Information About Family Law

In 1990, Australia quickly signed and ratified the United Nations Convention on the Rights of the Child and in doing so, committed to protecting and ensuring the rights of children. Despite the signing and ratifying of the United Nations Convention on the Rights of the Child in 1990, it would take several decades, and several changes of governments, for it to be properly codified into the Family Law Act.

In 2011, the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(Cth), came into effect which saw the inclusion of section 60B of the Family Law Act. This saw the inclusion of a further object of Part VII of the Family Law Act, being that the Court is to give effect to the United Nations Convention on the Rights of the Child, rather than simply making decisions that are in the bests interest of the child.

With respect to the inclusion, then Attorney General, and now Deputy Chief Justice of the Federal Circuit and Family Court of Australia, the Hon. Deputy Chief Justice Robert McClelland AO, noted that the inclusion of the United Nations Convention on the Rights of the Child into the Family Law Act was done to “fortify the focus on the rights of the child and the rights specifically of children to live free from harm and the fear of harm”.

Since its inclusion in 2011, the United Nations Convention on the Rights of the Child has remained in the Family Law Act, and it has survived the recent and significant amendments with respect to parenting matters that came into effect on 30 May 2024, following the passage of the Family Law Amendment Bill 2023 (Cth).

As such, and when determining matters in relation to children, the Federal Circuit and Family Court of Australia (either Division 1 or 2) must ensure that the best interests of children are met, including by ensuring children’s safety, and to give effect to the United Nations Convention on the Rights of the Child.

Impacts of the United Nations Convention on the Rights of the Child 

Whilst the Court is required to give effect to the United Nations Convention on the Rights of the Child, it is not a specific consideration in most matters.

As recently noted by her Honour Beckhouse J, the United Nations Convention on the Rights of the Child does not create legally enforceable rights for children in Australia. Additionally, the wording of the Family Law Act specifically makes reference to the bests interest of the child, which effectively provides the legislative framework for the Court to comply with the United Nations Convention on the Rights of the Child  without having to specifically consider it in each matter.

Additionally, it was observed by Bennett J in Zammit & Zammit [2020] FamCA 950 at [24] that:

The significance of an object of the legislation being to give effect to the Convention, is that it provides a basis to interpret the Act within the context of international human rights principles (including the Convention) to the extent that is compatible with the express intention evinced in the legislation.  However, an object does not give any legally enforceable rights to children and is unlikely to be of great value in the adjudication of individual cases.

In light of the above, it could be said that the United Nations Convention on the Rights of the Child has had minimal impacts on individual matters that appear before the Court for adjudication as the Family Law Act and generations of jurisprudence guides the Court in this regard, not the United Nations Convention on the Rights of the Child .

However, it would seem clear that the United Nations Convention on the Rights of the Child acts more as an overarching force which guides the functions and procedures of the Courts and government agencies, and can act as a safeguard for children and their universal rights. For example, the new requirement for an Independent Children’s Lawyer to meet with children (as per the Family Law Amendment Bill 2023), was included to “ensure the views of children are appropriately heard and considered in family law proceedings” which is “consistent with Australia’s obligations under Article 12 of the United Nations Convention on the Rights of the Child”. In the absence of the United Nations Convention on the Rights of the Child, it is unclear whether such a rudimentary, yet necessary, amendment would have been made.

Additionally, the United Nations Convention on the Rights of the Child  has had an impact on the practices and procedures of the day-to-day running of the Court and matters appearing before it. When the Family Court of Australia and the Federal Circuit Court of Australia merged in 2021, the Federal Circuit and Family Court of Australia (Family Law) Rules were put in force. In a statement confirmed by the Chief Justice, the Rules engaged with “applicable human rights or freedoms” including, but not limited to, Articles 3.1, 12.1, 19.1.

Is It Worth It?

Whilst it might seem that the United Nations Convention on the Rights of the Child  has little impact on the day-to-day lives of Australians, it is an important treaty that guides policy and procedure across a variety of legal areas, including in family law.

The United Nations Convention on the Rights of the Child  acts as guardian for all children insofar as it provides a set of rights which will continue to protect children, despite whatever political swings might be at play from time to time. Effectively, the United Nations Convention on the Rights of the Child  is above politics, and Judges will continue to be required to consider it when determining matters involving children. Additionally, and in circumstances where Australia lacks a fundamental document preserving the rights of its citizens, international conventions and treaties such as the United Nations Convention on the Rights of the Child give some, if not enough, protection and it is imperative that it always does.

