10 Things You Need To Know In Family Law

10 Things You Need To Know In Family Law Editors: Lydia Lucs BComm LLB and Sherika Ponniah BA LLB Issue 11 19 October 2015 www.wolterskluwer.cch.com.au Contents Interim report on family law 10 THINGS YOU NEED TO KNOW IN and child protection FAMILY LAW released...1 Family law fee hike appeal...2 1. Interim report on family law and child Amendment to Family Law Regulations 1984...2 protection released Recent cases family law...2 Attorney-General George Brandis has released the interim No reinstatement of appeal...4 report of the Family Law Council on Families with Indemnity costs ordered...4 Complex Needs and the Intersection of the Family Law and Revocation of Family Court Child Protection Systems. Practice Directions...5 The report was commissioned by the Attorney-General last Jurisdiction of FCC tested...5 year to provide a response to concerns about the federal family law system s interaction with state-based child protection and family violence systems. The report addresses the need for a more streamlined and integrated approach to the two areas to ensure the safety of children and families. The full report of the Family Law Council will be available in June 2016. The interim report can be accessed at www.ag.gov.au/familiesandmarriage/familylawcouncil/ Pages/FamilyLawCouncilpublishedreports.aspx. Source: Press release of the Hon George Brandis QC, 21 August 2015. Restriction on publication and security for costs...5 Chief Justice calls for funding...6 Page 1

10 Things You Need To Know In Family Law 2. Family law fee hike appeal The regulation and Explanatory Statement can be viewed at www.comlaw.gov.au/details/ An appeal has been lodged against the F2015L01426. Federal Court of Australia s decision which ruled that the Attorney-General did not 4. Recent cases family law breach the Legislative Instruments Act 2003 in The following case summaries were written making a regulation which allowed a family by the Hon Peter I Rose AM QC. law fee increase. Hall & Hall [2015] FamCAFC 154 The increase was disallowed by the Senate in Applications were made for leave to appeal June 2015 and the Attorney-General from interim spouse maintenance and followed the Senate disallowance by property settlement orders and further, to remaking a very similar regulation in July adduce fresh evidence on appeal. A lengthy 2015. The new regulation allowed the judgment was given due to the large family law fee increase. During the winter number of issues raised. They were parliamentary break, litigants had to pay the determined on the facts peculiar to the case. higher fee until the Senate again disallowed No review of principle was required. the regulation which allowed the increase on 11 August 2015. Suskain & Materanzi [2015] FamCAFC 153 Due to the judgment of the Federal Court of This was an appeal from parenting orders. Australia, families who paid the higher fees The appeal was dismissed with costs. The during this period will not be reimbursed. court held that there was no merit in the Current family law fees can be found on the appeal. Family Court of Australia s website at www.familycourt.gov.au/wps/wcm/connect/ Riley & Riley [2015] FamCAFC 152 fcoaweb/forms-and-fees/fees-and-costs/fees/family- Application was made for leave to appeal law-fees. out of time. The application was dismissed Source: Press release of Graham Perrett MP, 27 with costs. The court held that the August 2015. application lacked substance for reasons peculiar to the case. 3. Amendment to Family Law Medlon & Medlon (No 5) [2015] Regulations 1984 FamCAFC 156 The Family Law Regulations 1984 has been Applications were made for reinstatement of amended by the Family Law Amendment an appeal; that a notice of appeal be struck (Publication of Court Proceedings) out; adjournment and indemnity costs. The Regulation 2015 to require state and applications were dismissed. This is a territory authorities with child welfare further judgment given in multi-facetted responsibilities to be prescribed. litigation between the parties. The judgment determines the applications by The amended regulations will give effect to established principles. the new s 121(9)(aa) of the Family Law Act 1975 which excludes the communication Elgin & Elgin [2015] FamCAFC 155 of any pleading, transcript of evidence or In these proceedings, application for leave to other document to authorities of States and appeal had been filed in respect of the trial Territories that have responsibilities relating judge s refusal to adjourn the trial. In to the welfare of children and are prescribed addition, an appeal was heard in relation to by the regulations for the purposes of this property settlement orders made. The paragraph to be affected by a s 121 application was dismissed and the appeal Restriction on Publication Order. was allowed in part. Page 2

