Surname change to hyphenation for young child
Surname change to hyphenation for young child
PORRITT & DUNFORD
Surname change – The law
- I now turn to the law.
- As noted by the Full Court in Lysons & Lysons (2019) FamCAFC 29 at 22 “it is entirely correct to say that orders as to a child’s name are parenting orders within the meaning of section 64B and therefore must be made in the child’s best interest, taking into account the conditions raised by section 60CC (Reynolds & Sherman(2016) FamCAFC 240 at [7] to [15])”.
- The Full Court in Chapman & Palmer (1978) FLC 905-10 sets out a number of criteria which the court must look at in determining whether there should be a change of name:
- The welfare of the child is a paramount consideration.
- The short and long-term effect of any change in the child’s name.
- Any confusion of identity which may arise for the child if the name is or is not changed.
- Any embarrassment likely to be experienced by the child of the name if the name is different from the parent who has the primary care.
- The effect, which any change in surname may have on the relationship between the child and the parent whose name the child bears.
- The effect of frequent or random changes of name.
- Connor J of the Family Court Western Australia in Beach & Semmler (1979) FCWA 1 referred to additional matters relevant to a change of a child’s name:
- The short and long-term advantages to the child of no change of name.
- Extent of contact with the father (past and future).
- Extent to which the child identifies with the father.
- Extent to which the child identifies with the mother.
- Foster J in Reagan & Orton (2016) FamCA 330 (a case supported in Lysons) at [34] said “the factors frequently considered in determining whether there should be any change to a child’s name include:
- Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control.
- Any confusion of identity which may arise for the child if his or her name is changed or not changed.
- The effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship.
- The effect of frequent or random changes of name.
- The contact any non-custodial parent has had and is likely to have in the future with the child.
- The degree of identification that the child or children have with their non-custodial parent.
- The degree of identification the child or children have with the parent with whom they live”
- In Fooks (1993) FamCA 117, Warnick J held that the children’s best interest stood above the parents’ wishes.
- In Mahony & McKenzie (1993) FamCA 78 a hyphenated name for the child has been approved as a compromise.
- In Giessruf & Giessruf (2004) FamCA 848 where during the marriage the children were known by the surname “Giessruf” and after separation, the wife applied to have their names changed to Jones-Giessruf to include her maiden name, Murray J said:-
- “The wife is not choosing to change the name of the child to something alien either to her or to her husband. She seeks to have her maiden name hyphenated with that of her husband. The wife does not seek to diminish the husband’s importance in the life of the child” ([7]).
- “I pointed out to the husband that it was very common procedure these days for some children to take the surname of both parents, perhaps as a symbol of equality between the genders, perhaps to give equal paramountcy to the role of each parent. I see no detriment to the children having that take place in these circumstances” ([8]).
Should there be a change to child’s surname?
- I find having considered the evidence and the submissions that it is in the child’s best interests for the child’s surname to be changed forthwith from “[X] Porritt” to “[X] Porritt-Dunford”.
- I make this finding based on the following:
- [X]’s birth was because of a planned pregnancy involving IVF, when the parties were in a committed, loving de facto relationship.
- The father’s surname “Porritt” was chosen and registered for [X] as her surname by the parties at a time when the parties remained in that committed relationship.
- Upon separation, the mother, when [X] was not yet 3 years of age, made the father aware of her want for the child to share both surnames, a suggestion which was not agreeable to the father.
- [X] has a diverse cultural heritage, Country E, on the father’s side; Country D on the stepmother’s side and Country B-Country D on the mother’s side. The inclusion of the mother’s surname as hyphenated in the child’s surname will reflect this extensive cultural diversity.
- Although [X]’s primary attachment is to the mother, [X] has a strong, loving relationship with the father and his extended paternal family, with time increasing to a shared care arrangement, whereby the father will shortly be spending six nights a fortnight with the child. A change of name will not in any way affect that relationship, nor will it take away from the relationship.
- [X], only having just commenced prep at school, is a very young child, whereby it is unlikely that her last name holds any overwhelming significance, either by way of identity or embarrassment for the child.
- With both parents and their different cultural heritage being actively involved in [X]’s life on a day-to-day basis, it would be beneficial for the child at this young age to have reference to both of her parents’ names in her own surname and for that change to occur now.
- This will provide [X] with a sense of identity to her father, in continuing to carry the surname of “Porritt” as the first part of the hyphenated name, and a sense of identity in now having the mother’s surname of “Dunford” as the second part of the hyphenated name.
- This will avoid any potential confusion of her stepmother, known as Ms F Porritt, being mistaken as her biological mother, especially as the child refers to both mothers as mummy, although steps are being taken to ensure that [X] calls Ms F “Mummy Ms F”.
- The father’s surname of “Porritt” as the first part of the hyphenated surname of Porritt-Dunford will make the transition to a hyphenated name easier for the child to grasp and will alleviate the fears held by the father that his surname may be dropped off if the child shortens the surname.
- Hyphenated last surnames are not unusual.
- With modern technology, the concerns raised by the father as to the use of such a hyphenated surname on the internet or in social media are not founded.
- Like any child learning their names, [X] will over time learn her surname, how to say it, how to spell it, where it will become second nature to be known as [X] Porritt-Dunford.