There may be several reasons why you would like to change the name of your child including their last name. At the time of birth, your child may have your former partner’s surname which, for whatever reason, you no longer wish to retain.

As a parent, you have decision-making responsibilities which include the ability to change your child’s name. However, there are some requirements which we will discuss further below. But first, what is decision-making responsibility?

Decision-making responsibility

“Parental responsibility” is the duties, powers, responsibilities and authority provided by law that parents have in relation to their child or children. By default and subject to court orders, each of the parents of a child has parental responsibility for that child.

“Decision-making responsibility” is the decisions to be made relating to a child’s long-term welfare and it is expected that parties consult each other on these decisions, if it is safe to do so.

“Major long-term issues” relates to the care, welfare and development of the child and is defined by section 4 of the Family Law Act[1] to include:

1. The child’s education
2. The child’s religious and cultural upbringing
3. The child’s health
4. The child’s name
5. Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

Sole vs Joint decision-making responsibility

Each parent has parental responsibility for their child, unless the Court makes an order affecting their parental responsibility. Orders the Court can make include:

1. For one parent to have sole decision-making responsibility in respect of one or more aspects, or all aspects of the child’s care, welfare and development;

• For both parents to have joint decision-making responsibility in respect of some or all aspects of the child’s care, welfare and development.

In the absence of any of the above Orders, there is an expectation that parents consult each other in respect of major long-term decisions, provided it is safe to do so.

Births, Deaths and Marriages requirements

By default, each parent has the ability to change their child’s names. If there is a dispute on the child’s name and you and the other parent are not separated, you can apply to the Federal Circuit and Family Court of Australia to change the child’s name.

Previously, you would not be able to change your child’s name without both parents’ consent as Registry of Births, Deaths and Marriages required this, unless you have a Court order specifically permitting you to change your child’s name without the other party’s consent and a declaration that the name change is in the child’s best interest.

Changes to the law

On and from 1 December 2024, changes to the legislation will allow a sole parent to change their child’s name if they have sole parental responsibility under a final parenting order made under the Family Law Act 1975 in respect of ‘major long-term issues’ or ‘the child’s name’.

The amendments will apply to all existing and future parenting orders made by the Federal Circuit and Family Court of Australia regarding a child’s name, even if the order was made prior to 1 December 2024.

Summary A child’s name is significant and important to you and the child. If you need assistance with discussing this further or obtaining orders for a change of name, reach out to our team of expert family lawyers here at Dorter Family Lawyers and Mediators.

Concealed assets or hidden assets can significantly impact property settlement in divorce. Knowing your rights and entitlements is important in the division of assets.

Below we identify how assets can be concealed or hidden, the consequences of hiding assets and what to do if you think assets are being hidden. It is important to be able to protect your assets legally, so you can obtain a fair property settlement.

1. What are hidden assets?

In Australian family law, both parties are obliged to provide full and frank disclosure of their assets, liabilities, superannuation and financial resources which they own or control. This includes any assets which are held in their name, held jointly with others, or through trusts, companies or partnerships. The purpose of disclosure is to confirm the financial position of each party so a just and equitable division of assets can occur. Australian family law mandates complete transparency and honesty in disclosure.

Assets may be hidden when a party avoids disclosing their true financial circumstances during the family law process. A party may attempt to keep assets from the other party, to minimise spousal or child support payments, avoid financial obligations like tax, or to obtain a greater property settlement than they are entitled.

Common techniques to conceal assets may include:

• Understating income: Someone may intentionally understate the value of assets or income to lessen their net worth.
• Exaggerating liabilities: Someone may assert loans or debts exist to increase their financial obligations.
• Transferring assets to third parties: Someone may transfer assets to others under the guise that they were in debt to them to minimise their net worth.
• Using overseas accounts or investments: Someone may arrange for their income to be paid to other accounts or the income not to be paid until after the property settlement to minimise their net worth.
• Purchasing items of high value: Someone may purchase ‘investment’ items like artwork or jewellery to minimise their net worth, and sell it off after the property settlement.
• Using non fungible tokens, cryptocurrency or cash: Someone may convert assets to another form of currency or cash to hide their net worth.

