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Family Law Section, General Committee Update

Family Law Section, General Committee Update

By Family Law Section

Family Court 

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Family Law Section, General Committee Update
August / September 2019

The Family Law Section General Committee Update provides LIV members with a brief overview of relevant new articles, cases, legislative updates and upcoming educational events. 

If you would like to receive the Family Law Section General Committee update via email, please ensure that Family Law is selected as one of your practice section preferences. You can do this by logging into My LIV and clicking on the 'Membership' tab.

 

PRACTICE RESOURCES

Family Law Section – Court Practice Committee Bulletin

Family Law forms updated

Webinar: Family Violence Intervention Orders update, Magistrates’ Court of Victoria | Resources

Orange Door - Multi-Agency Risk Assessment and Management Framework (MARAM) Victim Survivor Practice Guidance

Family Court and Federal Circuit Court Plenary – Opening Address
Hon. Christian Porter MP | 7 August 2019

 

NOTEWORTHY NEWS

Judges mandate app for separated parents
The Age | 29 September 2019

Victorian Government backflips on Parkville detention centre, scales down youth supermax in Cherry Creek 
Premier Daniel Andrews MP Media Release | The Age | 27 September 2019

‘When he came home from the lawyer’s that day, he beat us so bad’
Lawyers Weekly | 24 September 2019

Divorcing couples using private arbitration to bypass strained family court system
Herald Sun | 24 September 2019

We know what’s wrong with the Family Court – here’s how to fix it
The Age Opinion | 24 September 2019

Family violence awareness training urged for parliamentarians 
LCA | 23 September 2019

Law body rebukes One Nation
The Australian | 23 September 2019

I believed the Australian family court system was biased against fathers – then I found the rot at the core of it
The Guardian | 19 September 2019

Hanson Mocks PM on family law inquiry
AFR | 19 September 2019

Helping Family Violence Victim Survivors
Hon. Jill Hennessy MP | 19 September 2019

Prime Minister Scott Morrison announces inquiry into family law system
The Australian | 19 September 2018

Labor opposes proposed family law inquiry
ABC News | 19 September 2019

Former Family Court chief judge labels Hanson's comments 'appalling'
The Age | 18 September 2019

Pauline Hanson lashes family court 'liars'
The Canberra Times | 18 September 2019

Mother rewarded for flouting custody rule
The Australian | 17 September 2019

JOHN SETKA AND JACQUI LAMBIE: Physical abuse just one part of family violence
The Age | 17 September 2019

Victoria to again be leader in youth justice: minister
LIJ | 17 September 2019

‘Man up’: why so few men report sexual abuse
The Age | 16 September 2019

Law Council calls for chief judge to stand down
AFR | 13 September 2019

Planned youth justice centre a 'set-up for disaster', warns NYC expert
The Age | 12 September 2019

Laws forcing priests to report child abuse passed in Victorian parliament
The Age | 11 September 2019

Indigenous boy to address UN on the age of criminal responsibility
SBS News | 10 September 2019

Young people being 'damaged' not rehabilitated by solitary confinement in Victorian prisons, report finds
ABC News | 5 September 2019

Judge mentored after ‘many’ decisions overturned on appeal
The Australian | 3 September 2019

State sign on to name and shame child abusers in national register
The Herald Sun | 29 August 2019

Judge’s health records sealed
The Australian | 28 August 2019

Fairer Birth Certificates For Trans And Gender Diverse Victorians
The Hon. Jill Hennessy MP | 28 August 2019

Domestic abuse: Killers 'follow eight-stage pattern', study says
BBC News | 28 August 2019

Family Court report writer charged with sexually abusing three children
ABC News | 26 August 2019

How companies selling spyware are helping to promote family violence
ABC News | 22 August 2019

Call for review into family law system killings
The Australian | 16 August 2019

Kathryn wants to help her daughter buy a home with her partner. What happens if they split?
ABC News | 15 August 2019

Transgender birth certificate bill passes Victoria legislative assembly
The Australian | 15 August 2019

DV funding crisis leaves thousands of women at risk because of helpline backlog
The Courier | 11 August 2019

'Doing nothing a non-option': Porter pushes ahead on Family Court reform
The Age | 9 August 2019

Attorney-General Christian Porter outlines proposed reforms to Family Court
The Hon. Christian Porter MP | 7 August 2019

More children than ever being sent to adult courts, data shows.
The Australian | 5 August 2019

How Domestic Abusers Weaponize the Courts After a breakup, litigation is often a way for harassers to force their victims to keep seeing them
The Atlantic

Domestic Violence Is The Most Common Killer Of Women Around The World
Huffington Post

A gendered trap’: When mothers allege child abuse by fathers, the mothers often lose custody, study shows
The Washington Post | 29 July 2019

 

LATEST CASES

Kabra & Sachin [2019] FamCAFC 155  (12 September 2019) (Strickland J)
FAMILY LAW – APPEAL – PARENTING – Where the father’s Amended Notice of Appeal did not contain identifiable and competent grounds of appeal – Where the father fell into the trap of simply looking to rerun his case in the Court below – Where the father failed to identify any appealable error made by the Magistrate and nor is error apparent – Where none of the complaints made by the father have merit – Appeal dismissed.