- The mother has not repartnered and the absence of any evidence before the court to support that the mother may in the future change her maiden name, this is not an issue that need be considered.
- Whilst a change of name will require the issue of a new birth certificate and a change to passports, medical records and schooling records, this is only of minor inconvenience and not a valid reason as to why a change of name should not occur.
- As [X] does not have any other siblings in either household, a change of surname will not cause her confusion in that regard.
- I therefore find that a change of surname in the short term, whilst posing some inconvenience to the parties, will not have a lasting negative impact on the child.
- I therefore find that a change of surname to include the mother’s surname will have a positive long-term impact on the child, as it will provide the child with links to her diversified heritage and identity with both her mother and father, without taking away the importance of the sole surname of “Porritt”, which the child has experienced for the first five years of her life.
SUNSHINE COAST / BRISBANE / GOLD COAST
ALL STATES AUSTRALIA FAMILY LAW
Books for children dealing with separation and divorce
Books for children dealing with separation and divorce
- ‘It’s Just Different Now’
Espie, Linda
Spectrum Publications, Richmond 1999
– For children aged 3-7 years - ‘Mom’s House, Dad’s House: A Complete Guide for Parents who are Separated, Divorced or Remarried’
Ricci, Isolina
Fireside Books/Simon & Schuster,
New York, 1997 - ‘Two of Everything’
Cole, Babette
Jonathan Cape, London, 1997
– For children aged 5-12 years - ‘Dad’s Place : A Guide for Fathers After Divorce’
Burrett, Jill
Angus & Robertson, Sydney NSW 1996 - ‘I have Two Dads’
Wilson, Lorraine
Illustrated by Chantal Stewart. CIS Cardigan
Street, Carlton, Victoria 1995
For children - ‘The Suitcase Kid’
Wilson, Jacqueline
Illustrated by Nick Sharatt. Yearling
Books/Doubleday, London, 1993
For children - ‘To and Fro Children – A Guide to Successful Parenting after Divorce’
Burrett, Jill
Allen and Unwin North Sydney 1991 - ‘At Daddy’s on Saturdays’
Girard, Linda Walvoorol
Albert Whitman 1987 - ‘Break-up’
Padoan, G. – Milan, Italy
Happy Books 1987 - ‘Dinosaurs Divorce’
Brown, L and Brown M
Little, Brown 1986
– For children up to 10 years - ‘Jason Goes to Stay with Dad’
Liddicut, J. – Richmond, Vic
Ossie Books, 1986 - ‘When Jason’s Dad Moved Away’
Liddicut, J. – Richmond, Vic
Ossie Books, 1986 - ‘Daddy Doesn’t Live Here Anymore’
Boesehold, B. – New York
Western Publishing Co. Inc., 1985 - ‘Megan’s Book of Divorce’
Jong, E – London
Granada, 1985 - ‘What Kind of Family is This?’
Sevling, B – New York
Western Publishing Co. Inc., 1985 - ‘High Pavement Blues’
Ashley, B. – Harmondsworth & Middlesex
Puffin Books, 1984 - ‘Mom and Dad Don’t Live Together Anymore’
Stinson, Kathy
Annick Press, 1984 - ‘Breaking Up’
Willkott, F. – London
William Collins Sons & Co. Ltd, 1983 - ‘What am I Doing in a Step-Family?’
Berman, C. – Melbourne, Vic
Angus & Robertson, 1983 - ‘Bring to a Boil and Separate’
Hadley Irwin – New York
Atheneum, 1981 - ‘I Have Two Homes’
Althea – Cambridge
Dinosaur Publications, Ltd, 1980 - ‘My Mom and Dad are Getting a Divorce’
Bienenfeld, F. – St Paul, MN
E.M.C. Corp., 1980 - ‘So Mum and Dad have Separated’
Messenger, D.R. – Melbourne, Vic
Listen and Learn Productions, 1980 - ‘Divorce Can Happen to the Nicest People’
Mayle, P. – Melbourne, Vic
Sun Books, 1979 - ‘Divorce is a Grown Up Problem’
Sinberg, J. – New York
Avon, 1978 - ‘It’s not the End of the World’
Blune, J – London
(Piccolo) Pan Books, 1972
Look for these and others in your local library or book store
Offsetting occupation and expenses
Offsetting occupation and expenses
The Wife’s occupation of the matrimonial home and maintenance payments to the Husband
- The Husband sought that an adjustment by means of an addback be made for the fact that the Wife has had the use of the former matrimonial home since separation (see the unnumbered item following Item 26 in the balance sheet). The Wife has not paid rent for that facility. She occupies it with the parties’ adult son. The Husband says that the Wife has benefited from the use of this property. The Husband accepted that, although the property is in his name, this was a benefit derived from the property pool acquired during the relationship.
- At the same time the Husband accepted that by virtue of Orders made by Justice Watts he was receiving the sum of $495 per week towards his living expenses, which was paid from surplus rent monies received from the parties’ property. Again, he describes that the source of that money was half his in any event (mirroring the position that he accepted in respect of the Wife’s enjoyment of the former matrimonial home).
