April 2019 - Doolan Wagner Family & Divorce Lawyers North Sydney

April 2019 Family Law Case Watch

In relation to spending time with your child:

Has an order been made for you to spend supervised time with your child?
Are you seeking that an order be made for the other parent to spend supervised time with your child?
What does an order for supervised time mean?
In what circumstances will an order for supervised time be made?

Is a Court order for a child to spend time with a parent “in the presence of” for example, a sibling, grandparent, aunty, uncle or trusted friend, the same as an order for “supervised time” by a professional contact supervision centre, or materially different?

What an order for a child to spend supervised time with a parent means was recently considered in the case of Elias & Elias [2019] FamCAFC (“Elias & Elias”). Ultimately, it was found that an order for time “in the presence of” a third party is one and the same as an order for a child to spend “supervised time” with a parent. Understanding the background facts to this case assists considerably in understanding why this is.

Background

Final Parenting Orders were made in Elias & Elias on 20 April 2019 by a Judge of the Family Court of Australia that the child of the marriage was to live with the mother who was to have sole parental responsibility for him.

For a period of three (3) months after the Orders were made, the child was to spend supervised time with the father at a professional contact centre for six (6) hours each alternate Sunday. Thereafter, the child was to spend time with the father on alternate Sundays and on other specified days with “all time to be supervised by a professional contact supervision service or the father’s sister, or a combination of both”.

These Orders were made based on the Independent Children’s Lawyer’s (“ICL”) proposed orders which were supported by the mother’s submissions. The key issues raised by the mother in her submissions included family violence, the father’s mental state and the mother’s extreme anxiety. Albeit not all of the contentions made by the mother were accepted by the primary Judge.

The father appealed against the Orders on the basis that the primary judge erred having made Orders that failed to give effect to his findings that the father’s time after three (3) months’ supervisions should occur “in the company of” the father’s sister or the professional contact supervision service. The Orders provided that such time should be “supervised”.

“Supervised time” and time “in the presence of”

The father argued that “supervised time” and time “in the presence of” mean different things in the context of parenting orders in Family Law proceedings and that the primary Judge erred in not recognising and acting on that distinction. The father contended that the Orders wrongly imposed a requirement of constant supervision as opposed to a less stringent requirement of having somebody present and permitting the father to be alone with the child for periods of time.

Senior Counsel for the father highlighted the orders proposed by the ICL which included a proposal that the father’s time be “supervised” by a professional contact centre for a period before allowing the father to spend time with the child “in the company of” the father’s sister. It was argued that there must be a difference between the two phrases due to the difference in wording adopted by the ICL.

Further, the father submitted that the single expert psychiatrist’s evidence was not considered by the primary Judge which suggested that “time in the presence of” meant something less than supervision, meaning constant monitoring including being within sight or earshot. The expert said that the father’s time with the child need not be “strictly supervised” in that they do not need to be “within sight or earshot the whole time”. She suggested it would be better for contact to be as much as possible involving the father’s family or his partner. The expert further stated:

I don’t know that I would say… that he can never be alone with the child – not that level of supervision… It would need to be a slowly graded time spending with [the child] and as much as possible in a family setting or with his partner present.”

On Appeal

The Full Court of the Family Court of Australia found that there is no difference, in the context of parenting orders in Family Law, between the word “supervised” and the phrase “in the presence of”. Therefore, the phrase “in the presence of” does not mean a lesser form of supervision which would allow, as submitted by the father, the child to be left alone with the father particularly for long periods of time.

It was found that “supervised time”, time “in the presence of” and time “in the company of”, all connote constant presence. The primary judge clearly understood this to be the case and used the words interchangeably. This, contrary to the father’s submissions, does not indicate an error or “loose thinking” on the part of the primary Judge. The Full Court of the Family Court said, “it is an arid exercise of semantics to seek to find a difference of substance in the primary Judge’s choice of words, let alone one which demonstrates appealable error.”

