Thursday, 24 December 2009

Merry Christmas to all

I am having a well deserved, but short, break over Christmas. I have had fun blogging and tweeting in the last year. I just wish I had more time for it!

Thank you to my subscribers, colleagues, friends, members of the media and commentators for your wonderful help over the last year.

One of the highlights of my year was meeting other men who are also opposed to violence by men against women. Too often domestic violence is seen only as a women's issue. Of course it's not. We all have to take action to help our society, and especially our children, become safer.

It is time to pause and reflect what type of Christmas people might have. To quote Dickens: "It was the best of times and the worst of times." For most of us, Christmas is a time of joy, some stress and boredom, but mainly joy - seeing the sheer delight of children amidst Christmas presents, and catching up with family members, and reflecting on the true message of Christmas.

For some people, Christmas is the loneliest of times. They have split up and are alone. They don't have their kids with them. They are miserable, especially when they see the joy for everyone else. It can be very depressing. If you are one of those people, try and spend time at Christmas with people who love you- other family members or friends. If for some reason you are alone, and feel like doing something stupid on Christmas Day- DON'T. Call Lifeline instead: 13 1144.

For other people, Christmas is a nightmare of violence. Just think of the potent cocktail- an already violent relationship,throw in a bit of Christmas stress, add a bit of booze, max out the credit card, a dash of heat, give it all a shake- and voila! For some, Christmas is not a time of peace and thanksgiving, but a time of violence and danger. If you are in danger at Christmas and need help, don't forget it is the job of police and ambulance officers to help. Call 000, or your local DV hotline (all except Tasmania are 24/7):

Qld: 1800 811 811 or TTY: 1800 812 225
NSW: 1800 656 463 or TTY: 1800 671 442
ACT: (02) 6280 0900
Victoria: 1800 015 188
Tasmania: Mon-Fri 9am-Midnight, weekends 4pm-midnight. Ph. (03) 6233 2529 1800 633 937 (North), 1800 608 122 (Statewide).
SA: 1800 800 098 or 1300 782 200
WA: Women: 1800 007 339 Men: 1800 000 599
NT: 1800 019 116

Friday, 18 December 2009

High Court overturns relocation case

The High Court has overturned the Mt Isa relocation case. This case involved a Federal Magistrate determining that there should be an equal shared care arrangement for a young girl, when the father worked in Mt Isa, and the mother, who came from Sydney, survived on Centrelink, while living in a caravan.

The Federal Magistrate took the view that the choices available to him were to either place the child with the father, or have the shared care arrangement in place, although the mother's desired outcome was to live in Sydney.

The High Court has that the Full Court of the Family Court should have upheld the mother's appeal to that court on the basis that it was not reasonably open to the Federal Magistrate to find that the arrangement for either shared care or substantial and significant care was reasonably practicable within the meaning of s. 65DAA(1)(b) of the Family Law Act.

The mother's earlier appeal to the Full Court of the Family Court was refused by Justices Finn, May and Benjamin.

The High Court is yet to deliver detailed reasons.

Sunday, 6 December 2009

Full Court- interim property settlement

The Full Court of the Family Court in Strahan and Strahan has restated the approach to be taken for interim property settlement.

The wife successfully appealed against orders by Strickland J that awarded her $1 million by way of interim property settlement. She obtained $5 million from the Full Court. These were to be used for legal costs! The court comprised Justices Boland, Thackray and O'Ryan.

The words that ring out from the judgment (aside from the huge amount of costs) were these by Thackray J:

It is important to keep in mind that the wife is proposing to spend funds that
the husband acknowledges are hers. In my view, that is her prerogative – and a
matter between her and her legal advisors.


Boland and O'Ryan JJ held:


