of: (i) the name, title, pseudonym or alias of the person; (ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated; (iii) the physical description or the style of dress of the person; (iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; (v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; (vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or (vii) any real or personal property in which the person has an interest or with which the person is otherwise associated; being particulars that are sufficient to identify that

person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires; [page 1178] (b) in the case of a written or televised account or an account by other electronic means — it is accompanied by a picture of the person; or (c) in the case of a broadcast or televised account or an account by other electronic means — it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires. [subs (3) am Act 143 of 2000 s 3 and Sch 3 item 101 opn 27 Dec 2000]

(4) [Effect of Act 72, 1983] A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983. (5) [Indictable offence] An offence against this section is an indictable offence. (6) [subs (6) rep Act 37 of 1991 s 20 and Sch] (7) [subs (7) rep Act 37 of 1991 s 20 and Sch] (8) [Consent of Director of Public Prosecutions necessary] Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.

[subs (8) am Act 143 of 2000 s 3 and Sch 3 item 102 opn 27 Dec 2000]

(9) [Non-application of this section] The preceding provisions of this section do not apply to or in relation to: (a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or (aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or (b) the communication of any pleading, transcript of evidence or other document to: (i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or (ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or (c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or (d) the publishing of a notice or report in pursuance of the direction of a court; or

the publication by the court of lists of proceedings under (da) this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or (e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being: (i) a separate volume or part of a series of law reports; or (ii) any other publication of a technical character; or [page 1179] (f) the publication or other dissemination of an account of proceedings or of any part of proceedings: (i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or (ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or (ii) to a person who is a student, in connection with the studies of that person; or (g) publication of accounts of proceedings, where those accounts have been approved by the court. [subs (9) am Act 143 of 2000 s 3 and Sch 3 items 103, 104, 105 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 7 items 32, 33 opn 14 Jan 2004; Act 113 of 2015 s 3 and Sch 3 item 5, opn 18 Aug 2015]

(10) [Application of Rules of Court] Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance. Note: Powers to make Rules of Court are also contained in sections 26B, 37A, 109A and 123. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 106 opn 27 Dec 2000] [subs (10) am Act 194 of 1999 s 3 and Sch 11[101]]

(11) In this section: court includes: (a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and (b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory. electronic means includes: (a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or (b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system. [subs (11) subst Act 143 of 2000 s 3 and Sch 3 item 107 opn 27 Dec 2000] [s 121 subst Act 72 of 1983 s 72] COMMENTARY ON SECTION 121 PRELIMINARY Introductory comment …. Amendment ….

[s 121.1] [s 121.2]

SCOPE OF RESTRICTION Disseminate to the public: Section 121(1) and (2) …. Identification of a person …. Proceedings ….

[s 121.3] [s 121.4] [s 121.5]

EXCEPTIONS Non-application of section (ie exceptions to restrictions on publication): s 121(9) ….

[s 121.6]

OTHER MATTERS Prosecution for breach …. Injunction to restrain publication or transmission ….

[s 121.7] [s 121.8] [page 1180]

PRELIMINARY [s 121.1] Introductory comment This section permits the publication of proceedings in the Family Court but only in a manner which does not identify the parties, their relatives, de facto spouses or their witnesses. Any person who publishes material which identifies such a person is guilty of an indictable offence punishable by fine. [s 121.2] Amendment This section was amended by the Family Law Amendment Act 1983. Prior to the 1983 amendments, the section prohibited, with some exceptions, the printing or publishing of proceedings, or evidence in proceedings. The use of the words “print or publish” posed the problem of whether those words should be interpreted in their ordinary meaning or by reference to their interpretation in other areas of law such as defamation. Any confusion has now been removed by providing that a person is now restricted from publishing in a newspaper or periodical publication or by radio broadcast or television or otherwise disseminating to the public by any means any account of any proceedings that identifies a person referred to in s 121(1). It covers a video tape: see In the Marriage of Bau (1986) 10 Fam LR 897 (Hase J).

SCOPE OF RESTRICTION [s 121.3] Disseminate to the public: Section 121(1) and (2) Not restricted to media The phrase “or otherwise disseminates” should not be read ejusdem generis with the previous words. It is thus not confined to communications through the media: Re Edelsten (Bankrupt); Donnelly v Edelsten (1988) 18 FCR 434; 80 ALR 704; 12 Fam LR 294; it can apply to disclosures on-line as well as through the media: Xuarez v Vitela [2012] FamCA 574; BC201250472 at [53] (Forrest J). Voluntary The section proscribes only the voluntary dissemination of information, and therefore does not apply to evidence given by a witness required by law to answer questions in legal proceedings: Re Edelsten (Bankrupt), above. To the public The section refers to “widespread communication with the aim of reaching a wide audience”. Thus answers given by witnesses in court proceedings are to be regarded as communications to the court, not to the public, even where the proceedings are in open court: Re Edelsten (Bankrupt), above, followed in Hinchcliffe v Cmr of Police of the Australian Federal Police (2001) 118 FCR 308; [2001] FCA 1747; BC200107735. Similarly, the transmission of documents to the Attorney General or departmental officers is not a communication to the public or to a section of the public: In the Marriage of Tingley (1984) 10 Fam LR 707. See also In the Marriage of Bateman and Patterson (1981) 51 FLR 263; 7 Fam LR 33; FLC 91-057; In the Marriage of Toric (1981) 7 Fam LR 370; (1981) FLC 91-046. [s 121.4] Identification of a person Section 121(3) sets out the circumstances in which an account of proceedings shall be taken to identify a person. [s 121.5] Proceedings Proceedings are defined as including a reference to proceedings commenced before November 1983: s 121(4). EXCEPTIONS