The Full Court of the Family Court accepted the submissions of the mother and the ICL that “supervise” is a word commonly applied to professional supervision bodies because that is effectively what they do and the phrase “in the presence of” more suitably applies to individuals, such as family members. In any event, the Full Court accepted that there is no difference in substance.

In respect of the expert’s evidence, it was accepted that family supervision would be preferred as a long-term solution as opposed to commercial supervision however the Full Court did not accept that the expert was suggesting that a family member need not be continually present, at least in the immediate term. The Full Court focused on the expert’s evidence that progression of supervised contact in this case should be slow and it would be preferable for the father’s time with the child to be in a family setting or with his partner present.

Conclusion

We hope our April 2019 Case Watch has clarified this issue about the meaning of “supervised time”. Supervised time is a common order made by the Family Court in parenting matters where there is a risk of harm and a need to protect the child. The way in which supervised time will be implemented depends on the particular circumstances of a case however, as a result of Elias & Elias, supervised time will be defined on a case by case basis, and not by the particular phrase adopted by the Court.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Family Law for the Future

The Australian Law Reform Commission’s Review of the Family Law System

On 10 April 2019 the Australian Law Reform Commission (ALRC) released their Final Report and Recommendations for improving the current family law system in Australia. The ALRC was directed to consider whether, and if so what, reforms to the family law system are necessary or desirable and in particular what amendments should be made to the Family Law Act (the Act) and other related legislation.

The ALRC made sixty (60) recommendations in response to the inquiry. The full list of recommendations and report can be accessed at https://www.alrc.gov.au/inquiries/family-law-system. These recommendations call for radical reform with the ALRC inquiry finding that the family law system is not currently able to adequately assist Australian separated couples to resolve disputes. The ALRC highlighted the following concerns in respect of the family law system in its current state:

Children are not consistently protected from harm;
People experiencing family violence are not consistently protected from harm;
Disputes are protracted by constraints on the courts and conduct of parties who are unable or unwilling to resolve their dispute quickly and without acrimony, and,
The Act is no longer clear or comprehensible.

While there are a number of recommendations made by the report, some of the recommendations that will have a significant effect on our clients and practice of family law in Sydney are set out below:

Children’s Matters

Recommendation 1: That the federal family courts eventually be abolished and state and territory courts be vested with the relevant power and resources to exercise jurisdiction under the Act concurrently with the relevant state and territory child protection and family violence jurisdiction. This is in contrast to the current situation where families who are experiencing family violence or risk to children may be before the Local Court regarding criminal matters, the Children’s Court regarding risk of harm issues and the Family Courts.
Recommendation 2: That the Australian Government work with the state and territory government so that a national information sharing framework can be implemented in respect of the safety, welfare and wellbeing of families and children.
Recommendation 5: That section 60CC of the Act regarding the considerations of what is in a child’s best interest be amended to include:
- What arrangements best promote the safety of the child and the child’s carers including safety from family violence, abuse, or other harm;
- Any relevant views expressed by the child;
- The developmental, psychological, and emotional needs of the child;
- The benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so;
- The capacity of each proposed carer of the child to provide for the developmental, psychological and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and,
- Anything else that is relevant to the particular circumstances of the child.
Recommendation 7: That section 61DA of the Act be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
Recommendation 8: That the legislative pathway under section 65DAA of the Act for considering equal care and substantial and significant care where an order is made for equal shared parental responsibility be repealed.

Property Matters

Recommendation 11: That the Act be amended to specify the steps that a court will take when considering altering property interests of parties to a relationship, and, simplify the list of matters that a court should take into account when considering making an order for the alteration of property interests.
Recommendation 12: That a presumption of equal contributions throughout the relationship be provided for by the Act.
Recommendation 13: That the date for determining the value of the parties’ assets and liabilities be the date of separation.
Recommendation 16: That a presumption that the value of superannuation assets accumulated during the relationship should be split equally between the parties be provided by the Act.
Recommendation 17: That the Act include a template for superannuation splitting orders that are commonly made.
Recommendation 18: That the Act be amended so that the provisions for spousal maintenance and property alteration be dealt with separately and that access to interim spousal maintenance claims be enhanced by use of Registrars in urgent applications.

