The Children’s commentary has been enhanced by adding further information regarding the binding nature of Binding Child Support Agreements and the discretion the Court may exercise to set an agreement aside. The Full Court of the Family Court decision in Masters & Cheyne [2016] FamCAFC 255 (2 December 2016) looks at what changes may be sufficient to enliven the Court’s discretion, and they are extremely limited. The Court’s view is that binding agreements are meant to be binding and possible changes in parental arrangements should be considered before executing the agreement.
Family Law – Amended Itemised Scale of Costs
The changes to the Itemised Scale of Costs in the Family Law Rules apply from 1 January 2018.
Family Law – Discontinuance & Summary Dismissal
Commentary has been added to the Property Settlement, Children and Divorce publications on discontinuance and summary dismissal of proceedings. The necessary forms have also been linked to the relevant matter plans.
Proceedings maybe discontinued according to Family Law Rule 10.11 and Federal Circuit Court Rules 13.01 and 13.02. …
See Bigg and Suzi [1998] FamCA 14 (5 March 1998) where the Court said that not only did it have power to summarily dismiss an
application which could not succeed, but also the Court had inherent power to dismiss or permanently stay an application.
Family law – scale costs
The itemised scale of costs contained within the family law costs agreements have been updated. 4 July 2017.
Family law costs agreement
The family law costs agreements have been updated to reflect the new scale for itemised costs.
De Facto – The Tension Between Family law, succession law and Superannuation
By Guy Dawson, CEO
It is generally accepted that when two people get together there are circumstances that exist, or a period of time that has elapsed, before they can be considered life partners – before their financial lives are joined and divided in an equitable manner on separation or death.
In order to investigate whether there is in fact a de facto relationship in family, succession and superannuation law, the interpretation acts such as the Commonwealth Acts Interpretation Act 1901 section 2F sets out the matters to consider as follows:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Working out if persons have a relationship as a couple the circumstances considered may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
Registering a relationship is tantamount to deciding to marry so it is not a common practice.
Family Law
For the Family Court to make orders, under the Family Law Act 1975, the time that must have elapsed for the finding of a de facto relationship is at least 2 years.
The other circumstances that may establish jurisdiction are:
- That there is a child of the de facto relationship; or
- That the party to the de facto relationship who applies for the order or declaration, made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant; or
- That the relationship is or was registered under a prescribed law of a State or Territory.
Financial arrangements before the expiration of that time are matters for consideration by the courts as partnerships or joint venture arrangements.
Succession Law
Succession Law across the States defines the term partner or spouse to include a person who was either married to or in a domestic partnership with the intestate. Domestic partnership is a relationship for a continuous period of at least 2 years prior to death, or that was registered under a prescribed law of a State or Territory, or one that resulted in the birth of a child,.
Superannuation
The relationship test of 2 years, does not apply to the determinations of Superannuation Trustees under the Superannuation Industry (Supervision) Act 1993 .
The failure to include such a time period in the SIS legislation results in some ludicrous decisions which sees large sums of money paid to a boyfriend or girlfriend in a relationship of only a few weeks, or a month or two shacked up, without children and no registered relationship. Family members such as parents and siblings are often overlooked and receive nothing at all.
The SIS Act needs to be brought into line with family and succession law to provide the minimum period of 2 years so common sense can prevail.
Family Law
NOVEMBER
- Further Information – Added “Parenting orders – what you need to know”
- Costs Agreements – Included reference to time limit for requesting itemised bill as per the Family Law Rules, reference to interstate costs laws added, updated interest clause
OCTOBER
- Costs Agreements
- Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
- VIC/NSW – included reference to time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.
- WA – added clause on scale fees.
- Property Settlement Commentary – Amend – Step one – identify and value the net property 3.
- New precedents
- To do list – Children
- To do list – Financial Agreement
- 101 Family Law Answers – added new commentary on Foreign Resident Capital Gains Withholding Payments.
AUGUST
- Divorce, Children and Property Settlement guide – New Costs Agreements added for Tasmania and Northern Territory.
- Children commentary – Considerations specific to children matters added to commentary on social media evidence
- New precedents
- Letter to other side inviting them to family dispute resolution
- Letter to other side’s solicitor inviting them to family dispute resolution
JULY
- Children commentary – Amended to discuss in more detail paternity and the presumption of parentage. In certain circumstances, proving parentage can be particularly important. Parentage is also a relevant consideration as the number of blended families in Australia continues to rise.
JUNE
- Divorce commentary – Updated and restructured the commentary discussing divorce applications and reduction of court fees.
APRIL
- Property Settlement – New precedent added – Letter to other side’s solicitor with offer of settlement – Calderbank offer.
- File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
- Property Settlement – Commentary concerning social media evidence in financial proceedings has been added to the property settlement guide.