[s 121.6] Non-application of section (ie exceptions to restrictions on publication): s 121(9) Subsection (9) states that the previous provisions “do not apply” to various things listed in its paragraphs. This means that the prohibition on publication contained in subs (1) does not apply to those things. The communications referred to are, in general, communications that need to be made for the use in legal proceedings or other legal processes, or for professional or [page 1181] educational purposes; and for the purpose of notifying state and territory child protection agencies (see below); and, of course, where publication is authorised by the court (as, for example, to assist in finding a child who has been abducted). Meaning of court Section 121(11) defines what is included in the meaning of the word “court” for the purpose of the section. It has been held that the words “any court” are wide enough to include any criminal and civil court in Australia: see R v Howe and Howe (1978) 4 Fam LR 166 at 169; see also In the Marriage of Bateman and Patterson (1981) 7 Fam LR 33; FLC 91-057. Meaning of report In In the Marriage of Bau (1986) 10 Fam LR 897 at 900, Hase J referred to the meaning of the word “report” in s 121(9)(d) and said that it bears its ordinary meaning. It is not confined to the type of report which is closely connected to the operation of the court or which serves the interests of the court. Publication ordered by court For an example of an order authorising publication under s 121(9)(d), see Gillespie v Bahrin; Herald and Weekly Times Ltd (intervener) (1993) 16 Fam LR 642; FLC 92–388. Communication to state and territory child welfare authorities not prohibited by s 121: subs (9)(aa) Paragraph (aa) provides in substance that communications made to state and territory child welfare authorities are not prohibited by s 121. It was added by the Civil Law and Justice Legislation

Amendment Act 2015. The child protection departments of each of the states and territories are prescribed for the purpose of para (aa): Family Law Regulations 1984, reg 19A. This is an important amendment because in some situations the safety of children may require that all relevant information be provided to the child protection authorities. The Explanatory Memorandum to the amending bill [152] explains the purpose of para (aa): This amendment will clarify the exceptions to section 121(9) by explicitly permitting the communication of any pleading, transcript of evidence or other document to a prescribed State or Territory child welfare authority. The purpose of explicitly authorising the release of this information is to ensure that there is appropriate information sharing between the family law and child protection systems to ensure the best possible outcomes for children. The amendment will ensure that child welfare authorities have access to any relevant family law material and enhance interactions between the family law and child protection systems. The EM also explains the background [151]: The Attorney-General’s Department engaged Professor Richard Chisholm (former Family Court Judge) to chair a taskforce to report on how experts’ reports can be better shared between the federal family law system and the State and Territory child protection systems. Professor Chisholm’s report identified the existence of differing views about whether section 121 operates to prohibit the provision of family court reports to agencies within the State and Territory child protection systems. Because of these differing views some child welfare agencies currently seek explicit court orders to obtain court documents, such as experts’ reports. This is despite the apparent strength of the contrary view that the release of such information to a State or Territory child welfare authority is not publication or dissemination to the public or to a section of the public. The report recommended that the Commonwealth review the wording of section 121 and consider removing this doubt to state explicitly that it does not apply to the provision of information to the child protection system.

OTHER MATTERS [s 121.7] Prosecution for breach A prosecution may not be commenced except by, or with the written consent of, the Attorney-General. The section does not give an individual the right to have a party restrained from publishing an account of proceedings under the Act: see In the Marriage of J (1979) 5 Fam LR 547; FLC 90-718. [page 1182] It is prima facie a breach of s 121 to publish material on the Internet that identifies a child in a parenting dispute. The court does not have jurisdiction or power to make an order that compels a third party to a matrimonial cause to do the things that the order seeks or to prosecute, but may direct the Marshal of the court to ensure that any breach of s 121 disclosed in the proceedings be investigated and if appropriate be prosecuted, and may request state and federal police to investigate the matters disclosed in the proceedings: see Prentice v Bellas (2012) 47 Fam LR 262; [2012] FamCA 108; BC201250289 per Murphy J. [s 121.8] Injunction to restrain publication or transmission A number of authorities have considered applications for injunctions that prohibit a person from publicising parts of proceedings, in breach of s 121. In substance, the authorities indicate that an injunction will not be issued simply for the purpose of preventing a breach of s 121, but may be granted in “special circumstances”: see Sitwell v Sitwell (2014) 51 Fam LR 159; [2014] FamCAFC 5; BC201451279, and the authorities cited therein. Cases showing that injunctions will not ordinarily be granted merely to restrain publications which would breach s 121 include: In the Marriage of Gibb (1978) 6 Fam LN N7; (1978) FLC 90-405; In the Marriage of Schwarzkopff (1992) 16 Fam LR 539 at 548; (1993) FLC 92-381 (undesirable except in special circumstances to “enforce by way of contempt or otherwise the obligations arising under s 121”), Ellershaw v Survant [2013] FamCA 510; BC201350324 (Kent J), and Sitwell, above.

