10 Things You Need to Know in Family Law

The following article produced by the editors of the Australian Master Family Law Guide, Lydia Lucas and Sherika Ponniah, summarises important appeal cases, delivers elements of significant decisions, details of new practice directions, fee changes and more.

1. E DIVORCE 

As part of the Family Court of Australia and Federal Circuit Court of Australia’s eDivorce strategy, there have been some recent changes related to process and website information for filing divorce applications and the availability of the Application for Divorce Kit from the courts.

The courts are moving to a completely electronic divorce file, which means a significant shift away from paper filing to eFiling using the interactive online form in the Commonwealth Courts Portal.

2. FUTURE EVIDENCE AND ADDUCING FURTHER EVIDENCE

Sullivan & Tyler and Anor (2016) FLC ¶93-708: A mother unsuccessfully appealed against parenting orders as the Full Court found the doctor who diagnosed her of a disorder to be a credible witness. Accordingly, the Full Court found that all of the evidence was available at the time of the hearing and the application to adduce further evidence was dismissed given that the evidence would not have produced a different result if it had been presented at trial.

3. MAINTENANCE IN THE HIGH COURT    

Hall v Hall (2016) FLC ¶93-709: By majority, the High Court dismissed an appeal from the Full Court of the Family Court of Australia. A husband filed an application for discharge of an interim spousal maintenance order due to later obtained information about the wife’s late father’s will, a $16,500,000 payment in the event she divorced. The application was dismissed and the husband appealed to the Full Court.

The Full Court found that the primary judge erred in failing to consider the new evidence. The Full Court set aside the order dismissing the husband’s application and, in its place, ordered that the interim spousal maintenance order be discharged. The wife appealed to the High Court on two grounds.

By majority, the High Court agreed with the Full Court and dismissed the wife’s appeal. Their Honours agreed that the Full Court’s finding was well open on the evidence.

4. DEDUCTIONS DISCRETIONARY NOT MANDATORY

Rodgers & Rodgers (2016) FLC ¶93-703: In a recent decision the Full Court found that s 79(4) of Family Law Act 1975 (Cth) and the cases which have considered the provision do not require a court to always deduct liabilities from a particular asset forming part of a property settlement. However, whether or not liabilities will be deducted will be at the discretion of the court to be determined in accordance with what is just and equitable in the circumstances.

5. RELEASE OF REPORT IN PARENTING PROCEEDINGS

Sahadi & Savva & Anor (2016) FLC ¶93-704: the Full Court permitted the release of an expert report in parenting proceedings for use in related criminal proceedings in circumstances where the report was redacted and conditions imposed for the use of the report.

6. FAMILY LAW (SUPERANNUATION) (INTEREST RATE FOR ADJUSTMENT PERIOD) DETERMINATION 2016

The Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2016 was registered on the Federal Register of Legislation on 22 June 2016 and commences on 1 July 2016.

The determination, made under the Family Law (Superannuation) Regulations 2001, provides the interest rate for adjusting entitlements under certain orders or agreements made under the Family Law Act 1975 and for splitting future superannuation benefits for the adjustment period that is the 2016/17 financial year.

The determination also provides the method by which the interest rate is calculated for that purpose for an adjustment period that includes a period within that financial year.

The link to the determination and its Explanatory Statement is www.legislation.gov.au/Details/F2016L01057.

7. TEST FOR ADEQUACY OF REASONS

Rafferty & Spencer (2016) FLC ¶93-710: the court has confirmed the test for adequacy of reasons by a trial judge after reviewing the authorities on the matter. Following a trial of parents’ competing applications for parenting orders, Cassidy J made final parenting orders that the child live primarily with the father; a fundamental change to the child’s living arrangements. Central to the trial judge’s determination was the finding that the child was at an unacceptable risk of emotional abuse in the mother’s primary care.

The trial judge ultimately determined that the fundamental change referred to was in the child’s best interests. The mother appealed the trial judge’s finding.

8. FULL COURT REVIEWS AUTHORITIES FOR RETURN OF CHILDREN ABROAD

Colak & Viduka (2016) FLC ¶93-707: the Full Court reviewed the authorities on circumstances under which children may be returned to parents overseas under the “Hague Convention” regulations. A mother wrongfully removed her children from Croatia where they were habitually resident, in breach of the Fathers rights. The primary issues raised on the appeal were whether the children “objected” as legally defined and the “grave risk of harm” to the children should they be returned to Croatia.

Watts J, whose decision the father appealed, found that reg 16(3)(c) had been satisfied in respect of both children and reg 16(3)(b) had been satisfied in respect of the elder child and determined, in the exercise of his discretion, not to order the return of the children to Croatia.

9. FULL COURT RE-DETERMINATION OF PROPERTY SETTLEMENT

The Full Court of the Family Court of Australia has re-determined a property settlement in the case of Rodgers & Rodgers (No 2) (2016) FLC ¶93-712, building on their Honours earlier judgment of Rodgers & Rodgers (2016) FLC ¶93-703. The appeal focused on the trial judge’s decision not to deduct the future taxation liability of a family-owned tourism business on the basis that it would not be just and equitable to do so. In reviewing the trial judge’s decision, the Full Court held that s 79(4) of the Family Law Act and the cases following it did not mandatorily require the court to deduct any and all liabilities from assets the subject of a property settlement.

Notwithstanding the above, the Full Court allowed the appeal, on the basis that the trial judge did not have due regard to the evidence before her. On this basis, the matter was set to be re-determined by the Full Court and the appeal allowed.

10. FEE INCREASES EFFECTIVE 1 JULY 2016

Filing and hearing fee increases in the Family Court of Australia, Family Court of Western Australia and Federal Circuit Court of Australia will take effect on Friday, 1 July 2016.

Family Court of Australia
The new Family Court of Australia fees can be found at: www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/2016-biennial-fee-increase.

Federal Circuit Court of Australia
The new Federal Circuit Court of Australia fees can be found at: www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/news/2016-biennial-fee-increase.

Family Court of Western Australia
The new Family Court of Western Australia fees can be found at: www.familycourt.wa.gov.au/F/fees_and_forms.aspx.

The Australian Master Family Law Guide provides a comprehensive commentary on principles and developments in family law in Australia, available individually or as a value pack. Updated to reflect the latest developments in family law legislation and cases, this book has been written by experts to help you work quickly and confidently to provide accurate advice.