Bader & Spinner [2019] FamCAFC 152 (12 September 2019) (Strickland J)
FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable error is demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated.

Zuen & Lhao [2019] FamCAFC 151 (5 September 2019) (Ryan J)
AMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the mother failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – application opposed by the father – Where explanation for the delay – Where the proposed grounds of appeal may attract appellate intervention – Where reinstatement of the appeal would not be unjust to the respondent – Application to reinstate granted.

Elwood v Ravenhill [2019] FamCAFC 153 (6 September 2019) (Kent J)
FAMILY LAW – APPEAL – PARENTING – Initiating Proceedings – Section 60I certificate – Where the father initiated proceedings without having undertaken family dispute resolution – Where the subject Initiating Application did not fall within an exception in s 60I(9) – Where the primary judge made orders notwithstanding there being no s 60I certificate – Where the primary judge was in error in proceeding to hear the father’s application not having made any finding to the effect that any of the exceptions in subsection (9) applied – Consideration of s 60I(11) – Where the purpose of s 60I(11) is to preserve the integrity of proceedings and orders made where, for example, perhaps through oversight subsection (7) is not complied with – Where the subject orders likely do not fail for want of jurisdiction but the failure to apply subsection (7) amounts to legal error – Appeal allowed.

Dickens & Dickens [2019] FamCAFC 150 (5 September 2019) (Ainslie-Wallac J)     
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR REVIEW OF REGISTRAR'S DECISION – Where the Registrar rejected an Application in an Appeal for filing as an abuse of process – Application in an appeal allowed in part.

Perdicari & Perdicari [2019] FamCAFC 146 (2 September 2019) (Ryan J)
FAMILY LAW – APPEAL – INJUNCTION – Appeal against interim orders – Leave to appeal – Exclusive occupation –Where the primary judge correctly determined the balance of hardship and the balance of convenience – Application to adduce further evidence – Had this evidence been adduced at first instance, the consideration of hardship in relation to the appellant’s ability to re-house would have been different – By reason of further evidence error demonstrated – Leave to appeal granted – Appeal allowed – Discretion re-exercised.

Grainger & Grainger [2019] FamCAFC 145 (23 August 2019) (Aldridge, Watts  and Austin JJ)
FAMILY LAW – APPEAL – PARENTING – Where the orders made by the trial judge deliberately provided for no face-to-face contact between the father and the child – Where the father appeals on multiple grounds including procedural fairness and alleged errors of law – Where the father alleged the orders were based on inconsistent findings and findings not supported by evidence – Where the trial judge conducted the trial within the meaning of Division 12A of Part VII of the Family Law Act 1975 (Cth) – Where the trial judge gave adequate reasons – Where findings made by the trial judge were open on the evidence – Where the appellant failed to demonstrate any error in the manner that the trial judge dealt with the evidence or exercised discretion – Where the Full Court accepts the trial judge’s findings closely resembled the expert’s evidence and were open – Where the Full Court considers the orders made by the trial judge were guided by the paramountcy of the child’s best interests – Where the father failed to demonstrate procedural unfairness – Where no appealable error is demonstrated – Appeal dismissed.

Torrence v McCann [2019] FCCA 2260 (23 August 2019) (Judge Brown)
FAMILY LAW –Property – marriage in excess of twenty years – marriage produced three children two of whom are now adult – assessment of contributions – contributions assessed as being equal – parties’ major asset is their former family home – wife seeks to retain home to provide accommodation for herself and dependent child – wife has recently returned to paid workforce and is a modest wage earner – husband was major breadwinner during marriage – husband diagnosed with end stage renal failure – husband requires dialysis three times per week.

Reardon & Reardon [2019] FCCA 2273 (20 August 2019) (Judge Lapthorn)
FAMILY LAW – Children – With whom the children live – where a party has history of excessive alcohol use – consideration of unacceptable risk. PROPERTY – Consideration of notional add-backs.

Falcken & Weule [2019] FamCAFC 140 (16 August 2019) (Strickland, Aldridge & O’Brien JJ).
FAMILY LAW – APPEAL – PROPERTY – Appeal against orders for the division of property – Whether the primary judge erred in the determination of the parties’ various contributions and thus the overall assessment – Whether a disability insurance payment to the respondent should have been treated as a joint contribution since the premiums of the policy were paid from joint funds – Where a joint decision to use joint funds to obtain an insurance policy is a relevant consideration – Challenge to the weight that was given to the appellant’s contributions – Contributions are not assessed in isolation but as part of the myriad of contributions.