Nicholson CJ granted such an injunction in Re South Australian Telecasters Ltd (1998) 23 Fam LR 692; (1998) FLC 92-825; [1998] FamCA 117, but in Sitwell, above, the Full Court treated the facts of this case as “exceptional”. The television program what was injuncted would have enabled the children involved in the proceedings to be identified; was unfair and inaccurate; had the effect of bringing the court into contempt or lowering its authority; and placed improper pressure upon a judicial officer. Another example of “exceptional circumstances” is Xuarez v Vitela [2012] FamCA 574; BC201250472 in which Forrest J granted an injunction requiring a parent to remove content from a website, commenting, “I am satisfied that continuous publication on the internet of material that offends the section and impacts upon the welfare of children who are subject to the jurisdiction of the court is able to be restrained by injunction and should be”. In that case the website gave clear identifying details of the domestic violence proceedings as well as Family Court proceedings, the names of the parties, and the names and, in some cases, photographs of the various lawyers and single experts who had been involved in the proceedings — published under the heading “[list of corrupt legal professionals]”. It was intended to intimidate the mother’s lawyers and the independent children’s lawyer into ceasing to act, “and to act as a deterrent to others from so acting”; and it thus comprised “a further attack on the proper administration of justice in respect of which the right to be legally represented is a fundamental cornerstone”.

____________________

[s 122]

Rights of legal practitioners

122 A person who is, under Part VIIIA of the Judiciary Act 1903, entitled to practise in any federal court as a barrister or solicitor, or as both, has the like right to practise in any State court exercising jurisdiction under this Act. [s 122 am Act 181 of 1987 s 63 and Sch] COMMENTARY ON SECTION 122

[s 122.1] Rights of legal practitioners Persons who have been admitted to practise as a barrister or a solicitor, or as both, under the Rules of the High Court of Australia, are entitled to practise in any federal court as a barrister or a solicitor, or as both: see the Judiciary Act 1903 (Cth), s 55A. [page 1183] Persons who have been admitted to practise as a barrister or a solicitor, or as both, in the Supreme Court of a State or in the Supreme Court of a Territory and who have been registered in the Register of Practitioners kept by the Principal Registrar of the High Court are also entitled to practise in any federal court: see the Judiciary Act 1903 (Cth), s 55B.

____________________

[s 122AA] persons

Use of reasonable force in arresting

122AA A person who is authorised or directed by a provision of this Act, or by a warrant issued under a provision of this Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest. [s 122AA insrt Act 143 of 2000 s 3 and Sch 3 item 108 opn 27 Dec 2000]

[s 122A] Powers of entry and search for purposes of arresting persons 122A (1) Where: (a) a person (in this subsection called the authorised person) is, by a provision of this Act, or by a warrant issued under a provision of this Act, authorised to arrest

another person; and (b) the authorised person reasonably believes that the other person is in or on a particular searchable place; the authorised person may, without warrant, enter and search the searchable place. (2) Where a person may enter and search a vehicle, vessel or aircraft under subsection (1), the person may, for the purposes of effecting the entry and search, stop and detain the vehicle, vessel or aircraft. (3) In exercising powers under this section, a person may use such force and assistance as is necessary and reasonable to enable the exercise of the powers. (4) In this section: searchable place means: (a) premises or a place; or (b) a vehicle, vessel or aircraft. [s 122A insrt Act 37 of 1991 s 19]

[s 122B] Arrangements with States and Territories 122B (1) The Governor-General may make an arrangement with the relevant authority of a State or internal Territory for the performance by an officer of the State or Territory of a function under this Act. (2) In this section: officer includes the holder of a judicial office. relevant authority means: (a) in relation to a State — the Governor of the State; or

(b) in relation to the Australian Capital Territory — the Chief Minister for the Australian Capital Territory; or (c) in relation to the Northern Territory — the Administrator of the Northern Territory. [s 122B insrt Act 143 of 2000 s 3 and Sch 3 item 109 opn 27 Dec 2000]

[page 1184]

[s 123]

Rules of Court

*123 (1) [Rules may provide for certain matters] The Judges, or a majority of them, may make Rules of Court not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts and, in particular: (a) providing for and in relation to the attendance of witnesses; and (b) providing for and in relation to the manner of service of process of the Family Court or another court exercising jurisdiction under this Act, and for and in relation to dispensing with such service; and (ba) providing for and in relation to trial management; and (bb) providing for and in relation to proceedings transferred to the Family Court under section 35A of the Bankruptcy Act 1966; and (c) providing for and in relation to the time and manner of

(d) (e) (f)

(g)

(h)

(j)

(ja)

(k)

institution of appeals in and to the Family Court; and prescribing the duties of officers of the Family Court; and providing for and in relation to the prevention or termination of vexatious proceedings; and prescribing the seals and stamps to be used in the Family Court and in any other court exercising jurisdiction under this Act; and prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs; and authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications for or relating to any matters before the court; and authorising an officer making an investigation mentioned in paragraph (h) to: (i) take evidence on oath or affirmation; and (ii) receive in evidence a report from a family consultant under section 55A or 62G; and (iii) receive in evidence a report from a person who has had dealings with a party to the matter under investigation under section 65F, 65L, 65LA, 70NEB or 70NEG; and enabling the summoning of witnesses before an officer making an investigation mentioned in paragraph (h) for the purposes of giving evidence or producing books or documents; and regulating the procedure of a court upon receiving a

report of an officer who has made an investigation referred to in paragraph (h); and [page 1185] (m)

(ma)

(n)

(o)

(p) (q)

(r)

providing for and in relation to the procedure of a court exercising its powers under section 112AP to deal with a person for contempt of the court; and for the purposes of Divisions 2 and 3 of Part XI, providing for the conditions relating to the use of video links, audio links and other appropriate means of communication; and providing for and in relation to the making of an application for a divorce order in relation to a marriage jointly by both parties to the marriage; and providing for and in relation to the appointment, by the Attorney-General, of a guardian ad litem for a party to proceedings under this Act; and [repealed] providing for and in relation to: (i) the forfeiture of bonds and recognizances entered into in pursuance of requirements made under this Act; and (ii) the recovery of any money that may be due to the Commonwealth under such bonds and recognizances or from any person who has become a surety under this Act; and providing for and in relation to the attachment of

