July 2010 Family Court Bulletin - Issue 6

A newsletter of the Family Court of Australia



Court grants first adoption
In Falconio & Anor & Conchita,1 a decision delivered in December 2009, the Hon. Deputy Chief Justice John Faulks exercised jurisdiction, pursuant to the Jurisdiction of Courts (Cross-Vesting) Acts of the Commonwealth and the Australian Capital Territory (ACT), to grant an adoption.

This was an unusual decision for the Family Court as it is believed to be the first time that the Family Court has ever granted an adoption.

Adoption proceedings and cross-vested jurisdiction
Under the Family Law Act 1975 (Cth), the Court only has jurisdiction to give parties leave to commence adoption proceedings,2 but not to grant an adoption. This is a result of a historical accident.

The Family Court was initially to have jurisdiction to grant adoptions, however this jurisdiction was never proclaimed. Consequently, if the Family Court grants leave to a party to commence adoption proceedings, applications for adoption are then determined by the superior courts of the states and the territories.

As a result of the High Court’s decision in Re Wakim; Ex parte McNally, 3 the federal courts of the Commonwealth are no longer able to exercise the jurisdiction of a state Supreme Court. However, the decision in Re Wakim did not affect the ability of the Family Court in the ACT exercising the jurisdiction of the ACT Supreme Court by virtue of cross-vesting legislation.

Granting leave to commence adoption proceedings is subject to the Court being satisfied that it is in a child’s best interests. 4 A person’s parental responsibility ends once a child is adopted (unless that person is a prescribed adopting parent for the purposes of the Family Law Act 1975 (Cth)). 5

The facts of the case
Mr Falconio sought to be the adoptive father of his new wife’s (Ms Silvio) children (aged 14 and 9 years). Mr Conchita, the biological father, initially sought to oppose Mr Falconio’s application and sought substantial and significant time with the children. However, after considering reports from the ACT Office of Children, Youth and Family Support and a family consultant of the Family Court, Mr Conchita conceded that he did not oppose Mr Falconio’s application.

His Honour determined that it was in the best interests of the children that leave be granted for the adoption proceedings to occur and that the adoption should be granted pursuant to the Adoption Act 1993 (ACT). His Honour took into account Mr Conchita’s attitude towards the children and acknowledgment that he would be giving up parental responsibility; the geographical impediments to Mr Conchita spending time with the children, and the minimal amount of time Mr Conchita had actually spent with the children. His Honour also took into account the nature of the relationship between the children and Mr Falconio and Ms Silvio and the environment they could offer the children. His Honour also ordered that the children spend such time with Mr Conchita as they wished, and for their surnames to be changed to reflect both Mr Falconio and Ms Silvio’s surnames.

1 Falconio & Anor & Conchita [2009] FamCA 1323.
2 Family Law Act 1975 (Cth) s 60G(1).
3 Re Wakim; Ex parte McNally (1999) 198 CLR 511.
4 Family Law Act 1975 (Cth) s 60G(2).
5 Family Law Act 1975 (Cth) s 61E(2).


From the Chief Justice
I am pleased to report that in May the Government announced its plan outlining the future structure of the federal court system. The Attorney-General, the Hon Robert McClelland and Minister for Defence, Senator John Faulkner, announced the Government’s decision to establish a new federal court, the Military Court of Australia, under Chapter III of the Australian Constitution. This decision impacts on the Family Court of Australia and the Federal Magistrates Court of Australia.

Under the new arrangements that have been announced, the Federal Magistrates Court will be retained and will continue to hear general federal law matters and will be administered by the Federal Court. Some Federal Magistrates will receive dual commissions to enable them to hear particular classes of matters in the Military Court.

A lower tier of the Family Court will be established and commissions in the Family Court in that division will be offered to Federal Magistrates who undertake mainly family law work.

We now await the progress of the proposed legislation.