An example of a hidden asset could be where a spouse transfers a significant amount of money to a family member or friend, which was not actually repayable but claiming it to be a loan repayment. Loan repayments are frequently contested and controversial in family law matters. Once the property settlement is finalised, the money may be transferred back to the spouse as it was initially concealed from the division of assets.

Hiding assets in divorce proceedings can prevent a party from receiving a fair and equitable distribution of property and can cause a miscarriage of justice. It is prohibited under the Family Law Act 1975 and may lead to significant consequences, including the setting aside of the settlement in the future.

Detecting Hidden Assets

If you suspect your spouse is concealing assets, steps should be taken to uncover them. This involves due diligence and investigation, including:

• Reviewing financial statements and tax returns
• Reviewing bank statements
• Reviewing loans
• Reviewing other documents including variations to Deeds and other commercial documents

Ensure you seek legal advice from a family lawyer experienced in property settlements to thoroughly walk you through the legal process and obtain court orders where it is necessary to minimise assets being hidden.

Concealed assets can be found within bank statements, tax returns, deeds and business records. As experienced family lawyers we help by examining these documents to investigate and provide directions to uncover these hidden assets. We help you navigate this process and provide you the clarity you need to protect your financial interests and obtain a fair settlement.

Consequences of concealing assets in divorce

Concealing assets in the Australian family law Courts can lead to significant legal consequences. These include cost orders, findings of contempt and in some circumstances, even imprisonment. Financial ramifications can occur, if the Court sets aside the property orders or property settlement, revisits the financial settlement and compensates the honest party when concealed assets are found or a party is found to have misrepresented their financial circumstances.

Preventative and protective measures to preserve your assets

A property settlement usually involves the division of assets so that the parties each receive a just and equitable outcome. A binding financial agreement (BFA) or prenuptial agreement is one way to protect your assets legally. These agreements can be entered into before living together, whilst living together (and prior to separation) or after separation. These agreements help set out how assets will be distributed in a property settlement and can provide certainty and security for both parties.

Under certain circumstances however, the Courts can set aside legally binding agreements. For example, if signed under duress or if there was a fraud. To ensure a legally binding agreement is enforceable, you should obtain legal advice from an experienced family lawyer.

Summary

Seeking legal advice from experienced legal counsel is imperative to understand and obtain a transparent and fair process for property settlements. Full disclosure of parties’ interests in their assets and financial resources is mandatory and must be full and frank to avoid unwanted consequences. Attempting to conceal assets is prohibited under the Family Law Act 1975. The consequences can be severe, both legally and financially.

Our experienced family lawyers deal with complicated property matters where assets have been hidden and have uncovered these assets. We are here to help protect your interests and achieve a just and fair settlement for you.

If you have recently separated and you are concerned about achieving a fair outcome or suspect your spouse is hiding assets, contact us. We can assist you.

Our experienced family law team will work closely with you to understand and assess your situation and then plan a course of action to investigate to ensure you receive a just and fair property settlement. We have a wealth of experience in dealing with high net worth property settlements and investigating hidden assets and are well-versed in dealing with hidden assets.

When a marriage or de facto relationship breaks down, the parties to the relationship are required to consider the assets and liabilities of the parties. Those liabilities often include mortgages and credit cards, however taxation liabilities of the parties must also be considered in context.

Overview of Division 7A Loans

When parties have shareholder interests in private companies, one form of liability that is often considered is known as Division 7A loans, named for the relevant section of the Income Tax Assessment Act 1936 (ITAA) introduced to close the loophole previously exploited by companies to gain the benefit of ‘tax-free income’ from ‘lending’ to their shareholders. Accordingly, Division 7A treats three categories of payments from a private company to a shareholder or their associate as a taxable dividend:

1. Amounts paid by the company to a shareholder;
2. Amounts lent by the company to a shareholder; or
3. Amounts of debt owed by a shareholder to a company that are forgiven.

Ordinarily, these payments are assessed in the hands of the recipient as ‘unfranked’ dividends, meaning the recipient does not gain the benefit of a franking credit to otherwise reduce the tax payable. The ITAA does allow shareholders to enter into commercial loans with private companies to exclude the application of Division 7A, however to be valid the loan must meet all of the following criteria:

1. Be made under a written agreement;
2. Be for a maximum term of 7 years for unsecured loans and 25 years for secured loans;
3. Have interest charged at least at the minimum rate; and
4. Have repayments in reduction of the loan made annually.