(s)

(sa) (sb)

moneys payable by the Commonwealth, a State, a Territory or the Administration of a Territory, or by an authority of the Commonwealth, of a State or of a Territory (other than moneys as to which it is provided by any law of the Commonwealth, of a State or of a Territory that they are not liable to attachment); and providing for and in relation to: (i) the attendance at family counselling by parties to proceedings under this Act; and (ii) the attendance at family dispute resolution by parties to proceedings under this Act; and (iii) the giving of advice and assistance by family consultants to people involved in proceedings under this Act; and (iv) the participation by parties to proceedings under this Act in courses, programs and other services (other than those mentioned in subparagraph (i), (ii) or (iii)) that the parties are ordered by the court to participate in; and (v) the use, for the purposes of proceedings under this Act, by courts exercising jurisdiction under this Act and officers of such courts, of reports about the future conduct of the proceedings that have been prepared by persons who dealt with the parties in accordance with Rules of Court made under subparagraphs (i), (ii), (iii) or (iv); and prescribing the functions and duties of assessors and of family consultants and arbitrators; and providing for and in relation to the making of applications under this Act for arbitration and for orders

under sections 13E and 13F; and (sc) prescribing the disputes, proceedings or matters that may or may not be arbitrated under this Act; and (sca) prescribing the disputes, proceedings or matters in relation to which family consultants may, or must not, perform their functions; and [page 1186] (sd)

providing for and in relation to: (i) the functions to be performed by family consultants; and (ii) the procedures to be followed in performing those functions; and (iii) the procedures to be followed by persons involved in proceedings in relation to which a family consultant is performing functions; and (iv) the procedures to be followed when a family consultant ceases performing functions in relation to a dispute, proceeding or matter; and (sda) providing for and in relation to: (i) the procedures to be followed by a family counsellor authorised under subsection 38BD(1) or engaged under subsection 38R(1A); and (ii) the procedures to be followed by persons attending family counselling with such a counsellor; and (iii) the procedures to be followed when family counselling with such a counsellor ends; and

(sdb) providing for and in relation to: (i) the procedures to be followed by a family dispute resolution practitioner authorised under subsection 38BD(2) or engaged under subsection 38R(1A); and (ii) the procedures to be followed by persons attending family dispute resolution with such a practitioner; and (iii) the procedures to be followed when family dispute resolution with such a practitioner ends; and (sdc) providing for and in relation to: (i) the procedures to be followed by an arbitrator in relation to a dispute, proceeding or matter under this Act; and (ii) the attendance by persons at conferences conducted by arbitrators for the purpose of arbitrating a dispute, proceeding or matter under this Act; and (iii) the procedure to be followed when arbitration ends, both where it has resulted in an agreement or award and where it has not; and (se) prescribing matters relating to the costs of arbitration by arbitrators, and the assessment or taxation of those costs; and (sea) prescribing matters relating to the costs of family counselling by family counsellors authorised under subsection 38BD(1) or engaged under subsection 38R(1A); and (seb) prescribing matters relating to the costs of family dispute resolution by family dispute resolution practitioners

(sf)

(sg) (t)

authorised under subsection 38BD(2) or engaged under subsection 38R(1A); and providing for and in relation to: (i) the registration of awards under section 13H; and (ii) the time and manner of making applications for review of registered awards under section 13J or for orders setting aside registered awards under section 13K; and providing for and in relation to conciliation conferences; and prescribing matters incidental to the matters specified in the preceding paragraphs; and [page 1187]

(u)

prescribing penalties not exceeding 50 penalty units for offences against the standard Rules of Court.

[subs (1) am Act 182 of 1989 s 23; Act 113 of 1991 s 8; Act 23 of 1992 Sch; Act 167 of 1995 s 57; Act 34 of 1997 s 3 and Sch 7; Act 194 of 1999 s 3 and Sch 11[103]; Act 143 of 2000 s 3 and Sch 1 items 36, 37 and Sch 3 items 110, 111 opn 27 Dec 2000; Act 138 of 2003 s 3 and Sch 2 item 8 and Sch 7 item 34 opn 14 Jan 2004; Act 98 of 2005 s 2 and Sch 1, cl 128, opn 3 Aug 2005; Act 46 of 2006 s 3 and Sch 4 item 71–82, opn 1 July 2006; Act 189 of 2011 s 3 and Sch 2[30], opn 4 Jan 2012; Act 186 of 2012 s 3 and Sch 3 item 4, opn 11 June 2013]

(1A) A reference in subsection (1) to a court exercising jurisdiction under this Act does not include a reference to the Federal Circuit Court of Australia. [subs (1A) am Act 194 of 1999 s 3 and Sch 11[104]; Act 13 of 2013 s 3 and

Sch 2 item 2, opn 12 Apr 2013]

(2) The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to rules of court made under this section: (a) as if a reference to a legislative instrument were a reference to a rule of court; and (b) as if a reference to a rule-maker were a reference to the Chief Judge acting on behalf of the Judges; and (c) subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act. [subs (2) subst Act 140 of 2003 s 2 and Sch 1[21], opn 1 Jan 2005; am Act 10 of 2015 s 3 and Sch 1 item 133, opn 5 Mar 2016]

