In this episode, I discuss restraints against travelling with children, including whether such restraints can be made in relation to travel within Australia. I also discuss the Australian Federal Police Family Law Watchlist.
Travel restraints
International travel restrained by default
As I discussed in earlier episodes, once a parenting order is in place in relation to a child, or even an application has been made in relation to a child, the default position is that it’s an offence to remove the child from Australia without a court order or authenticated written consent of the other parties.
In effect, a restraint is automatically in place as soon as a parenting application is filed. That means it’s not really strictly necessary to apply for a restraint against another party, or another parent, taking a child outside of Australia. However, for practical reasons, it’s generally a good idea to seek an express order if a client wants to restrain the other parent/party from travelling, and I address that further below in relation to the AFP’s Family Law Watchlist.
Injunctions in parenting proceedings
The power to order an injunction in a parenting case is found in Section 68B of the Family Law Act. When one looks at its subsections, it quickly becomes clear that a travel restraint must be made on the basis of the personal protection of the child.
There is no default restraint against travelling with a child within Australia. In other words, parents are generally at liberty to travel within Australia without any permission being required from the court or another parent. That makes sense, because as long as the child remains within Australia’s borders, it’s within the reach of the court. That means the court can, in appropriate cases, make a recovery order, and the Australian Federal Police can execute a recovery order.
However, as I mentioned earlier, the court has power to make injunctions under Section 68B. It’s possible to apply for a restraint against travel within Australia, whether it’s restraining a parent from removing a child from a particular geographic area, or restraining a parent from taking a child to a particular geographic area. But the court would need to be persuaded that that restraint is necessary for the personal protection of the child.
From the cases that I’ve read, that power is usually only exercised in relation to permanent relocations, rather than short-term travel. In fact, a lot of the authorities about relocation have a carve-out specifically for short-term travel.
Australian Federal Police Family Law Watchlist
Returning now to international travel, the Australian Federal Police maintains the Family Law Watchlist, which is also sometimes referred to as the Airport Watchlist. When a child is on the Family Law Watchlist, and the child is about to leave Australia – typically when the child is taken through passport control at an airport or a seaport – the Watchlist automatically triggers an alert to the AFP, and, generally, that will mean the child cannot travel through passport control, and won’t be allowed to leave the country.
How to add a child to the Family Law Watchlist
There are generally two ways to request that a child be added to the Family Law Watchlist:
When a court makes an order restraining a parent from taking the child overseas, that is usually coupled with a request in the order that the child be added to the Family Law Watchlist. The registry of the court which has made the order will typically communicate that request to the AFP on the same day, and the AFP will then action it. There’s no need for the party, or their lawyer, to communicate with the AFP. The court manages that process.
The other way is for a party, directly, to request that a child be added to the Watchlist, and the AFP has a form for this on its website. That form needs to be submitted together with a copy of either the order restraining the travel, or an application for an order restraining the travel. That’s really quite a powerful thing, because it means that, before the other party has even been served with the application, let alone a court having made any determination, a child can already be added to the Watchlist.
Technically, in my view, any application for a parenting order ought to be sufficient to add a child to the Watchlist, given the provisions of Section 65Z, but the AFP’s form specifically requires an order, or an application for an order, restraining the removal of the child from Australia. On a practical level, the AFP’s position makes perfect sense to me. If one parent is going to place the child on the Airport Watchlist, they really should be squarely putting the other parent on notice of that, and giving them the opportunity to resist that application, and to seek permission to travel overseas with the child.
Abuse of the Watchlist
Unfortunately, the self-help option, where a party can request that the AFP add a child to the Watchlist upon the filing of an application seeking a restraint against international travel, is vulnerable to abuse. A recent example of this is Brasch J’s decision in Robinson & Heyden [2026] FedCFamC1F 67. In that case, a Judge in Division 2 had, fairly recently, made final parenting orders, including that:
the father have sole decision-making responsibility for the child;
the child live with the father; and
the child only spend time with the mother in accordance with the child’s wishes.
The father was planning to relocate overseas with the child, back to his home country. The mother then issued an application seeking a travel restraint, and immediately requested that the child be placed on the Watchlist.