Encourage amicable resolution

Recommendation 21: The Act be amended so that parties are required to take genuine steps to attempt to resolve their property and financial matters prior to filing an application with the Court and require that a court not hear an application unless a genuine steps statement has been filed. This reflects section 60I of the Act which already requires parties in parenting matters to engage in family dispute resolution prior to making an application to the Court.

Case Management: efficiency and accountability

Recommendation 30: That the Act include as an overarching purpose of Family Law practice and procedure the intention to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families.
Recommendation 36: That the Act be amended to remove the general rule of section 117 that each party bear their own costs and articulate the scope of the court’s power to award costs.

Compliance with children’s orders

Recommendation 38: That parties be required by the Act to meet with a family consultant following final parenting orders where they are made after a contested hearing.
Recommendation 41: That where a final parenting order is already in force the court be required to consider whether there has been a significant change of circumstances and it is in the best interests of the child for the orders to be reconsidered.

A number of other recommendations have been made that seek to address the primary concerns highlighted by the inquiry and attempt to increase the efficiency of the Family Law system and reduce the acrimony resulting from parties’ engagement with that system. Our experience in the Family Law system has provided us with a front row seat to the challenges clients face when experiencing family breakdown.

Given the emotional nature of Family Law practice where significant decisions need to be made by parties regarding the care of their children and the joint wealth that has been accumulated over the course of the relationship, amongst other things, it is always our intention to reduce acrimony and increase the ease and efficiency of resolving Family Law disputes. Our team includes solicitors who are trained in mediation and collaborative law so as to provide alternative options to court and it is our goal to assist clients wherever possible to achieve an out-of-court settlement. It is our view that, regardless of the inefficiencies of the Family Law system, an out-of-court settlement that is negotiated between parties results in a more amicable resolution and one that better reflects the needs of the parties both for themselves financially and for the ongoing care of their children.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

Separation and Tax Debts

Can the Family Court direct that my ex take my tax debt?

The High Court of Australia was recently asked a question as to whether a party to a marriage could be substituted for the other in relation to a Tax Debt under section 90AE of the Family Law Act (“The Act”). The Commissioner of Taxation (“The Commissioner”) intervened in the matter to suggest that the Family Courts did not have power under the relevant section.

In accordance with procedural requirements the question was reverted from the Federal Circuit Court to the Full Court of the Family Court of Australia (“The Full Court”). The Commissioner was not satisfied with the answer provided by the Full Court and appealed to the High Court of Australia (“The High Court”).

The specific question posed to the High Court was, “Does section 90AE(1)-(2) of the Family Law Act 1975 (Cth) grant the court power to make Order 8 of the final orders sought in the amended initiating application of the wife?”

The order sought by the wife was in the following terms:

“Pursuant to section 90AE(1)(b) of the Family Law Act 1975 (Cth) in respect of the [Wife’s] indebtedness to the Commissioner of Taxation for the Commonwealth of Australia [for] taxation related liabilities in the amount of $256,078.32 as at 9 August 2016 plus General Interest Charge (GIC), the [husband] be substituted for the [wife] as the debtor and the [husband] be solely liable to the Commissioner of Taxation for the said debt”.

Section 90AE(1)(b) of the Act allows the Court to direct a creditor of the parties to substitute one party of the marriage for the other in relation to a debt owed to that creditor. The Commissioner submitted that as a Commonwealth body they should not be bound in the same way as other third-party creditors. That submission was rejected by both the Full Court and by the High Court, although it was conceded by the High Court that the circumstances under which a party should be substituted for another pursuant to section 90AE of the Act in relation to a tax debt would be rare when considering the criteria set out under section 90AE(3)(b) and (d).