In addition to the announcement on the structure of the federal courts, there have been other significant changes in the federal judicial system since the last issue of the Family Court Bulletin. In particular, Chief Justice Black retired as Chief Justice of the Federal Court on 21 March 2010.

On 10 February 2010 the Attorney announced the appointment of the Honourable Justice Patrick Keane, formerly of the Queensland Court of Appeal, as Chief Justice of the Federal Court of Australia. Chief Justice Keane was sworn in on 22 March 2010.

There are many important issues on which the federal superior courts are required to respond and act, and more often our interests are similar rather than different. I have already met with Chief Justice Keane to discuss a number of these issues. I look forward to working with him and wish him well in his new role.

The Family Court has also had three retirements: Justice Warnick from the Appeal Division, Brisbane Registry; Justice Flohm from the Parramatta Registry; and Justice Brown from the Melbourne Registry.

I hope that in the near future we will have an announcement about new appointments for Sydney and Parramatta. Justices Jordan and Waddy, who retired in December 2009, are also featured in the Retirements section of this issue.

The Court has continued to be involved with other courts in legal affairs in our region. Justices Rose and Fowler represented the court recently in China and India respectively. Justice Rose has now given several papers in China on processes in the Family Court, particularly the Less Adversarial Trial. Justice Fowler joined a delegation of Australian judges who travelled to India late last year to consult with other Indian judges and administrators.

There continues to be many overseas conferences at which the input of the Family Court of Australia is regarded as important. In February I attended the International Judicial Conference on Cross Border Family Relocation in Washington which was run by the US State Department and the Hague Private International Law Secretariat. This was a successful conference. Delegates reached agreement on a document known as the Washington Declaration on International Family Relocation. More than 50 judges from countries including North America, Europe, South America, India, Pakistan, Australia and New Zealand agreed upon a number of principles about the determination of international relocation cases.

I also attended the Association of Family and Conciliation Courts conference in Denver, USA in early June and Deputy Chief Justice will be attending the International Child Abduction, Forced Marriage and Relocation Conference in London in early July representing the Family Court of Australia.

The Denver conference, which was also attended by Federal Magistrates Sexton and Altobelli, had as its theme the vexed issue of parental alienation, or perhaps as it is better described, rejecting behaviour. There continues to be a heated debate between various experts in the United States about whether there is a category of alienation which can constitute a psychiatric condition fitting within the DSM 5 criteria which experts in Australia have not embraced, and we will watch with interest what happens in the United States.

Federal Magistrate Altobelli and I presented a workshop in which we explored whether and to what extent elements of the Less Adversarial Trial could be incorporated into a trial court with high volume workload. Interestingly it emerged that some international jurisdictions have incorporated a modified version of the Family Court’s process into their case management.

The Government’s 2010–11 Federal Budget announced in May has implications for both the Family Court and Federal Magistrates Court. Essentially, the operational funding provided to both Courts by the Government will reduce by $6.567m in 2010- 11. This reduction will be achieved primarily by savings from not replacing some judicial officers when they retire or resign and from the removal of depreciation funding from all Government agencies to increase transparency around the budget process as part of ’Operation Sunlight’. The Courts are examining ways in which savings can be achieved without impacting service delivery. It is something that I will be monitoring closely.

The Court has responded to the Australian Law Reform Commission’s consultation paper on family violence. In his speech on 17 May at the launch of National Law Week the Attorney-General flagged a number of initiatives in which the Courts will be involved so as usual, it appears that we will continue to have a busy time ahead in the next few months.


Judgments of interest
MRR v GR [2010] HCA 4 (French CJ, Gummow, Hayne, Kiefel and Bell JJ), 3 March 2010
The parties lived in the matrimonial home in Sydney from 1993 until they separated in 2007 when they moved to Mount Isa where the father had secured work. In August 2007 the parties separated and the mother returned to Sydney with the child without the father’s consent.

Proceedings were commenced in the Federal Magistrates Court which resulted in interim orders being made providing that the mother return to Mount Isa with the child and the parties have an equal time parenting arrangement pursuant to s 65DAA(1) of the Family Law Act 1975 (Cth).