If an agreement does not meet all of these conditions, it can be deemed non-compliant and a deemed dividend could be declared for the entirety of the loan amount assessable in the hand of the recipient with penalty rates likely applicable.

How is this relevant to Family Law

Tax liabilities arising from debit loan accounts that parties may have with private companies are genuine liabilities that may be considered when assessing the asset pool available for division. However, there is no presumption that the entirety of the parties’ debts must be deducted from the gross value of the assets, with the case law allowing the judicial officers to consider liabilities in context and decide to ignore or discount a liability if it is vague or uncertain, or if it is unlikely to be enforced, or if it was unreasonably incurred. Nevertheless, significant Division 7A liabilities are unlikely to be disregarded by the Court.

The direct relevance of Division 7A loans in family law can be addressed through the case of Rodgers and Rodgers [2016] FamCAFC 68, from which the ATO has based examples of ‘blue’ or ‘red’ risk zone behaviour for the purposes of section 100A of the ITAA.

• In Rodgers and Rodgers, the parties had carried on a tourism business via the Rodgers Family Trust (‘the trust’).
• The trust made income distributions to a corporate beneficiary, B Pty Ltd, which were placed under a complying Division 7A loan agreement however the funds representing the income distributions were drawn parties and used for personal purposes. 
• The parties had historically ‘managed’ the Division 7A commitments by using an annual dividend offset strategy to meet the minimum yearly repayments.
• The full court determined that whilst the Division 7A loan must be repaid within seven years, it did not necessarily follow the repayments would be made by way of dividends.

Additionally, if the Division 7A liabilities are not addressed at the commencement of the family law proceedings significant issues can arise which add significant additional costs, time and stress to the proceedings as observed in the case of Emmerton & Manwaring [2023] FedCFamC2F 476. In this case, and as a result of the liabilities not being disclosed early in the proceedings, the final hearing was adjourned at cost to the parties in order for Expert evidence to be obtained and the Division 7A liability issues to be properly considered in effect to the balance sheet.

The Trial Judge in Emmerton & Manwaring noted that if Division 7A loans are found to be non-compliant with ATO requirements or there is a lack of precision between legitimate business expenses and monies advanced for personal expenditure the parties could lose the benefit of the entire asset pool to taxation issues. In the particular circumstances of the case the Trial Judge discussed that:

1. Before the Court would consider how the assets should be divided, it was necessary for the parties to approach the ATO to determine the extent of their liabilities and how it should be paid.
2. The Court required detailed submissions from each party in respect of the extent of the liability and how it should be approached. Whether solely borne by one party or shared by both.

It is important for parties to remember that irrespective of party-party indemnification in respect of tax and other liabilities, such indemnifications do not bind the Commissioner for Taxation or the ATO.

For Further Information

It is incredibly important for parties and their advisors (legal, accounting, and financial) to determine the issues which cannot be resolved by agreement early and ensuring all relevant evidence is before the Court. The importance of obtaining the correct advice in respect of the particular circumstances of your matter is exemplified when Division 7A loans are involved as there can be significant cost and other consequences for parties and related businesses if the matter is not conducted properly. To ensure that you receive the best advice, talk to our team.

Following the amendments to the Family Law Act on 6 May 2024, the legislature has sought to codify the principles arising from the case of Rice & Asplund. Previously a threshold needing to be met by parties to prove a significant change in circumstances to alter final orders, the introduction of Section 65DAAA has changed the threshold to a consideration as discussed by the recent cases of Whitehill & Talaska [2024] FedCFamC2F 768 and Rasheem & Rasheem [2024] FedCFamC1F 595.

Rice & Asplund threshold

The rule in Rice & Asplund was a body of case law providing that once final parenting orders were made, further litigation regarding parenting orders would not be heard unless there had been a sufficient change in circumstances that warranted reopening litigation.

The rationale for this rule being that repeated and prolonged litigation about children was not usually in the best interests of the child/ren involved.

