The Court's annual report was tabled in Parliament in late October and can be accessed from the Court's website at www.familycourt.gov.au. It is worth having a look at it. It generally demonstrates that the number of applications filed in our court has stabilised over recent years. Despite this, and despite implementing many saving initiatives within both the Family Court and the Federal Magistrates Court, resourcing continues to be a worry which is why it was pleasing to see that in September the Attorney-General announced increased funding to the courts. Although this entails changes to the structure of court fees which will provide funding of $38 million over four years from court fee revenue, the allocation of additional funding from the Government to the Family Court and the Federal Magistrates Court essentially means that the courts will now be able to maintain the levels of service currently being provided.
We expect that this additional funding, together with other (still essential) savings strategies to be implemented in 2012-13 (such as reductions in travel, general administration and an integration of the divorce workload) will assist in putting both courts on a stronger financial footing.
I also expect that the funding will allow for new appointments to fill the vacancies which currently exist because of judicial retirements this year.
Another recent significant announcement made by the Attorney-General is that the Federal Magistrates Court will soon become the 'Federal Circuit Court of Australia' and the title of Federal Magistrate will be renamed 'Judge' to better reflect the importance of their role in Australia's judicial system.
In October 2012 the Family Court and the Federal Magistrates Court released the third edition of the Family Violence Best Practice Principles. These principles have evolved and now have a much broader audience than they did originally. They provide practical guidance not only to the courts, but also to legal practitioners, service providers, litigants and others involved in cases where issues of family violence or child abuse arise.
The most significant change in this area however, has been in enhancing the communication between those who have a role in family law and in the protection of children. I sincerely hope that the further development of these principles will assist with the protection of families and children who are engaged with the family law system from the effects of family violence.
The Family Court and the Federal Court have a long history of working with the Indonesian courts to strengthen justice in Indonesia. In October, court officials met in Brisbane to renew the Australia-Indonesia court to court Memorandum of Understanding and to formalise the work that will be conducted over the next 12 months. We have achieved amazing results by working together in areas as diverse as case management, court administration, information technology, client services, supporting marginalised and vulnerable litigants as well as access to justice for the poor. I am particularly pleased with the international recognition that some of our programs have received.
Sydney will be the location for the next World Congress on Family Law and Children's Rights. The Congress will be held in March and is a major international human rights event focusing on children and family law. More information is available from the website www.wcflcr2013.com.
Another year has passed and I therefore wish to acknowledge not only my hard-working peers on the bench, but also the staff in the Family Court who work tirelessly to help those who come to the Court for assistance to manage their family law dispute.
May you all enjoy a very happy and safe Christmas period.
In Semperton [2012] FamCAFC 132, the Full Court (May, Thackray and Ryan JJ) allowed the husband's appeal against a property order made by Baumann FM, which concerned the treatment of the husband's Defence Force Retirement and Death Benefits Scheme (DFRDB) entitlement. The husband's DFRDB interest was valued at $354,098. Baumann FM took a 'separate pools' approach to the superannuation assets, valued at $520,000, and the non-superannuation assets, valued at $822,000.
At trial, the wife submitted that the Federal Magistrate should adopt a 'one pool' approach and divide the matrimonial assets 60/40 in her favour, including a split of the husband's superannuation. The husband sought that a 'two pool' approach be adopted, whereby he would receive 55 per cent of the non-superannuation pool and the wife would also receive a superannuation interest of approximately $100,000.
His Honour found the wife's entitlement to the non-superannuation pool at 60 per cent or $493,481, and of the superannuation pool at 50 per cent or $251,784. His Honour found that the husband's entitlement to the non-superannuation pool at 40 per cent or $328,926, and of the superannuation pool at 50 per cent or equalling $251,784.
There were two 'core grounds of appeal' advanced by the husband. First, he contended that his Honour erred by considering the husband's DFRDB pension as a relevant factor at the s 75(2) adjustment stage and by then going on to treat the pension as if it were a capital sum which could be used when adjusting the parties' superannuation interests. According to the husband, this amounted to 'double dipping' and constituted appealable error.
