FAMILY LAW - EXAM NOTES

Topics
1. Introduction
2. Marriage & De Facto Relationships
3. Divorce and Separation
4. Parenting
5. Parenting Orders
6. Child Support
7. Child Abduction
8. Family Violence and Risk
9. Property
10. Financial Agreements
Obtaining Orders – By Consent Outside of Proceedings
1. File with the Court
a) Minute of Consent Order (contains proposed consent orders – given with Application)
b) Application for Consent Orders
c) Annexure to Draft Consent Parenting Orders – Notice of Risk, Abuse and Family
Violence (parenting only)
d) Evidence of Superannuation Value and Procedural Fairness (Property only – requiring
superannuation split)

Obtaining Orders – By Consent During Proceedings

1. File with the Court
a) Minute (Draft) of Consent Order
b) Annexure to Draft Consent Parenting Orders (current proceedings) – Notice of Child
Abuse, Family Violence or Risk (parenting only)
c) Evidence of Procedural Fairness (Property only – requiring superannuation split)

Obtaining Orders – Parenting

1. Commence Proceedings by Filing:
a) Initiating Application (annexing s 60I Certificate)
b) Affidavit (if Interim Orders are sought)
c) Affidavit of Non-Filing Dispute Resolution Certificate (if relevant)
d) Notice of Child Abuse, Family Violence or Risk
e) Genuine Steps Certificate

Before Filing, you must have:

a) Obtained a s 60I – Certificate of Exemption from FDR (issued by FDR Practitioner)
b) Provided the other party a notice of your intention to commence proceedings –
including the Orders sought.
c) Provided the other party a copy of the pre-action procedures and the Central Practice
Direction.

When a S 60I Certificate is NOT Required:

a) Interlocutory orders, only unless you are applying for these orders at the same time as
filing an Initiating Application.
b) Property settlement or financial orders only, even if parties have children.
c) Consent orders.

When is a S 60I Certificate Exemption Granted:

a) When the matter is urgent.
b) The Court is satisfied there are reasonable grounds to believe that:
i) There has been child abuse and/or family violence by a party.
ii) There is a risk of child abuse if there were to be a delay in applying to the Court
c) Where a party is unable to participate effectively in FDR (e.g. due to an incapacity to
do so/physical remoteness from FDR provider)
d) If application relates to an alleged contravention of existing order made within last 12
months – reasonable grounds to believe that person who has allegedly contravened,
has behaved in a way showing serious disregard for their obligations of that order.
Obtaining Orders – Property
1. Commence Proceedings (General) by Filing:
a) Initiating Application
b) Affidavit (if interim orders are sought)
c) Financial Statement
d) General Steps Certificate

2. Commence Proceedings (PPP500) by Filing:

a) Initiating Application
b) PPP 500 – Financial Summary
c) Genuine Steps Certificate

• The Court can make injunctions to protect parties and property during proceedings, if
required – i.e. non-attendance at property, non-disposal/destruction.
• Family Violence – INDEPENDENTLY is not a property consideration.
• Family violence is considered through its effect on other elements of a property
consideration – i.e. ‘considerations’.
• Family Violence is a negative contribution.

[First Court Event] → [Interim Hearing (if required)] → [Dispute Resolution] → [Compliance
and Readiness Hearing] → [Trial Management Hearing (if required)] → Final Hearing.

Approach to Case Management Pathway

Family Violence – Parenting Proceedings
1. Notice of child abuse, family violence or risk once filed, is sent to Child Protective
Services (CPS).
2. CPS will provide a written response to advise the Court if they hold information of note.
3. CPS imbedded officer may be asked to provide further clarification.
4. Court can Order a S69ZW Order to obtain the detailed CPS (and/or SAPOL) records of
the parties and children.

Family Violence – Parenting Proceedings (*Lighthouse Project*)

1. Notice of child abuse, family violence or risk can trigger the Lighthouse Project
Screening.
2. Clients are emailed the questionnaire, and once completed, are assessed for program by
a Court registrar.
3. If eligible for the Lighthouse Project, interim orders are made before the first Court Date.
a) Appointing an Independent Children’s Lawyer (ICL)
b) S 69ZW Order

Family Violence – Safety Procedures

Safety Procedures for attending Court can include:
1. Safety rooms
2. Electronic attendance
3. Support persons

• Court cannot make a Parenting Order unless they are satisfied that the Orders mitigate
the risk factors identified in the material filed with the Court.
• The Court must weigh up the s 60CC Factors against the Risk Factors to determine the
most appropriate orders. Injunctions are often used to mitigate risk – i.e. restrictions on
drug and alcohol consumption.