The Court hearings to assess whether further litigation would be permitted were threshold hearings, where the Judge’s task was a two-staged process. First, to make findings of fact in respect of the changes to the circumstances since the final orders. Second, to assess if the change in circumstance is sufficient to rehear the parenting issues in the children’s best interests.

Section 65DAAA

As of 6 May 2024, the Rice & Asplund principle has been codified under Section 65DAAA with the two-stage process being outlined in subsection (1):

• If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
• the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
• the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered. 

Whilst the explanatory memorandum and the second reading speech addressing the insertion of Section 65DAAA into the Act purport the section codifies the rule from Rice & Asplund, the text as written is what requires interpretation. The text of the section reads such that a change in circumstance is no longer required to have occurred, only that the Court must consider whether there has been a change in circumstance.

The mandatory requirement remains whether a reconsideration of the final parenting orders is in the child’s best interests pursuant to, and without limiting, section 60CC.

Whitehill & Talaska

The question of whether the case law and practice attached or consequent to the rule in Rice & Asplund remains in effect has been addressed in the recent decision of Whitehill & Talaska.

The case addressed that the new amendments to the legislation does not replicate or expressly provide for the constitutive body of case law which has expanded and provided guidance to the operation of the Rice & Asplund rule. Accordingly, and relying on the explanatory memorandum, the Court discussed that the legislation does not propose to unwind the case law which made the previous rule operative and flexible to factual circumstance.

The Court further addressed the operation for a Section 65DAAA hearing of the considerations imposed by the new sections, noting that whilst the law requires the acceptance of the applicant’s evidence of controversial events unless contradicted by incontrovertible evidence, it does not require the acceptance of the applicant’s opinion or inferences of controversial events.

The Court considered that regardless of whether a significant change in circumstance had occurred, it was proper for the considerations contained within s.65DAAA(2)(a)-(d) and s.60CC to be addressed.

The Court additionally considered whether the case of Goode & Good (2006) FLC 93-286 continued to apply following the 6 May 2024 amendments, noting this case applies the principles of Rice & Asplund to determinations at interim hearings. Goode & Goode applies to decisions made at interim hearings where the ability to test evidence is limited and stability provided by interim parenting arrangements may not be found to be in the child’s best interests following a consideration of s.60CC factors. The Court ultimately found, that with minor amendments, the Goode & Goode would remain operative caselaw following Section 65DAAA.

Judge O’Shannessy’s reasoning and discussion of the new s.65DAAA was confirmed and accepted by the Court in the case of Rasheem & Rasheem [2024] FedCFamC1F 595, per the reasons of Justice Altobelli. The case of Whitehill & Talaska has provided crucial judicial commentary to the operation of the amendment introduced in May 2024.

Talk to our team

Altering final parenting orders is a challenging process and requires consideration of what is best for the children involved. If you believe that there has been a significant change in circumstances which require your parenting orders to be revisited, talk to our team at Dorter Family Lawyers and Mediators.

Our family lawyers in Sydney can guide you through all family law matters, including any parenting matters you may be involved in. Enquire here or call us on 02 9929 8840.

While family law proceedings and criminal law matters operate in separate jurisdictions, with unique laws governing their processes and procedures, there can be considerable overlap between the two. Both family and criminal law matters have the capacity to cause long-term and hugely significant change in people’s lives, often bringing with them high levels of stress and uncertainty for the parties involved.

Criminal law matters can have significant impacts on family law proceedings, especially when children are involved, and it is not uncommon to see allegations of a variety of criminal behaviour in family law matters. If you have a family law matter on foot, and are also accused of a criminal offence, you may need a separate criminal defence lawyer to give you advice about how to best handle those proceedings.

Family Violence

The most frequent interaction between family law and criminal law is where allegations are made of family and domestic violence. ‘Family violence’ can cover a variety of behaviour, including physical abuse, as well as financial and emotional manipulation. It is possible that once a report of domestic violence is made to the police, a provisional Apprehended Domestic Violence Order (“ADVO”) will be put in place, regardless of whether that person is actually charged by the police.

The purpose of an ADVO may be to protect the alleged victim of the violence, their child(ren), anyone the victim might be in a relationship with, and/or any other named person.  This can have the effect of prohibiting contact between parents or between an accused person and their child. Most commonly, ADVOs require the accused person to refrain from assaulting, threatening, stalking or harassing any of the persons named on the ADVO, though further conditions may also be included. However, an ADVO can also prevent a person from contacting another unless through a lawyer, attending a location (including the matrimonial home), and putting in place restrictions on their behaviour, such as not spending time with a child within 12 hours of drinking alcohol.