Although the members of the Bench were ultimately in agreement as to the result in upholding the appeal, May J delivered a separate judgment to Thackray and Ryan JJ.
On the issue of his Honour's treatment of the DFRDB in the context of s 75(2) and whether this constituted 'double dipping', Thackray and Ryan JJ found that, although his Honour was alive to the importance of not 'double dipping', it was not open to him to take the DFRDB into account at the s 75(2) stage in the absence of any submissions by the wife that the husband's retention of the DFRDB should result in an adjustment in her favour. Their Honours observed that no such submissions had been made. Their Honours further found that his Honour's ultimate treatment of the DFRDB, while legitimate, was unorthodox. His Honour's orders had the effect of adjusting the pool by more than 10 per cent, or creating a disparity between the wife and husband of in excess of $164,500. Their Honours said it was unclear from his Honour's reasons what role the husband's retention of the DFRDB played in this adjustment.
As to the justice and equity of the orders, May J said that:
“When the parties' position at the time of trial and their future financial circumstances are fully appreciated it can be seen that these orders are not just and equitable.”
Her Honour observed the practical effect of his Honour's orders were that the wife would receive 76.12 per cent of the non-superannuation assets and 71.29 per cent of the superannuation interests, if the capital value of the DFRDB pension was excluded, in circumstances in which the parties' respective incomes were comparable and where each has a need for housing.
The Full Court allowed the appeal and remitted the matter for rehearing.
In Carmody & Elridge [2012] FamCAFC 123 (17 August 2012) the Full Court (Bryant CJ, Finn and Forrest JJ) allowed an appeal against parenting orders made by Hughes FM which provided that the child live with the father unless the mother moved to within 60 kms of the father's residence, in which event there would be a shared living arrangement for the child.
At the time of hearing, the child, who was four years of age, had been living with the mother and spending some days each week with the father. The mother lived on the Gold Coast and the father lived north of Brisbane. The mother's position at hearing was that the child live with her and spend time with the father on a fortnightly basis and during school holidays. The father's position was that the mother not live more than 150 kms from the parties' former home town and that the child effectively live in a shared care arrangement. In the event that the mother continued to live on the Gold Coast, the father sought that the child live with him and spend time with the mother. After considering an expert report and having regard to the relevant s 60CC factors, her Honour ultimately concluded that the child's best interests would be served by the child living with the father, largely because (as her Honour found) the father would ensure the child developed and maintained a meaningful relationship with the mother whereas her Honour was not confident that the mother would do the same. Her Honour went on to find that, if the mother was prepared to move closer to the father, the largely shared living arrangement could continue.
The Full Court found that the grounds of appeal alleging bias and lack of adequate consideration of relevant s 60CC factors were not substantiated. However, the Full Court allowed the appeal on the basis of her Honour failing to put to the parties the possibility of making orders that the mother live within 60 kms of the father and thus them (and particularly the mother) having the opportunity to make submissions as to any practical difficulties associated with that proposal. In allowing the appeal on this ground, the Full Court acknowledged the practical common sense of a 60 km limitation, representing as it did the time (one hour) that the child would be likely to be able to cope with being driven to and from kindergarten and/or school. However, the Full Court varied the order from 60 kms to 80 kms, with the agreement of the father, to enable the mother to live in a place reasonably proximate to the father but where she would have better employment and accommodation opportunities.
In G & G (a Law Firm) & McMurphy [2012] FamCAFC 134 (27 August 2012) the Full Court (Bryant CJ, Faulks DCJ and Strickland J) allowed in part an appeal against orders of Cleary J setting aside a costs agreement, making an order for costs in the sum of $80,000 and requiring the appellant to pay indemnity costs in the event of default.
The respondent was a former client of the law firm G & G in respect of her family law proceedings. The respondent had entered into a costs agreement with the appellant which was subsequently set aside. At trial, both the appellant and the respondent applied for costs; the respondent's application being for costs on an indemnity basis, which was opposed by the appellant.