Subsequent to the conclusion of the hearing we referred the decision in Wenz v
Archer to the parties and provided them with an opportunity to make further
submissions. We subsequently received written submissions from each of the Wife
and the Husband.
On behalf of the Wife it was submitted, and we agree, that
the reasons of RiethmulIer FM provide substantial support for the submissions
put on behalf of the Wife for the following reasons:
The Federal Magistrate
concluded from a consideration of the authorities that the occasion for the
exercise of the discretion identified in Harris did not turn on “a test
requiring ‘compelling circumstances’ per se, rather than simply identifying
considerations that would be relevant to the exercise of the discretion” and the
Full Court in Harris “contemplated the exercise of the power ‘where it is
necessary’ ... if injustice is to be avoided”.
The Federal Magistrate
concluded that the test for an interim order under s
79
of the Act “must be whether, in all the circumstances, it is
‘appropriate’: s
79(1)
”.
The Federal Magistrate held that the exercise of the power to
make an order under s
79
of the Act on an interim basis requires an analysis of s
79
factors, including a consideration of whether the effect of the interim
order might be unduly to limit the final order which might be made (i.e., the
adjustment or claw-back issue identified in Zschokke).
The Federal
Magistrate recognised a relevant factor in the exercise of the discretion in
that: “It cannot be the case that a party who has an irresistible claim to a
substantial share of the property of the parties should be held out of that
property while the matter is litigated”.
The Federal Magistrate recognised
that “generally it was better there be once and for all s.79
order, which apparently was the point of departure for the exercise of the
discretion (ie, factors must exist which render it appropriate that the prima
facie or usual position be departed from)”.
It was submitted on behalf of the
Wife that if the Wife were to demur from the reasoning of the Federal
Magistrate, it would simply be that the Federal Magistrate did not sufficiently
and clearly distinguish between the procedural or adjectival issue being the
question of whether the Court should exercise its discretion to entertain or
embark on hearing and determining an interim property settlement application and
the substantive question of the nature of the order to be made once it has been
decided it is appropriate or just to hear and determine an interim application.
We have already said that we agree with the two stage approach.
In relation
to the first stage, in our view, when considering whether to exercise the power
under s
79
and s
80(1)(h)
of the Act to make an interim property order the “overarching
consideration” is the interests of justice. It is not necessary to establish
compelling circumstances. All that is required is that in the circumstances it
is appropriate to exercise the power. In exercising the wide and unfettered
discretion conferred by the power to make such an order, regard should be had to
the fact that the usual order pursuant to s
79
is a once and for all order made after a final hearing.
In Harris at
79,930 the Full Court gave some examples of circumstances where it may be
appropriate to exercise the power being “where both parties agree to the
disposal of some assets pending the trial” and “[u]rgent situations” to avoid
injustice. Another example is where, as in this case, one party requires funds
to assist in defraying the costs of litigation without which funds an injustice
may be caused.
Then turning to the substantive step we adopt what the Full
Court said in Harris at 79,930 in relation to the second and third matters which
we will now discuss.
In relation to the second matter, as the jurisdiction
under s
79
of the Act is being exercised the provisions of that section must be
considered and applied but with limitations given that it is not the final
hearing. There is also no requirement of compelling circumstances in relation to
the substantive step.
As to the third matter identified at 79,930 by the
Full Court in Harris, in discussion before us it was described as the
“adjustment issue” or “claw-back issue”. It was submitted by senior counsel for
the Wife that it is relevant to consider whether an order would give the
applicant “more than they would be indubitably entitled to on a final hearing”
or alternatively “would it give them so much that it could not be adjusted on a
final hearing?” As we have observed the Full Court in Zschokke at 83,220-221
stressed the importance of consideration of the “adjustment issue” if the power
in s
80(1)(h)
of the Act is being exercised. We accept the submission and observe
that this matter is relevant because the discretion conferred by the power in s
79
is to make such order as the Court considers appropriate provided it is
just and equitable to make the order in circumstances where the power will not
be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel
v Yardley at [69] and [72] the interim order must be capable of variation or
reversal without resort to s
79A
of the Act or appeal. As Finn J said at [126] the interim order must be
“capable of alteration at any time prior to, or as part of, the final exercise
of the s
79
power”.
Once a court proceeds to exercise the power in s
79
of the Act, being in the substantive phase, a court is required to
undertake consideration of the matters in s
79(4)
including by reference to s
79(4)(e)
the matters in s
75(2)
so far as they are relevant. However consideration of such matters may
be brief and if it is established that “it seems likely to the Court that ...
the applicant ... will be likely receive by way of property settlement a sum
sufficient to cover the advance, that would seem to be sufficient to enable the
order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v
Archer. As senior counsel for the Wife submitted, “provided scope can be found
within the assets of the parties for an order of the size sought ... then that
should be the end of the matter”. In other words, in such circumstances the
applicant would only be receiving what he or she was entitled to receive when
the power was exhausted.
The legislation does not prescribe what the Full
Court in Zschokke at 83,218 described as “preconditions” and nor would we seek
to exhaustively prescribe matters that may be relevant to take into account in
the exercise of the discretion under s
80(1)(h)
of the Act. As to the three “criteria” identified by the Full Court
in Zschokke, we accept that an inability on the part of an applicant for an
interim property order to defray the costs of litigation to meet his or her
litigation costs would be a relevant matter to take into account at the
procedural or first stage. Senior counsel for the Wife submitted that it may be
relevant at the substantive or second phase in reviewing the “necessarily
limited and impressionistic budget for costs” to ensure that the application is
bona fide. We are of the view that it may be that any issue about the bona fides
of an application is relevant at the procedural phase in the context of
considering if in the interests of justice it is appropriate to make an order
before the final hearing.
We also emphasise that in order to establish an
appropriate case for an interim property settlement order more is required than
the mere fact that upon a final hearing the applicant would receive the property
being sought (or an amount in excess of the funds being sought) from the other
party.
As to the other matters being a position of relative financial
strength on the part of the respondent to an application and the capacity of the
respondent to meet his or her own litigation costs, there is no doubt that the
financial circumstances of both parties are relevant at the substantive stage
and may also be relevant at the procedural stage. Senior counsel for the Wife
submitted that all of the matters discussed by the Full Court in Zschokke are
self-evident and we accept that this is so in relation to at least two of the
matters being the need for funds and the financial circumstances of both
parties.
As to the various matters discussed by Brereton J in Paris King
Investments which we have discussed above, we do not propose to deal with all of
what his Honour said, however we make the following observations about some of
the matters. Obviously the applicant should have “at least an arguable case for
substantive relief which deserves to be heard”. Further, in determining at the
procedural stage whether to exercise the jurisdiction there may need to be
evidence of the applicant’s “likely costs of the litigation” given that the need
for funds to defray litigation costs and expenses is the circumstance propounded
as to why it is appropriate that an order be made. We also accept that “it is
not an essential precondition” that the applicant’s legal representatives will
not continue to act unless the costs are paid or secured on an ongoing basis.