- The Husband ascribes a value for the Wife’s occupation of the home from a rent valuation provided by T Real Estate.[10] This report attributed a rental value, unfurnished at $1,100 per week. The Wife points to the valuation of the rent being for both 1 and 2 D Street. The T Real Estate report shows that 2 is rented at $495 per week, which it asserted is in line with the market. The notional rental attributed to the Wife’s occupation of 1 D Street is approximately $600 per week.
- The Wife says that her occupation is offset by payment to the Husband from joint resources to support him. That is, her accommodation, and his allowance for accommodation, both come from the resources of the relationship.
- It may be observed that the joint resources of both of the parties were used for the support of each of the parties. The parties are each entitled, post-separation, to continue with their lives, and to use their resources to reasonably and properly support themselves.
- Noting the comments earlier referred to by Murphy and Kent JJ in Grier v Malphas, a sufficient reason, as driven by the pursuit of a just and equitable outcome, is not identified for an add-back or reckoning in respect of these matters. While there may be a disparity, neither expenditure constitutes a premature distribution, or a waste, such as to mean that such a course is necessary to achieve justice and equity. The disparity in the value of what each received in this manner, by their use of the matrimonial property, either to live in or to fund living expenses, is not of such significance as to justify a notional add back nor should it result in any other form of adjustment.
Add backs – how are these treated?
Add backs – how are these treated?
| WHITE & WHITE | [2019] FamCA 13 |
Add backs – The Husband’s removal of funds
- The Wife asserts that the Husband, by removing particular sums of money, has taken a premature distribution of the property of the parties that should be notionally added back (add backs) into the pool. This amount, she said, totalled $372,000, less an amount of $44,000 that the Wife accepts constituted both an established and appropriate disposal of the funds. The total amount sought by the Wife to be added back in relation to these funds is therefore $328,000 (add backs).
- As was set out by Murphy and Kent JJ in Grier & Malphas (2016) 55 Fam LR 107 at [128]-[129]:
Each of the parties used funds available to them in the approximately four years between separation and trial. Included in purposes for which the sums were used were the reasonable living expenses of each. So-called “add backs” are the “exception and not the rule”. Further, although always of course a matter of discretion it can be said that, in the usual course of events, amounts spent on reasonable living expenses would not often be added back.
As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. No error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and s 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.
- Murphy and Kent JJ noted that “a very significant disparity in the sums expended by the parties” called for the examination of that disparity and of the “purposes for which the money as used.” Such an examination may then reveal the necessity to add-back or “as has been suggested as often preferable by decisions of the Full Court, by reference to s 75(2)(o)”.
- The assessment of the Wife’s claim therefore requires an examination of the use of the funds by the Husband.
Domestic Violence Orders – Case Review
Domestic Violence Orders – Case Review
KAO v DL [2017] QMC 16 (25 August 2017)
Protection of the Aggrieved
[64] Section 37(1)(c) DVFPA requires that the court be satisfied that “the protection order is necessary of desirable to protect the aggrieved from 
domestic violence 
”.
[65] That consideration was the subject of discussion in the decision of MDE v MLG & Commissioner of the Queensland Police Service. [14]
[66] In that case His Honour Judge Morzone DCJ stated:[15]
“Protection of Aggrieved
“[50] The third element in s 37(1)(c) is that “the protection order is necessary or desirable to protect the aggrieved from domestic violence ”.
“[51] The focus of this element is the paramount need for the protection an aggrieved from domestic violence , and whether imposing a protection order is necessary or desirable to meet that need.
“[52] The use of the phrase “necessary or desirable” invokes a very wide and general power, and should be construed in a similarly liberal manner to enable a court to properly respond, and, if appropriate, tailor an order to protect a person from domestic violence . The phrase is not unusual in that appears in both state and federal legislation, including analogous anti- domestic violence legislation.4
“[53] In GKE v EUT [2014] QDC 248 McGill S.C. DCJ considered the requirement and said at [32] to [33]:
“[32] In my opinion the focus must be on the issue of protecting the aggrieved from future domestic violence , the extent to which on the evidence there is a prospect of such a thing in the future, and of what nature, and whether it can properly be said in the light of that evidence that is necessary or desirable to make an order in order to protect the aggrieved from that. The Magistrate spoke about this in terms of an assessment of the risk to the aggrieved, and that I think was an appropriate basis for analysis. I agree with the Magistrate that it is necessary to assess the risk of domestic violence in the future towards the aggrieved if no order is made, and then consider whether in view of that the making of an order is necessary or desirable to protect the aggrieved.
“[33] I also agree that there must be a proper evidentiary basis for concluding that there is such a risk, and the matter does not depend simply upon the mere possibility of such a thing occurring in the future, or the mere fact that the applicant for the order is concerned that such a thing may happen in the future. Broadly speaking I agree with what the Magistrate said in the passage beginning “fourthly” of his reasons, though I would express the last sentence as “the risk of future domestic violence against an aggrieved must be sufficiently significant to make it necessary or desirable to make an order in all the circumstances.” In assessing such a risk, it is relevant to consider the fact that there is going to have to be some ongoing relationship because of the position of the children, and, if as the appellant alleges the respondent has been difficult and uncooperative in the past in relation to the arrangements for him to have the opportunity to spend time with the children, there is a risk that there will be situations arising of a kind which have in the past produced domestic violence .”