At trial, her Honour had regard to the matters contained in s 117(2A) and was satisfied that there were circumstances that justified a departure from the general rule that each party bear their own costs. In deciding to order indemnity costs if the costs order was not met within 28 days, her Honour referred to the principles governing the making of an order for indemnity costs and found that there were 'extraordinary' features of the case that justified so doing; in particular what her Honour described as the appellant's unrelenting tactical approach towards the respondent.
The Full Court considered the circumstances taken into account by her Honour as justifying an order for indemnity costs and found that two of the seven, namely the appellant's conduct in withholding the payment of counsel's fees and the appellant's failure to prepare fresh accounts at the time costs submissions were made, were inappropriately taken into account. The Full Court nevertheless held that the strength of the balance of the circumstances provided ample justification for an award of indemnity costs. The Full Court rejected the appellant's challenge to an alleged denial of procedural fairness by her Honour. However, the Full Court found there was merit in the ground of appeal which said that her Honour made two inconsistent orders for costs in ordering first that the appellant pay costs of $80,000 within 28 days and second that the appellant pay indemnity costs in default. The Full Court found there was substance in the complaint that her Honour became functus officio after having made the first order. The Full Court said that having made the order for payment of a fixed amount, it was not open to her Honour to make a second order which potentially allowed for an entirely different amount to be paid in the event of default.
The Full Court allowed the appeal but, given that the Full Court could find no error in the order for indemnity costs and that her Honour accepted that costs of $80,000 was appropriate, the Full Court merely excised the default order.
Murphy J, 6 July 2012
In Smith & Fields [2012] FamCA 510 (6 July 2012) Murphy J ordered that the matrimonial assets of the parties be distributed 60 per cent to the husband and 40 per cent to the wife in circumstances in which the parties had been married for 29 years, accumulated significant wealth and where the husband submitted that had made a special contribution to those assets.
At hearing, the husband's case was that, in recognition of his special contribution, he should receive 70 per cent of the pool. The wife's case was that the marriage of 29 years was a partnership to which each party contributed in their respective 'spheres' and thus the pool should be divided equally.
Murphy J discussed the High Court's decision in Mallett and observed that each of the Justices distinguished between contributions made to different types of property. Murphy J observed that s 79(4), as drafted at the time of Mallett, suggested a causal connection between s 79(4)(a) and (b) and the 'financial product' those contributions produced, which was not the case with respect to s 79(4)(c). Murphy J recorded that the amendment to s 79 in 1983 was designed to remove any suggestion of a causal link.
Murphy J went on to state that:
“while expressions such as 'special skills' or 'special contributions' might be convenient enough as descriptors designed to compare the contributions in one case with those in another, s 79 makes no such reference, nor embraces any such concept, save that it mandatorily requires an evaluation of the matters set out in s 79 in arriving at a settlement of property between the particular parties to the particular marriage in all of its particular circumstances.”
Similarly, Murphy J observed that the concept of a 'marriage partnership' is also not one contemplated by the words of s 79.
Murphy J went on to state that:
“Whilst some assistance may be rendered by the use of expressions such as 'special skills' or 'special' or 'extraordinary' contribution, in my view, the use of such expressions is apt to mislead and to obscure, rather than illuminate, the task at hand. The real danger lies in the promulgation of a notion that, by establishing 'special contribution' or 'special skills' - whatever the expression, or the indicia comprising any such expression might be said to be - a result of a particular type, or a particular range, should follow. That is an improper fetter on an 'extraordinarily wide' discretion. It smacks of a presumption antithetical to what the section requires.”
Murphy J said that, in his view, a contribution by one party in the role of home-maker and parent and to the welfare of the family more generally that allows the other party to their union the physical and mental space to pursue income and capital generation is an often-neglected, yet extremely important contribution. Murphy J found that this is what had occurred in the instant case.
In arriving at his conclusion as to contributions, Murphy J specifically rejected the notion that one 'sphere' or 'role' should be seen as, of itself, more important, or more inherently 'valuable', than the other. After undertaking an analysis of the nature, form and characteristics of the contributions of varying types made by each of the parties, Murphy J found that it would be just and equitable for an assessment of those contributions to favour the husband. Murphy J then undertook a comparison with other cases and considered the real impact in dollar terms of making a contribution based adjustment in favour of the husband. In so doing, Murphy J decided that a 20 per cent disparity, equalling a difference in the vicinity of $6.5 to $8 million, was appropriate in the circumstances of the case.