In a separate judgment, but agreeing with the result, Thackray J held:


The Full Court in Zschokke also mentioned (at 83,217) three matters that
would be relevant in considering an application for an interim property
settlement order that was intended to fund legal costs. These were the matters
that Strickland J referred to in his reasons, namely:
a position of
relative financial strength on the part of the respondent;
the respondent’s
capacity to meet his own litigation costs; and
an inability on the part of
the applicant to pay her costs.

None of these three matters can be referenced directly to the statutory
provisions. However, the legislation itself provides no guidance to the Court in
determining when it is appropriate to exercise the power to make an interim
property settlement order. It was to be expected that over time jurisprudence
would develop to assist judicial officers when called upon to exercise their
discretion. These attempts to ensure some predictability in the exercise of
discretionary powers come in the form of statements of principles or guidelines.
However, as the High Court has made clear, these are not binding principles of
law. Mason and Deane JJ said in Norbis v Norbis [1986] HCA
17
; (1986)
FLC 91-712
at 75,166, “the nature of the issues which arise under sec.
79
is such that there is either little or no scope for giving guidance in
the form of binding rules of law”.

The Full Court recognised as much in Harris when it said (at 79,928)
that “section
80
is intended to be a wide, enabling provision and there is no
justification for imposing limitations upon its normal or ordinary meaning and
operation when applied to s.
79
”. The Full Court’s reference in Harris to the need to establish
“compelling circumstances” must therefore be read in light of that undoubtedly
accurate statement of the law. It should also be observed that the Full Court in
Harris used other, less rigorous, formulations in describing when an interim
order might be made. For example, the Court referred to interim orders being
made in “appropriate circumstances” (at 79,928) and in “a proper case” (at
79,929). Similarly, Nygh J in Burridge and Burridge (1980)
FLC 90-902
at 75,679 referred to an order being made under s 80(2)(h)
if the “justice of the case so requires”.

Accordingly, I accept the submissions of senior counsel for the wife
that:
s
80
confers a “free standing and unfettered discretion to entertain an
application for an interim property settlement”;
it is “contrary to proper
judicial practice to confine the jurisdiction ... by artificial formulae”; and
the only limits on the application of s
80
“are the usual limits on the exercise of a judicial discretion”.

It is pertinent to note that the High Court has considered an attempt
to confine the exercise of a judicial discretion by a similar test to that
applied by the trial Judge in the present matter. In AMS v AIF
(1999) 199 CLR 160 the High Court found it was impermissible to
impose upon a parent the obligation to demonstrate “compelling reasons” to
justify a proposed relocation of a child when such an obligation is “not
warranted... by the statutory instructions” (at [191] per Kirby J; see also at
[47] per Gleeson CJ, McHugh & Gummow JJ).

Accordingly, I respectfully adopt the view expressed by
Riethmuller FM in Wenz v Archer (2008)
40 FamLR 212
at [55] where, after reviewing relevant authorities, his Honour
said:
Whilst the phrase “compelling circumstances” is often referred to, it
appears to me that this is simply descriptive of the need for there to be
matters that weigh sufficiently against the benefits of having only one exercise
of a s
79
power, rather than generating a new test of “compelling circumstances”
which is not referred to in s
79...


Riethmuller FM was alluding in this passage to the view expressed by
the Full Court in Harris that “as a generality, the interests of the parties and
the Court are better served by there being one final hearing of s.
79
proceedings”. In this regard it is important to note that s
80(1)
is couched in the permissive. Hence, although the Court must give
consideration to the matters set out in s 79(4)
when hearing an application for an interim payment, it has no obligation to make
an interim order. The Court “may” do so if it considers that it should in the
exercise of its discretion.