By way of background, the husband and wife were married in 1992 and separated in July 2009. On 5 November 2009 the husband was declared bankrupt. On 12 November 2009 the wife had a default judgment made against her for $127,669.36 with General Interest Charges (GIC) continuing to accrue such that by August 2016 the total amount owing to the Commissioner was $256,078.32.

There is a general principal when interpreting legislation that the Crown should not be bound. Although this is the starting point for interpreting legislation, the ultimate question is whether that presumption is rebutted and, if so, the extent to which the legislation intends to bind the Crown. Holding to this principle, the Commissioner submitted that section 90AE of the Act should not bind the Crown, and accordingly the Family Courts did not have the necessary jurisdiction to make the orders sought by the Wife.

In reviewing the statutory framework of the Act, The High Court noted that the Act had been expanded over the years to specify that a debt owed by a party was to be included as ‘property’ of the marriage for the purposes of the Act. The Act makes provision for a debt to be transferred and describes a creditor as a relevant third party to proceedings under the Act.

The Commissioner accepted that they were a creditor for the purposes of some sections of the Act but not for the purpose of section 90AE. This submission was rejected by the Court.

The High Court said that the operation of section 90AE could leave the Commissioner ‘no worse off’ and noted that the operation of section 90AE of the Act should protect Commonwealth Revenue and would not ‘disrupt’ the operation of taxation law.

When considering the facts of this case, in particular the husband’s bankrupt status, it is helpful to understand the criteria that a court must look to when making an order under section 90AE as sought by the wife.

Section 90AE(3) of the Act relevantly states:

“(3) The court may only make an order under subsection (1) or (2) if:

the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and,

if the order concerns a debt of a party to the marriage – it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and

the third party has been accorded procedural fairness in relation to the making of the order; and

(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order…” (emphasis mine)

When considering subsections (3)(b) and (d) it is clear that in this case the Court could not be satisfied that the tax debt would be repaid by the husband and so the Court would not be empowered to make the order for substitution sought by the Wife under section 90AE of the Act.

An alternative power for the Court to substitute a party for a tax debt is set out in section 80(1)(f) which allows a court to make an order that “payments be made directly to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage” (emphasis mine).

An order directing payment under section 80(1)(f) requires that some form of liquid asset exists to meet this payment, or that assets are readily saleable for the purpose of satisfying the payment. If the funds or assets are not available for an order directing payment pursuant to section 80(1)(f) the High Court notes that it is unlikely, even requires the conclusion, that the criteria in section 90AE(3)(b) could not be met and therefore an order under that section would be precluded.

The High Court concluded that although section 90AE of the Act confers the necessary power to make an order directing the Commissioner to substitute one party for another in respect of a tax debt the Court cannot answer that question in any specific case without directly addressing the factors set out in section 90AE(3) which require, amongst other things, a consideration of whether that debt can be paid in full and that it is otherwise just and equitable to make the order.

Doolan Wagner Family Lawyers offer specialist family law advice in St Leonards on Sydney’s North Shore. If you have recently separated or have a family law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We have a team of experienced and caring professional family lawyers available to help you in this difficult time.

Lawyer Assisted Family Law Mediation

There are many issues that arise for parties when they separate. These consequences are not simply limited to legal issues. Separating impacts upon a person’s emotional, economic, physical and social well-being. It can also result in a displacement of a person from their social support network. Lawyer assisted family law mediation is suited to accommodate these broader considerations.

It is relatively accessible, affordable and client driven.

And it empowers parties to achieve their own workable solutions once their intimate relationship has come to an end.

Lawyer assisted family law mediation provides a forum where intrapersonal interaction can safely take place. Non-verbal communication, which is often overlooked in the legal system can sometimes be more powerful than anything that a person may actually say. Lawyer assisted mediation facilitates this interaction between parties in a nonbiased and balanced way. It enables each party to really understand what options are feasible after separation and, at times, starts people communicating differently and more effectively with one another.