Brasch J found that, given the final orders that had been made, the father was at liberty to relocate internationally without the mother’s consent, and without a further order. Her Honour ultimately found that there was no basis to reopen the case under Section 65DAAA, and, therefore, dismissed the mother’s application, and ordered that the child be removed from the Watchlist.
To protect against further abuses of the Watchlist by the mother, Brasch J also made a specific order giving the father liberty to apply at short notice, including on weekends and after hours, directly to her Honour’s chambers.
In this episode, I discuss travel applications. Those are applications by a party to take a child outside of Australia for the purposes of short-term travel. I also discuss some related passport issues.
Default position
It’s important to be aware that the default position for a child, who is subject either to an extant parenting order or an application for a parenting order, is that you’re not permitted to remove them from Australia, except pursuant to a court order, or with authenticated written consent of every other person who is party to the extant order, or the extant application. I covered that in some detail in the previous episode, so check that out if you haven’t seen it.
Travel applications
Travel is important for many Australian families. We’re quite an isolated country geographically, and many, many of us are immigrants. Many more are descended from immigrants, and still have ties to family, culture, and language overseas, and want to keep those ties alive for their children.
Because many families have two parents who are descended for migrants, or who are migrants, it’s often a matter of consent to have travel provisions in orders, because both parties are motivated to be permitted to travel, as long as certain conditions are met. In the previous episode, I discussed some considerations for when you are drafting travel orders.
Sometimes, there are circumstances where one party wants to travel with a child and the other doesn’t consent. That’s where travel applications come in.
Timing considerations
It’s often very important to turn your mind to timing issues in relation to travel applications, particularly when it’s a discrete application for a particular trip. You need to factor in the usual lead times, particularly when you’re filing an Application in a Proceeding. You have to then wait, usually for a mention before a Judicial Registrar who doesn’t actually have the power to determine the travel application. Then, from that hearing, you then get a listing to a defended interim hearing before an officer who does. That can cause a significant delay, so factor that in when talking to your client about when they want to travel, and what are realistic timeframes to get a matter on to permit the travel.
Of course, there are sometimes urgent circumstances that motivate a party to want to travel with children. Say, for example, a child’s grandparent overseas is terminally ill, and is expected to pass away soon. The parent may really want to take the children to see their grandparent before they pass away. In those cases, you really need to think about the urgency of the application, and the usual processes to seek for an urgent hearing and an abridgement of time for service apply.
The Kuebler factors
A travel application is, ultimately, of course, a parenting application, so the court has to consider the child, or the children’s, best interests under Section 60CC of the Family Law Act 1975. But there are some travel-specific considerations, which emanate from the appellate authorities in relation to travel orders. The leading authority is Kuebler and Kuebler [1978] FamCA 26. The Kuebler factors are
the duration of the proposed travel;
the bona fides of the application;
the likely effect on the child of being deprived of time with the other parent;
any threats to the child’s welfare; and
the degree of satisfaction that the court has that the parent will return the child, as promised.
Duration of travel
As general propositions, in my experience:
a shorter trip is more likely to be permitted than a longer one; and
a trip which fits neatly into school holidays is more likely to be permitted than one which sees the child missing school.
In my experience, the ratio of travel time to time the destination can also be relevant. In one matter that I was involved in, the parties lived in a regional town. The travel time to the nearest international airport was something like 4 – 6 hours, and that, coupled with needing to arrive at the airport 3 hours before departure, the actual flight time to the transit country in Asia, the time in transit, and then the flight time on to Europe, and then more drive time at the other end to get to the town where the extended family lived, meant that the travel time door-to-door was something like 48 hours each way.
In that case, the father didn’t oppose the mother taking the children overseas. The fight was over the duration of the trip. The mother was meant to have the second half of the term holidays, which was the usual 7 – 10 days, depending on how long the school holidays are. The father said “it’s fine for the mother to travel, as long as she leaves and comes back during her scheduled time with the children.”
The court took into account that, if that were to have occurred, the children would have spent 48 hours there and 48 hours back, so about 4 days’ travel time, to only have 3 or 4 days in Europe to spend with the extended family.