In every defended case one of the parties will claim they are entitled
to a payment or transfer of property from the other party. In many cases the
other party will acknowledge they are likely to be ordered to transfer property
or make a payment. That, however, could not of itself be sufficient to make it
appropriate for the Court to make an interim order. Circumstances may change
radically during the course of proceedings, as has been seen with recent severe
fluctuations in the market. The personal circumstances of the parties may change
dramatically. Furthermore, although a party may anticipate ultimately being
ordered to transfer property or make a payment, they may legitimately expect to
obtain an order for costs against the other party which will be satisfied from
funds or property that would otherwise have been transferred.
These sorts of
considerations provide a strong basis upon which the Court should maintain its
traditional stance that there should ordinarily be only one hearing of disputes
concerning alteration of property issues. I accept the submission of senior
counsel for the wife that something out of the usual course would need to be
established before the Court could be expected to devote its resources to
resolution of disputes about interim alteration of property interests. However,
once the Court has determined that it is appropriate to embark upon the hearing
of an interim dispute, it has no alternative other than to exercise (or decline
to exercise) the power to make an interim order by application of the relevant
provisions of the legislation.
In my view, the two step approach advocated
by senior counsel for the Wife aptly encapsulates the way the Court should
approach an application for interim property settlement. The Court must first
identify circumstances that make it appropriate to give consideration to
exercising its power to make an interim order. It is at this stage that the
Court has regard to the policy consideration that it is generally in the
interest of the parties and the Court for there to be only one exercise of the s
79
power. However, once the Court has determined that the interests of
justice require it to exercise the power, the conditions on which the power is
to be exercised are governed only by the obligation to make an order that is
“appropriate” and to ensure that the proposed order is “just and equitable” by
reference to the matters set out in s 79(4).
I accept the submission of senior counsel for the Wife that in applications
designed to secure funds for legal costs it is appropriate for the Court to give
consideration to whether the claim for costs is “genuine” – i.e. that a party is
not bringing an interim application on a pretext. However, once the Court is
satisfied the claim is genuine, it should not “take a narrow view of the costs
budget”. I also agree that “it is dangerous for the Court to put itself in the
solicitor’s chair [especially in a case where] there are 182 boxes of materials
to go through”.

Finally, I accept the submission of senior counsel for the Wife that it
is not appropriate to seek to control the extraordinary level of costs incurred
in this litigation by denying only one of the parties access to funds. In this
regard it is important to keep in mind that the wife is proposing to spend funds
that the husband acknowledges are hers. In my view, that is her prerogative –
and a matter between her and her legal advisors.



Thank you to Brisbane barrister Malcolm Pieterse for bringing this case to my attention.

Saturday, 5 December 2009

US: babysitter wins interim custody from parents

In the US, a Chicago judge has awarded interim custody of a three year old to the babysitter, instead of the parents. For more, click here.

While certainly not the first time that it has happened, it is certainly highly unusual. I have never heard of it happening here.

Friday, 4 December 2009

News study : 1/3 of children lose contact with a parent

A new UK study of 2000 parents and 2000 children has shown:

  • up to 1 in 3 children have lost permanent touch with one parent, usually their dad
  • 50% of parents admitted haggling over the amount of time the children spent, usually unnecessarily
  • 49% of parents admitted drawing out the proceedings until they got what they wanted
  • 68% of parents admitted using their children as bargaining tools
  • 20% of parents admitted using the proceedings to make their ex'es lives as unpleasant as possible regardless of the effect on the children's feelings
  • 50% of the children said that their views were ignored by their parents
  • 42% of children had witnessed aggressive fights between their parents
  • 17% of children had witnessed violent fights
  • 25% of children had been forced to lie by their parents

The survey, undertaken by independent analysts, was on behalf of leading law firm Mishcon de Raya, to mark the 20th anniversary of that country's Children's Act.

The firm has called for the equivalent of Family Relationship Centres to try and remove some of the bitterness and come up with a better outcome for children.

The firm has acted in some celebrity divorces, including acting for Princess Diana.

For more about the survey:

The Times

BBC

Mischcon de Raya

Federal Magistrates Court Subpoena Rules Changes

The Federal Magistrates Courts Rules have been amended from this Monday 30 November to substantially change the manner in which procedural aspects of subpoenas are dealt with in that court:

  1. There are new forms of subpoenas. Don't comply with those, and you won't get your subpoena issued.
  2. The timeframe for issuing subpoenas has changed. The rules now provide that a subpoena for the production of documents needs to be issued without leave 14 days before production. In reality, this will probably be 15 days. A subpoena to give evidence, without leave, needs 7 days before the court date. For medical records, a new special rule applies. Again, the reality is that this will probably be 8 days. Previously for family law subpoenas, the Federal Magistrates Court adopted the Family Court approach: without leave 7 days for production of documents, and 2 days for giving evidence. Due to an arcane view by registry staff of the 7 day rule, in practice this was always 8 days.
  3. Respondents to subpoenas have a new notice of objection.
  4. For medical records, the person whose medical records they are may, before the date stated for production, notify the Registrar in writing that they want to inspect the records for the purpose of determining whether to object to the inspection or copying of the document by any other party. If that notice is given:
    (a) that person may inspect the medical records and may, within 7 days after the date stated in the subpoena for production, object to inspection or copying of a document described in this subpoena by completing filing and serving the attached Notice of Objection –Subpoena, and
    (b) unless otherwise ordered, no other person may inspect the medical records until the later of 7 days after the date stated in the subpoena for production or the hearing and
    determination of the objection.
  5. This may mean careful consideration of when subpoenas for medical records are returnable. The temptation is to have them issued 22 days before court. The difficulty is that some registries, such as Brisbane, have been making subpoenas returnable on the day of court, even if that is a month or more away. This could prove problematic.
  6. Subject to any objection being upheld or an order of the Court and subject to the issuing party filing a notice of request to inspect in the approved form, each party and any independent children’s lawyer may, by appointment, inspect all documents produced in response to this subpoena and may take copies of all documents produced in response to this subpoena (other than a child welfare record, medical record, criminal record or police record).
  7. There is now explicitly stated that the documents can only be used for the proceedings, reflecting in black and white the common law position:
  8. A person who inspects or copies a document produced in response to this subpoena must:
    (a) use the document for the purpose of the proceeding only; and
    (b) not disclose the contents of the document or give a copy of it to any other person
    without the Court’s permission.
  9. Child welfare records, medical records, criminal records and police records produced in
    response to this subpoena will be available for inspection by each party and any independent
    children’s lawyer, but these records will not be available for copying.
    Child welfare records are records relating to child welfare held by a State or Territory agency mentioned in Schedule 9 to the Family Law Regulations 1984.
    Note: For child welfare records, there may be restrictions on inspection imposed by protocols entered into between the Court and the relevant child welfare department.
    Criminal record means a record of offences for which the person has been found guilty.
    Medical record means the histories, reports, diagnoses, prognoses, interpretations and other data or records, written or electronic, relating to the person’s medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical
    treatment.
    Police record means records relating to the person kept by the police, including statements, police notes and records of interview.
  10. Presumably the rules change now overrides the Brisbane subpoena rules, which have now been removed from the court's website.