“[54] This is consistent with the explanatory notes of the Domestic and Family Violence Protection Bill 2011:
The Bill replaces the ‘likelihood’ element with a requirement that a court be satisfied that an order is necessary or desirable to protect an aggrieved from domestic violence . This change focuses the court on the protective needs of the aggrieved and whether imposing conditions on the respondent’s behaviour is necessary or desirable to meet these needs. The court may still consider evidence which suggests that domestic violence may occur again, or a threat may be carried out, however the court does not need to be satisfied that such an event is ‘likely’. Further, a court can look at other factors, including whether an aggrieved is in fear, when it is determining this element.
The new grounds also require a court to consider the guiding principles in deciding whether an order is necessary or desirable for the protection of the aggrieved. The priority of the Bill is the safety and wellbeing of the aggrieved and the grounds for making a protection order are directed toward achieving this aim. These measures are also consistent with the objective of ensuring that orders are only made for the benefit of the person who is in need of protection and are intended to reduce inappropriate cross applications and cross-orders.
“[55] In my view, the third element of whether “the protection order is necessary or desirable to protect the aggrieved from domestic violence ” requires a three stage process supported by a proper evidentiary basis (adduced pursuant to s 145 of the Act):
- Firstly, the court must assess the risk of future domestic violence between the parties in the absence of any order.
There must evidence to make factual findings or draw inferences of the nature of, and prospect that domestic violence may occur in the future. This will depend upon the particular circumstances of the case. Relevant considerations may include evidence of past domestic violence and conduct, genuine remorse, rehabilitation, medical treatment, physiological counselling, compliance with any voluntary temporary orders (s 37(2)(b)), and changes of circumstances.
Unlike, its predecessor provision under the now superseded legislation, the court does not need to be satisfied that future domestic violence is ‘likely’. However, there must be more than a mere possibility or speculation of the prospect of domestic violence .
- Secondly, the court must assess the need to protect the aggrieved from that domestic violence in the absence of any order.
Relevant considerations may include evidence of the parties’ future personal and familial relationships, their places or residence and work, the size of the community in which they reside and the opportunities for direct and indirect contact and future communication, for example, in relation to children.
- Thirdly, the court must then consider whether imposing a protection order is “necessary or desirable” to protect the aggrieved from the domestic violence .
In this regard, pursuant to s 37(2)(a), the court must consider the principles in s 4(1) that: (a) the safety, protection and wellbeing of people who fear or experience domestic violence , including children, are paramount;
(b) people who fear or experience domestic violence , including children, should be treated with respect, and disruption to their lives minimised;
(c) perpetrators of domestic violence should be held accountable for their use of violence and its impact on other people and, if possible, provided with an opportunity to change;
(d) if people have characteristics that may make them particularly vulnerable to domestic violence , any response to the domestic violence should take account of those characteristics;
(e) in circumstances in which there are conflicting allegations of domestic violence or indications that both persons in a relationship are committing acts of violence, including for their self-protection, the person who is most in need of protection should be identified;
(f) a civil response under this Act should operate in conjunction with, not instead of, the criminal law.
4. Finally, if the court is satisfied of the other pre-conditions of a relevant relationship and domestic violence are established, the court may exercise its discretion to make a protection order imposing appropriate prohibitions or restrictions on the behaviour of a respondent necessary or desirable to protect the aggrieved from the domestic violence .”
[67] That decision is binding upon this court.
[68] Conveniently the decision sets out the appropriate approach to the requirement under s 37(1)(c) commencing at paragraph 55.
[69] In these proceedings, at first blush somewhat oddly, the applicant in cross examination put to the respondent that he had been previously convicted of contraventions of a protection order. Exhibit 1 is a copy of the respondent’s criminal history which shows that he was convicted on 7 January 2004 in this court for breaches of domestic violence orders for incidents on 18 September 2003 and 8 October 2003. The admission into evidence of the criminal history was not objected to by the respondent’s legal representative and is in evidence.
[70] The criminal history, which the respondent accepted under cross examination was correct, confirms two things:
1. That a protection order was previously made against the respondent; and,
2. That the respondent breached that order on two occasions on 18 December 2003 and 8 October 2003.
[71] Turning then to the test enunciated in MDE v MLG & Commissioner of the Queensland Police Service[16] – the “three stage process”.
The risk of future domestic violence .
[72] In assessing the risk of future domestic violence between the parties in the absence of an order the following matters are relevant:
1. The nature of the domestic violence committed by the respondent towards the aggrieved is serious – he attended uninvited at her residence in the early hours of the morning of 2 December 2016 and was aggressive toward her and assaulted her;
2. He has committed past domestic violence (albeit not against this aggrieved) as is evidenced by his criminal history;
3. He has demonstrated no remorse (and certainly no genuine remorse) as he has denied the committing domestic violence ;
4. There is no evidence of rehabilitation medical treatment or psychological counselling;
5. A temporary protection order has been in place and there have been no alleged breaches of that temporary protection order.