(2A) Despite the fact that section 16 of the Legislation Act 2003 does not apply in relation to rules of court made under this Act, the Office of Parliamentary Counsel (established by subsection 2(1) of the Parliamentary Counsel Act 1970) may provide assistance in the drafting of any of those Rules if the Chief Judge so desires. [subs (2A) insrt Act 140 of 2003 s 2 and Sch 1[21], opn 1 Jan 2005; am Act 107 of 2012 s 3 and Sch 2 item 8, opn 1 Oct 2012; Act 10 of 2015 s 3 and Sch 1 item 134, opn 5 Mar 2016]

(3) [“Judge”] In this section, Judge means: (a) a Judge of the Family Court of Australia; or (b) where the Governor-General has made an arrangement with the Governor of a State under section 112 in relation to the performance, by a Judge of the Family Court of that State, of functions under this section — that Judge. Note: The power to make Rules of Court conferred by this section is

extended by section 109A and subsection 111C(7A). Powers to make Rules of Court are also contained in sections 26B and 37A. [Note insrt Act 143 of 2000 s 3 and Sch 3 item 112 opn 27 Dec 2000] [s 123 subst Act 72 of 1983 s 75]

*Editor’s note: Section 23(2) of the Family Law Amendment Act 1989 No 182 of 1989 provides as follows: (2) Rules of Court made for the purposes of paragraph 123(1)(m) of the Family Law Act 1975 that were in force immediately before the commencement of this Act have effect, on and after that commencement, as if: (a) they were made for the purposes of paragraph 123(1)(m) of that Act as amended by this Act; and (b) references in those Rules to section 108 of that Act were instead references to section 112AP of that Act.

COMMENTARY ON SECTION 123 Rules made under s 123: Family Law Rules 2004 ….

[s 123.1]

[s 123.1] Rules made under s 123: Family Law Rules 2004 The rules made under s 123 are now the Family Law Rules 2004. They replaced the former rules, namely the Family Law Rules 1984. See the separate guide card, FAMILY LAW RULES, for the rules and commentary to them.

____________________

[s 124]

Rules Advisory Committee

124 (1) [Constitution] There shall be a Rules Advisory Committee consisting of such Judges of the Family Court of Australia, such Judges of Family Courts of States and such other persons as are appointed in accordance with this section. [page 1188]

(2) [Function] The function of the Rules Advisory Committee is to provide to the Judges referred to in section 123 such advice in relation to the making of standard Rules of Court as is requested from time to time by those Judges. [subs (2) am Act 194 of 1999 s 3 and Sch 11[106]]

(3) [Appointment of members] Members of the Rules Advisory Committee shall be appointed by the Governor-General on the nomination of the Attorney-General made by the AttorneyGeneral after consultation with the Chief Judge of the Family Court of Australia. [subs (3) am Act 181 of 1987 s 63 and Sch]

(4) [Appointment of State judge] A Judge of a Family Court of a State shall not be appointed as a member of the Rules Advisory Committee unless the Governor-General has made an arrangement with the Governor of the State under section 112 in relation to the performance, by that Judge, of functions as a member of the Rules Advisory Committee. (5) [Allowances] The members of the Rules Advisory Committee shall be paid such allowances in respect of expenses in connection with their duties as are prescribed. (6) [Resignation] A member of the Rules Advisory Committee may resign by writing signed and delivered to the GovernorGeneral. [subs (6) am Act 181 of 1987 s 63 and Sch] [s 124 insrt Act 72 of 1983 s 75]

[s 124A] Regulations in relation to overseasrelated maintenance obligations etc 124A

(1) The regulations may make provision for, and in

relation to, the following matters: (a) giving effect to an international agreement that relates to maintenance obligations arising from family relationship, parentage or marriage; (b) maintenance obligations arising from family relationship, parentage or marriage, where: (i) the maintenance is claimed by or on behalf of a person who is in a reciprocating jurisdiction; or (ii) the person from whom the maintenance is claimed is in a reciprocating jurisdiction. (2) Regulations made for the purposes of this section may: (a) confer jurisdiction on a federal court (other than the High Court) or a court of a Territory; or (b) invest a court of a State with federal jurisdiction. (3) [subs (3) rep Act 82 of 2007 s 3 and Sch 2[113], opn 19 July 2007] (4) In this section: international agreement means an agreement whose parties are: (a) Australia and a foreign country; or (b) Australia and 2 or more foreign countries. reciprocating jurisdiction means: (a) a foreign country; or (b) a part of a foreign country; [page 1189]

that is prescribed by the regulations to be a reciprocating jurisdiction for the purposes of this section. [s 124A insrt Act 49 of 2000 Sch 1]

[s 125]

