10 Things You Need
To Know In Family Law
Editors:
Lydia Lucs BComm LLB
and Sherika Ponniah BA LLB
Issue 11●19 October 2015 www.wolterskluwer.cch.com.au
Contents
Interim report on family law
10 THINGS YOU NEED TO KNOW IN
and child protectionreleased ... 1
FAMILY LAW
Family law fee hike appeal ...2 Amendment to Family Law
1. Interim report on family law and child
Regulations 1984 ...2
protection released
Recent cases — family law ...2 Attorney-General George Brandis has released the interim No reinstatement of appeal ...4 report of the Family Law Council on ‘‘Families with Indemnity costs ordered ...4 Complex Needs and the Intersection of the Family Law and
Revocation of Family Court
Child Protection Systems’’. Practice Directions ...5 The report was commissioned by the Attorney-General last Jurisdiction of FCC tested ...5 year to provide a response to concerns about the federal Restriction on publication
and security for costs ...5 family law system’s interaction with state-based child
protection and family violence systems. Chief Justice calls for
funding ...6 The report addresses the need for a more streamlined and
integrated approach to the two areas to ensure the safety of children and families.
The full report of the Family Law Council will be available in June 2016. The interim report can be accessed at www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/ Pages/FamilyLawCouncilpublishedreports.aspx.
Source: Press release of the Hon George Brandis QC, 21 August 2015.
The regulation and Explanatory Statement
2. Family law fee hike appeal
can be viewed at www.comlaw.gov.au/Details/ An appeal has been lodged against the F2015L01426.
Federal Court of Australia’s decision which
4. Recent cases — family law
ruled that the Attorney-General did not
breach the Legislative Instruments Act 2003 in The following case summaries were written making a regulation which allowed a family by the Hon Peter I Rose AM QC.
law fee increase.
Hall & Hall [2015] FamCAFC 154
The increase was disallowed by the Senate in Applications were made for leave to appeal June 2015 and the Attorney-General from interim spouse maintenance and followed the Senate disallowance by property settlement orders and further, to remaking a very similar regulation in July adduce fresh evidence on appeal. A lengthy 2015. The new regulation allowed the judgment was given due to the large family law fee increase. During the winter number of issues raised. They were
parliamentary break, litigants had to pay the determined on the facts peculiar to the case. higher fee until the Senate again disallowed No review of principle was required. the regulation which allowed the increase on
Suskain & Materanzi [2015] FamCAFC
11 August 2015.
153
Due to the judgment of the Federal Court of This was an appeal from parenting orders. Australia, families who paid the higher fees The appeal was dismissed with costs. The during this period will not be reimbursed. court held that there was no merit in the Current family law fees can be found on the appeal.
Family Court of Australia’s website at
Riley & Riley [2015] FamCAFC 152
www.familycourt.gov.au/wps/wcm/connect/
fcoaweb/forms-and-fees/fees-and-costs/fees/family- Application was made for leave to appeal
law-fees. out of time. The application was dismissed
with costs. The court held that the Source: Press release of Graham Perrett MP, 27
application lacked substance for reasons August 2015.
peculiar to the case.
3. Amendment to Family Law
Medlon & Medlon (No 5) [2015]Regulations 1984
FamCAFC 156Applications were made for reinstatement of The Family Law Regulations 1984 has been
an appeal; that a notice of appeal be struck amended by the Family Law Amendment
out; adjournment and indemnity costs. The (Publication of Court Proceedings)
applications were dismissed. This is a Regulation 2015 to require state and
further judgment given in multi-facetted territory authorities with child welfare
litigation between the parties. The responsibilities to be prescribed.
judgment determines the applications by The amended regulations will give effect to established principles.
the new s 121(9)(aa) of the Family Law Act
Elgin & Elgin [2015] FamCAFC 155
1975 which excludes ‘‘the communication
of any pleading, transcript of evidence or In these proceedings, application for leave to other document to authorities of States and appeal had been filed in respect of the trial Territories that have responsibilities relating judge’s refusal to adjourn the trial. In to the welfare of children and are prescribed addition, an appeal was heard in relation to by the regulations for the purposes of this property settlement orders made. The paragraph’’ to be affected by a s 121 application was dismissed and the appeal Restriction on Publication Order. was allowed in part.