The court considered that that would not have been in the children’s best interests, and therefore permitted the longer travel time.
Bona fides
The court wants to be satisfied that there’s a legitimate purpose for the trip – that it’s not being done for the ulterior purpose of just keeping the children away from the other parent.
It’s not a reasonableness test, and there’s subsequent authority on that. There’s no requirement that the trip be worthwhile in a utilitarian or economic sense.
There just needs to be a legitimate purpose, and the court needs to be persuaded that that is why your client wants to travel with the children.
Effects on the child of deprivation of time with the other parent
This factor will really turn on the specific circumstances of that family.
For example, if there’s an extant order for the children to have half of the long summer holidays with each parent in a block, and the applicant wants to travel within their 3-week block of the summer holidays, there’s obviously not going to be a deprivation of time with the other parent, because the children wouldn’t have spent time with that other parent then anyway.
But if the travel time overlaps with the other parent’s time, then this might be a more relevant factor. In my view, it’s a good idea, if it’s that sort of an application, to also, with the travel application, seek orders for make-up time with the other parent. Be proactive about it, offer that make-up time, and seek an order for it. That might make the court more likely to permit the travel, knowing that there’ll be make-up time there.
Threats to the welfare of the child
There might be some specific threats relevant to the case. For example, if there’s some allegation that some extended family member has abused or molested a child, that might be a specific factor that the other side raises, and that the court considers.
I haven’t come across a case like that.
The ones I’ve come across, where there’s been a threat, have been where there’s a DFAT advisory that says do not travel or reconsider your need to travel, because it’s a war zone, or because of terrorist activity, or that sort of thing. In those cases, it’s really important for your client to put on evidence as to how they’re proposing to manage, and mitigate, that risk. I have had orders made permitting a client to travel with a child to a reconsider travel destination, because the client had really made plans, with their extended family, of travelling away from the particular terror hotspots, and ensuring that they had escape plans. They had places they could drive to, to get further away, and that sort of thing.
Degree of satisfaction that the travelling parent will return the child – the Line factors
The court will often require some form of security from the travelling parent. Typically, that’s in the form of a bond, often paid into the other party’s lawyers’ trust account. It can also be some sort of encumbrance on title to a real property owned by the travelling parent, and that’s often done by way of lodging a caveat.
to provide sufficient incentive for the travelling parent to return; and
to effectively give the left-behind parent effectively a fighting fund to litigate for the return of the child, if the travelling parent doesn’t return as ordered.
In Line, the Full Court set out a number of considerations to take into account in relation to this Kuebler factor:
the ties which the travelling parent has to Australia, which include things like an interest in real property, interest in a business, and familial and personal ties;
any motive the travelling parent may have not to return the child to Australia, including conflict between the parties, particularly if that’s conflict in relation to the child or the children;
the ties which the travelling parent has to the destination country, including, again, things like an interest in real property, interest in a business, and familial, and personal ties;
whether the destination country is a signatory to the Hague Convention on International Child Abduction that’s recognised by Australia – of course, in relation to that, you can just look at the Attorney-General’s website on the Hague Convention, which has an up-to-date list of signatories recognised by Australia; and
the financial circumstances of the parties – for example, if the travelling parent is worth $50 million, a $10,000 bond is unlikely to incentivise them to return.
Don’t forget to adduce evidence
If your client is not seeking a specific travel order for a specific trip, but is just seeking a general travel order in a final orders application, don’t forget to address the travel proposal in the trial affidavit.
Remember, counsel is not permitted to make submissions without a basis in evidence. In any event, if there’s no evidence, the judge will just say, “I’ve got no evidence. I can’t determine this issue.”
Even if there’s no specific travel proposal, the client will, presumably, have some reason for seeking the travel order, whether it’s that they have family overseas, or they just want to be able to go on holidays. Whatever the reason, make sure it’s there.
Can the court make a general order without a specific proposal?
There are some authorities that question whether the court can make a general travel order on a final basis in the absence of a specific proposal. For example, Judge Glass, in Jefferson and Hooper(No 2) [2025] FedCFamC2F 1170, said that, in the absence of a specific travel proposal, his Honour couldn’t consider the Kuebler factors and the Line factors, and therefore couldn’t determine the travel application.