Thursday, 3 December 2009

Danger! Danger! Binding financial agreements ahead!

Danger, Will Robinson! Danger!



The Senate passed the Federal Justice System Efficiency Measures Bill (No 1) 2008 on 26 October, 2009. The House agreed to the Senate amendments on 24 November. The Bill comes into effect 28 days after it received Royal assent, so it should come into effect in time for Christmas, but applies to all binding financial agreements, whenever they were signed.
The effect of the Bill, affecting binding financial agreements, is that clients should use consent orders, not binding financial agreements.

The Bill was designed to tackle the view of the Full Court of the Family Court's judgment in Black and Black- that decision which required that binding financial agreements meet the strict requirements of the Act or they will be struck down.

In a classic case of overkill, the response from the Federal Attorney-General's Department was not merely to require that binding financial agreements had to be substantially, rather than strictly compliant. Instead, there is now a requirement for advice to have been given before the agreement is signed and that a statement to that effect is signed by the lawyer concerned. It will no longer be mandatory for the certificate of legal advice to be annexed to the agreement.


The requirement to prove that one party has the original and the other a copy is also removed.


The difficulty with the changes is that they require the advice to have been given- which means that a party seeking to resist an application to set aside an agreement (or seeking to enforce it) will have to prove that both lawyers gave the advice- not merely signed documents to say that the advice was given.


This step will mean that the opposite intention of the Bill is the result- financial agreements will be less attractive because the risk level is increased, not decreased, and so far as lawyers are concerned, any lawyers who might contemplate advising a client about an agreement will now consider not doing so, or charging such a high fee to cover the risk that the client will be repelled from proceeding with the agreement (or at least with that lawyer).