Hobart turned on its charm for the 15th biennial National Family Law Conference from 14-17 October 2012.
Run by the Family Law Section of the Law Council of Australia, the conference has become the largest legal event held in Australia.
Over 800 delegates including judges, federal magistrates, government policy makers, academics, solicitors, barristers and international visitors participated in a variety of engaging and thought-provoking sessions.
Sponsors and exhibitors, including the Commonwealth Courts Portal, were provided with a unique opportunity to reach a highly targeted group of family law practitioners and promote their services.
The Portal exhibit included live demonstrations with laptops to enable delegates to register on the spot. Delegates gave feedback on the latest Portal developments as well as suggestions for future improvement. Practitioners continue to praise the Portal for leading technological innovation for both the courts and case management.
The next family law conference will be held in Sydney in 2014.
A series of new and amended fees will apply in the courts from 1 January 2013. When approved, this information will be published on the courts' websites.
The courts' financial environment has been challenging for some time. As such, in August 2012 we provided a submission to the Government detailing the impacts of the current and future financial pressures on court staff and clients.
In September, the Attorney-General announced the courts were to receive budget supplementation of $24.1m over the next four years. This budget supplementation:
The Attorney-General also announced the provision of an additional $3.1m (over four years) to administer a series of new fees to commence from 1 January 2013. This additional funding is recognition of the cost associated with this part of the courts business, which had not previously been recognised.
The table below provides a breakdown of the budget supplementation:
| 2012-13 $'000 |
2013-14 $'000 |
2014-15 $'000 |
2015-16 $'000 |
Total $'000 |
|
|---|---|---|---|---|---|
| Family Court | |||||
| Additional funding | 2768 | 6566 | 6096 | 6218 | 21,648 |
| Administration of new fees | 1208 | 640 | 645 | 651 | 3144 |
| Total additional funding - FcoA | 3976 | 7206 | 6741 | 6869 | 24,792 |
| Federal Magistrates Court | |||||
| Additional funding | 1254 | 1781 | 714 | 728 | 4477 |
| Total additional funding - FMC | 1254 | 1781 | 714 | 728 | 4477 |
| Total FCoA and FMC funding | 5230 | 8987 | 7455 | 7597 | 29,269 |
While the budget supplementation will provide initial relief, in particular over the next two years, it also provides an opportunity to consider alternative measures to ensure a sustainable funding basis into the future.
The Family Court hosted a delegation from the Cambodian legal system during July and August 2012 as part of an initiative run by Legal Aid and Children's Rights International (CRI).
The delegation visited the Melbourne registry where they met Chief Justice Bryant and Justice Bennett, and discussed the role of registrars and family consultants, the Hague Convention, and the Children's Responsive Program. They also visited the Canberra registry and met with Deputy Chief Justice Faulks, and received a demonstration of the Court's video conferencing technology.
This initiative aims to establish a child-friendly justice system in accordance with the United Nations Convention of the Rights of the Child. It is part of a three year program, undertaken by CRI, and chaired by former Chief Justice Alastair Nicholson AO RFD QC and Legal Aid Cambodia.
The program provides relevant Cambodian professionals with the opportunity to visit Australia for two weeks each year to study the Australian child justice system.
To find out more about CRI visit their website www.childjustice.org.
The Family Court of Australia 2011-12 Annual Report was tabled in Parliament on 24 October 2012.
Some interesting information presented in the report includes:
The Annual Report is available at www.familycourt.gov.au.
Hard copies can be requested by emailing communication@familylawcourts.gov.au.
The Attorney-General, the Honourable Nicola Roxon MP, launched the third edition of the Family Violence Best Practice Principles at the recent family law conference in Hobart.
At the launch, Chief Justice Diana Bryant AO, said there has been significant progress over recent years in enhancing the communication between those who have a role in family law and in the protection of children.
“I sincerely hope that the further development of these principles will assist with the protection of families and children who are engaged with the family law system from the effects of family violence,” Chief Justice Bryant added.