NSW has also recently passed laws to criminalise coercive controlling behaviour, which is likely to come into effect in July 2024. ‘Coercive control’ occurs in a relationship where one party engages in behaviour designed to coerce or control the other person, which may include but is not limited to:

• Threats to harm another person or child;
• Economic or financial abuse, like withholding or preventing access to finances;
• Behaviour designed to isolate the victim from their family or friends;
• Behaviour that unreasonably controls or regulates a person’s day-to-day activities, including in relation to personal, social or sexual autonomy; and
• Behaviour that injures or causes death to an animal, or makes use of an animal to threaten a person.

Regardless of the circumstances of any particular matter, the Federal Circuit and Family Court of Australia (“FCFCOA”) in parenting proceedings must make orders that are in the best interest of the child(ren). When determining this, the Court will consider the need to protect the child from being subjected to physical or mental harm. Given this, the Court will normally take a cautious approach where ADVOs or criminal charges are involved, which may include making orders for the child(ren) to temporarily spend supervised time with the parent subject to the ADVO or charges.

Drug Charges

Criminal law and family law might also intersect where one party is facing charges for a drug offence, like possession of a prohibited drug.  

Within family law proceedings, it may be the case that one party faces allegations of drug and alcohol abuse from the other party. In parenting matters, these allegations are dealt with by assessing the risk to the child with respect to that party’s ability to care for and parent the child(ren). The FCFCOA may make orders for a party to undergo drug and/or alcohol testing, attend a rehabilitation program, or may make an order for the child(ren) to spend supervised time with the parent in question. Similar to circumstances involving ADVOs, Courts will often take a cautious approach where drug use or offences are concerned, particularly in parenting matters.

Section 128 Certificates

Section 128 Certificates are awarded under the Evidence Act 1995 (NSW) and protect the person against self-incrimination by preventing a witness’s potentially incriminating evidence being used against them in any other proceedings. These certificates can become quite important if, during the course of proceedings, a person is required to give evidence that would suggest they have broken the law. While a Section 128 Certificate does not create an ‘immunity’ from being prosecuted, it could, for example, allow a party to give evidence in their family law matter without fear of that evidence being used in any concurrent or future criminal proceeding.

For a Section 128 Certificate to be granted, the following must apply:

1. The party compelled to give evidence must object to providing the evidence sought, and the objection must have reasonable grounds;
2. The evidence to be given would prove the commission of an offence;
3. The interest of justice requires that party to give evidence; and
4. The party agrees to give the evidence, provided a Section 128 Certificate is issued.

As set out below, section 128 Certificates are an important part of Family Law proceedings, as the Court has the power to refer matters with suspected breaches of the law to external regulatory bodies (such as the Police).

Powers of Referral

Despite the protection offered by Section 128, the Court retains its powers to refer matters to appropriate agencies or departments, where it considers an investigation may be warranted, including to the Director of Public Prosecutions (“DPP”), Australian Tax Office (“ATO”), Centrelink and, for legal practitioners, the Office of the Legal Services Commissioner (“OLSC”).

The Court in Vasilias & Vasilias [2008] FamCA 34 referred the matter to Centrelink, notwithstanding the issuance of Section 128 Certificates, due to concerns over wrongful Centrelink benefits obtained by the parties and a fear the Commonwealth would be prevented from recovering those funds. Similarly, the Court may refer the parties of a family law matter to the ATO if there are findings made of undeclared income tax avoidance or evasion that are of sufficient concern. Parties referred to the ATO for investigation could also be accountable for any ATO penalties imposed and interest on any tax repayments to be made.

Talk to our experiences legal team

Our expert family lawyers at Dorter Family Lawyers and Mediators can help you understand all of your options and resolve your family law dispute, despite any possible criminal issues, in a timely and effective manner. Contact our office on (02) 9929 8840 or book in a consultation with us here.

From 6 May 2024, a number of changes to the Family Law Act 1975 (Cth) (“the Act”) will come into effect. Following an inquiry by the Australian Law Reform Commission into Australia’s family law system, in November 2023, the Family Law Amendment Bill 2003 received Royal Assent.