From the time the mother returned to Mount Isa to the date of the hearing, the mother had been required to live in a caravan park with the child on alternate weeks. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in ‘rough’ areas. The mother had limited opportunities for employment in Mount Isa and supported herself from social security payments and income from casual employment. In contrast, the mother had full time employment opportunities with her former employer in Sydney.

The Federal Magistrate said that he applied the presumption of equal shared parental responsibility and considered that it would not be beneficial to the child if the parents lived ‘thousands of kilometres apart’. The mother appealed to the Full Court of the Family Court of Australia. That appeal was dismissed on the basis that the Federal Magistrate adequately considered the reasonable practicability of an equal time arrangement and thus no appealable error arose.

The mother lodged an application for special leave to appeal against the Full Court’s decision to the High Court of Australia and special leave was duly granted.

In allowing the appeal, the High Court found that the Court is only empowered to make an order that a child spend equal time with both parents if such an order is found to be both in the best interests of the child and reasonably practicable. While the Full Court of the Family Court acknowledged that the Federal Magistrate ‘did not expressly address the issue of whether an equal time arrangement would be ‘reasonably practicable’’, the Full Court found that the Federal Magistrate considered, at some length, the matters under s 60CC in determining what arrangements are in the child’s best interest. The High Court disagreed with this approach and found that in applying s 65DAA(1), the Court must be satisfied that both of the conditions are answered in the affirmative before making an order for equal time. The High Court said:

Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).

It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The High Court took the matter further proclaiming that in the absence of an affirmative answer to whether an equal time arrangement would be reasonably practicable, there is no power to make an order for equal time parenting.

Collu & Rinaldo [2010] FamCAFC 53 (May, O’Ryan and Strickland JJ), 25 March 2010
This international relocation case involved a child who was aged four years at the date of the appeal. It is the first Full Court decision to be handed down following on from the High Court’s decision in MRR & GR.

The parties met in 2002 and commenced a relationship in 2003. The only child of the relationship was born in 2005. The parties resided in Sydney for the majority of their relationship before the mother relocated with the child to Dubai in March 2007 with the father’s consent. The parties’ agreement was that the mother would live in Dubai for a period of 13 months.

Before the 13 month period had elapsed, the mother sought an order that she be permitted to remain in Dubai for a period of approximately two years. This application was pursued at trial with an alternative proposal that the mother and child relocate to North Queensland and for the child to spend three months with the father in Sydney.

Prior to the appeal the arrangement in place for the child was that he live with each parent on a month about basis in Dubai and Sydney. The Full Court criticised that arrangement as being unsatisfactory.

In light of the recent High Court decision in MRR v GR [2010] HCA 4, their Honours provided the parties with an opportunity to make further submissions.

The mother’s complaints were summarised into three broad areas:

  1. the mother’s attitude to the relationship of the child and father and her capacity to provide for the emotional needs of the child
  2. the trial Judge failing to adequately assess and weigh up all of the relevant considerations regarding the best interests of the child, and
  3. the trial Judge failing to adequately deal with the statutory considerations for considering whether the child should spend equal or substantial and significant time with each parent.

On the first issue the Full Court found that the trial Judge erred in relation to the various matters that she took into account in forming her view about the mother and further did not consider, weigh and assess the evidence regarding the best interests of the child. On the issue of equal time, the Full Court found that the trial Judge was obliged to undertake what the High Court in MRR v GR (supra) described as a ‘practical assessment’ of whether equal time or substantial and significant time was ‘feasible’. The appeal was subsequently allowed and remitted to for redetermination.

Kostres & Kostres [2009] FamCAFC 222 (Bryant CJ, Boland and Jordan JJ), 15 December 2009
This appeal is concerned with the interpretation of a financial agreement.

Two days before their marriage in January 2002, the parties executed a financial agreement in order to regulate their financial affairs.