Issue 11 19 October 2015 A lengthy judgment was given principally Ultimately, it held that there was no merit due to the myriad of factual matters raised, in the appeal. review of the transcript and extensive Hearne & Hearne [2015] FamCAFC 178 submissions made. Otherwise, established principles were applied. In this appeal, application was made for an adjournment of the hearing of the appeal Horleck & Horleck and Ors [2015] from property settlement orders. The FamCAFC 165 application and the appeal were dismissed. Appeals were heard against refusal of a stay The judgment applied established principles of proceedings and property settlement to the facts peculiar to the case. The grounds orders. The appeals were dismissed. The of appeal were found to lack merit. lengthy judgment of the court was due to Davint & Malburon [2015] FamCAFC the long history of litigation and the 176 numerous grounds of appeal rather than a consideration of legal principles. This was an appeal from an order summarily dismissing a contravention application. The Brindle & Otto [2015] FamCAFC 164 appeal was allowed in part. The judgment This was an appeal from parenting orders applied established principles to the narrow and a mandatory injunction requiring the relevant facts in the case. appellant to return with the children from Crampton & Robinson [2015] FamCAFC Melbourne to Sydney. The appeal was 175 allowed. Costs certificates were granted. A relatively short judgment was given. The This was an appeal from property settlement appeal was allowed primarily due to the trial orders. The appeal was dismissed. In a brief judge having overlooked material evidence. judgment, the court inferentially held that the appeal lacked merit. Jarrah & Fadel (Disqualification) [2015] FamCAFC 163 Ziotnik & Gerasimov [2015] FamCAFC Application was made for the 174 disqualification of a member of the Full Application was made for expedition of the Court. The application was dismissed. The appeal. The application was dismissed. In a judgment, having traversed the relevant brief ex tempore judgment, the court facts, inferentially held that the application applied established principles to the facts lacked merit. Established principle was peculiar to the case. applied. Segers & Tacason (No 2) [2015] Sasko & Radavich [2015] FamCAFC 162 FamCAFC 173 Application was made for expedition of the This was an appeal from interim parenting appeal from parenting orders. The orders and an application to adduce further application was dismissed. In a brief evidence. The application and appeal were judgment, the court dismissed the dismissed with costs. In its judgment, the application on a summary of the facts which court applied established principles to the did not attract sufficient weight. facts peculiar to the case. Jarrah & Fadel (No 2) [2015] FamCAFC Singerson & Joans [2015] FamCAFC 172 161 This was an appeal and cross-appeal from This was an appeal from orders made property settlement orders. At the following an undefended trial. The appeal conclusion of the hearing, written was dismissed with costs. In its judgment, submissions were ordered in relation to the the court traversed the lengthy chronology superannuation interests of the parties. The of the litigation and salient facts. appeal and cross-appeal were allowed. In a www.wolterskluwer.cch.com.au Page 3

10 Things You Need To Know In Family Law brief judgment, a superannuation splitting order was made having regard to the facts peculiar to the case. Toohey & Egbert [2015] FamCAFC 171 This was an appeal from parenting orders. The appeal was dismissed with costs. In its judgment, the court applied established principles to the facts peculiar to the case and held that the appeal lacked merit. Stativa & Stativa [2015] FamCAFC 170 This was an appeal from parenting orders and an application for its summary dismissal. The appeal and application were dismissed with costs. The court, in its judgment, applied established principles to the facts peculiar to the case. It held that the grounds of appeal lacked substance. Gillard & Gillard [2015] FamCAFC 169 This was an appeal from parenting orders and an application to adduce further evidence. The appeal and application were dismissed with costs. This appeal principally raised the issue of weight given by the trial judge to the issues before him and the findings of fact made. The court applied established principles in dismissing the appeal and the application to adduce further evidence. Gilmour & Lennon [2015] FamCAFC 166 This was an appeal from interim parenting orders. The appeal was dismissed with costs. The court in its judgment applied established principles to the facts peculiar to the case. Davint & Mulburon (No 2) [2015] FamCAFC 188 A directions hearing was held resulting in a pending contravention application being remitted for rehearing by consent. Phillips & Hansford (Costs) [2015] FamCAFC 185 Application was made by both parties for a costs order. The respondent was successful in part. The brief ex tempore judgment applied established principles to the narrow issues. Jess and Ors & Jess and Ors (Costs) [2015] FamCAFC 184 Application was made by the respondent for an order for indemnity costs following dismissal of the appeal. An order was made for party party costs. The court in its judgment applied established principles in determining the narrow issues before it. Bangi & Belov [2015] FamCAFC 183 Application was made for expedition of the appeal. Application was dismissed. In its ex tempore judgment, the court applied established principles to the facts peculiar to the case. 5. No reinstatement of appeal A father s application to reinstate an appeal relating to parenting orders has been dismissed in Delamarre & Asprey (2015) FLC 93-663. The father submitted that the delay in filing and serving his appeal books was caused by his former solicitors not releasing his file following a dispute over costs. When the dispute was resolved, the mother did not consent to have the appeal reinstated. Nine weeks later, the father filed his application for reinstatement. In dismissing the appeal, the Hon Ryan J noted that although it would have been difficult for the father to prepare the appeal books without his file, he could have obtained copies from the court file and yet provided no explanation for not doing this. His Honour further noted that the father provided no explanation why it took him nine weeks to file the application to reinstate the appeal. 6. Indemnity costs ordered Indemnity costs have been ordered against a wife who brought an application in the appellate jurisdiction to have the husband s senior counsel and solicitor restrained from acting for the husband, in the case of Medlon Page 4