Elmi & Munro [2019] FamCAFV 138 (16 August 2019) (Strickland, Aldridge & Kent JJ)
FAMILY LAW – APPEAL – PARENTING – Where the trial judge considered that Rice and Asplund (1979) FLC 90-725 had not been correctly decided – Where there is no scope for doubting the correctness of Rice and Asplund (1979) FLC 90-725 – Where there is an obligation on a judge of the Federal Circuit Court of Australia or the Family Court of Australia to follow and apply decisions of the Full Court of the Family Court of Australia – Where the trial judge wrongly relied on principles of res judicata and failed to follow and apply the principles in Rice and Asplund (1979) FLC 90-725 – The concept of res judicata or issue estoppel does not apply to parenting cases – Appeal allowed and matter remitted.

Walker & Page (No.2) [2019] FamCAFC 134 (9 August 2019) (Ainslie-Wallace J)
FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made final property orders distributing the property of the parties – Where the primary judge made indemnification orders in relation to certain outstanding debts – Where the amount of those debts had not crystallised – Where in that event the trial judge could not properly conclude that the proposed order for property settlement was just and equitable – Where the Court was satisfied of appealable error – Appeal allowed – Cost certificates granted.

Frederick & Frederick (No.2) [2019] FamCAFC 31(7 August 2019) (Stickland, Aldridge & Austin JJ)
FAMILY LAW – APPEAL – COSTS – Where directions were made for the provision of written submissions dealing with the costs of the appeal – Where the appellant seeks an order that the respondent pay her costs in a fixed sum – Where the respondent submits that each party should bear their own costs because the appeal succeeded on a matter of law – Where the respondent invited the trial judge to make the error – Where the appellant was entirely successful – Where the disparity of the parties’ financial position supports an order in favour of the appellant – Respondent to pay the appellant’s costs in a fixed sum.

Deegan & Deegan [2019] FCCA 2122 (5 August 2019) (Judge Small)
FAMILY LAW – Parenting – how much time should a father spend with two young children – where there are allegations that the mother has impeded his time. PROPERTY – Whether it is just and equitable for the wife to retain the family home – where she claims certain items as “add-backs”.

Garrety & Steyn [2019] FamCAFC 124 (1 August 2019) (Ryan, Aldridge and Johnston JJ)
FAMILY LAW – APPEAL – PARENTING – Whether the primary judge failed to have regard to the totality of the relevant evidence, in particular the recommendations of the single expert – Whether the primary judge adequately considered conditions that the single expert’s recommendations were contingent upon – Where the parenting of the children by all parties fell short of adequate – Whether the appellant and respondent were equally blameworthy or culpable – Whether a change in residence posed an insurmountable challenge for the children – Where the children would not have a relationship with the respondent if they continued to live with the appellant, whereas the respondent would attempt to maintain all existing relationships.

Perry v Gao [2019] NSWSC 1022
EQUITY – Trusts and trustees – Constructive and resulting trusts – Family and domestic relationships – Where a de facto husband advanced the full purchase price for a house of which the de facto wife became the sole registered proprietor; whether the de facto wife held the property on trust for the de facto husband – Held: there was no trust, as the de facto husband intended to, and did, make a gift of the property to the de facto wife (although the transaction was set aside on other grounds). EQUITY – Undue Influence – Unconscionable conduct – Special disability or disadvantage.

Tsiang & Wu & Ors [2019] FamCAFC 128  (31 July 2019) (Strickland, Ainslie-Wallace and Aldridge JJ)
FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed the husband’s interim application seeking certain injunctions – Where property settlement orders were made by consent – Where the husband seeks to set aside the consent orders – Injunction sought by the husband restraining the wife from dealing with property – Injunction sought by the husband restraining the second and third respondents from disposing or encumbering interests in an overseas company – Where the injunctions sought against the wife and the second and third respondents were…

Babcock & Waddell [2019] FamCAFC 129 (31 July 2019) (Strickland, Ryan and Aldridge JJ)
FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the primary judge permitted the mother to relocate the residence of the child from Sydney to Perth – Where the father asserts that the primary judge erred by referring to and relying only on the advantages of relocation without balancing those advantages with the disadvantages – Where the father asserts that the primary judge only addressed the disadvantages of relocation after deciding that relocation should be permitted, and in framing orders to address those disadvantages – Where the primary judge undertook the necessary balancing of the advantages and disadvantages of the parties’ competing proposals – Where it was appropriate for the primary judge to mould the orders to address the disadvantages of permitting relocation once it was determined that relocation was in the child’s best interests – Consideration of the application and relevance of Re: TC and JC (Children: Relocation) [2013] EWHC 292 in Australian law – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

Hanslow & Hanslow [2019] FamCAFC 130 (21 July 2019) (Strickland J)
FAMILY LAW – APPEAL – Parenting – Interim orders – Where there is no merit in the complaints made by the appellant of bias, prejudgment, lack of procedural fairness and application of wrong principle by the primary judge – Where the existing interim parenting orders were left in place and the only “new” orders made were in relation to parental responsibility, change of primary school and future high school – Where the primary judge made no error in making an order that the respondent have sole parental responsibility – Where it is legitimate to question the interim order made changing the child’s primary school given the final hearing was still to take place but given the passage of time that issue is now best dealt with at the imminent final hearing.