Without repeating the actual terms of the agreement, it is sufficient to note that the parties’ intention was to isolate their pre-existing assets and that all other assets which were obtained during the marriage be shared mutually between them.

Throughout the ensuing years of their marriage, the parties acquired a number of businesses and properties, either in the wife’s name or in her capacity as trustee. The assets were largely funded by way of loans. On the advice of an accountant a discretionary trust deed was settled with the wife being appointed sole trustee and primary beneficiaries consisting of the children from the parties’ former marriages.

In June 2006, by which time the parties’ marriage had broken down, the husband commenced proceedings in the Federal Magistrates Court seeking orders that the wife pay him an amount representing one half of the net value of assets acquired during the marriage. The wife agreed with the proposition put forward by the husband save for her submission that the business was in her name and therefore should be treated separately.

The Federal Magistrate found that the real property acquired by the trust was to remain the wife’s property, however the goodwill of the business was a joint asset and should be shared equally between the parties.

The husband appealed to the Full Court of the Family Court of Australia and the wife cross appealed.

The Full Court allowed the appeal finding that the financial agreement was so ambiguous that it made the parties’ intention impossible to discern. Their Honours concluded that ‘care in establishing the mutual intention of the parties, and drafting the terms of the financial agreement with precision assume the utmost importance’. It is also relevant to note that the Government’s attempt to remedy the strict compliance test enunciated in Black & Black [2008] FamCAFC 7 did not apply in this case as it was agreed that no defect in form of the financial agreement was alleged.


Commonwealth Courts Portal and eFiling
Commonwealth Courts Portal (www.comcourts.gov.au)
As of 1 June 2010, there were over 1100 firms registered and over 20 000 registered individual users.

eFiling – Applications for Divorce
eFiling of Applications for Divorce through the Commonwealth Courts Portal was introduced at the end of September 2009. Approximately 500 divorces are now being eFiled each month.

eFiling – Supplementary documents
eFiling of supplementary documents has been in place since August 2008. Since then, over 14 000 supplementary documents have been eFiled.

XML Uploader
An XML Uploader has been released for divorces. This means that law firms can upload an application created in their back office system direct to the Portal without having to re-key the data into our eform.

Direct Debit payments
A Direct Debit facility has been created for law firms who do not wish to use credit card payments.

Family Court of Western Australia
Family Court of Western Australia eFiling of applications for divorce went live on 27 March 2010 and 58 applications have been eFiled to date.

Divorce locking
The eFiling process was modified in May 2010 so that a signed scanned copy of the Affidavit of Applicants (eFiling) must be uploaded before the fee can be paid and a hearing date selected. This was done to resolve the compliance problems experienced due to non-filing of the Affidavit.

New starred files system to replace bookmarked files
An enhancement to replace the older style Bookmarking system with a more modern

system of Starred Files was implemented in the last release. Bookmarks have been replaced by stars. If you want to follow particular files, activate the white star by clicking it. All starred files can be seen under the Starred tab in your Available Files. To make an orange star inactive, click the star again and it will turn white. Any existing bookmarks have been converted to stars.

Initiating Application
Work is still progressing on introducing eFiling of the Initiating Application. Implementation remains planned for the third quarter of 2010.

The Commonwealth Courts Portal Steering Committee is currently reviewing development priorities including some major enhancements for the next 12 months.

Users prefer after-hours access
Many portal users are ‘night owls’ making the portal’s 24 hour accessibility very important. The following table shows the number of portal pages being accessed throughout the evening and night during April 2010:

6pm to 10pm               32 327 pages loaded
10pm to midnight        41 738 pages loaded
Midnight to 8am           18 026 pages loaded


Initiatives and Programs
Translated information reviewed
The Courts have recently reviewed the publications in languages other than English to incorporate rule amendments and changes to court services.

The Courts currently have 11 publications translated into ten different languages. The translated fact sheets are summaries of the full English version with simplified information written in question and answer format. This is the preferred format for translated information as some legal terms and court processes do not translate well into other languages.