Other judges have taken the opposite view. Harper J, in Alard & Dinesh [2024] FedCFamC1F 260, considered a general application, and considered that, in the circumstances of that case, there could be no confidence that the parents could agree on any future travel arrangements. Harper J therefore considered that it was in the child’s best interests to make the travel order, because it was the course that was least likely to lead to further litigation about the child.
That hearing pre-dated May 2024, so it was the old Section 60CC which applied, and Harper J specifically referred to Section 60CC(3)(l), which was a provision for making a decision which is least likely to lead to further litigation.
That provision does not have an equivalent in the current version of Section 60CC. In Ballard & Kellam (No 2) [2026] FedCFamC1F 115, Christie J nevertheless applied the same concept, citing Alard & Dinesh, and reached the same conclusion that it was in the children’s best interest in that case, to have final orders which were least likely to lead to further litigation.
Of course, there’s still the catch-all provision, now under Section 60CC(2)(f), that says the court can take into account anything it considers relevant to the child’s best interests. Therefore, the course least likely to lead to further litigation is still an argument that’s open to you and to your client in seeking a general travel order.
Passport considerations
Having a travel order is all well and good, but a travel order does no good if the child doesn’t have a passport. Without a passport, they won’t be able to leave Australia, and they won’t be able to enter the other country.
It’s important, in my view, to couple a travel application with an application for certain passport-related orders. The typical sort of orders to consider are:
an order compelling the other parent to sign the passport application; and
frameworks for:
where the passports are to be held; and
when they get passed between the parents, including in time to obtain visas and that sort of thing.
For Australian passports, the usual requirement is that any person with parental responsibility has to sign the application.
It is also possible to seek an order that your client be unilaterally permitted to apply for a passport. Of course, you need to have evidence that supports that. The typical things where I’ve seen clients achieve that sort of an order from the court, are where:
the other parent either hasn’t engaged in the proceedings at all, and therefore there’s no confidence that they’ll sign anything; and/or
the other parent has persistently breached court orders.
Again, think about those things, put on the relevant evidence.
Is sole decision-making responsibility enough for a unilateral application?
You may also have a case where your client already has an order for sole decision-making responsibility or, if it’s a pre-May 2024 order, sole parental responsibility. Technically, that is sufficient for them to apply unilaterally for a passport in the absence of another order, because their signature alone will meet the requirement that all persons with parental responsibility sign the application.
I’m told by many instructors and clients, though, that the passports office doesn’t always fully understand, or isn’t fully aware, of what a sole parental decision-making responsibility order means.
Therefore, it is prudent to seek a specific order which expressly authorises the client to solely apply for the passport, with reference to Section 11(1)(b) of the Australian Passports Act 2005.
In this episode, discuss how the Family Law Act 1975 impacts on parents wishing to travel overseas with their children, some considerations to take account of when drafting travel-related orders, and also some things to avoid when drafting those orders.
Sections 65Y to 65ZAA
You are probably aware that Part VII of the Family Law Act relates to children. It’s Division 6 of Part VII, which relates to parenting orders other than child maintenance orders, and Subdivision E of that Division deals with restraints on taking, or sending, children outside of Australia. It’s really important for both parties and lawyers to be really across the provisions of sections 65Y through to section 65ZAA, because breaches of those sections are an offence, and the penalty is imprisonment for 3 years. So they’re quite important.
In essence, what those sections provide is that if a child is subject to an extant parenting order, or an application for a parenting order has been made in relation to a child, it’s an offence to take, or send, the child outside of Australia, unless it’s permitted by a court order, or there is authenticated written consent of the other parties – either the other parties to the parenting order, or the other parties to the application.
There are corresponding provisions which make it an offence to retain a child outside of Australia for longer than permitted by the order or the written consent, but they have an exception where the person retains the child because it’s reasonably necessary to do so in order to prevent family violence.