Regulations

125 (1) [Regulations may prescribe certain matters] The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, in particular: (a) providing for and in relation to the service overseas, pursuant to any convention between Australia and another country, of any documents in proceedings under this Act; and (b) providing for and in relation to the transcription of proceedings under this Act and the making available of copies of transcripts of those proceedings; and (ba) providing for and in relation to the authorisation of: (i) officers or staff members of the Family Court as family counsellors under subsection 38BD(1); and (ii) officers or staff members of the Family Court as family dispute resolution practitioners under subsection 38BD(2); and (baa) modifying or adapting the provisions of the Legislation Act 2003 (other than the provisions of Part 2 of Chapter 3 of that Act or any other provisions whose modification or adaptation would affect the operation of that Part) in their application to the Family Court and any other court

exercising jurisdiction under this Act; and (bb) prescribing requirements for arbitrators; and (bba) the registration of awards made in section 13E arbitration and relevant property or financial arbitration; and (bc) prescribing, or providing for or in relation to, anything that may be dealt with in Rules of Court made under paragraph 123(1)(sa), (sb), (sc), (sca), (sd), (sda), (sdb), (sdc), (se), (sea) or (seb); and (c) prescribing court fees to be payable in respect of proceedings under this Act; and (ca) prescribing fees payable for services provided by the Family Court in circumstances other than where a court orders or directs the provision of the services; and (d) exempting persons included in particular classes of persons from liability to pay court fees prescribed under paragraph (c) and fees prescribed under paragraph (ca); and (e) providing for the refund of court fees prescribed under paragraph (c) and fees prescribed under paragraph (ca) that have been paid in particular circumstances; and (f) providing for an officer of a court exercising jurisdiction under this Act, a prescribed authority of the Commonwealth, of a State or of a Territory or the person for the time being holding a prescribed office under a law of the Commonwealth, of a State or of a Territory, in his, her or its discretion, to institute and prosecute proceedings, on behalf of the person entitled to moneys payable under a child maintenance order under Part VII or a maintenance order under Part VIII,

for the purpose of enforcing payment of those moneys; and [page 1190] (g)

providing for and in relation to priority as between the execution of orders made under the regulations, or under the repealed Act, for the attachment of moneys payable by the Commonwealth, a State, a Territory or the Administration of a Territory, or by an authority of the Commonwealth, of a State or of a Territory (other than moneys as to which it is provided by any law of the Commonwealth, of a State or of a Territory that they are not liable to attachment) and the execution of orders made in accordance with the Maintenance Orders (Commonwealth Officers) Act 1966.

[subs (1) am Act 181 of 1987 ss 62, 63 and Sch; Act 113 of 1991 s 9; Act 167 of 1995 s 58; Act 25 of 1997 s 3 and Sch 1; Act 143 of 2000 s 3 and Sch 3 items 114, 115 opn 27 Dec 2000; Act 140 of 2003 s 2 and Sch 1[22], opn 1 Jan 2005; Act 46 of 2006 s 3 and Sch 4 items 84–86, opn 1 July 2006; Act 10 of 2015 s 3 and Sch 1 item 135, opn 5 Mar 2016]

(2) [State court fees payable to State] Court fees payable in pursuance of regulations made under this section in respect of proceedings in a Family Court of a State are payable to the State. (3) To the extent of any inconsistency between regulations and Rules of Court, the regulations prevail. [subs (3) insrt Act 143 of 2000 s 3 and Sch 3 item 116 opn 27 Dec 2000] [s 125 insrt Act 72 of 1983 s 75]

[page 1191]

[Sch 1]

SCHEDULE 1 — CHILD PROTECTION CONVENTION

[Sch 1 insrt Act 69 of 2002 s 3 and Sch 1 item 26, opn 1 Aug 2003] Note: This is the copy of the Child Protection Convention referred to in the definition of Child Protection Convention in subsection 111CA(1).

The undersigned, Delegates of the Governments of Argentina, Australia, Austria, Belgium, Canada, China, Croatia, the Czech Republic, Egypt, Finland, The former Yugoslav Republic of Macedonia, France, Germany, Greece, Ireland, Israel, Italy, Japan, Luxembourg, Malta, Mexico, Monaco, Morocco, the Netherlands, Norway, Poland, Portugal, Romania, the Slovak Republic, Spain, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Venezuela, Member States, as well as the Representatives of the Governments of Burkina Faso, Colombia, Costa Rica, Ecuador, Georgia, the Holy See, the Republic of Korea, Mauritius, New Zealand, Paraguay, Peru, the Philippines, the Russian Federation, South Africa and Sri Lanka, participating as Observers, convened at The Hague on 30 September 1996, at the invitation of the Government of the Netherlands, in the Eighteenth Session of the Hague Conference on Private International Law. Following the deliberations laid down in the records of the meetings, have decided to submit to their Governments— CONVENTION ON JURISDICTION, APPLICABLE LAW,

RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN The States signatory to the present Convention, Considering the need to improve the protection of children in international situations, Wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children, Recalling the importance of international co-operation for the protection of children, Confirming that the best interests of the child are to be a primary consideration, Noting that the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors is in need of revision, Desiring to establish common provisions to this effect, taking into account the United Nations Convention on the Rights of the Child of 20 November 1989, Have agreed on the following provisions— CHAPTER I — SCOPE OF THE CONVENTION Article 1 1 The objects of the present Convention are— (a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child; (b) to determine which law is to be applied by such

authorities in exercising their jurisdiction; (c) to determine the law applicable to parental responsibility; (d) to provide for the recognition and enforcement of such measures of protection in all Contracting States; (e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention. [page 1192] 2 For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child. Article 2 The Convention applies to children from the moment of their birth until they reach the age of 18 years. Article 3 The measures referred to in Article 1 may deal in particular with— (a) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation; (b) rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited

period of time to a place other than the child’s habitual residence; (c) guardianship, curatorship and analogous institutions; (d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; (e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution; (f) the supervision by a public authority of the care of a child by any person having charge of the child; (g) the administration, conservation or disposal of the child’s property. Article 4 The Convention does not apply to— (a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the name and forenames of the child; (d) emancipation; (e) maintenance obligations; (f) trusts or succession; (g) social security; (h) public measures of a general nature in matters of education or health; (i) measures taken as a result of penal offences committed by children;