The need to protect the aggrieved from domestic violence
[73] In respect of the need to protect the aggrieved from domestic violence relevant considerations are:
1. The parties were in an intimate personal relationship of short duration but which on any view of the evidence was problematic;
2. The parties reside in a relatively small community at Cairns and clearly the opportunity for them both socially and in business to interact is reasonably significant;
3. Their residences and places of work are not in direct proximity but not so distant as to make the prospect of future contact remote;
4. They have no need for an ongoing relationship and therefore no need to communicate.
Protection Order is “Necessary and Desirable”
[74] Thirdly, is the protection order “necessary and desirable”. In respect of the exercise of the discretion under the test prescribed in s 37(2)(a) DVFPA, those principals set out in s 4 are relevant in that:
1. The aggrieved is entitled to the safety a protection order will provide having experience domestic violence from the respondent; and,
2. The respondent as a perpetrator of domestic violence should be held accountable for his conduct one of the consequences for which is the making of a protection order in favour of the aggrieved.
[75] Finally, as I am satisfied that the other preconditions of a relevant relationship and domestic violence are established, the discretion to make the protection order must be exercised.
[76] Having considered the evidence and the findings of fact made and applying the test prescribed in MDE v MLG & Commissioner of Queensland Police Service[17] the discretion ought be exercised in favour of the applicant and I am satisfied that a protection order is necessary or desirable to protect the aggrieved from domestic violence .
Domestic violence – what does it look like?
What is domestic violence
Domestic violence is when one person behaves in a way that controls or dominates another person and causes fear for their safety and wellbeing.
Domestic violence is usually a pattern of abusive and controlling behaviour taking many forms. It happens in intimate, family or informal care relationships.
Regardless of age, culture, sexuality or gender identity, you have the right to live without fear.
Behaviours
Domestic violence includes a wide range of behaviours that control or dominate someone, or cause them to fear for their personal safety or wellbeing. These behaviours may include:
- physical or sexual abuse—punching, hitting, choking, or threatening to punch or hit, forcing a person to participate in sexual acts, damaging someone’s property or threatening to damage property, including hurting or threatening to hurt pets
- emotional or psychological abuse—stalking, repeated text messaging, making insulting comments, calling someone names, blackmailing or extorting, preventing contact with family and/or friends, controlling someone’s appearance, putting them down, threatening to expose their sexual orientation
- economic abuse—denying, withholding, controlling or misusing money or property, or threatening to do so
- threatening behaviour—saying things or acting in a way to make someone feel afraid, threatening to commit suicide or self-harm, stalking
- coercive behaviour—forcing, intimidating or manipulating a person to do things they don’t want to do, such as sign a contract (e.g. for a loan) or a legal document giving another person power over their affairs (e.g. power of attorney).
Domestic violence extends to children seeing violence, like their parent being hurt, being called names, things being broken or police arriving.
Relationships
Violence is considered domestic violence when any of the behaviours listed above take place in any of these relationships:
- an intimate personal relationship—two people (regardless of gender) who are, or were, a couple, engaged, married, in a de facto relationship, the parents of a child or in a registered relationship (a legally recognised relationship between two people regardless of gender)
- a family relationship—two relatives (by marriage or blood), including a child over 18, parent, stepchild, stepparent, brother, sister, grandparent, aunt, uncle, nephew or niece, as for some community groups, a person who is not related by blood or marriage but is considered a relative
- an informal care relationship—one person who is, or was, depending on another person for help with daily living activities. (Note: It is not considered ‘domestic’ violence when a person is a paid carer under a commercial arrangement.)
Family Law Reform and Family Violence
Family law reform and family violence
Mary Anne Neilsen, Law and Bills Digest
Key Issue
Debate about family law has focused on how the system has dealt with the complex problems of family violence. The issues are challenging and are likely to remain a focus for the new Parliament.
Recent political debate about family law has focused on how the system has dealt with the complex problems of family violence. As various studies have indicated, families with complex needs, including violence, are the predominant clients of the family law system. The issues are challenging and important and will continue to keep family law reform on the political agenda during the 45th Parliament.
Legislative reform
The Australian Parliament has already paid considerable attention to proceedings relating to family violence in parenting under the Family Law Act 1975. Amendments in 2012 made under the then Labor Government were significant and intended to place family violence at the centre of parenting cases. Under the Family Law Act judges now have two primary considerations when assessing what is in the best interests of the child:
- the benefit to children of having a meaningful relationship with both of their parents and
- the need to protect them from physical or psychological harm, including being subjected or exposed to violence.
Furthermore, where there is a clash between these two interests, the safety of children is to be prioritised over the benefits of a meaningful relationship with both parents.
The effect of these reforms is as yet unclear. However, as Chief Justice Diana Bryant has frequently said, legislative amendment alone does not suffice and without resources these reforms are inadequate.
Reviews and inquiries
The last ten years have seen a plethora of reviews and inquiries into family law matters including the issue of family violence and child abuse. In one of the more recent inquiries the Coalition Government has tasked the Family Law Council to inquire into Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. Due to be given to the Attorney-General in June 2016, this inquiry is a response to ‘the growing concerns about the separation of the federal family law and state and territory child protection and family violence systems and the risks to children’s safety associated with this situation’. One recommendation from the interim report relating to state and territory interim family violence protection orders and their interaction with parenting orders under the Family Law Act was implemented in 2015.
