3. 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
5. 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
6. 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
7. A few current trends
1. 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
8. Good Practice that is developing
1. 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
9. A few observations
In my role as an ICL-
1. Lack of compliance with Directions/ delays and non
engagement
2. Lack of draft orders at mentions/ interim stages
3. The Orders sought by parties are often inconsistent with the
evidence provided or not supported by evidence at all
4. 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)
10. 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
11. One of my favourites
‘Use your Big Guns’
Justice Bell
12. 1. Parenting-Parental Responsibility - Pavli & Beffa
A consideration of Orders for Parental Responsibility
2. Binding Financial Agreements- Hoult & Hoult
What does this mean for us in practice
Recent Decisions
13. 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
14. 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 lives
Medical Treatment
Education
Religion
The Child’s name
Social Conduct and Interaction
Protection from Harm
Passports
Parental Responsibility
15. 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
16. 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
17. 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.
18. Parental Responsibility
FAMILY 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.
19. 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 PR
2. Sole PR
3. Shared PR (joint decision making s65DAC)
4. Parental Responsibility
5. Silence- preserving s61C parental
responsibility that inherently sits with
parents
20. 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!
21. 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!
22. 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:
23. 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”.
24. 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.
25. Parental Responsibility
49.4. 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; or
49.4.2. 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; or
49.4.4. 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.
26. 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
27. Parental Responsibility
And Remember
Once 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.”
28. 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
29. 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!
30. 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...)
31. 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!
32. 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
33. 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.
34. Binding Financial Agreements
Hoult & Hoult [2013] FamCAFC 109 (26 July 2013)
Thackray, Strickland and Ainslie-Wallace JJ
On 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.
35. 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
36. Binding Financial Agreements
A few tips-
1. Don't cut corners
2. Provide advice in writing prior to the signing of the Agreement
3. Take your time when preparing and drafting- it should be similar
work to preparing an Application and Consent Orders
4. Consider who is providing advice to the other spouse- will that
advice be adequate for your client
5. Consider any ‘special disadvantage’ might apply to either your client
or the spouse i.e. Language, pressure, lack of understanding of
complex financials
37. And just because of the week that it
has been…
http://youtu.be/wVeGUSGkhfw