Senate Legal and Constitutional Affairs Committee






2.29 The items in this schedule largely respond to the decision in Black v
Black, a
decision of the Full Family Court which held on appeal that a
financial agreement
made under the Family Law Act did not meet the strict
requirements that a statement
be annexed to the financial agreement
evidencing that the parties had received
independent legal advice in relation
to all matters set out in the relevant provision. The
Full Court held that
strict compliance with the provision was required in order for the
financial
agreement to be binding.
2.30 Financial agreements of this type are commonly
referred to as 'pre-nuptial
agreements'. Amendments discussed below are
proposed in order to secure the
validity of existing financial agreements and
to give certainty to contracting parties.
2.31 The Bill also addresses
concerns about possible inconsistencies that may
occur in relation to third
parties being excluded from financial agreements. In 2000,
financial
agreement provisions were introduced to the Family Law Act and
replaced
'maintenance agreements'. In maintenance agreements it was clear
that there could be
third parties to the agreements, for example someone
other than the parties to the
relationship such as creditors or trustees who
may have an interest in the property or
assets of the parties. Following the
2000 amendments, there was some concern that
the provisions did not
explicitly recognise the possibility of third parties to
financial
agreements.
2.32 This situation was addressed in the Family Law
Act Amendment (De Facto
Financial Matters and Other Measures) Act 2008 where
the definition of 'spouse
party' was broadened for the purposes of financial
agreements made under Parts VIIIA
and VIIIAB of the Family Law Act.
2.33
Part VIIIA of the Family Law Act allows married persons to enter
into
agreements as to the division of property in the event of a marriage
ending.
Agreements can be entered into either before, during or after
marriage. On 10
November 2008, the Federal Parliament passed the Family Law
Amendment (De
Facto Financial Matters and Other Measures) Act 2008, which
introduced a new Part
VIIIAB to the Family Law Act to deal with de facto
financial matters. These matters
were previously dealt with exclusively by
state courts under state law however the
new Part VIIIAB puts these matters
under the jurisdiction of the Family Court and the
Federal Magistrates
Court.
2.34 These amendments did not apply to termination agreements. The
Bill seeks to
ensure that the broadened definition of 'spouse party' applies
to both financial and
termination agreements for married and de facto
couples, thereby allowing third
parties to be included in such agreements.
These amendments are not related to the
Full Court's decision in Black v
Black but seek to apply the same arrangements for
financial and termination
agreements to both married and de facto couples.
Page 8
2.35 Item 1 of
Schedule 5 clarifies that a termination agreement under Part VIIIA
of the
Family Law Act between parties to a marriage can include another person
or
persons as a party to the agreement.
2.36 Items 2, 3 and 4 relax the
requirements for evidence that a spouse party to a
financial agreement has
obtained independent legal advice when entering into such
agreements. At
present the Family Law Act, through sections 90G(1)(b) and
90G(1)(c),
requires a statement that the spouse party to whom the agreement relates
has
been provided with independent legal advice from a legal practitioner as to
the
effect of the agreement on their rights and the advantages and
disadvantages to that
party. This statement must be contained in an annexure
to the agreement along with a
certificate by the legal practitioner providing
the advice, stating that the advice has
been given.
2.37 Item 2 will amend
this requirement so that before signing the agreement each
spouse party is
required to be provided with independent legal advice about the effect
of the
agreement on their rights and the advantages and disadvantages of such
an
agreement. They must also be provided with a signed statement by the
legal
practitioner stating that the advice was given to the party.
2.38
Item 4 removes the requirement that the original agreement is given to one
of
the spouse parties and a copy be given to each of the other
parties.
2.39 Item 3 is a minor technical amendment as a consequence of the
proposed
repeal of section 90G(1)(e).
2.40 Items 5 – 7 mirror the
amendments proposed at items 2 - 4 by applying the
same requirements for
spouse parties to obtain legal advice in relation to termination
agreements
made under section 90J of the Family Law Act.
2.41 Item 8 clarifies the
application of these amendments and makes it clear that
they will apply to
financial agreements and termination agreements that have been
made on or
after 27 December 2000, the date of commencement of the provisions that
were
inserted into the Family Law Act that allowed for financial agreements to
be
made. Subitem 2 provides that the amendments won't apply to an agreement
that is the
subject of a court order setting aside the agreement.
Part 2 –
financial matters relating to de facto relationships
2.42 Item 9 mirrors the
proposed amendment at Item 1 of Schedule 5 (refer
paragraph 2.35 above) and
clarifies that a termination agreement under Part VIIIAB of
the Family Law
Act can include another person or persons as a party to the agreement.
2.43
Items 10 - 12 amend section 90UJ of the Family Law Act which deals
with
requirements to obtain independent legal advice in relation to Part
VIIIAB financial
agreements. These amendments mirror those described at
paragraphs 2.36 – 2.39 and
will have the same effect in relation to financial
agreements made between de facto
couples.

2.44 Items 13 - 15 amend
section 90UL of the Family Law Act dealing with the
termination of Part
VIIIAB financial agreements and will have the same effect made
by items 5 - 7
except that they apply to financial agreements between de facto couples.
2.45
Item 16 amends section 90UM of the Family Law Act which deals with
the
setting aside of financial agreements and termination agreements. The
grounds for
setting aside these agreements are the same for parties to a
marriage as they are for
parties to a de facto relationship with one
exception. Section 90UE provides for the
continued operation of written
agreements made by de facto couples under the de
facto financial law of a
non-referring State covering property settlement or spouse
maintenance
matters if the couples later satisfy a geographical connection with
a
referring state or territory.
2.46 Item 16 replaces the existing
subsection 90UM(5) with a provision to allow
the court to set aside a Part
VIIIAB financial agreement covered by section 90UE if
the agreement was not
made in compliance with the requirement for parties to be
provided with
independent legal advice about the effect of the agreement on their
rights
and the advantages and disadvantages.
2.47 Item 17 deals with the application
of amendments made by items 10 – 15. The
amendments will apply to agreements
made on or after the day of commencement of
item 1 to Schedule 1 of the
Family Law Act Amendment (De Facto Financial Matters
and Other Measures) Act
2008, except where the court has made an order setting
aside an
agreement.
Commencement
2.48 Clause 2 of the Bill provides for
commencement of the Act. Sections 1 to 3
and Schedules 1, 2, 3 and 4 commence
on Royal Assent. Schedule 5, items 2 to 8
provides for commencement on the
day after Royal Assent.
2.49 The commencement of Schedule 5 item 1 and Part 2
of the current Bill
relating to binding financial agreements are dependent on
the commencement of
Schedule 1, item 1 of the Family Law Amendment (De Facto
Financial Matters and
Other Measures) Act 2008. This Act was assented to on
21 November 2008 but as yet
item 1 of Schedule 1 has not commenced. Item 1 of
Schedule 1 is due to commence
on a single day to be fixed by Proclamation, or
on 22 May 2009, whichever occurs
first.