Lawyer assisted family law mediation is also well placed to provide a timely response when parties reach an impasse. An impasse can occur when one or both parties are motivated by a hidden agenda or when one or either of the parties has an unrealistic expectation of the other. The presence or absence of third parties including from in-laws or new partners can add to this complex and challenging dynamic. These challenges can be explored with relative ease in lawyer assisted mediation through the use of private caucus or by adopting a shuttle mediation structure. Legal representatives play a critical role at these times to overcome an obstacle or impasse and ensure parties remain future focused and able to secure workable outcomes.

Lawyer Assisted Family Law Mediation – What can it do?

Lawyer Assisted Family Law Mediation can:-

Achieve outcomes that stand the test of time. This is really important when dealing with financial and parenting matters after separation.
Facilitate negotiations between the parties. It is voluntary and no decision will be imposed upon you.
Offer a positive approach to family conflict. Opportunities for criticism and blame are limited. This is attractive to many couples after separation when emotions are raw.
Enable you to set your own agenda and come up with solutions that are uniquely tailored to your particular circumstances.
Allow you to set your own pace and ‘reality check’ all feasible options.
Provide you with a solid foundation for future discussions. Learning new strategies to engage with your former partner can be invaluable. In cases involving children, it can assist parties redefine the relationship from one of spouses to that of parents jointly responsible for their children.
Provide a cost-effective solution to what can otherwise be an adversarial, stressful and expensive process.

The Role of the Family Law Mediator

The family law mediator is a mutual third person engaged to facilitate discussions between parties in conflict. They set rules for the process that is to take place and effectively chair the discussion addressing power imbalances and other issues that may arise. Mediators do not act as the advocate of one or other of the parties nor do they provide legal advice or counselling services. Each family Law mediator has their own unique and individual style. Broadly speaking the role of the family law mediator is:

To remain neutral and impartial.

To allow both parties as much time as they need to discuss their own agenda.

To help parties find ways to best resolve their disputes. In the case of securing successful parenting solutions this can include supporting parents in deciding how to explain the decisions to their children.

To encourage parties to ‘reality’ test the practicalities of how any actual separation and subsequent agreement may work.

To provide sufficient flexibility so that any potential difficulties or problems can receive sufficient attention and the solutions can be subsequently reviewed, if necessary.

The Role of the Family Lawyer

Your legal representative can:

Identify the merits of proposals and advise on the appropriateness of any offers of settlement.

Help formulate alternative proposals.

Table tailored solutions that might work for your family.

Create future focused arrangements that you may not have thought of or that would not be achieved in the court but that could suit your situation.

Ensure any agreement is “watertight” and will stand the test of time.

An experienced family lawyer brings years of specialist knowledge and “know how” to the table. They can guide and support you through the process and ensure you know where you stand throughout the process.

Your family lawyer will also help give you confidence. A party who is not financially literate or has difficulty articulating particular viewpoints can be at a big disadvantage without a lawyer “on hand”.

Is Your Matter Suitable for Lawyer Assisted Family Law Mediation?

There is some debate about the appropriateness of family law mediation in certain family law matters. The presence of a power imbalance and/or family violence is regarded by some as sufficient to disqualify that matter from being suitable for family dispute resolution. An alternative view is strongly held by others who believe that mediation can better serve separating families experiencing these issues. Lawyer assisted mediation is a very good solution for many families.

As time has passed the process of lawyer assisted mediation has continued to evolve and develop into a sophisticated set of mechanisms that can be applied to resolve a broad range of family conflicts. In the 21^st century lawyer assisted family law mediation can nearly always provide a suitable process for a separating couple to try to make decisions about property which are just and equitable and about the children which are in their best interests.

Lawyer assisted family law mediation provides a process that facilitates optimum family law solutions in most cases.