The Council of Australian Governments (COAG) has also been active. In recognition of the fact that a whole-of-government and community response is required to address family violence, COAG established an Advisory Panel on Reducing Violence against Women and their Children. The Panel delivered its final report to COAG on 1 April 2016.
The family courts
The recent history of the family courts has been marked by controversy and criticism about their handling of family violence matters (family courts, in this brief, generally refer to the Family Court of Australia and the Federal Circuit Court of Australia).
Professor Patrick Parkinson has described the courts as ‘almost dysfunctional’, noting that lack of resources and federal funding, plus their exponentially increasing workload, has led to unacceptably long delays. The courts have also angered fathers’ advocacy groups for a perceived bias against shared parenting. Criticism has also come from women’s legal serviceswho argue the courts are failing to protect women and children seeking protection from family violence.
In the weeks before the election Rosemary Batty, former Australian of the Year, addressed the issue of violence and family law with the major political parties. In conjunction with Women’s Legal Services Australia she presented a petition calling for reform and urging the political leaders to adopt the following five step plan to prioritise safety in the family law system:
- develop a specialist pathway for cases involving family violence
- reduce trauma and support victims, including legislative protections that prevent victims from being directly cross-examined by their abuser
- intervene early and provide legal help for the most disadvantaged
- support victims to recover financially
- strengthen the understanding of all family law professionals on family violence.
More recently the Family Court has received renewed publicity. Pauline Hanson and the One Nation party platform propose that the Family Court be abolished and replaced with a family tribunal made up of people from ‘mainstream Australia’. Respected members of local community, social and health groups would be invited to participate.
Chief Justice Diana Bryant has been drawn into this debate. While she can see some value in putting minor matters before a tribunal, the Chief Justice argues that the One Nation policy is simplistic. As she says, abolishing the court would raise constitutional issues. In a speech given in 2015 the Chief Justice articulates clearly the needs of the courts. On the subject of resourcing she commended the Government’s $100 million Women’s safety package aimed at addressing family violence but is concerned that the crucial role of the courts (and the corresponding necessity of resourcing them properly) has not to date been recognised as part of addressing family violence.
Most expensive family law case?
Most expensive family law case?
Strahan & Strahan [2019] FamCAFC 31 (21 February 2019)
REPRESENTATION
- The wife brings three appeals against orders made by Cronin J. The appeals were heard together and these reasons relate to all three.
- The husband and wife separated after 11 years of marriage in January 2005 and divorced in February 2006. They have been litigating about their marriage longer than they were married.
- Since the first Initiating Application was filed shortly after separation, over 700 documents have been filed resulting in a vast number of different hearings. Sixty-one sets of reasons have been published. Ten previous appeals have been heard and determined. By March 2017, the parties had between them spent some $35 million in legal fees. They have each spent more since. The wife has instructed approximately 16 different firms of solicitors. Inclusive of senior counsel who argued the instant appeals, the wife has instructed eight different senior counsel and 14 different junior counsel.
COSTS OF THE APPEALS
- At the conclusion of the hearing the Court reserved its decision but, in order to save further time and expense, sought submissions in respect of costs from each of the parties in the event that the appeals were either successful or unsuccessful.
- Senior counsel for the wife made no submissions in opposition to the application by the husband that the wife pay his costs of and incidental to the appeals in the event they failed.
- We consider that circumstances here justify an order for costs in all three appeals. The wife has been wholly unsuccessful. We have considered the financial circumstances of the parties. The appeals have their genesis in the refusal by the trial judge to grant what was a significant indulgence and an indulgence which in substance had been refused previously.
- We will order that the wife pay the husband’s costs of and incidental to all three appeals.
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Bank of Mum and Dad – getting it right
Bank of Mum and Dad – getting it right
Great article by The Rub highlighting the importance of children in relationships getting Binding Financial Agreements in place to ensure their spouses cannot receive a portion of what the “Bank of Mum and Dad” contribute:
The fall in housing prices has led parents to rethink whether they should open up the Bank of Mum and Dad (BoMAD) for their first home buyer offspring.
Housing prices in Sydney have dropped 10.94 per cent and in Melbourne 9.73 per cent over the last 12 months, according the latest figures from CoreLogic.
This has impacted the number of Australians using BoMAD to finance their first home. According to recent data from Digital Finance Analytics, the number has dropped from over 60 per cent in 2018 to 20 per cent in February 2019.
While these concerns are top of mind, parents should take time to consider the best way to help their children into a home. There are number of important structuring issues to get right, including deciding whether to go guarantor on a mortgage, gift the deposit or lend it, or go into a property purchase as co-buyer. Each has its pros and cons.
Principal of Digital Finance Analytics, Martin North says: “Parents are more concerned in a falling market about the equity in their property, when facing into retirement. The ‘ATM’ has run dry. They cannot afford to pass money down the generation now.”
This drop in property value has decreased the amount of equity available in BoMAD and more parents are unwilling to take that risk and has taken property values back to what they were in 2015 but the decline is ongoing.
“There was a considerable run up to the middle of last year but since then first home buyers who are using the bank of mum and dad has dropped considerably,” North says.
On the other hand, first home buyers may be waiting for the market to bottom off before buying property.