- Children commentary – Added section on making urgent applications – Early hearing and urgent orders ex parte.
FEBRUARY
- Children commentary – Added section on variation of parenting orders. In particular, a commentary on the threshold test as established in Rice v Asplund (1978) 6 Fam LR 570 has been added.
- Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.
JANUARY
- All By Lawyers Family Law cost agreements have been updated in line with the 2016 Family Law Rules itemised scale of costs.
Audio and video recordings as evidence
By Keleigh Jane Robinson
The use of smart phones has made it easier for parties in family law proceedings to secretly obtain audio and video recordings as evidence to be used in their family law cases. The Chief Justice of the Family Court of Australia recently described such usage as ‘quite common’, ‘widespread’ and said that ‘in the vast majority of cases it is admitted’.
Given the changing nature of technology, it is increasingly likely that family law practitioners will at some point in time be faced with a client who has such recordings and seeks to have the evidence put before the court. As with any evidence in family law proceedings, the client’s perception of the value of the secretly recorded evidence can be vastly different to that of the practitioner and the court. Caution needs to be taken before such evidence is obtained and used.
State legislation
Each of the States have their own legislation in relation to recordings. In some States it is illegal to record a conversation even if the person recording the conversation is a party to that conversation. For example, if the party has obtained a recording of a conversation and all of the parties involved have not consented to the recording, it may be a breach of s 6 of the Surveillance Devices Act (1999) (Vic).
Other relevant legislation includes the Surveillance Devices Act 2007 (NSW) and the Invasion of Privacy Act (Qld) 1971.
Commonwealth legislation
Under section 138 of the Evidence Act 1995, the court has the discretion to exclude improperly or illegally obtained evidence. If the evidence was obtained in breach of the relevant State legislation, it could technically be excluded. Realistically, if there is a breach, the court needs to weigh up whether the evidence should be admitted and will consider:
- the probative value of the evidence;
- the importance of the evidence;
- the nature of the evidence; and
- the gravity of the impropriety of the contravention and whether it was deliberate or reckless.
The courts also have general discretion to exclude evidence pursuant to s 135 of the Evidence Act 1995, if:
‘the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or… result in an undue waste of time.’
Section 69ZT of the Family Law Act 1975 provides that the rules of evidence do not apply to child related proceedings unless the court decides otherwise. As is evidenced in cases such as Janssen & Janssen [2016] FamCA 345 (1 February 2016), the court is prepared to positively exercise their discretion on this issue when the need arises.
Case law
There are a number of cases where a judicial officer has admitted the evidence however they have subsequently noted their criticisms of the recording party’s actions. Similar to evidence sourced from social media, clients will be inclined to think they have ‘struck gold’ with a piece of evidence, however the reality is that the evidence may prove to be more damaging to them than it is to the other party.
In the case of Badger & Badger & Ors [2013] FMCAfam 124 (14 February 2013), a telephone call was recorded by a litigation guardian (who was also a police officer). The recording was not admitted into evidence.
In the case of Simmons & Simmons [2013] FCCA 304 (24 May 2013), a recording device was planted on the children by their mother before they went to spend time with the father. The evidence was admitted, however both parents were heavily criticised by the Judge who said:
‘On the material before me and, in particular, the tape recordings, I am satisfied on the balance of probabilities that the father did act in this way. This is insightful and selfish behaviour… Similarly, however, the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour. The actions of both these parents are at best naïve and at worst a form of child abuse. In this sense they are equally culpable.’
In Janssen & Janssen [2016] FamCA 345 (1 February 2016), the wife was successful in having a recording evidencing family violence admitted in family law proceedings.
In Huffman & Gorman (NO.2) [2014] FamCA 1077, the father recorded conversations between himself and the mother, without the mother’s knowledge or consent. The father and the independent children’s lawyer sought the admission of the material. The court found that whilst the evidence was unlawfully obtained and untested at that point in time, the evidence was admitted under s 138 of the Evidence Act.
Procedure for putting recorded evidence before the court
The most appropriate method for having recorded evidence put before the court will depend on the type of evidence, the type of hearing and the attitude of the particular judicial officer overseeing the case.
As a preliminary step, recordings should be transcribed and the transcriptions attached as annexures to the affidavit. The applicant can also depose to the fact the recordings are available for production as required.
The obligations to provide disclosure also apply, therefore it is necessary to ensure that any recordings have been disclosed to the other party before ‘surprising’ them at the hearing. The duty of disclosure is not limited to evidence which is beneficial to the recording party. If their recording is detrimental to the recording party’s case, the obligation to disclose remains the same.
If counsel are appearing on behalf of your client, they will often be able to give specific advice about the preferences of a particular judicial officer. It is best to have a copy of the recordings at court so they can be played if the court requires.