Law Council submission


The Committee said:




The committee received one submission from the Law Council of Australia.
This
submission was made on behalf of the Council's Family Law Section.
3.2 The
submission focuses on the amendments proposed in Parts 1 and 2 of
Schedule 5
designed to relax the technical requirements in relation to evidence
that
spouse parties have to provide when entering into financial agreements.
While not part
of the current inquiry's terms of reference, the submission
also recommends
consistency between the legal formalities required for
binding financial agreements
and child support agreements as well as the
restructuring and renumbering of the
Family Law Act.
3.3 As only one
submission was received, this chapter focuses on proposed
amendments to the
Family Law Act in Schedule 5 of the Bill.
Issues raised in Law
Council's submission

3.4 The submission states that the policy
intent of the Bill related to the
requirements for evidencing that legal
advice has been sought by both parties to a
financial agreement is not met by
the amendments. The Law Council's submission
contends that the way in
which the amendments to sections 90G and 90J1 of the
Family Law Act have been
drafted, dealing with what needs to be satisfied in order for
financial
agreements to be made and terminated, creates the potential for disputes
to
arise that have to be resolved by the Court.
This is of course
contrary to the intent of
the provisions which are designed to allow parties
to make agreements without having
to use the Court.
3.5 The submission
notes that Part VIIIA of the Family Law Act was introduced
to allow parties
to resolve property and maintenance issues by way of private
agreement,
providing for greater choice and a more efficient and less costly means
of
dispute resolution than resort to the Family Court. Prior to the
introduction of these
provisions, for agreements between parties to be
binding they had to be approved by a
Judge.
3.6 Part VIIIA allows parties
to agree and implement their own agreements and
their termination without
involving the Court. A key reason for requiring parties to
evidence that they
have received advice on the legal effect of the agreement before
concluding
it is that it can only be set aside by the Court in limited
circumstances.
"The effect of a binding agreement is to extinguish the
jurisdiction of the Court in
relation to the subject matter of the
agreement…".
3.7 The submission endorses the requirement in sections 90G and
90J that before
signing the agreement, a spouse party be provided with
independent legal advice
about the effects of the agreement on the rights of
that party and supports the
requirement for a legal practitioner to provide a
signed statement confirming that the
advice was provided to the party.
3.8
The submission states that the drafting of the amendments to sections 90G
and
90J has been done in such a way that conflates the following
elements:
1. The requirement for the legal advice to be given; and
2. The
requirement that the statement of the legal practitioner be provided
before
the agreement is signed by the party.
3.9 The Law Council suggests
that this gives rise to a potential dispute about the
order in which the
various steps occur and the possibility that the agreement can be
found to be
invalid if the advice is given prior to signature but the legal
practitioner's
statement is not provided to the spouse party until after the
agreement has been
signed.
If, as is clearly the case, the
intention is to have written confirmation that the required
advice has been
provided before the agreement is signed, it should not matter whether
the
statement confirming this is signed before, after, or at the same time as
the
agreement.
3.10 Rather than relaxing the requirements in relation to
evidence of independent
legal advice when entering agreements or their
termination, the submission states that
the amendments add a new
hurdle of the signed statement of advice having to be
provided to the party
before the agreement is signed by that party
while the
policy
objective should be to have evidence that the advice has been
given.
3.11 The Attorney-General has responded to the committee by stating
that the
requirement to obtain a statement evidencing receipt of independent
legal advice prior
to the signature of an agreement ensures that parties will
not be left in an uncertain
situation about the binding nature of the
agreement which has the potential to occur if
it were open to spouse parties
to obtain such a statement before, during or at the same
time as signing the
agreement. It provides a clear direction to spouse parties to obtain
legal
advice before signing an agreement.
3.12 The submission also raises
issues related to the validity of existing
agreements. Item 8 of schedule 5
is designed to ensure that the amendments related to
financial agreements
apply to agreements made on or after 27 December 2000. The
submission states
that the way in which the amendments are drafted means that they
will have to
conform to the requirements of the amending provisions.
3.13 The
Attorney-General has indicated that he has asked his Department to
consider
this issue.
3.14 The submission raises several other issues not strictly
related to the inquiry's
terms of reference but related to the Family Law
Act.
3.15 The submission provides information on a number of areas that the
Family
Law Section of the Law Council believes will improve the operation of
the Family
Law Act and states that these have been raised with the
Attorney-General. The
submission advises that the Law Council has previously
recommended that these
issues be dealt with at the same time as the current
amendments.
3.16 The submission also recommends that the Child Support
(Assessment) Act
1989 be amended to ensure that the requirements for child
support agreements are
consistent with the amendments discussed above in
relation to financial agreements in
the Family Law Act.
3.17 As this Act
is administered by the Department of Families, Housing,
Community Services
and Indigenous Affairs (FAHCSIA), amendments to this Act are
the
responsibility of the Hon Jenny Macklin MP. The committee understands
that
officers in the Attorney-General's Department are liaising with officers
of FAHCSIA
to consider the Law Council's suggestion.