The amendments to the Act are aimed at making the family law system “safer and simpler”. The principle of the best interests of a child will continue to be at the forefront of the Act, however, amendments to the current legislative approach to making parenting orders will be implemented. The changes will apply to all new and existing proceedings from that date, except for a final hearing commenced by that date.

Important changes

Repeal of the Presumption of Equal Shared Parental Responsibility

One of the most significant changes to the Act is the decision to repeal the presumption of ‘equal shared parental responsibility’. The presumption has been a major component of the family law system since being introduced into the Act in 2006. The intention of the removal of the presumption is to ensure the focus in family law matter remains on the “best interests of children”, particularly in matters involving allegations of family violence.

The Court will still have the power to make orders for “joint” decision-making about long-term issues in relation to a child when considering the allocation of parental responsibility, however, this will be dependent on what the Court considers is in the child’s best interests.

Changes to how the Court is to determine what is in a child’s best interests

Section 60CC of the Act sets out how the Court determines what is in a child’s best interests. Currently, this is determined by an examination of the primary and additional considerations listed at section 60CC. The primary considerations are currently:

1. The benefit of the child having a meaningful relationship with both their parents; and
2. The need to protect the child from physical harm from being subjected to or exposed to abuse neglect or family violence.

The Act currently provides a long list of “additional considerations” to be considered subsequent to the primary considerations. The changes to section 60CC include a reduction of the list of additional considerations and a removal of the existing two-tier framework of ‘primary’ and ‘additional’ considerations. The aim being to reduce the length and complexity of the considerations which has said to “detract from the focus on the best interests of the child.”

The amendments to section 60CC also remove the mandatory consideration of specific time arrangements.  Instead the Court is required to take into account the following “general considerations”:

1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
   a. the child; and
   b. each person who has care of the child.

In considering this factor, the Court must consider any history of family violence, abuse or neglect involving the child or any person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family

2. Any views expressed by the child.

3. The developmental, psychological, emotional and cultural needs of the child;

4. The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5. The benefit of the child being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.

6. Anything else that the Court thinks is relevant to the particular circumstances of the child.

In determining what is in a child’s best interests, where the child is an Aboriginal or Torres Strait Islander child, the court must also consider the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to do so.

Where the Court reconsiders final parenting orders

The amendments provide for statutory recognition of the common law rule of Rice and Asplund[1], which provides that when final parenting orders have been made, “there must be a significant change of circumstances since the making of the orders” before the Court will reconsider and vary those orders. The Court may, however, reconsider final parenting orders with the consent or agreement of all parties to the final parenting orders.

Focus on compliance and enforcement of parenting orders

The amendments attempt to clarify the current provisions pertaining to non-compliance with parenting orders.

In addition, the Court will be given broader powers to order ‘make-up’ time or ‘compensatory time’ where a parent has not spent time with a child due to non-compliance. This is to assist in rebuilding the relationship between the child and parent that may have been lost due to the contravention.

One of the main objectives of these amendments is to deter non-compliance without reasonable excuse. The amendments also repeal the previous provisions which provided for ‘less serious’ and ‘more serious’ contraventions and clearly sets out the courts power to impose appropriate sanctions on a respondent who seriously or repeatedly contravenes a child-related order.

Summary

In summary, the following major changes will come into effect:

1. Removal of the presumption of “equal shared parental responsibility”.
2. Change of “equal shared parental responsibility” to “joint decision making about major long-term issues”.
3. A change to the list of factors as to “how the court determines what is in a child’s best interests”.
4. Codification of the common law rule of Rice and Asplund.
5. The requirement for Independent Children’s Lawyers to meet with children aged 5 and over, unless the child does not wish to do so.
6. Increased power to the court to protect parties and children from the harm associated with protracted litigation.
7. Greater focus on ensuring compliance with parenting orders.
8. The requirement for the Court, in matters involving Aboriginal and Torres Strait Islander children, to consider the child’s right to “connect with, and maintain their connection with, members of their family”. The amendment includes a definition of “member of the family” by amending the definition of “relative” in the Act to include persons who are “related to the child”.

