ByLawyers News and Updates

Setting aside financial agreements – FED

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A recent case on setting aside financial agreements has been added to the By Lawyers 101 Family Law Answers publication.

Section 90K(1) of the Family Law Act 1975 provides for the limited circumstances in which a court will consider setting aside financial agreements entered into by married couples. The equivalent section for de facto couples is s 90UM.

In Frederick & Frederick [2019] FamCAFC 87, the Full Bench of the Family Court set aside a financial agreement on the grounds that there had been a material change in the circumstances relating to the care, welfare and development of a child of the marriage and the applicant would suffer hardship if the agreement were not set aside – s 90K(1)(d).

See 101 Family Law Answers and the By Lawyers Family Law commentary for more information.

Retaining children overseas – Family Law – FED

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Retaining children overseas is now an offence under the Family Law Act 1975 (Cth).

Existing offences

Subdivision E of Division 6 of Part VII of the Act provides for the ‘Obligations under parenting orders relating to taking or sending children from Australia’. Sections 65Y and 65Z already provide that it is an offence to take or send a child overseas if there is a parenting order in force, or sought in a live application, unless there is written and authenticated consent of each person in whose favour the order was made or sought, or it was done in accordance with a court order. The penalty for contravention is imprisonment for three years.

As part of the Civil Law and Justice Legislation Amendment Act 2018 subdivision E has been amended, with new sections added that deal with retention of children overseas. These amendments have effect from 26 April 2019. Sections 65Y and 65Z have been renamed and re-organised in the Act, but essentially remain the same. The only addition is an exception described below.

New offences

Under the amendments, any person retaining children overseas now commits an offence pursuant to the new sections 65YA and 65ZAA, unless they are doing so in accordance with authenticated consent in writing, or a court order. This applies whether or not the person originally took or sent the child outside Australia. The penalty for contravention is imprisonment for three years.

Statutory exception

There is one legislative exception to the offences created under subsections 65Y(1), 65Z(1), 65YA(1) and 65ZAA(1). The subsections do not apply if the person who takes, sends, or retains the child outside Australia believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them. This applies regardless of whether or not the person who takes, sends, or retains the child is or was the party to the proceedings.

Commentary updated

The Children commentary in the By Lawyers Family Law guide has been updated accordingly.

 

Costs disclosure – Increase of legal rates during a matter

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Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Amendments to Family Law Act – FED

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Amendments to the Family Law Act commenced 10 March 2019 relating to family violence and cross-examination of parties.

They will apply to cross-examinations occurring on 10 September 2019 and thereafter, regardless of when proceedings were instituted.

The following sections have been added to the Family Law Act 1975:

  • 102NA Mandatory protections for parties in certain cases; and
  • 102NB Court‑ordered protections in other cases.

Section 102NA provides greater protection for parties in circumstances of family violence where there are self-represented parties.

If a party intends to cross-examine the other party, in certain circumstances, they may not do so personally and cross-examination may only be conducted by a legal representative. Those circumstances are:

  1. there is an allegation of family violence between the examining party and the witness party; and
  2. any of the following are satisfied:
    • either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
    • a family violence order, other than an interim order, applies to both parties;
    • an injunction under s 68B or s 114 for the personal protection of either party is directed against the other party;
    • the court makes an order that the requirements of legal representation for cross-examination are to apply.

If a party intends to cross-examine the other party personally and there are allegations of family violence, the court must ensure that during the cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

The By Lawyers Children and Property Settlement commentaries have been updated accordingly.

Changes to Family Court Consent Orders kit and eFiling

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Changes to Family Court Consent Orders Kit and eFiling procedures have now taken effect, arising out of the Civil Law and Justice Legislation Amendment Act 2018. These include:

  • Updated information pages in the Application for Consent Orders Kit;
  • References to ‘husband’ and ‘wife’ replaced with ‘party to a marriage’ and/or ‘party to a de facto relationship’; and
  • Updated sectional references in the Family Law Act for superannuation in the Application for Consent Orders form.

The updated kit and form are now available in the By Lawyers Family Law publications.

eFiling

The Court recommends that practitioners use the ‘unguided’ process for uploading Application for Consent Orders forms. This process was introduced as part of the Digital Court Program and makes it easier to upload forms without having to input information twice. The ‘guided’ eFiling process will only remain available until 31 March 2019.

For more information about eFiling and the ‘unguided’ process see the By Lawyers Family Law guide, or visit the Digital Court Program on the Family Court website.

Family Law updates – FED

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Family Law updates are included in the Civil Law and Justice Legislation Amendment Act 2018, which provides for amendments to numerous statutes, including the Family Law Act 1975 and the Marriage Act 1961.

These updates have been incorporated in the commentaries for Property Settlement and Divorce in the By Lawyers Family Law Guide.

Final property division orders being made out of time by consent – de facto couples

Section 44(5) of the Family Law Act 1975 now provides that de facto couples may consent to final property division orders being made out of time, without the necessity for a judge to grant leave. This means that de facto couples who reach agreement to a property division more than two years after separation can now have orders made using the Application for Consent Order process. This will be done by including an order that they consent to the making of orders out of time, rather than having to issue proceedings to seek the leave of the court.

