Family Law Update - Queensland

Presented by

Clarissa RaywardAccredited Family Law Specialist

Director, Brisbane Family Law Centre

Family Law Update

Just let me give you some context

1. What are some of the ‘trends’ we are seeing in the practice of family law

2. What are we doing well and what could we do better

3. A few recent decisions and their impact on the practice of family law in our offices

So I thought we might consider

Let’s consider the environment we practice in

A few interesting Facts • $30 million in funding cuts for the Family Courts over the next 4 years• Applications involving Family Violence have increased 15% in past year• After a trial, 11% of litigants are waiting over 2 years for judgment and 49% wait at least 3 months• Only 14.6% of those matters commenced in the Courts require judgment• 52% of property disputes filed in the Courts require judicial determination• There were 89,599 matters filed in the Federal Circuit Courts in the last year

What does all this mean for us?

As the Courts become more inefficient we need to rely upon our skills as dispute resolvers to do the best for our clients in keeping them away from the Courts

If our clients, for whatever reason, find themselves in the Court process we need to ensure we are doing the best to work with the system to create efficient resolution

A few current trends1. Best of luck proceeding in a property application without

having first attempted private mediation

2. High reliance in parenting matters on ‘reports’ and the difficulty faced in getting interim orders without or before such a report

3. High transfer rates of matters, particularly parenting matters, from FCC to Family Court and the delays that can follow

Good Practice that is developing1. Practitioners seem to have embraced mediation and other

forms of dispute resolution and we are seeing, thanks to the amendments to the legislation along with the attitude adopted by the Qld Judiciary, the strong use of private mediation

2. The ‘Have a chat’ culture still exists

3. Practitioners are embracing the joint expert rules and seem to be trying to present at Court with either that evidence prior to an interim hearing, or at least directions for how it will be obtained

A few observations

In my role as an ICL-1. Lack of compliance with Directions/ delays and non

engagement2. Lack of draft orders at mentions/ interim stages3. The Orders sought by parties are often inconsistent with the

evidence provided or not supported by evidence at all4. We as a profession are skilled at completing affidavit material

that deals with s60CC factors but we tend to overlook the specific issues in the case and at times forget that Courts run on ‘evidence’ (but only relevant and appropriate evidence)

A few observations“What are the issues in dispute in this case?”

“What are the findings that you say I need to make to support the Orders you seek?”

Justice Murphy

One of my favourites

‘Use your Big Guns’ Justice Bell

1. Parenting-Parental Responsibility - Pavli & BeffaA consideration of Orders for Parental Responsibility

2. Binding Financial Agreements- Hoult & Hoult What does this mean for us in practice

Recent Decisions

A few reminders-Has been a part of the FLA since 1996 amendments and replaced the prior concepts of ‘guardianship’

FAMILY LAW ACT 1975 - SECT 61B Meaning of parental responsibility In this Part, parental responsibility, in relation to child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children

Parental Responsibility

IN SHORT- it is essentially a responsibility to make all decisions to ensure that a child’s needs are met on issues such as-

Where a child livesMedical TreatmentEducationReligionThe Child’s nameSocial Conduct and InteractionProtection from HarmPassports

Parental Responsibility

FAMILY LAW ACT 1975 - SECT 61B Meaning of parental responsibility 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.

Parents in intact relationships ‘share’ parental responsibility. It is only after separation that parental responsibility will be allocated.

Parental Responsibility

FAMILY LAW ACT 1975 - SECT 61C Each parent has parental responsibility (subject to court orders) (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. (section 61D enables the Court to make Orders that may displace a parents parental responsibility)

Parental Responsibility

Parental Responsibility

So a parent has Parental Responsibility until that is displaced by a Court Order.

Therefore, consider the impact of remaining silent on orders for Parental Responsibility?

Parents can exercise their parental responsibility independently or jointly when no order is made.

Parental ResponsibilityFAMILY LAW ACT 1975 - SECT 61DA Presumption of equal shared parental responsibility when making parenting orders (1) 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.

(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: (a) abuse of the child or another child of the family; or (b) family violence.

(3) In interim proceedings, the presumption applies unless Court considers otherwise

(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.

Parental Responsibility

So what is the point to all of this?

I invite you to really consider the type of ‘Parental Responsibility Order’ you are seeking, if any at all. There seem to be 5 options-

1. Equal Shared PR2. Sole PR3. Shared PR (joint decision making s65DAC)4. Parental Responsibility5. Silence- preserving s61C parental

responsibility that inherently sits with parents

Parental Responsibility

Pavli & Beffa [2013] FamCA 144 (7 March 2013) J Watts

Once upon a time in a land far away (Sydney!) there was a mum, dad and a poor ICL who had done all the hard work and settled their case!

Off they went to the Judge with their signed consent order thinking they would be home before lunch!

Parental Responsibility

Pavli & Beffa J Watts 7 March 2013

But Alas! Today was the day the Judge really read that Order and asked a few questions and before they knew it dinner was fast approaching...

You see the parties sought an Order for “Equal Shared Parental Responsibility” with a catch!If no agreement could be reached on some decisions, Mum would have the final say!

Parental Responsibility

Pavli & Beffa J Watts 7 March 2013

Well it turns out that it is not ‘equal shared Parental Responsibility’ if someone has the final say- Equal means equal a bit like you are pregnant or not (says J Watts!)

J Watts leads a very interesting discussion through his decision on parental responsibility.