The provision of translated information is essential to support access to justice for clients with English as a second language.

Translated information is available online at www.familylawcourt.gov.au>Services for culturally and linguistically diverse people.

Publications

 Languages

Indigenous clients and the Family Law Courts
The Courts have developed new Indigenous information products for clients and staff to further meet the needs of Indigenous clients involved in family law proceedings.

These information packages were developed in consultation with the Indigenous Working Group, who is also developing a Reconciliation Action Plan identifying the steps the Courts will take to build better relationships with Indigenous Australians. A research project is also underway, which will investigate the impact of the shift in the provision of services to Indigenous clients previously provided by the Court’s Indigenous Family Liaison Officers to Family Relationship Centres.

The Indigenous Working Group (consisting of Justice Benjamin, Federal Magistrate Donald, and Leisha Lister - Executive Advisor to the Chief Executive Officer) is also considering how to manage applications of parenting orders concerning residence, contact and specific issues as a result of traditional and customary adoption practices by Torres Strait Islanders.

A new client brochure ‘Indigenous Families and the Family Law Courts’ is available at family law registries and can also be downloaded from www.familylawcourts.gov.au


My Beautiful World
Children’s Art Competition
The Family Law Courts’ Children’s Art Competition ran from May to June this year, with the winners announced during the last week of June. The competition was a great success, with over 150 entries received from all over Australia.

There were 10 winners who each received a personally engraved MP3 player, with 13 entrants receiving a Highly Commended certificate.


NEW publications
Service Charter
The Service Charters for the Family Court and the Federal Magistrates Court have been amalgamated into one document. This document is available on the Courts’ websites at:

Service Commitments
The Service Commitments document is a summary of the Service Charter and has been developed for display at registries and for distribution to clients.

For more information about either document, please contact Family Law Courts National Communication on:

Interesting web facts
www.familylawcourts.gov.au
In 2009–10 the Family Law Courts website was visited 766 120 times. Of these,
518 714 were visiting the website for the first time.

This is an increase from 2008-09 of 177 460 visitors and 120 630 first time visitors.

The top three most frequently viewed Family Law Courts web pages in May 2010 were:

The three most common search keywords on the Family Law Courts website were:

www.familycourt.gov.au
In 2009–10 the Family Court of Australia website was visited 892 360 times. Of these, 462 233 were visiting the website for the first time.

This represents an increase from 2008-09 of 153 674 visitors and 84 068 first time visitors.

The three most common search keywords on the Family Law Courts website were:

The three most common search keywords on the Family Court website were:

International Association of Women Judges’ Conference, Seoul, South Korea
During the week of 10 May 2010 over 400 women judges met in Seoul at the 10th International Association of Women Judges Conference.

Among the delegates were judges from Afghanistan, Haiti and Nepal. The Australian women judges arranged for sponsorship of two judges from Papua New Guinea and one judge from Timor Leste.

As a member of the association, Justice Boland was pleased to be able to attend the conference. All branches of the Australian judiciary were well represented led by her Honour Judge Sarah Bradley, the President of the Australian Association and the Honourable Justice Margaret Beazley of the New South Wales Court of Appeal who is a member of the executive board of the International Association. The Australian judges were honoured to be invited by the Australian Ambassador to South and North Korea, Mr Sam Gerovich, to lunch with him during the conference.

The International Association of Women Judges (IAWJ) is a non-profit, non-partisan organisation of more than 4000 members at all levels of the judiciary in more than 90 nations. Since being formed in 1991, the IAWJ has attracted membership by women judges from diverse legal-judicial systems who share a commitment to equal justice under the rule of law. The Australian branch of the association was formed in 1992 at the instigation of Justice Jane Matthews and the former Chief Justice of the Family Court, the Honourable Elizabeth Evatt. Justice Boland was on the organising committee when the 8th IAWJ conference was held in Sydney four years ago. Chief Justice Bryant has recently agreed to be the representative of the Federal Courts for the Australian association.