The Best Practice Principles are applicable in all cases involving family violence or child abuse or the risk of family violence or child abuse in family law proceedings before the courts.
The principles were initially developed by the Family Court following the introduction of significant changes to the Family Law Act in 2006. In addition, major amendments to the Act were introduced this year that specifically relate to addressing issues of family violence. The Court believes that these principles are a valuable tool for all individuals and agencies involved in family law cases.
The Best Practice Principles recognise:
The Family Violence Best Practice Principles is available from the Family Law Courts website at www.familylawcourts.gov.au.
On 3 October 2012, the Honourable DR. M. Hatta Ali, SH., MH, Chief Justice of the Supreme Court of Indonesia, Chief Justice Patrick Keane of the Federal Court of Australia and Chief Justice Diana Bryant, AO of the Family Court of Australia as well as officials from the Australian and Indonesia courts and the Australian Agency for International Development (AusAID) met in Brisbane for the annual signing of the Annex to the tri-party memorandum of understanding (MOU) between the two countries.
The initiative, funded by AusAID since 2008, has allowed courts in both countries to share experiences regarding access to justice and enhance judicial capacity and improve business processes Indonesia.
The 2011 UN Women report, Progress of the World's Women: In Pursuit of Justice, has highlighted the work by the Family Court of Australia in the Indonesian justice reforms, in a section entitled: Women's Access to Justice in Religious Courts in Indonesia.
Additionally, the World Development Report 2012: Gender Equality and Development has also recognised the work and refers several times to the research supported by the Supreme Court, Religious Courts and the Family Court of Australia on the impact of waiving court fees and holding circuit courts in terms of increasing women's access to the Indonesian courts for their family law cases. Both publications have highlighted these access to justice initiatives as best practice in an international context.
“The Family Court of Australia is pleased to continue its professional association with the Indonesian courts. We have achieved amazing results by working together in areas as diverse as case management, court administration, information technology, client services, supporting marginalised and vulnerable litigants as well as access to justice for the poor” - Chief Justice Diana Bryant, AO
In 2013, the Family Court of Australia and the Supreme Court of Indonesia will progress areas of cooperation in Access to Justice in family law in Indonesia by:
A copy of the MOU can be found at www.familycourt.gov.au.
The Australasian Institute of Judicial Administration (AIJA) is an educational and research institute associated with Monash University. It is funded by the Standing Council on Law and Justice and its membership which includes all involved in the work of courts and tribunals.
As a sponsor of research and organiser of educational programs, it works to a brief that is as broad as its membership of lawyers, court and tribunal administrators, academics, magistrates, tribunal members and judges.
The AIJA has been responsible for conferences of direct interest to those working in family courts, including mental health and the administration of justice, family violence, child protection and youth justice. The latest conference on youth justice, held in Brisbane in August, included sessions on child protection, sexual abuse, youth imprisonment, adolescent domestic violence and children in Family Court proceedings.
Justice Michelle May, a judge of the Family Court's Appeal Division and now President Elect of the AIJA, chaired a wide-ranging panel session on family law, with topics including the impact of family violence on child development and child inclusive conferences in family law proceedings. Speakers included Justice Judy Ryan who spoke about the family violence amendments to the Family Law Act, and Justice Colin Forrest who reflected on the changes he had seen, both as a barrister and as a judge, in the six years since the application of the presumption of equal shared parental responsibility. In families with 'reasonably amicable' separations, he told the packed session, more children were spending time in two households, but the presumption was often not applied in the many cases where shared parenting was not best for the child. The session also included presentations by family consultants Jacqueline Beall and Mark Palmer, and Pam Hemphill, Principal of Child Dispute Services with the Family Court.
The AIJA will shortly release a monograph on Courts and the Public which includes an important contribution by the Family Court.
Papers and presentations from AIJA conferences are available on www.aija.org.au. Membership is welcomed and an application for membership is available on the website.
The Family Court launched its official Twitter account, @FamilyCourtAU on Monday 15 October. A six month pilot will be run to test the effectiveness of using Twitter as another channel to provide information about the Court and its services to clients and stakeholders.