Group executive of financial services at Canstar, Steve Mickenbecker says: “This decrease is probably because mum and dad are saying it’s not a great time to be buying because you will probably be able to buy better in a year’s time.”
According to the Australian Prudential Regulation Authority, BoMAD is ranked among the top 10 lenders in Australia, dishing out over $29 billion to first home buyers and beating out lenders such as AMP Bank and ME Bank.
HLB Man Judd partner in wealth management Jonathan Philpot talks to a lot of clients about BoMAD as a planning issue.
Philpot says: “It’s definitely been on the rise with helping out the children getting their first home, particularly in the last five to six years in Sydney with the market having risen so quickly and the banks wanting 20 per cent deposit.
“Often it’s not considered when people are planning for their own retirement. They are not really factoring in also helping the children with their first home. It usually pops up at the time and I’ve seen a few times where the clients put themselves at a financial risk to help their children.”
Gifting a deposit is a simple way for parents to assist their children in purchasing property.
A drawback for the first home buyer is that this does not show the lender that they can save and if there is a relationship break down, the child’s spouse may be entitled to half the amount.
“In this case it is important for banks to know that this is a gift so that the money is separate from the lending,” Mickenbecker says.
More than half of Resimac’s Generational Property Ladder Survey respondents would consider a gifting cash to their children to purchase property.
Parents need to be aware that this has no protection in getting the money back or in the case of their child’s relationship breakdown.
Going guarantor allows BoMAD to provide assistance without giving cash up front, using the equity in their property instead. Parents will be legally responsible for paying back the loan if the first home buyer is no longer able to.
This quite a popular method for parents as Resimac’s survey saw that 36 per cent of respondents considered going guarantor.
There is substantial risk with this method as it can have detrimental effects on parents’ credit ratings and prevent them from accessing their future credit as the guarantee needs to be disclosed to when applying for credit.
Philpot says: “We strongly discourage going guarantor for children as there is too great a risk for parents who are late in their working life or are retired to be potentially liable for a substantial home loan if the child was not able to meet the repayments.”
It was only last week that Macquarie Bank announced in a note to mortgage brokers that from March 18 it no longer offers family guarantee loans. This marks the first major bank to cease this particular method of mum and dad banking.
ASIC’s MoneySmart recommends that parents consider if they can afford to pay back the loan if the child no longer can and to ensure that they understand the risks surrounding this method.
Co-buying or tenants in common is when parents buy in partnership with their child. The child will own a portion of the property and can buy their parents out later in order to take full ownership of the property.
Around 32 per cent of Resimac’s Generational Property Ladder Survey respondents would consider buying their child’s home in partnership with them.
For extra protection in the case of the parents’ death, it is recommended to buy in joint names or through a family trust so the property would transfer instantly to the child.
“You have to be a party to the mortgage and to the loan and it can be a messy approach as you would be borrowing with your child and in law from the bank and that could affect your future plans and flexibility,” Mickenbecker says.
Loaning a deposit is considered the safest option for parents to protect themselves when assisting their children in purchasing property.
It is recommended that a formal loan document be drawn up, not just a known agreement in order to protect against the child’s relationship breakdown and generally they are written in a way similar to a bank loan and the children pay a small sum of interest so there is a commitment.
“We always recommend a formal loan agreement with a nominal interest rate, rather than gifting the money to the child. It might just be an interest-only loan for 25 years but that’s the protection over what their giving their child over a potential relationship breakdown,” Philpot says.
For some parents, it can be seen as an investment instead of putting money into a term deposit.
“Half the loans we see have been generally a one-year term deposit rate and the parents want to have a financial investment in that regard. Instead of putting that into a term deposit they invest in their children.”
While protecting the parents, this option may impact the bank’s lending and the child will end up with less than if it was a gift or another method.
Mickenbecker says: “The problem that arises is that you need to have this conversation without involving the bank too much as they are likely to say that if it is a loan then they will need to factor that into the servicing analysis of their loan.”
However, millennials should take consideration when taking on debt in a world where wages are not growing as the burden of the debt will not decline.
Omniwealth financial planner Steven Korner says: “People rush into buying a home because they have been conditioned to, but if someone is being gifted an amount from their parents to buy their home, the main concern is that if they can’t save that deposit on their own they may struggle to keep up with mortgage repayments.”
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Tax debts – courts power to substitute debtors
Tax debts – courts power to substitute debtors
Commissioner of Taxation v Tomaras [2018] HCA 62 (13 December 2018)
- KIEFEL CJ AND KEANE J. We agree with Gordon J that under s 90AE of the Family Law Act 1975 (Cth) (“the Act“) the court has power to order the Commissioner of Taxation to substitute one party to a marriage for the other in relation to a debt owed to the Commonwealth for income tax. Accordingly, the appeal must be dismissed. Gratefully adopting her Honour’s summary of the factual background, the relevant legislation, and the reasons of the Full Court of the Family Court of Australia, we proceed to explain our reasons for that conclusion.
- Since the decision of this Court in Bropho v Western Australia[1] it has been settled that the presumption of statutory construction that general words in a statute do not bind the Crown may be displaced without the use of express words or words of necessary intendment. If the legislative provision in question, when construed in context, discloses an intention to apply to the circumstances of the particular case, then effect must be given to that intention. In this case the intention of the Act is not in doubt.