‘It is a very humbling experience to hear of the work being carried out by members of the IAWJ in extraordinarily difficult conditions. The Haitian judges told us of the destruction of their Court, the death of two of their Judges, and their struggle to maintain the rule of law following the devastating earthquake. It was inspiring to learn of the achievements one judge in California had brought about with almost no resources when she was placed in charge of guardianship matters. Her work has led to the establishment of an Elder Law Centre, social support for the disabled including those suffering with dementia and an effective and compassionate court process’ Justice Boland said.

Significant papers dealing with matters as diverse as reproductive technology law in Italy, judicial participation on the International Criminal Court and a transforming decision of the Delhi High Court dealing with the rights of gay and homosexual persons were covered in the conference.

The next conference will be held in London in 2012 under the auspices of the new president of the association Lady Brenda Hale of the U.K. Supreme Court.

Court fees up from 1 July 2010
The Courts have received notification of the biennial increase of the prescribed Family Court and Federal Magistrate Court fees from the Attorney-General’s Department.

The new fee schedule applies from 1 July 2010.
Information about the new fees is available on www.familylawcourts.gov.au


Executive Appointment
Mr Richard Foster
Richard Foster has been re-appointed as the Family Court’s Chief Executive Officer. Richard’s contract has been extended for a further five years.


Vale
George Ernest Lambert
The Honourable George Ernest Lambert, retired Justice of the Family Court of Australia, passed away peacefully on 26 March 2010. The Court offers its condolences to George’s family and friends.


Retirements
Justice Warnick
Justice Warnick resigned his commission as a judge of the Family Court on 31 March 2010. Justice Warnick was appointed to the Family Court on 2 September 1991, having been a member of the bar prior to his appointment. On 12 December 2002, he was appointed to the Appeal Division. His Honour’s contribution to the jurisprudence of the court was significant particularly during the post-2006 amendments.

Justice Brown
Justice Brown resigned her commission as a judge of the Family Court on 2 June 2010. Justice Brown was a judge of the Family Court for over 16 years. For many years undertook responsibility for the administrative functions for the Southern Region of the Court and through the Chief Justice’s Consultative Committee for the wider administration of the Court. Justice Brown is widely respected both inside and outside the Court for her prodigious work ethic, her sound judgment and support of the Court, particularly the Melbourne Registry.

Justice Waddy RFD
Justice Waddy resigned his commission as a judge of the Family Court on 17 December 2009. Justice Waddy was educated at the King’s School in Parramatta on a scholarship. He completed a Bachelor of Laws at the University of Sydney in 1962 and became an associate to his Honour Nagle J of the New South Wales Supreme Court in 1963. Following admission to the New South Wales Bar in the same year, Justice Waddy practised as a barrister-at-law, becoming Queen’s Counsel in 1988. After a long and successful career at the bar, he was appointed to the bench of the Family Court in July 1998. His colleagues will remember his unfailing judicial courtroom conduct, his dignity and unwavering courtesy in the courtroom.

Justice Jordan
Justice Jordan retired on 31 December 2009 after 15 years as a judge of the Family Court. Justice Jordan completed a Bachelor of Law at the University of Queensland and enjoyed 21 years working in law before he was sworn in as a judge of the Court in 1994.

Justice Flohm
Justice Flohm retired on 29 April 2010, after almost 11 years as a judge of the Family Court at Parramatta. During this period her honour served for five years as the first Magellan judge of NSW, as well as six years as the Parramatta case management judge. On leaving school Justice Flohm continued with classical ballet studies before heading to Europe where she worked in the fashion industry for several years, as an executive director of a lifestyle magazine and as an assistant TV film producer. Her honour completed a Bachelor of Arts in 1978 and Bachelor of Laws in 1981 and was admitted to practice as a Barrister of the Supreme Court of NSW in 1982, enjoying 17 years working in law before being sworn in as a judge of the Court in 1999.


Further Information
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 8711
E communication@familylawcourts.gov.au

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