In conclusion, audio and video recorded evidence may be useful, however there is potential for the evidence to backfire. If a client presents recorded evidence to you, ensure that they understand the risks as well as the benefits of using the evidence. If they ask your advice before recording such evidence, ensure they understand their obligations under State legislation and the ramifications for breaches, as well as the obligation to disclose the material, regardless of the benefit or disadvantages that using such evidence may have for their case.
Audio and video recordings as evidence
The use of smart phones has made it easier for parties in family law proceedings to secretly obtain audio and video recordings as evidence to be used in their family law cases. The Chief Justice of the Family Court of Australia recently described such usage as ‘quite common’, ‘widespread’ and said that ‘in the vast majority of cases it is admitted’.
Given the changing nature of technology, it is increasingly likely that family law practitioners will at some point in time be faced with a client who has such recordings and seeks to have the evidence put before the court. As with any evidence in family law proceedings, the client’s perception of the value of the secretly recorded evidence can be vastly different to that of the practitioner and the court. Caution needs to be taken before such evidence is obtained and used.
State legislation
Each of the States have their own legislation in relation to recordings. In some States it is illegal to record a conversation even if the person recording the conversation is a party to that conversation. For example, if the party has obtained a recording of a conversation and all of the parties involved have not consented to the recording, it may be a breach of s 6 of the Surveillance Devices Act (1999) (Vic).
Other relevant legislation includes the Surveillance Devices Act 2007 (NSW) and the Invasion of Privacy Act (QLD) 1971.
Commonwealth legislation
Under section 138 of the Evidence Act 1995, the court has the discretion to exclude improperly or illegally obtained evidence. If the evidence was obtained in breach of the relevant State legislation, it could technically be excluded. Realistically, if there is a breach, the court needs to weigh up whether the evidence should be admitted and will consider:
- the probative value of the evidence;
- the importance of the evidence;
- the nature of the evidence; and
- the gravity of the impropriety of the contravention and whether it was deliberate or reckless.
The courts also have general discretion to exclude evidence pursuant to s 135 of the Evidence Act 1995, if:
‘the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or… result in an undue waste of time.’
Section 69ZT of the Family Law Act 1975 provides that the rules of evidence do not apply to child related proceedings unless the court decides otherwise. As is evidenced in cases such as Janssen & Janssen [2016] FamCA 345 (1 February 2016), the court is prepared to positively exercise their discretion on this issue when the need arises.
Case law
There are a number of cases where a judicial officer has admitted the evidence however they have subsequently noted their criticisms of the recording party’s actions. Similar to evidence sourced from social media, clients will be inclined to think they have ‘struck gold’ with a piece of evidence, however the reality is that the evidence may prove to be more damaging to them than it is to the other party.
In the case of Badger & Badger & Ors [2013] FMCAfam 124 (14 February 2013), a telephone call was recorded by a litigation guardian (who was also a police officer). The recording was not admitted into evidence.
In the case of Simmons & Simmons [2013] FCCA 304 (24 May 2013), a recording device was planted on the children by their mother before they went to spend time with the father. The evidence was admitted, however both parents were heavily criticised by the Judge who said:
‘On the material before me and, in particular, the tape recordings, I am satisfied on the balance of probabilities that the father did act in this way. This is insightful and selfish behaviour… Similarly, however, the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour. The actions of both these parents are at best naïve and at worst a form of child abuse. In this sense they are equally culpable.’
In Janssen & Janssen [2016] FamCA 345 (1 February 2016), the wife was successful in having a recording evidencing family violence admitted in family law proceedings.
In Huffman & Gorman (NO.2) [2014] FamCA 1077, the father recorded conversations between himself and the mother, without the mother’s knowledge or consent. The father and the independent children’s lawyer sought the admission of the material. The court found that whilst the evidence was unlawfully obtained and untested at that point in time, the evidence was admitted under s 138 of the Evidence Act.
Procedure for putting recorded evidence before the court
The most appropriate method for having recorded evidence put before the court will depend on the type of evidence, the type of hearing and the attitude of the particular judicial officer overseeing the case.
As a preliminary step, recordings should be transcribed and the transcriptions attached as annexures to the affidavit. The applicant can also depose to the fact the recordings are available for production as required.
The obligations to provide disclosure also apply, therefore it is necessary to ensure that any recordings have been disclosed to the other party before ‘surprising’ them at the hearing. The duty of disclosure is not limited to evidence which is beneficial to the recording party. If their recording is detrimental to the recording party’s case, the obligation to disclose remains the same.
If counsel are appearing on behalf of your client, they will often be able to give specific advice about the preferences of a particular judicial officer. It is best to have a copy of the recordings at court so they can be played if the court requires.
In conclusion, audio and video recorded evidence may be useful, however there is potential for the evidence to backfire. If a client presents recorded evidence to you, ensure that they understand the risks as well as the benefits of using the evidence. If they ask your advice before recording such evidence, ensure they understand their obligations under State legislation and the ramifications for breaches, as well as the obligation to disclose the material, regardless of the benefit or disadvantages that using such evidence may have for their case.