A lengthy judgment was given principally Ultimately, it held that there was no merit due to the myriad of factual matters raised, in the appeal.
review of the transcript and extensive Hearne & Hearne [2015] FamCAFC 178 submissions made. Otherwise, established
In this appeal, application was made for an principles were applied.
adjournment of the hearing of the appeal
Horleck & Horleck and Ors [2015]
from property settlement orders. The
FamCAFC 165
application and the appeal were dismissed. Appeals were heard against refusal of a stay The judgment applied established principles of proceedings and property settlement to the facts peculiar to the case. The grounds orders. The appeals were dismissed. The of appeal were found to lack merit.
lengthy judgment of the court was due to Davint & Malburon [2015] FamCAFC the long history of litigation and the 176
numerous grounds of appeal rather than a
This was an appeal from an order summarily consideration of legal principles.
dismissing a contravention application. The
Brindle & Otto [2015] FamCAFC 164
appeal was allowed in part. The judgment This was an appeal from parenting orders applied established principles to the narrow and a mandatory injunction requiring the relevant facts in the case.
appellant to return with the children from Crampton & Robinson [2015] FamCAFC Melbourne to Sydney. The appeal was 175
allowed. Costs certificates were granted. A
This was an appeal from property settlement relatively short judgment was given. The
orders. The appeal was dismissed. In a brief appeal was allowed primarily due to the trial
judgment, the court inferentially held that judge having overlooked material evidence.
the appeal lacked merit.
Jarrah & Fadel (Disqualification) [2015]
Ziotnik & Gerasimov [2015] FamCAFC FamCAFC 163
174
Application was made for the
Application was made for expedition of the disqualification of a member of the Full
appeal. The application was dismissed. In a Court. The application was dismissed. The
brief ex tempore judgment, the court judgment, having traversed the relevant
applied established principles to the facts facts, inferentially held that the application
peculiar to the case. lacked merit. Established principle was
applied. Segers & Tacason (No 2) [2015]
FamCAFC 173
Sasko & Radavich [2015] FamCAFC 162
This was an appeal from interim parenting Application was made for expedition of the
orders and an application to adduce further appeal from parenting orders. The
evidence. The application and appeal were application was dismissed. In a brief
dismissed with costs. In its judgment, the judgment, the court dismissed the
court applied established principles to the application on a summary of the facts which
facts peculiar to the case. did not attract sufficient weight.
Singerson & Joans [2015] FamCAFC 172
Jarrah & Fadel (No 2) [2015] FamCAFC
161 This was an appeal and cross-appeal from
This was an appeal from orders made property settlement orders. At the following an undefended trial. The appeal conclusion of the hearing, written
was dismissed with costs. In its judgment, submissions were ordered in relation to the the court traversed the lengthy chronology superannuation interests of the parties. The of the litigation and salient facts. appeal and cross-appeal were allowed. In a
brief judgment, a superannuation splitting applied established principles to the narrow order was made having regard to the facts issues.
peculiar to the case. Jess and Ors & Jess and Ors (Costs) [2015]
FamCAFC 184
Toohey & Egbert [2015] FamCAFC 171
Application was made by the respondent for This was an appeal from parenting orders.
an order for indemnity costs following The appeal was dismissed with costs. In its
dismissal of the appeal. An order was made judgment, the court applied established
for party–party costs. The court in its principles to the facts peculiar to the case
judgment applied established principles in and held that the appeal lacked merit.
determining the narrow issues before it.
Stativa & Stativa [2015] FamCAFC 170
Bangi & Belov [2015] FamCAFC 183
This was an appeal from parenting orders
Application was made for expedition of the and an application for its summary
appeal. Application was dismissed. In its ex dismissal. The appeal and application were
tempore judgment, the court applied dismissed with costs. The court, in its
established principles to the facts peculiar to judgment, applied established principles to
the case. the facts peculiar to the case. It held that the
grounds of appeal lacked substance.
5. No reinstatement of appeal
Gillard & Gillard [2015] FamCAFC 169 A father’s application to reinstate an appeal
relating to parenting orders has been This was an appeal from parenting orders
dismissed in Delamarre & Asprey (2015) FLC and an application to adduce further
¶93-663. evidence. The appeal and application were
dismissed with costs. This appeal principally The father submitted that the delay in filing raised the issue of weight given by the trial and serving his appeal books was caused by judge to the issues before him and the his former solicitors not releasing his file findings of fact made. The court applied following a dispute over costs. When the established principles in dismissing the dispute was resolved, the mother did not appeal and the application to adduce further consent to have the appeal reinstated. Nine evidence. weeks later, the father filed his application
for reinstatement.
Gilmour & Lennon [2015] FamCAFC 166
In dismissing the appeal, the Hon Ryan J This was an appeal from interim parenting
noted that although it would have been orders. The appeal was dismissed with costs.
difficult for the father to prepare the appeal The court in its judgment applied
books without his file, he could have established principles to the facts peculiar to
obtained copies from the court file and yet the case.
provided no explanation for not doing this.