(j)

decisions on the right of asylum and on immigration. CHAPTER II — JURISDICTION

Article 5 1 The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property. 2 Subject to Article 7, in case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction. [page 1193] Article 6 1 For refugee children and children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the Contracting State on the territory of which these children are present as a result of their displacement have the jurisdiction provided for in paragraph 1 of Article 5. 2 The provisions of the preceding paragraph also apply to children whose habitual residence cannot be established. Article 7 1 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

each person, institution or other body having rights of (a) custody has acquiesced in the removal or retention; or (b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment. 2 The removal or the retention of a child is to be considered wrongful where— (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. 3 So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child. Article 8 1 By way of exception, the authority of a Contracting State

having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either — request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or — suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State. 2 The Contracting States whose authorities may be addressed as provided in the preceding paragraph are: (a) a State of which the child is a national, (b) a State in which property of the child is located, [page 1194] (c) a State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage, (d) a State with which the child has a substantial connection. 3 The authorities concerned may proceed to an exchange of views. 4 The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child’s best interests.

Article 9 1 If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child’s best interests, they may either: — request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or — invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child. 2 The authorities concerned may proceed to an exchange of views. 3 The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request. Article 10 1 Without prejudice to Articles 5 to 9, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if: (a) at the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the

child, and (b) the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child. 2 The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason. Article 11 1 In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection. 2 The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation. [page 1195] 3 The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question. Article 12

1 Subject to Article 7, the authorities of a Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take measures of a provisional character for the protection of the person or property of the child which have a territorial effect limited to the State in question, in so far as such measures are not incompatible with measures already taken by authorities which have jurisdiction under Articles 5 to 10. 2 The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken a decision in respect of the measures of protection which may be required by the situation. 3 The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in the Contracting State where the measures were taken as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question. Article 13 1 The authorities of a Contracting State which have jurisdiction under Articles 5 to 10 to take measures for the protection of the person or property of the child must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State having jurisdiction under Articles 5 to 10 at the time of the request and are still under consideration. 2 The provisions of the preceding paragraph shall not apply if the authorities before whom the request for measures was initially introduced have declined jurisdiction.

Article 14 The measures taken in application of Articles 5 to 10 remain in force according to their terms, even if a change of circumstances has eliminated the basis upon which jurisdiction was founded, so long as the authorities which have jurisdiction under the Convention have not modified, replaced or terminated such measures. CHAPTER III — APPLICABLE LAW Article 15 1 In exercising their jurisdiction under the provisions of Chapter II, the authorities of the Contracting States shall apply their own law. 2 However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection. 3 If the child’s habitual residence changes to another Contracting State, the law of that other State governs, from the time of the change, the conditions of application of the measures taken in the State of the former habitual residence. [page 1196] Article 16 1 The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child.

2 The attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority, is governed by the law of the State of the child’s habitual residence at the time when the agreement or unilateral act takes effect. 3 Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State. 4 If the child’s habitual residence changes, the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the State of the new habitual residence. Article 17 The exercise of parental responsibility is governed by the law of the State of the child’s habitual residence. If the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence. Article 18 The parental responsibility referred to in Article 16 may be terminated, or the conditions of its exercise modified, by measures taken under this Convention. Article 19 1 The validity of a transaction entered into between a third party and another person who would be entitled to act as the child’s legal representative under the law of the State where the transaction was concluded cannot be contested, and the third party cannot be held liable, on the sole ground that the other person was not entitled to act as the child’s legal representative under the law designated by the provisions of this Chapter, unless the third party knew or should have known that the parental responsibility was

governed by the latter law. 2 The preceding paragraph applies only if the transaction was entered into between persons present on the territory of the same State. Article 20 The provisions of this Chapter apply even if the law designated by them is the law of a non-Contracting State. Article 21 1 In this Chapter the term “law” means the law in force in a State other than its choice of law rules. 2 However, if the law applicable according to Article 16 is that of a non-Contracting State and if the choice of law rules of that State designate the law of another non-Contracting State which would apply its own law, the law of the latter State applies. If that other non-Contracting State would not apply its own law, the applicable law is that designated by Article 16. Article 22 The application of the law designated by the provisions of this Chapter can be refused only if this application would be manifestly contrary to public policy, taking into account the best interests of the child. [page 1197] CHAPTER IV — RECOGNITION AND ENFORCEMENT Article 23 1 The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other

Contracting States. 2 Recognition may however be refused— (a) if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II; (b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State; (c) on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard; (d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child; (e) if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State; (f) if the procedure provided in Article 33 has not been complied with. Article 24 Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or nonrecognition of a measure taken in another Contracting State. The

procedure is governed by the law of the requested State. Article 25 The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction. Article 26 1 If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State. 2 Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure. 3 The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23, paragraph 2. Article 27 Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken. Article 28 Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter [page 1198] State as if they had been taken by the authorities of that State.

Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child. CHAPTER V — CO-OPERATION Article 29 1 A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention on such authorities. 2 Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State. Article 30 1 Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to achieve the purposes of the Convention. 2 They shall, in connection with the application of the Convention, take appropriate steps to provide information as to the laws of, and services available in, their States relating to the protection of children. Article 31 The Central Authority of a Contracting State, either directly or through public authorities or other bodies, shall take all appropriate steps to— (a) facilitate the communications and offer the assistance provided for in Articles 8 and 9 and in this Chapter;

(b) facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies; (c) provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested State. Article 32 On a request made with supporting reasons by the Central Authority or other competent authority of any Contracting State with which the child has a substantial connection, the Central Authority of the Contracting State in which the child is habitually resident and present may, directly or through public authorities or other bodies, (a) provide a report on the situation of the child; (b) request the competent authority of its State to consider the need to take measures for the protection of the person or property of the child. Article 33 1 If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to [page 1199]

take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care. 2 The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests. Article 34 1 Where a measure of protection is contemplated, the competent authorities under the Convention, if the situation of the child so requires, may request any authority of another Contracting State which has information relevant to the protection of the child to communicate such information. 2 A Contracting State may declare that requests under paragraph 1 shall be communicated to its authorities only through its Central Authority. Article 35 1 The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of measures of protection taken under this Convention, especially in securing the effective exercise of rights of access as well as of the right to maintain direct contacts on a regular basis. 2 The authorities of a Contracting State in which the child does not habitually reside may, on the request of a parent residing in that State who is seeking to obtain or to maintain access to the child, gather information or evidence and may make a finding on the suitability of that parent to exercise access and on the

conditions under which access is to be exercised. An authority exercising jurisdiction under Articles 5 to 10 to determine an application concerning access to the child, shall admit and consider such information, evidence and finding before reaching its decision. 3 An authority having jurisdiction under Articles 5 to 10 to decide on access may adjourn a proceeding pending the outcome of a request made under paragraph 2, in particular, when it is considering an application to restrict or terminate access rights granted in the State of the child’s former habitual residence. 4 Nothing in this Article shall prevent an authority having jurisdiction under Articles 5 to 10 from taking provisional measures pending the outcome of the request made under paragraph 2. Article 36 In any case where the child is exposed to a serious danger, the competent authorities of the Contracting State where measures for the protection of the child have been taken or are under consideration, if they are informed that the child’s residence has changed to, or that the child is present in another State, shall inform the authorities of that other State about the danger involved and the measures taken or under consideration. Article 37 An authority shall not request or transmit any information under this Chapter if to do so would, in its opinion, be likely to place the child’s person or property in danger, or constitute a serious threat to the liberty or life of a member of the child’s family. [page 1200]

Article 38 1 Without prejudice to the possibility of imposing reasonable charges for the provision of services, Central Authorities and other public authorities of Contracting States shall bear their own costs in applying the provisions of this Chapter. 2 Any Contracting State may enter into agreements with one or more other Contracting States concerning the allocation of charges. Article 39 Any Contracting State may enter into agreements with one or more other Contracting States with a view to improving the application of this Chapter in their mutual relations. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention. CHAPTER VI — GENERAL PROVISIONS Article 40 1 The authorities of the Contracting State of the child’s habitual residence, or of the Contracting State where a measure of protection has been taken, may deliver to the person having parental responsibility or to the person entrusted with protection of the child’s person or property, at his or her request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred upon him or her. 2 The capacity and powers indicated in the certificate are presumed to be vested in that person, in the absence of proof to the contrary. 3 Each Contracting State shall designate the authorities competent to draw up the certificate. Article 41

Personal data gathered or transmitted under the Convention shall be used only for the purposes for which they were gathered or transmitted. Article 42 The authorities to whom information is transmitted shall ensure its confidentiality, in accordance with the law of their State. Article 43 All documents forwarded or delivered under this Convention shall be exempt from legalisation or any analogous formality. Article 44 Each Contracting State may designate the authorities to which requests under Articles 8, 9 and 33 are to be addressed. Article 45 1 The designations referred to in Articles 29 and 44 shall be communicated to the Permanent Bureau of the Hague Conference on Private International Law. 2 The declaration referred to in Article 34, paragraph 2, shall be made to the depositary of the Convention. Article 46 A Contracting State in which different systems of law or sets of rules of law apply to the protection of the child and his or her property shall not be bound to apply the rules of the Convention to conflicts solely between such different systems or sets of rules of law. [page 1201] Article 47

In relation to a State in which two or more systems of law or sets of rules of law with regard to any matter dealt with in this Convention apply in different territorial units— (1) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit; (2) any reference to the presence of the child in that State shall be construed as referring to presence in a territorial unit; (3) any reference to the location of property of the child in that State shall be construed as referring to location of property of the child in a territorial unit; (4) any reference to the State of which the child is a national shall be construed as referring to the territorial unit designated by the law of that State or, in the absence of relevant rules, to the territorial unit with which the child has the closest connection; (5) any reference to the State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage, shall be construed as referring to the territorial unit whose authorities are seised of such application; (6) any reference to the State with which the child has a substantial connection shall be construed as referring to the territorial unit with which the child has such connection; (7) any reference to the State to which the child has been removed or in which he or she has been retained shall be construed as referring to the relevant territorial unit to which the child has been removed or in which he or she

has been retained; (8) any reference to bodies or authorities of that State, other than Central Authorities, shall be construed as referring to those authorised to act in the relevant territorial unit; (9) any reference to the law or procedure or authority of the State in which a measure has been taken shall be construed as referring to the law or procedure or authority of the territorial unit in which such measure was taken; (10) any reference to the law or procedure or authority of the requested State shall be construed as referring to the law or procedure or authority of the territorial unit in which recognition or enforcement is sought. Article 48 For the purpose of identifying the applicable law under Chapter III, in relation to a State which comprises two or more territorial units each of which has its own system of law or set of rules of law in respect of matters covered by this Convention, the following rules apply— (a) if there are rules in force in such a State identifying which territorial unit’s law is applicable, the law of that unit applies; (b) in the absence of such rules, the l