Family lawyers are being asked how best to manage shared custody arrangements given that people are being encouraged to observe social distancing and isolation during the coronavirus outbreak. ABC news discusses this issue with family lawyers in their article here.
On 19 June 2019, in the decision in Masson v Parsons  HCA 21 the High Court of Australia upheld a decision of the Judge at first instance that a man who was actively involved in a child’s life and who was also her biological father was her “parent”.
- The case involved much constitutional law but ultimately the HCA concluded that the issue of who is a “parent” can be determined within the meaning of the Family Law Act.
- NSW state law and the Family Law Act did not mean that the biological father was irrefutably not a parent.
- Who is a parent is a question of fact and degree to be determined according to the normal contemporary understanding of the word and the relevant facts and circumstances at hand.
- Biology is but one fact, sometimes a very important fact – but it is not the only fact.
- In submissions from counsel for the father, it was asserted, and the HCA did not disagree, that a ‘parent’ signifies “a social relationship to another person” and includes factors like commitment to the child, biology, and conduct before and after birth.
- The decision opens up the real possibility of applications to the Family Court for declarations/orders from many parents previously thought to not be parents to their children are in law their parents.
- It’s possible that the federal or state parliament could change the definition of parents and presumptions could apply and such parents would not be required to bring applications to the Court.
- Alternatively, the state and federal governments may decide to leave the issue of parentage to the discretion of the Family Court which will necessitate case by case applications to the Court.
- Masson was argued in the context of NSW and Federal Law in circumstances where federal law determined de facto relationships and parental declarations. The situation in WA is different in that there is a state act- The Family Court Act. This may not be a significant matter- time will tell.
A family law case has been sharply criticised by Family Court appeal judges after a Brisbane judge sentenced a father of two to jail for contempt of court.
ABC News reports that last December, a Brisbane-based Judge sentenced a man involved in a property dispute with his ex-wife to a maximum 12 months in jail for failing to disclose financial documents on time. However a ruling handed down earlier in February by the Full Court of the Family Court overruled the Judge’s decision, declaring they were comfortably satisfied that “what occurred here in the making of the declaration and order for the husband’s imprisonment constituted a gross miscarriage of justice”.
In the 13 December 2018 decision in Commissioner of Taxation v Tomaras  HCA 62 the High Court of Australia held that the Family Court has the power to order the Commissioner for Taxation to substitute one party to a marriage for the other in relation to a debt owed to Commonwealth for income tax.
However, this is not an order the Family court is likely to make frequently.
A few things worth knowing about the decision
- Whilst the Family Court has the power to make a substitution order pursuant to s 90AE(1) of the Family Law Act 1975 (Cth) the power should not be exercised unless specific conditions are met.
- To exercise the power the Family Court must be satisfied that:
- The making of the order is reasonably appropriate and adapted, to effect a division of property between the parties to the marriage;
- It is not foreseeable at the time the order is made that to make the order would result in the result in the debt not being paid in full; and
- In all the circumstances it is just and equitable (fair) to make the order.
- Whilst this represents a significant shift, the conditions outlined in the decision are onerous.
- The decision is not likely to be a mechanism for non-payment of taxation debt.
1. WHAT DOES IT MEAN?
Soon de facto couples, like married couples will be able to split their superannuation after separation.
2. DOES THIS MEAN DE FACTO COUPLES MUST SPLIT THEIR SUPER 50/50?
No. it simply means that if one party may use part or all of their super to pay the other party out as part of a financial settlement. If there are other assets like a house or cash, a super split may not be necessary. The new legislation simply allows parties more flexibility in structuring a settlement.
3. DOES THE NEW LAW APPLY TO EXISTING SETTLEMENTS?
The Commonwealth Attorney- General’s media release of 24 October 2018 states that the legislation will be introduced in 2019 and super splitting to occur in 2020. Whilst we cannot rule out super-splitting occurring on existing cases, based on previous legislative changes we doubt existing cases would be included in the new regime.
4. DOES THIS MEAN I CAN GET ACCESS TO SUPER NOW AS PART OF MY SETTLEMENT?
Not unless you are already eligible. All this means is that a portion of one person’s super is transferred to the other person. The same rules re age apply.