Davint & Mulburon (No 2) [2015]
His Honour further noted that the father
FamCAFC 188
provided no explanation why it took him nine weeks to file the application to A directions hearing was held resulting in a
reinstate the appeal. pending contravention application being
remitted for rehearing by consent.
6. Indemnity costs ordered
Phillips & Hansford (Costs) [2015]
Indemnity costs have been ordered against a
FamCAFC 185
wife who brought an application in the Application was made by both parties for a appellate jurisdiction to have the husband’s costs order. The respondent was successful senior counsel and solicitor restrained from in part. The brief ex tempore judgment acting for the husband, in the case of Medlon
& Medlon (No 3) (Indemnity Costs) (2015) these orders saying that the judge did not FLC ¶93-664. have jurisdiction to make the orders. Strickland J detailed the principles which The Full Court analysed the jurisdiction of stemmed from Colgate-Palmolive Company v the FCC and found in the mother’s favour Cussons Pty Limited (1993) 118 ALR 248 and saying that:
Munday v Bowman (1997) FLC ¶92-784 and
● the orders were not made in the FCC’s relied on those principles in finding that the
implied powers so there would have to wife fell into the category of instigating
be a full reliance on legislation [26] proceedings that had no chance of success as
well as in making allegations that should ● there can only be one proceeding not have been made. between the parties at the same time in
Family Court and FCC at [31] Costs were ordered on an indemnity basis in
favour of the husband. ● the FCC is not a superior court of record at [36], and
7. Revocation of Family Court
● the orders were made in excess of the
Practice Directions
FCC’s jurisdiction at [34]. A Practice Direction (No 1 of 2015 —
As a result, the interim parenting orders Revocation of Directions Relevant to
were set aside. Appeals) has been issued by the Hon Diana
Bryant CJ to render inapplicable two
9. Restriction on publication and
previous Family Court of Australia Practicesecurity for costs
Directions (Practice Direction No 7 of 2004
and Practice Direction No 1 of 2002). The Full Court of the Family Court of Australia has decided a case where an Practice Direction No 7 of 2004
electronic book had been published on the consolidated matters relevant to appeals and
life of the child and the relationship the Family Law Rules 2004, and is no
between the father and mother. The author longer relevant. Practice Direction No 1 of
of the book was the second respondent in an 2002 related to court robes in the Australian
appeal by the mother. The mother appealed Capital Territory is no longer required.
orders which dismissed her application to CCH Australian Family Law Handbook will restrain the second respondent from be updated with the changes to Practice publishing the book.
Directions in the Family Court of Australia.
In the appeal, the second respondent made
8. Jurisdiction of FCC tested
an application for security for costs againstthe mother in the amount of $12,000: The Full Court of the Family Court of
Sullivan & Tyler and Anor (2015) FLC Australia has debated the nature of the
¶93-667. The Full Court made the order for Federal Circuit Court of Australia’s (FCC)
security for costs and also required an jurisdiction in the case of Janssen & Janssen
undertaking from the second respondent (2015) FLC ¶93-665.
that the book would not be published. In this case, orders were made by Scarlett J
of the FCC to transfer proceedings to the In deciding whether to make the order for Family Court. Three months later, Scarlett J security for costs, the court considered the made orders for interim parenting. The mother’s financial position and the likeliness orders were that the children would live of success of the appeal in ordering that the with the mother and the mother would have mother had to make payment of $12,000, or sole parental responsibility and that the else, the appeal would not proceed (subject father would have some supervised time to the second respondent filing an
Interestingly, the appellant mother then thanked the Prime Minister for its funding lodged an application for special leave to the package on addressing family violence but High Court of Australia and the Full Court said that ‘‘where we as a society are creating of the Family Court of Australia stayed these the tomorrow we want, the courts must face orders. The special leave application the today we have’’.
outcome is pending.
The Chief Justice sought funding for
10. Chief Justice calls for funding
supervised contact centres due to longwaiting lists, for an increased number of Chief Justice Diana Bryant has called for
family consultants to undertake risk funding for the family law courts so that
assessments, for the replacement of retired family violence can be addressed
judges, for services in rural and regional expeditiously.
areas and for more registrars for case Speaking at the Judicial Conference of management in interim hearings involving Australia’s colloquium held in Adelaide on family violence.
10 October 2015, Bryant CJ discussed
issues relating to domestic violence and the Source: Press Release of the Family Court of role that the court plays. The Chief Justice Australia, dated 10 October 2015.
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