Fabin & Lukey [2019] FamCAFC 117 (3 July 2019) (Strickland, Ainslie-Wallace & Austin JJ)
FAMILY LAW – APPEAL – CHILDREN – Relocation – Interim parenting orders – Where the mother moved interstate with the infant child – Where the father appeals from orders providing for the mother to facilitate time between the father and the child in accordance with those orders at her own cost – Where the father is unable to demonstrate that he was deprived of procedural fairness – Where the primary judges’ reliance upon a submission made by the mother’s solicitor did not materially influence the decision – Where the primary judge made findings of fact which did not materially affect the orders – Where the appeal lacks merit – Appeal dismissed.

Bell Lawyers Pty Ltd v. Pentelow & Anor [2019] HCA 29
PRACTICE & PROCEDURE – COSTS – Legal practitioners – Barristers – Where self-represented litigant may not obtain any recompense for value of his or her time spent in litigation.

Sfakianakis & Sfakianakis [2019] FamCAFC 54
FAMILY LAW – APPEAL – COSTS – Special costs order – Application for indemnity costs – Where the appeal was wholly unsuccessful – Offers of compromise – Conduct of the proceedings – Where the appellant abandoned much of his case on the day of the appeal – Where the appellant’s original Summary of Argument contained outlandish, indefensible and reckless submissions.

 

LEGISLATIVE UPDATES

Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018

Births, Deaths and Marriages Registration Amendment Bill 2016

Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 |  Children Legislation Amendment Bill 2019

Legal Profession Uniform Law Application Amendment Act 2019

 

UPCOMING CPD & EVENTS

8 Oct                     LIV Wellbeing Program: A proactive approach to managing vicarious trauma and building resilience PT II

10 Oct                   LIV & Vic Bar Foundation Workshop: Beginner's Mind, Neuro-plastic Brain

17 Oct                  Family Law Workshop – Crafting Complex Family Law Orders

21 Oct                   MAEVe “Why Does She Stay” Domestic Violence, Implicit Bias and the Legal System

22 Oct                   Family Law – Year in Review

Webinar:             International Bar Association: bullying & sexual harassment

 

MISCELLANEOUS NEWS AND INFORMATION

Arbitration explained
LIJ

The deadly sins of oral advocates: Part One
Lawyers Weekly | 13 August 2019

Bullying and sexual harassment in the legal profession
ABC Law Report | 20 August 2019

Commonwealth Whole-of-Government Legal Services Panel arrangements commenced 16 August
Australian Pro Bono Centre | 20 August 2019

To tweet or not to tweet: The High Court’s ruling on employee social media use
Louise Rumble, Charles Power – Holding Redlich | 19 August 2019

Health and wellbeing: Why procrastinate?
LIJ | 1 August 2019

Ignore e-mails after 6pm family court tells lawyers
The Law Society Gazette | 16 August 2019

LPLC: Develop the engagement habit

Solicitor publicly reprimanded for failing to respond to communications 
Lawyers Weekly | 26 August 2019

Nominations for the 2019 Council Elections are open – Nominations close 5:00 pm, Wednesday 2 October 2019

LIV hosts law societies, LCA

LIV Council September Board Report

Parental leave for men, workplace gender inequity and childcare
ABC News

Tips to help your child deal with unwanted contact online.
E-Safety Commissioner

 

LIV RESOURCES & POLICY SUBMISSIONS

LIV Submission – LIV Responds to LCA ALRC's Final Report on the Inquiry into Australia's Family Law System

LIV Submission – Mental Health Royal Commission: LIV Calls for 50 mental health fixes

LIV Submission hereLIV welcomes Ombudsman report into solitary confinement of children and young people Media release

LIV – Governance structure under review

LIV – Member Experience Survey

LIV – Ethics Information Hub

Permanency Amendments Longitudinal Study

Domestic and family violence, housing insecurity and homelessness: Research synthesis (2nd Ed.; ANROWS Insights, 07/2019)
Australia’s National Research Organisation for Women’s Safety (2019)

Expression of Interest – LIV Trust & Practice Management Consultancy Services

LIV / REIV Contract of Sale of Land – revised from 23 August 2019


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