Parenting – 42 STEP PROCESS

1. Identify objects and 9. Make findings about facts 14. Consider extent of
principles of Part VII of in dispute, or if parents spending time
FLA – s 60B. proceeding with interim with child and
2. Determine if parties have hearing, make communicating.
attended counselling, if appropriate assessment. 15. Consider extent of
not – do ss 60I, 60J or 10. Consider views expressed fulfilling parent’s
65F apply? by child + factors (e.g. obligation to maintain
3. Identify proposals of child’s maturity/level of child.
applicant. understanding) that court 16. Consider effect of any
4. Identify proposals of considers relevant. changes in child’s
respondent. 11. Consider nature of circumstances (inc. likely
5. Identify proposals of ICL – relationship of child with effect of separation of
if relevant. each parent. persons).
6. (IF allegations of FV) – 12. Consider nature of 17. Consider practical
consider whether relationship of child with difficulty and expense of
interim/procedural orders other persons. child spending time
are required to address 13. Consider extent of with/communicating with
matters set out in s parents participation of parent.
67ZBB. decision making in long- 18. Consider capacity of each
7. Identify facts agreed. term issues in relation to parent to provide for
8. Identify facts in dispute. child. needs.
19. Consider maturity, sex, lifestyle +
background (including culture and
traditions) of child and each parent.
20. Consider if child is Indigenous – right to
enjoy their culture.
21. Consider attitude to child and
responsibilities of parenthood by each
parent.
22. Consider any family violence.
23. Consider any FV order applying to
child/family.
24. Consider if preferable to make order least
likely to lead to the institution of further
proceedings.
25. Consider ‘any other fact/circumstance/
court thinks relevant to determining best
interests.
26. Consider benefit of meaningful
relationship with parents.
27. Consider need to protect from harm,
abuse, neglect, FV.
28. Consider if orders proposed are
consistent with any FV order.
29. Consider rights of parents – inc. right to
freedom of movement etc.
30. Decide if presumption of ‘equal shared
parental responsibility’ is
rebutted/displaced.
31. Determine orders for parental
responsibility (or make finding that
determining this cannot be made on
interim basis). If orders are not made for
‘equal shared parental responsibility’ – go
to Step 41.
32. Consider how far apart parents live from
one another.
33. Consider parents’ current and future
capacity to implement an arrangement
for child spending equal time, or
substantial and significant time.
34. Consider parents’ current and future
capacity to communicate with each other,
resolving difficulties that may arise in
implementation of arrangements.
35. Consider impact that an arrangement of
that kind would have on child.
36. Consider such other matters as court
considers relevant to reasonable
practicability.
37. Determine if s 65DAA(1) is satisfied –
what orders should be made for equal
time?
38. Determine whether ‘substantial and
significant time’ is in child’s best interests.
39. Consider matters in steps 32-36 with
respect to ‘substantial contact’.
40. Determine whether s 65DAA(2) is
satisfied – what orders should be made
for ‘substantial contact’?
41. Step back and consider proposed
parenting regime as a whole, in order to
properly exercise discretion under s 65D.
42. Craft orders to properly reflect the
proposed parenting regime.

Eligibility of Child Support Agreements

Parties must meet all of the following requirements for a child support agreement to be
accepted:
• Parent(s) paying child support must be a resident of Australia (or a country with
reciprocating jurisdiction) on the day the agreement is made.
• Parties to agreement must not be living together in a domestic relationship.
• Child(ren) must be under 18 years of age, unmarried and not living in a domestic
relationship.
• Child(ren) must either be Australian citizens, or currently/usually living in Australia (or a
country with reciprocating jurisdiction).

A Child Support Agreement will NOT be accepted if:

• It contains a provision that child support be payable to a person with less than 35% care
of a child.
• The assessment commenced with an application from an overseas authority of a
reciprocating jurisdiction, and
• The overseas authority of a reciprocating jurisdiction does not support the acceptance
of the agreement.
What is a Child Support Agreement?
A written agreement between parents (and/or a non-parent carer, if applicable) on the
amount of child support to be paid, and how it will be paid. An agreement must be in writing,
and signed by all parties.

There are 2 Types of Agreements:

• Limited Child Support Agreements
o Accepted if there is a child support assessment in place, and the annual rate payable
under the agreement is equal to, or more than, the annual rate of child support
payable under the child support assessment.
o Not required to get legal advice before entering into a limited agreement, however,
you can choose to do so.
o Can be ended if:
▪ All parties agree in writing to end the agreement.
▪ It has been 3+ years since parties made agreement.
▪ Notional assessment of child support payable is varied by more than 15% in a
way not covered by agreement.
▪ Parties make a new limited/binding agreement, which includes a provision that
terminates existing agreement; OR
▪ There is a court order that sets aside (ends) the agreement.

• Binding Child Support Agreements

o Only accepted if including a statement that each party has received independent
legal advice before entering into agreement + certificate under s 80C of Child
Support (Assessment) Act 1989 is completed and signed by each lawyer.
o Made and accepted even if a child support assessment has not been made (except
certain lump sum agreements).
o Binding agreements can be ended if:
▪ Parties enter into another binding agreement – including provision to end
existing agreement, OR
▪ There is a court order that sets aside (ends) the agreement.