To date the Court has tweeted tips for managing files online, judgments, deadlines for filing applications for orders relating to the Christmas school holidays, details on the release of the revised Family Violence Best Practice Principles and other useful information.
Early data suggests that Twitter will be a valuable tool for the Court and those in the profession. Following a review of the pilot, consideration will be given to establishing a similar account for the Federal Magistrates Court.
Follow us on Twitter @FamilyCourtAU for the latest updates on news, information, services and judgments.
A range of new and updated functions have been introduced in the Portal over recent months.
Work is almost complete on the introduction of an eCourt Forum, which will enable certain procedural events to be conducted between the Family Court and parties remotely using the Portal.
To access the Portal - www.comcourts.gov.au
For Portal support email: support@comcourts.gov.au
Training bookings or Portal support can be made through the National Enquiry Centre on 1300 352 000.
The Honourable Justice Peter John Murphy was appointed to the Family Court of Australia Appeal Division on 27 September 2012.
Justice Murphy was appointed a judge of the Family Court of Australia on 11 October 2007 and during that time was the Coordinating and Case Management Judge for Queensland.
Prior to Justice Murphy's appointment, he practiced predominantly in family law but also had a significant criminal practice. He was also an accredited mediator and arbitrator and had a busy practice as a mediator.
Justice Murphy was a member of the Executive of the Family Law Section of the Law Council of Australia and of the Australian Institute of Family Law Arbitrators and Mediators.
Justice Murphy was also a contributing editor to the Lexis Nexis Family Law in Australia series and has written and presented many papers on family law and advocacy throughout Australia. Prior to his appointment as a judge, Justice Murphy was a part-time member of each of the Anti-Discrimination and Legal Practitioners Tribunals in Queensland.
The Honourable Justice Judith Maureen Ryan was appointed to the Family Court of Australia Appeal Division on 27 September 2012.
Justice Ryan was appointed a judge of the Family Court of Australia on 31 July 2006 and assigned to the Newcastle registry. Her Honour transferred to Sydney in 2011.
Prior to this, Justice Ryan was a federal magistrate at Parramatta. She was appointed to the Federal Magistrates Court on 13 June 2000 at the time the Federal Magistrates Court was established.
Justice Ryan practised as a solicitor for 20 years, working in private and government legal practice. At the time of her appointment as a federal magistrate, Justice Ryan was the manager of the Family Law Division at Legal Aid NSW.
Justice Ryan is Chair of the Family Court's Rules Committee, Chair of the joint Family Court and Federal Magistrates Court's Family Violence Committee and a member of Chief Justice's Policy Advisory Committee. She has also been a member of numerous external committees, including a consultant to the Prince of Wales Children's Hospital Child Protection Unit, a member of a reference group for the Australian Law Reform Commission enquiry into the Federal Civil Justice System, a member of the NSW Law Society Family Law Committee, a foundation member of the Law Council of Australia's Child Representative's Committee and national training program and the Family Law Council (2001 to 2004).
Some of the topics will include:
The World Congress on Family Law and Children's Rights brings together judges, practicing and academic lawyers, legislators and policy makers, doctors, health care professionals, non-government organisations and human rights organisations.
The Congress is a major event focussing on family law and family law processes and the rights of children and youth.
The Congress has been recognised and supported by the United Nations and its agencies and its co-chairmen have been acknowledged in the Order of Australia for the contribution of the conference to the law both internationally and in Australia.
The first Congress was held in Sydney in 1993 and was supported by the Australian government. Since then, congresses have been held in the United States (1997), United Kingdom (2001), South Africa (2005) and Canada (2009). Each of these has achieved or added impetus to positive change for the protection of rights of children.
World Congress Office Administration ICMS Pty Ltd
84 Queensbridge Street Southbank VIC 3006
T 03 9682 0244 F 03 9682 0288 E wcflcr2013@icms.com.au
For more information about this publication, including ordering additional copies or to make changes to your mailing details (including removal from the mailing list), contact the Family Law Courts National Communication Office.
T 02 6243 8690 F 02 6243 8737