Family Law Advice

Dorter Family Lawyers & Mediators is aware that these important changes to the Family Law Act 1975 may appear complicated and confusing. If you are in the process of separating, or require advice on a family law matter, we are well-versed in all areas of family law and can assist you.

Click here to view the  Family Law Amendment Act 2023

The complexity of matrimonial property pools is increasing. Third party interests are intertwined in property settlement disputes between married and often de facto couples. This is usually a result of a spouse’s commercial interests through family trusts, companies or debts to creditors.

The Court is empowered under Part VIIIAA of the Family Law Act 1975 (Cth) to bind third parties by making any order or granting any injunction directing a “third party to do a thing in relation to the property of a party to the marriage” or to “alter the rights, liabilities or property interests of a third party in relation to a marriage”.

Joining a third party to proceedings

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 governs the joinder of third parties together with the Family Law Act. It permits any person whose rights may be directly affected by an issue in the proceedings to participate as a party in order for the Court to determine all issues in dispute. 

This means that any spouse seeking relief against a third party pursuant to the Family Law Act 1975 (Cth) must join that party as a respondent to the proceedings. The type of relief that can be sought against third parties is set out in detail below.

Alternatively, the Court may allow third parties to intervene in proceedings in various circumstances in accordance with section 92 of the Family Law Act. If leave (permission) is granted by the Court for a person or creditor to intervene in proceedings, they are considered a third party to the proceedings and are treated as a party.

Who is considered a third party?

A third party is any person or creditor who is not party to the proceedings. The Court in Commissioner of Taxation v Tomaras [2018] HCA 62 at [71] confirmed that third parties can be involved in family law proceedings arising out of various arrangements such as ‘…ownership of life insurance products, shares in corporate entities and the creditors of the parties to a marriage whether they are family, friends or financial institutions’.

In Commissioner of Taxation & Worsnop and Anor (2009) FLC 93-932, the Commissioner for the ATO was joined as an intervenor in the proceedings. The Husband had a tax liability greater than the value of the matrimonial assets as between the parties. The Court held that the Wife was not required to make any contribution towards the debt and ordered for the proceeds from the sale of the matrimonial home to be divided between the Wife and the ATO. The Court sought to balance the interests of the debtor party’s spouse and the third party and confirmed that a weighing up of interests will be done ‘even where that spouse is “innocent” and the liability to the [creditor] exceeds the assets.

The type of orders the court can make

Under section 90AE of the Family Law Act, the Court can make the following orders to bind a third party:-

• an order directed to a creditor of the parties to substitute one party for both parties in relation to the debt;
• an order directed to a creditor of one party to substitute the other party, or both parties, in relation to the debt;
• an order directed to a creditor of the parties that the parties be liable for a different proportion of the debt; or
• an order directed to a director of a company or to a company to register a transfer of shares from one party to the other party.

Pursuant to section 90AF of the Family Law Act , where proceedings under section 114 are on foot, the Court may make an order “restraining a person from repossessing property to a marriage” or from “commencing legal proceedings against a party to a marriage”.

Conditions before a third party’s interests can be altered by the court

Before making an order or injunction that effects a third party, the Court must be satisfied that conditions have been met including the following which are set out under section 90AE of the Family Law Act:

• That the order or injunction is reasonably necessary, or reasonably appropriate and adapted to effect a division of property between the parties to the marriage:
• If the order or injunction relates to a debt, that it is not foreseeable that to make the order or grant the injunction would result in the debt not being paid; and
• The third party has been given procedural fairness as to the making of the or injunction.

The Court is also required to take into account the following discretionary considerations:

• taxation effects;
• social security effects;
• administrative costs;
• the capacity of the party to repay any debt; and
• economic or the legal or other capacity of the third party to comply before making any order binding a third party.

As a mechanism for protecting third parties, section 90AH of the Family Law Act ensures that a third party will not be deemed liable for loss or damage suffered by any person as a result of things done (or not done) by the third party so long as that third party was acting ‘in good faith in reliance on an order or injunction made or granted by a court’.

Advice

Family law matters involving third parties can be multifaceted, often involving aspects of equity and trusts and commercial matters. If you are involved in a property settlement dispute and require further information about the impact of family law matters on third parties, Dorter Family Lawyers & Mediators are experienced family lawyers and can assist you.

Call us on 02 9929 8840 or book a consultation to discuss your matter here.