Consent Orders in Property Settlement
As family practitioners we are regularly advising clients that property settlement reached between separated husbands and wives or de facto spouses as the case may be must be documented in the appropriate legal manner. This is usually done via an Application for Consent Orders or, depending on the particular circumstances, via Financial Agreement pursuant to ss 90UC, 90UD, 90C or 90D of the Family Law Act.
It is safe to assume and is certainly the writer’s experience that the majority of property settlements formalised with the assistance of solicitors are effected via an Application for Consent Orders and Minute of Consent Orders filed in the Family Court.
There are the fundamental requirements associated with such an application with which we are all familiar, including:
- filing the original and two copies of the documents with the court;
- ensuring the consent orders and application are signed by both parties including completion of the statements of truth, including ticking the relevant boxes, which if not attended to can be the subject of an embarrassing requisition;
- provision of the relevant sections of the legislation as set out in the statement of truth to the client;
- according procedural fairness to the superannuation fund and providing a copy of the letter to and from the superannuation fund to the court, as well as the superannuation information form if it is a defined benefit interest; and
- provision of the correct filing fee, unless the parties are eligible for the exemption or fee reduction.
The regularity with which we prepare and file such documents can result in practitioners taking a somewhat laissez faire attitude to the completion of the application form and the drafting of orders. However, it is vital that practitioners remember that the filing of consent orders is not a ‘rubber stamping’ exercise and the orders will not simply be made by the court because the parties have signed the documents and agreed that the orders ought to be made.
Serious consideration needs to be given to the question of justice and equity of the adjustment of property provided for in the proposed orders. This is important in every case but perhaps even more important in those matters where the other party is self–represented. Sometimes in those cases the party who is receiving the greatest benefit from the settlement is eager to have documents drafted, signed and filed as quickly as possible and the other party does not wish to engage a lawyer for cost related or other reasons.
The recent case of Hale & Harrison [2014] FamCA 165 where consent orders were ostensibly consented to by the parties but were not made by the court is one such example. The facts of the case were:
- Ms Hale and Mr Harrison cohabited from 1998 to April 2009 and were in a de facto relationship. A separate issue was the date of separation and the jurisdiction of the court, however that is not relevant for the purposes of this article.
- There were four children of the relationship, aged 10, 10, 13 and 15. The children were living with Ms Hale and spending time with Mr Harrison pursuant to a parenting plan.
- Ms Hale was 36 years of age and Mr Harrison was in his fifties. Both were in receipt of government pensions and neither of them were engaged in paid employment.
- Ms Hale received a small sum of child support per month.
- There was a small asset pool:
- Property in New South Wales which was expected to sell for $80,000. However its municipal value was $60,000 and it appeared that Justice Cronin took the view the property would sell for between $60,000 and $70,000.
- Ms Hale’s mother loaned the parties $10,000 towards the purchase of the property, which remained outstanding.
- There was also a mortgage of $17,000.00 secured against the real property.
- Mr Harrison received an inheritance at some stage after 2009 which he asserted was in the vicinity of $150,000. However Ms Hale had not seen any evidence of this inheritance. Mr Hale said he had $12,000 remaining from that inheritance.
- Ms Hale and Mr Harrison filed an Application for Consent Orders on 8 October 2013 which provided:
- The real property would be sold.
- After repayment of the mortgage of $17,000, the proceeds of sale would be divided equally between the parties.
- From the wife’s share of the proceeds of sale, she would repay her mother the $10,000.
- Mr Harrison would also retain the $12,000 which remained from his alleged inheritance.
- Based on His Honour’s comments in relation to the possible sale price of the property and depending on the sale price of the property, Ms Hale would be left with somewhere between $11,500 and $24,000, and Mr Harrison with between $33,500– and $46,000.
- His Honour found that the loan repayment to Ms Hale’s mother in circumstances where Mr Hale had more property and more money was not just and equitable. It is apparent from the judgment that Mr Harrison’s solicitor argued before His Honour that the settlement was just and equitable because the parties had reached agreement. However when asked by His Honour, Ms Hale, who was unrepresented said she did not think the outcome was fair.
His Honour concluded that the parties having reached agreement was not a basis upon which the court should ‘waive away what is in reality its subjective judgement about what is fair’ and ultimately dismissed the Application for Consent Orders.
Justice Cronin’s decision in Hale & Harrison serves as a reminder of the essential and indeed overriding need for practitioners to consider what is just and equitable. Preparing consent orders must be a considered process and practitioners must focus on the justice and equity of the orders before filing them with the court to ensure there are not difficulties with the making of the orders which serve only to increase client costs and can be a professional embarrassment for practitioners.
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