5. IS THE NEW LEGISLATION A BIG DEAL?
For some people yes. Where the only major asset was super then undoubtedly some de facto partners suffered. However, in deciding whether settlements are “just and equitable” the Family court of WA always considers the percentage split including super. However, moving forward de facto couples will have the same flexibility that married couples have and that’s a good thing.
On the 25th of November 2015, The Australian Bureau of Statistics released data for Separation and Divorce for the last year (2014). They indicated that 4518 applications for divorce were granted in Western Australia. This was a significant (14.2%) decrease on the previous years figure of 5268 and the largest decline of all states and territories in Australia, with all recording decreases except one (Victoria).
The divorce statistics for Western Australia provided include the average divorce age, which for males was 45.7 years and for females it was 42.9 years of age.
2100 divorce applications were joint, while 1307 were female and the remaining 1111 were male.
The length of a marriage before Separation and Divorce
The median length of a marriage before separation in 2014 was 8.8 years, and to divorce it was 12.4 years.
Divorces involving children
The percentage number of divorces that affected children in Western Australia for 2014 was 48%.
In Australia in 2014 there were 46,498 divorces granted. This was a decrease of 1,140 (2.4%) from the 47,638 divorces granted in the previous year.
Throughout Australia in 2014, the highest proportion of divorces granted were for people aged 40-44 years (16.4% of males and 17.5% of females).
The median age of males divorcing was 45.2 years and 42.5 years for females, which continues to increase as it has for the past 20 years.
Applications for Divorce
Over the last 20 years, the proportion of applications by one applicant continued to decrease, while the proportion of joint applications for divorce has been increasing. The proportion of joint applications in 2014 remains the highest applicant type at 41.5% of all applications.
Visit the Australian Bureau of Statistics for further information on divorce in Western Australia and other states throughout Australia.
The Australian Bureau of Statistics released the latest data for Separation and Divorce late last year. This data consisted of 2013 figures and show that 5268 applications for divorce in Western Australia were granted. This was an increase on the previous years figure of 5073 and went against every other state and territory in Australia, as they all recorded decreases.
Other divorce statistics highlighted included the average divorce age, which for males was 45.5 years, and for females it was 42.8 years of age.
2473 of these applications were joint, while 1491 were female and the remaining 1304 were male.
The average length of a marriage before Separation and Divorce
In 2013, the average length of a marriage before separation was 8.6 years, and to divorce was 12.4 years.
Divorces involving children
The percentage number of divorces that affected children in Western Australia is 47%.
Throughout Australia in 2013, the highest proportion of divorces granted was to people 40-44 years of age.
The median age of males at divorce was 44.8 years and 42.2 years for females, whilst the median age at marriage for those divorcing in 2013 was 28.6 years for males and 26.2 years for females. The median age at separation for those granted a divorce was 41.3 years for males and 38.7 years for females.
Applications for Divorce
Over the last 20 years, the proportion of joint applications for divorce has been increasing, while the proportion of applications by one applicant has continued to decrease. The number of joint applications in 2010 outnumbered male applications and female applications for the first time. The proportion of joint applications continued to increase in 2013 and remains the highest applicant type at 41.2% of all applications.
You can view all the statistics on divorce in Western Australia and other states here
ABC Radio National’s Law Report discussed an interesting Shared Parenting issue on it’s program last Tuesday 1st July 2014. Children under four spending time away for the primary carer is a strongly debated issue. The program looks at what Australian research actually says and how is it being used in the Family Court. You can listen to the audio or read the transcript here.
Shared Parenting – Family Court processes
Social science research plays a big role in Shared Parenting disputes, and it also has an influence in generating the public’s understanding. Bearing this in mind, it is always prudent to obtain the advice of a lawyer practising exclusively in the area of Family Law, such as Kavanagh Family Lawyers. Read more about how we can help you with shared parenting.
The Western Australian Government is examining key recommendations from a Law Reform Commission report which includes separating family and domestic violence orders from the existing Restraining Orders Act. The report recommends treating it as a criminal offence under the Criminal Code and creating clearer definitions of what constitutes domestic violence. An article, appearing on the West Australian website on June 25th, reports that as well as considering this recommendation, it also wants Cyber-stalking to be included in the legal definition of domestic violence.
Violence Restraining Orders – domestic violence orders
Whether you need to apply for the restraining order and are seeking to be protected, have orders made against you, or are charged with a breach, Kavanagh Family Lawyers can help.
Call Kavanagh Lawyers on (08) 6557 5888.