Digest summary






28. A financial agreement may be made before, during or after the marriage.
The advantages and disadvantages of entering the agreement may vary
significantly during the course of the marriage, so it is important that the
advice set out the effect of the agreement on the rights of the party and about
the advantages and disadvantages at the time that the advice was provided.
Schedule 5—Binding Financial Agreements
Part 1–Financial agreements
Item 2 repeals existing paragraphs 90G(1)(b) and (c) of the Family Law Act
and inserts proposed paragraph 90(G)(1)(b) to clarify and simplify what each
spouse party is provided with before signing a financial agreement. Each spouse
party will be required to have independent legal advice about the effect of the
agreement on their rights, and the advantages and disadvantages of entering the
agreement at the time the advice was given; and a signed statement by the legal
practitioner providing the advice to that spouse party stating that this advice
was given to the party.28
Item 5 repeals existing paragraphs 90J(2)(b) and
(c) and inserts proposed paragraph 90J(2)(b). This amendment is similar to item
2. It clarifies and simplifies what each spouse party is required to have prior
to signing a termination agreement, being (as is the case in relation to
financial agreements under proposed paragraph 90G(1)(b)) independent legal
advice from a legal practitioner about the effect of the agreement on the
party’s rights, the advantages and disadvantages of entering the agreement at
the time the advice was provided, and a signed statement from the legal
practitioner stating that the advice was given to the party.

Warning: This Digest was prepared for debate. It reflects the legislation
as introduced and does not canvass subsequent amendments. This Digest does not
have any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill. Federal Justice System Amendment
(Efficiency Measures) Bill (No.1) 2008

Sub-item 8(1) provides that the amendments made by items 2 to 7
in this Schedule apply to financial and termination agreements made on or after
27 December 2000. This is the date that the provisions dealing with financial
agreements (inserted by the Family Law Amendment Act 2000 No. 143) commenced.
However, sub-item 8(2) states that these amendments do not apply to an agreement
if a court has made an order to set the agreement aside prior to the
commencement of this item. While the amendments are thus of retrospective
operation, they are unlikely to affect a party’s substantive rights in any
significant way, given that at present the law requires the agreement itself to
contain a statement that each party has received independent legal advice of the
sort set out in proposed subparagraph 90G(1)(b)(i), and for a certificate signed
by the person providing the independent legal advice to be annexed to the
agreement. However a party may incur additional and unreasonable expense if the
Court refuses to accept an agreement for filing because the statement is annexed
to the agreement (as per the current law) instead of that statement being given
to the party before he or she signed the agreement under the proposed amendment.
Part 2–Financial matters relating to de facto relationships
Item 10
repeals paragraphs 90UJ(1)(b) and (c) of the Family Law Act and inserts proposed
paragraph 90UJ(1)(b) in their place. Paragraphs 90UJ(1)(b) and (c) were inserted
by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (which is not yet in force). The amendment is similar to the amendment made
by item 2 but deals instead with financial agreements between de facto partners.
Before signing a financial agreement, each spouse party is required to be
provided with independent legal advice from a legal practitioner on their rights
and the advantages and disadvantages of making the agreement at the time when
the advice was given. The legal practitioner giving the advice is required to
give the spouse party a signed statement stating that the advice was given to
that party. Similarly, item 13 repeals paragraphs 90UL(2)(b) and (c) and
substitutes proposed paragraph 90UL(2)(b) setting out what a spouse party must
receive before signing a termination agreements between de facto partners.
Section 90UM of the Family Law Act (which was inserted by the Family Law
Amendment (De Facto Financial Matters and other Measures) Act 2008, but is yet
to commence) deals with the circumstances in which a court may set aside a
financial agreement or termination agreement. Item 16 amends subsection 90UM(5)
and states that if at least one of the spouse parties has not had independent
legal advice concerning their rights and the advantages and disadvantages to
that party of making the agreement before signing the agreement, or if they did
not receive a signed statement from the legal practitioner to say that they had
received this advice, then the court may set aside the agreement if it would be
unjust and inequitable not to do so.
Sub-item 17(1) provides that the
amendments made by items 10 to 15 apply to agreements made under sections 90UB,
90UC or 90UD and termination agreements under Part VIIIAB of the Family Law Act
1975. They apply to agreements made on or the day
after item 1 of Schedule 1
to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 commences. Sub-item 17(2) states that if a court has set aside an agreement
prior to commencement of these provisions, the amendments do not apply in
relation to that agreement.



Unfortunately, this is of little assistance:



The bill responds to the decision of the full court of the Family Court of
Australia in Black v Black. The bill amends the Family Law Act in particular to
limit the technical requirements that people need to meet to enter into
prenuptial agreements, while still providing necessary protections to parties,
such as the requirement to obtain legal advice. It will restore confidence in
the binding nature and enforceability of financial and termination agreements
under the Family Law Act.

Explanatory memorandum


The explanatory memorandum can be found here.

Attorney-General supports White Ribbon Day


Federal Attorney-General Robert McClelland spoke at White Ribbon Day at the Canberra headquarters of the Attorney-General's Department.

Behind him are photos of former Attorneys-General including Gough Whitlam, Lionel Murphy, Kep Enderby and Bob Ellicott.

What has amazed me with the the political ructions of the last week is the number of politicians who were wearing their white ribbons, saying that they were opposed to violence against women. In the midst of the first leadership spill to Malcolm Turnbull's position, brought on by Kevin Andrews, virtually every pollie seemed to be wearing their white ribbons.