- Within Pt VIII of the Act, a court considering the exercise of its jurisdiction in property settlement proceedings under s 79 must, by reason of s 75(2)(ha), take into account the effect of any proposed order on the ability of a creditor of a party to the marriage to recover the creditor’s debt. Nothing in Pt VIII of the Actsuggests an intention to differentiate between Commonwealth, State and Territory revenue authorities or an intention to differentiate between revenue authorities and other creditors. Further, s 80(1)(f) provides that a court exercising its powers under s 79 may “order that payments be made … to a public authority for the benefit of a party to the marriage”. It is not disputed that this provision contemplates the making of an order that one party to a marriage pay the taxation liability of another to a revenue authority. Thus it is apparent that, in Pt VIII of the Act, the term “creditor” is apt to include the Commonwealth and indeed any other revenue authority.
- Within Pt VIIIAA of the Act, s 90AA states that the object of that Part is to allow the court to make an order in relation to the property of a marriage under s 79 of the Act that is directed to, or alters the rights, liabilities or property interests of, a third party. Within Pt VIIIAA, s 90AE(1)(b) provides that in proceedings under s 79, the court may make “an order directed to a creditor of one party to a marriage to substitute the other party … to the marriage for that party in relation to the debt owed to the creditor”. Part VIIIAA is thus explicitly ancillary to s 79 of the Act.
- Given that Pt VIIIAA is ancillary to Pt VIII, a suggestion that a “creditor” in Pt VIIIAA is different from a “creditor” in Pt VIII would be difficult to sustain. Nothing in the language of Pt VIIIAA affords any support to such a suggestion. Further, nothing in the extraneous materials referred to by the parties targets a mischief that might be remedied only by giving “creditor” a narrower scope in Pt VIIIAA than it has in Pt VIII.
- It must be understood, however, that the power of the court under Pt VIIIAA to make an order directed to a third party is not at large. The power to make an order under s 90AE(1) is conditioned by s 90AE(3). Such an order may be made only if, among other things:
“(a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and
(b) if the order concerns a debt of a party to the marriage – it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and
…
(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order”.
- Some statutes may differentiate between ordinary creditors and revenue authorities. In such cases the general consideration of equality before the law, which tends against the application of the presumption that the Crown is not bound by a statute, can be seen to have been displaced in favour of the public interest specifically associated with governmental functions such as the protection of the revenue[2]. The Act is not such a statute.
- Any concern for the protection of the revenue – Commonwealth, State or Territory – is met by the terms of s 90AE(3)(b). If this condition is not satisfied, the power to make an order under s 90AE(1)(b) is not enlivened. The observance of this condition by the court is apt to ensure that the interests of the revenue authorities, and other creditors for that matter, are not adversely affected by the making of an order under s 90AE(1)(b). The scope of this power should not be distorted by attributing to the Parliament an unfounded apprehension that the courts cannot be trusted to ensure that the statutory conditions upon which the power may be exercised are satisfied.
- Given that, so far as appears from the record in the present case, the husband is a bankrupt and the wife is solvent, it is not possible to see how the condition in s 90AE(3)(b) could be satisfied in this case. More generally, it is difficult to see how any case where there is a real prospect that the substitution of one spouse for another as the debtor of the revenue authority would create or enhance a risk of non-payment would not fall foul of s 90AE(3)(b) of the Act.
- It might also be suggested that the prospect that an order for substitution might render the substituted party liable for a revenue debt without the benefit of rights of objection available exclusively to the other party to the marriage as “the taxpayer” under the relevant revenue legislation would mean that the condition in s 90AE(3)(d) is not satisfied. This suggestion raises a question of no little complexity. The circumstance that the income tax liability of the substituted party could not be contested by that party would not necessarily make it unjust or inequitable to order substitution. It may be, for example, that any challenge to the tax liability asserted by the Commissioner would clearly be resolved in favour of the Commissioner. In such a case, an inability to contest the tax liability would not occasion substantial injustice to the substituted party. However, it will rarely be the case that a court trying proceedings between the parties to a marriage will be able responsibly to come to a firm view as to the likely outcome of such a contest.
- As a practical matter, where a real question arises as to whether a party to a marriage would be substantially prejudiced by an order for substitution, the better course for the court would usually be to conclude that it cannot be satisfied that the condition in s 90AE(3)(b) could be met. In the present case, given that on the material in the record the condition in s 90AE(3)(b) could not be satisfied, it is unnecessary to reach a conclusion in relation to s 90AE(3)(d).
- For those reasons, we agree with the terms of the answer proposed by Gordon J to the question posed by the stated case.
- As to the procedure adopted in this case, we would observe that it is regrettable that the primary judge was invited by the parties to state a question of law for the Full Court. While the primary judge cannot fairly be criticised for acceding to the course proposed by the parties, it would have been more efficient, in terms of the administration of justice, if the wife’s application for substitution had been allowed to proceed to a determination on the merits. Given the difficulty confronting the wife’s application for substitution by reason of the condition in s 90AE(3)(b) , the question stated for the opinion of the Full Court was unlikely ever to be of other than academic interest.