He reminds us at paragraph 49 of his reasons- “Drafters of Orders should note that:

Parental Responsibility

HOW SHOULD ORDERS ABOUT PARENTAL RESPONSIBILITY BE DRAFTED?Drafters of orders should note that:

49.1. An order for either equal shared parental responsibility or shared parental responsibility carries with it the statutory requirement for consultation, with genuine effort and for the parties to make a joint decision concerning all major long term issues ... Failing the ability to reach a joint decision, the ultimate recourse is to seek an order from a court to break the impasse.

49.2. In the event that an order provides that one party is to have the final decision about all or any major long term issues, then any such order should give that person “parental responsibility”.

Parental Responsibility

HOW SHOULD ORDERS ABOUT PARENTAL RESPONSIBILITY BE DRAFTED?Drafters of orders should note that:

49.3. In many cases, the fact that the order is not a “shared parental responsibility” order but rather a “parental responsibility” order is emphasised by adding the adjective “sole”. “Sole parental responsibility” is not an expression used in the FLA. “Sole” is an antonym of “shared”. Although the Full Court in Barone [2012] warned against the use of the synonym “joint”, the use of the word “sole” is permissible because it is likely to promote certainty rather than create uncertainty.

Parental Responsibility49.4. Moving from the inclusive to the exclusive, orders for parental responsibility can be drafted so that:

49.4.1. the parents have equal shared parental responsibility. The effect of an order using those words is that all decisions about all major long term issues need to be made jointly and the requirements of s 65DAA FLA are attracted; or49.4.2. one party has parental responsibility for some major long term issues and decisions about those issues need not be made jointly, but in relation to other major long term issues, parental responsibility is shared and decisions regarding those issues need to be made jointly; or 49.4.3. there is no shared parental responsibility but parental responsibility does not rest exclusively with one person. That is, one party has parental responsibility in relation to some major long term issues, and another party has parental responsibility in relation to other major long term issues and neither party is required to make decisions jointly regarding the major long term issues allocated to them; or49.4.4. one person has parental responsibility (sometimes referred to as “sole parental responsibility”) for all major long term issues and is not required to make decisions jointly.

Parental Responsibility

In practice

Use this decision for some great precedents

Think about the types of decisions your client may need to make into the future- can they be done jointly

Remember that like everything in Part 7 the Court is approaching the allocation of Parental Responsibility from the understanding of what is in the ‘child’s best interests’. While the parents may be useless at communication it may be possible to argue that it is or isn’t in their child’s best interests for a form of shared parental responsibility or sole parental responsibility

Parental Responsibility

And RememberOnce you get your head around the minefield that is parental responsibility don’t forget to discuss it with your client!

Counsel-“So Fred you want an order for Sole Parental Responsibility? What does that mean?Fred- “I get the kids.”

Binding Financial Agreements

A Question- who is regularly preparing BFA’s?

There seems to be a trend away from BFA’s in the Brisbane family law community due to the perceived risk (liability) that flows from these documents

Binding Financial Agreements

Hoult & Hoult [2012] FamCA 367 (22 May 2012) Murphy J

Once upon a time (2004) in a land far away (Brisbane!) there was a soon to be Husband and Wife. They were packed ready to marry overseas in 9 days and then arrived the pre-nup!

Binding Financial Agreements

So it turned out Mr Hoult had only $33,000,000 to his name and he wasn’t in a sharing mood in the lead up to his marriage.

He was however kind enough to organise for the soon to be Mrs Hoult to get some advice but told her she would need to sign before he took her hand in marriage (in 9 days...)

Binding Financial Agreements

And then along came March 2011 when Mr and Mrs Hoult no longer lived happily ever after... Mrs Hoult commenced proceedings in the Family Courts for a property division- but just fails to mention the small issue of the pre-nup!

Our loveless friends find themselves before Murphy J in December 2011 where Mrs Hoult is trying to get rid of that pesky pre-nup to get some of that fortune, while Mr Hoult is determined to keep that pre-nup stitched up!

Binding Financial Agreements

Ultimately Murphy J found-The Agreement was not binding within the meaning

of section 90G of the Act;

However, in a later hearing HH found that it would be unjust and inequitable if the parties were not bound by their agreement.

What is interesting in this decision is the discussion in Murphy J decision of the advice provided by the Wife’s Solicitor at the time she entered into the agreement

Binding Financial Agreements

Ms K, the Wife’s former solicitor was called under subpoena to give evidence by the Husband.

Ms K’s evidence was unfortunately not too helpful for the husband in the sense that HH found-• She had seen the wife in a 50 min appointment only• There appeared to be no documents of any nature

(file notes, letters anything) to assist in confirming any advice was given

And in light of this HH was not satisfied that the advice the Wife received met the requirement of the FLA and therefore found that the Agreement was not binding.

Binding Financial Agreements

Hoult & Hoult [2013] FamCAFC 109 (26 July 2013)Thackray, Strickland and Ainslie-Wallace JJOn Appeal Thackray with whom the others agreed found that Murphy had incorrectly looked into the ‘content’ of the legal advice and instead he needed only to be satisfied that the advice had been given.

The Court considered that the signed certificate of advice should be treated as the requisite evidence that the advice had been given.

Binding Financial Agreements

So what does this mean for us with Financial Agreements?

Whilst this decision is suggesting that the mere provision of a certificate is enough as evidence of advice, practitioners should ensure that there is lasting evidence of the advice you have given and in what form

Binding Financial Agreements

A few tips-1. Don't cut corners2. Provide advice in writing prior to the signing of the Agreement3. Take your time when preparing and drafting- it should be similar

work to preparing an Application and Consent Orders4. Consider who is providing advice to the other spouse- will that

advice be adequate for your client5. Consider any ‘special disadvantage’ might apply to either your client

or the spouse i.e. Language, pressure, lack of understanding of complex financials

And just because of the week that it has been…

http://youtu.be/wVeGUSGkhfw