Parties of a Child Support Agreement

A Child Support Agreement can be between:
• The 2 parents of the child(ren).
• One or both parents of the child(Ren) and a non-parent carer of the child.
o A non-parent carer is someone who provides at least 35% care for a child – at least
128 nights over 12 months – and is not the child’s parent.

*If both parents are/can be assessed for child support, then they must both be parties to the
agreement.
Property Settlement – 4 STEP PROCESS
(1) Identify assets and liabilities that comprise the property pool;
(2) Assess the financial and non-financial contributions of each party;
(3) Consider the factors outlined in s 75(2) to determine if there should be any adjustment in
favour of a party, based on their capacity to support themselves in the future; and the
Future Needs Considerations – use of the Court’s Discretion.
(4) Consider whether the proposed final property orders are ‘just and equitable’.

Assessing Contributions
Initial Contributions
• Determine property pool that existed at time relationship commenced.
• Determine financial position of each party as at commencement of relationship.

During Relationship
• What, if any, assets from the commencement of the relationship have been maintained.
How have they been maintained?
• What changes have occurred to the financial positions of each party? Changes to
qualifications, earnings, health etc.
• What roles have the parties undertaken during the relationships?
• Have the parties received any lump sum/unusual benefits during the relationship?

Post Separation
• Identify property pool at time of separation.
• Repeat steps for during the relationship considerations.

Property – s 75(2) AS PROPERTY SETTLEMENT NOT MAINTENANCE

(a) Age + state of health of each party; and
(b) Income, property and financial resources of each party + physical and mental capacity
of each, for appropriate gainful employment; and
(c) Whether either party has the care and control of a child of the marriage who is under 18;
and
(d) Commitments of each of the parties that are necessary to enable the party to support:
i) Themselves; 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 (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 any other 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;
(g) Where the parties have separated/divorced, a standard of living that in all the
circumstances is reasonable;
(h) The extent to which the payment of maintenance to the party whose maintenance is
under consideration would increase the earning capacity, by enabling them to undertake
a course of education/training or to establish themselves in a business/obtain adequate
income;
(i) Effect of any proposed order on ability of a creditor to recover debt, so as far as that effect
is relevant;
(j) Extent to which party whose maintenance is under consideration has contributed to
income, earning capacity; property and financial resources of other party;
(k) Duration of marriage, extent to which it affected earning capacity of party.
(l) The need to protect a party who wishes to continue their role as a parent;
(m) If either party is cohabiting with another person – financial circumstances relating to the
cohabitation;
(n) Terms of any order made or proposed to be made under s 79 in relation to:
i) The property of the parties; or
ii) Vested bankruptcy property in relation to a bankrupt party;
(naa) The terms of any order/declaration made, or proposed to be made under Part VIIAB
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);
(na) 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;
(o) Any fact or circumstance which, in the opinion of the court, the justice of the case
requires to be taken into account;
(p) The terms of any financial agreement that is binding on the parties to the marriage;
(q) The terms of any Part VIIAB financial agreement that is binding on a party to the marriage.

Other Important Court Documents – Not Used in Commencing Proceedings

1. Balance Sheet - https://www.fcfcoa.gov.au/fl/forms/balance-sheet
2. Confidential Case Outline (Dispute Resolution) -
https://www.fcfcoa.gov.au/fl/forms/confidential-case-outline
3. Case Outline Document (Interim) - https://www.fcfcoa.gov.au/fl/forms/case-outline-
interim-hearing
4. Certificate of Readiness - https://www.fcfcoa.gov.au/fl/forms/certificate-readiness
5. Case Outline Document (Final) - https://www.fcfcoa.gov.au/fl/forms/case-outline-final-
hearing
6. Application for Consent Orders - https://www.fcfcoa.gov.au/fl/forms/app-consent-form-
only
7. PPP 500 Financial Summary - https://www.fcfcoa.gov.au/fl/forms/ppp-financial-summary
8. Financial Statement - https://www.fcfcoa.gov.au/fl/forms/financial-statement
Setting Aside Property Orders – S 79A
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
• Duress (Ryan FM in SH v DH (2003))
o A person who is the subject of duress usually knows only too well what he is doing.
o But he chooses to submit to the demand or pressure, rather than take any
alternate course of action.
o Proper approach is to ask whether that pressure went beyond what the law is
prepared to count as legitimate?
o Pressure will be illegitimate if it consists of unlawful threats or amounts to
unconscionable conduct.

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;
• An asset allocated under the Orders has been repossessed or lost to the parties,
through no fault of the parties. (e.g. the loss of property by natural disaster).

c) 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;
• Due to the failure to pay liabilities assigned under the Orders the other party has been
subjected to recovery action or placed into bankruptcy.

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 the applicant will suffer hardship if the court does not vary the order
or set it aside and make another order in substitution.
• Simpson & Hamlin – agreed that a simple change to custodial arrangements would
not itself constitute “exceptional circumstances”, but that surrounding circumstances
were exceptional.
• Liu & Liu (1984) – What amounts to exceptional circumstances is a matter of fact and
degree.

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 making of a property settlement order cannot be done to defeat the interests of
a third party.