Issue 11 19 October 2015 & Medlon (No 3) (Indemnity Costs) (2015) these orders saying that the judge did not FLC 93-664. have jurisdiction to make the orders. Strickland J detailed the principles which The Full Court analysed the jurisdiction of stemmed from Colgate-Palmolive Company v the FCC and found in the mother s favour Cussons Pty Limited (1993) 118 ALR 248 and saying that: Munday v Bowman (1997) FLC 92-784 and relied on those principles in finding that the the orders were not made in the FCC s wife fell into the category of instigating implied powers so there would have to proceedings that had no chance of success as be a full reliance on legislation [26] well as in making allegations that should there can only be one proceeding not have been made. between the parties at the same time in Costs were ordered on an indemnity basis in Family Court and FCC at [31] favour of the husband. the FCC is not a superior court of record 7. Revocation of Family Court at [36], and Practice Directions the orders were made in excess of the FCC s jurisdiction at [34]. A Practice Direction (No 1 of 2015 Revocation of Directions Relevant to As a result, the interim parenting orders Appeals) has been issued by the Hon Diana were set aside. Bryant CJ to render inapplicable two 9. Restriction on publication and previous Family Court of Australia Practice Directions (Practice Direction No 7 of 2004 security for costs and Practice Direction No 1 of 2002). The Full Court of the Family Court of Practice Direction No 7 of 2004 Australia has decided a case where an consolidated matters relevant to appeals and electronic book had been published on the the Family Law Rules 2004, and is no life of the child and the relationship longer relevant. Practice Direction No 1 of between the father and mother. The author 2002 related to court robes in the Australian of the book was the second respondent in an Capital Territory is no longer required. appeal by the mother. The mother appealed orders which dismissed her application to CCH Australian Family Law Handbook will restrain the second respondent from be updated with the changes to Practice publishing the book. Directions in the Family Court of Australia. In the appeal, the second respondent made 8. Jurisdiction of FCC tested an application for security for costs against The Full Court of the Family Court of the mother in the amount of $12,000: Australia has debated the nature of the Sullivan & Tyler and Anor (2015) FLC Federal Circuit Court of Australia s (FCC) 93-667. The Full Court made the order for jurisdiction in the case of Janssen & Janssen security for costs and also required an (2015) FLC 93-665. undertaking from the second respondent In this case, orders were made by Scarlett J that the book would not be published. of the FCC to transfer proceedings to the In deciding whether to make the order for Family Court. Three months later, Scarlett J security for costs, the court considered the made orders for interim parenting. The mother s financial position and the likeliness orders were that the children would live of success of the appeal in ordering that the with the mother and the mother would have mother had to make payment of $12,000, or sole parental responsibility and that the else, the appeal would not proceed (subject father would have some supervised time to the second respondent filing an with the children. The mother appealed undertaking not to publish the book). www.wolterskluwer.cch.com.au Page 5

10 Things You Need To Know In Family Law Interestingly, the appellant mother then thanked the Prime Minister for its funding lodged an application for special leave to the package on addressing family violence but High Court of Australia and the Full Court said that where we as a society are creating of the Family Court of Australia stayed these the tomorrow we want, the courts must face orders. The special leave application the today we have. outcome is pending. The Chief Justice sought funding for 10. Chief Justice calls for funding supervised contact centres due to long Chief Justice Diana Bryant has called for waiting lists, for an increased number of funding for the family law courts so that family consultants to undertake risk family violence can be addressed assessments, for the replacement of retired expeditiously. judges, for services in rural and regional areas and for more registrars for case Speaking at the Judicial Conference of management in interim hearings involving Australia s colloquium held in Adelaide on family violence. 10 October 2015, Bryant CJ discussed issues relating to domestic violence and the Source: Press Release of the Family Court of role that the court plays. The Chief Justice Australia, dated 10 October 2015. Page 6

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