Renumbering Superannuation Interests sections in the Family Law Act

Effective 22 November 2018 Part VIIIB of the Family Law Act, being the Superannuation Interests sections, will be re-numbered in a more logical sequence. Section 90MA will become s 90XA and so on down to s 90MZH being replaced by s 90XZH.

 

Family Law Courts e-filing updates -FED

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The Family Law Courts have announced that they will shortly release a number of enhancements to the online filing system, which are a result of their survey of the legal profession in 2017. In summary, the changes will include:

  • the ability to file a greater number of applications online;
  • support for fee reduction/exemption applications for financial hardship;
  • online lodgement for correspondence;
  • ability to indicate;
    • safety considerations;
    • urgency; and
    • the need for interpreters;
  • ability to upload 30 MB sized documents; and
  • support for parenting orders sought with Family Dispute Resolution (FDR) Exemptions.

More information will be published – and the By Lawyers Family Law Guides updated – when the Court releases more details of the facilities.

Family Law Act amendments – FED

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Family Law Act amendments, contained in the Family Law Amendment (Family Violence and Other Measures) Act 2018, commenced on 1 September 2018.

By Lawyers have updated the Children and Property Settlement commentaries  in our Family Law Guide to reflect these amendments. Broadly speaking, the changes are jurisdictional and procedural, with particular emphasis on enabling the court to better address issues with family violence.

The amendments include:

Transferring property proceedings when the value of property exceeds $20,000

The legislation provides that if property proceedings are issued in a court of summary jurisdiction and the value of the property exceeds $20,000, then if the respondent seeks different orders than the applicant and one of the parties does not consent to the court dealing with the application, then the matter must be transferred to the Family Court/Federal Circuit Court, or to the relevant Supreme Court: see: s 46 and s 46A. In practice, matters are usually transferred to the Federal Circuit Court.

As a result of the amendments, these sections enable State and Territory regulations to prescribe an amount higher than $20,000. This applies to all proceedings instituted from 1 September.

Proceedings with no reasonable prospects of success

Section 45A provides that:

  1. The court may make a decree for one party against another in relation to the whole or any part of proceedings if the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings;
  2. The proceedings do not need to be hopeless or bound to fail to have no reasonable prospect of success;
  3. The court may make such a decree of its own initiative or upon application by a party;
  4. The court may make a costs order as a result of the decree; and
  5. The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.

Section 118, which previously provided for the court to summarily dismiss frivolous or vexatious proceedings was repealed, effective from 1 September.

Interim parenting/Family violence orders

Section 69ZL provides that the court may give reasons in short form for a decision it makes in relation to an interim parenting order.

Section 68P(2A) which relates to the explanation provided by the court when an order is made which is inconsistent with a family violence order, provides that an explanation is not required to be given where the court is satisfied that it is in the best interests of the child not to receive an explanation.

The 21-day suspension of family law orders by a family violence order previously provided for in s 68T(1)(b) no longer applies. It has been replaced by two further options. Any revival, variation or suspension of family law orders now ceases to have effect at the earliest of:

  • the time the interim order stops being in force; and
  • the time specified in the interim order as the time at which the revival, variation or suspension ceases to have effect; and
  • the time the order, injunction or arrangement is affected by an order (however described) made by a court, under s 68R or otherwise, after the revival, variation or suspension.

See the commentaries in the By Lawyers Family Law Guide for more information.

FED – Family Law – Child support agreements

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In line with the recent amendment to the Child Support (Assessment) Act 1989, By Lawyers have amended the child support agreements, binding and limited, in our Family Law – Children Guide, as well as the payee and payer letters of advice that accompany the binding child support agreement. These precedents are found in the Settling it Early section within the Child Support folder.

The changes concern the suspension of child support agreements when the payee is not an eligible carer and there are no arrangements in the agreement for change of care. We have consequently added a clause to each agreement that states:

In accordance with section 86(1)(2)(a) of the Act, the terms of this agreement are capable of being suspended for up 26 weeks if the payee ceases to be an eligible carer of the child for a period of 28 days or more.

The suspension period in child support agreements can be reduced to less than 26 weeks, however pursuant to the legislation, 26 weeks is the maximum suspension period.

Pursuant to the the Act, the eligible carer will cease to be eligible if they have less than 35% of time with the child. Therefore, if the liable parent has more than 65% of time with the child, this will mean the payee is no longer an eligible carer. In this case the agreement will be suspended and then possibly cease to operate in respect of that particular child pursuant to s 86(1)(2)(a). An optional clause is available that allows the parties to set their own limit that triggers termination:

This agreement will cease to operate in relation to each child … if the care arrangements for the child changes resulting in the payer having more than [insert limit]% care.

The accompanying advice letters discuss the issue and provide advice in addressing s 86.

This is a highly sensitive area for many clients. The By Lawyers guide assists practitioners to operate with confidence.

Family Law – FCC costs increases

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There have been costs increases in the Federal Circuit Court for itemised costs in family law and child support proceedings, pursuant to Schedule 1 of the Federal Circuit Court Rules 2001.

The increases are for initiating applications and other hearing-related costs.

An alert has been added to the By Lawyers Children and Property settlement publications.

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