In my experience, it’s incredibly common for both parties and lawyers to overlook the requirement that the written consent to be authenticated. Authentication for this purpose is prescribed in regulation 51 of the Family Law Regulations 2024, which, in turn, refers to the legislation at Commonwealth level related to statutory declarations. In essence, what is required is that someone who’s authorised to take a statutory declaration endorses the written consent with two things:
that they have taken reasonable steps to verify the identity of the person signing the consent; and
that they’ve witnessed the signature.
I don’t think, in 15 years of practice, that I have ever actually seen an authenticated written consent prepared for travel. I’m also not aware of anybody who’s travelled based on a written consent, which wasn’t properly authenticated, being prosecuted. Nevertheless, it’s an important thing for lawyers to be aware of, because, of course, we have obligations:
not to aid anyone in committing an offence, and even a technical breach of those provisions is an offence; and
to give correct advice.
So it’s really important that lawyers are across this stuff.
Drafting Travel Orders
It’s important to draft travel-related orders clearly and precisely, both when drafting applications and when drafting consent orders.
It’s especially important for final orders. If final orders are in place, and a parent wants to travel with a child beyond what those final orders provide for, they’ll need, again, authenticated written consent or a further order of the court.
A further order will require a new application, and will be subject to s 65DAAA requirements. That applies even if they just want to travel for, say, one day longer than what the orders provide for. So it’s really important to get this stuff right.
Time Periods
In terms of travel periods, if it’s an order for specific travel, for one particular trip – for example, you’re drafting an Application in a Proceeding to allow travel on an interlocutory basis – be sure to be really precise with the start and end times, because the travel will have to fall within those periods. Make sure you get really clear instructions on when the travel needs to occur, including transit times, travel time to the airport, and so forth.
When you’re drafting more general orders that permit travel during particular classes of times, again, make sure you actually get instructions to ensure that what you’re drafting is sensible for the case.
Typically, the sort of orders that get drafted are:
permitting that either parent can travel with a child during their regular time during school holidays, as provided for elsewhere in the orders; or
that either parent can travel with a child during any time when they’ve got the child in their care.
Conditions
It’s common to include conditions on the travel.
The most common one is a notice requirement. For example, the orders might say that, no later than 30 days before the proposed start of the travel, the travelling parent has to provide the other parent with certain information like:
itineraries;
flight details;
contact details; and
proof of travel insurance.
You might also have restrictions on where the travel can occur.
The common ones which I usually discuss with clients, and often include in orders, are:
restrictions based on DFAT advice – if DFAT’s advice for a particular location is do not travel or reconsider your need to travel, that might be excluded; and
restricting travel to non-Hague countries.
With a non-Hague restriction, you need to be really, really careful, because a lot of the destinations that Australians regularly like to travel to, aren’t signatories to the Hague Convention.
For example, Indonesia is not a signatory. If you prohibit non-Hague countries, then that family can’t travel to Bali, unless there’s some other provision in the orders or there’s consent.
I also like to include another order after the main travel order, to the effect that, except as provided for in the travel order, the parties are restrained from taking the child or the children outside of Australia, except with prior written consent of the other party. And there’s two reasons I like to include that order:
The first one is technically redundant, and that’s just to make it clear to the parties that, other than that, they need consent of the other parent. That’s the position under the Act anyway (see above), but it makes it a bit clearer for the clients.
The exception in this order is where there’s prior written consent, which notably gets rid of that requirement for the consent to be authenticated. The reason I like that, particularly for final orders, is that it avoids the parties then having to go back to their lawyers, or to find a JP, to provide that written consent to ensure they’re not technically committing an offence, particularly if it’s for something small.
Say, for example, the orders provide for travel during school holidays only, but the parties agree that the child can miss the first two days of the next term. That can then be just agreed in a WhatsApp message, or an email, or however the parties choose to communicate in writing, without having to see the lawyers or find a JP.
It could also be for when a party hasn’t complied with a notice period. For example, if the requirement is that they have to give 30 days’ notice for the itinerary, but they’re travelling because there’s been a death in the family and they need to go to the funeral urgently.
Things to Avoid
I’ve got a real bugbear with a really common type of travel order that I see: an order that basically sets out all the stuff that I’ve suggested setting out, but still makes it subject to agreement by the other party.
That doesn’t actually permit anything. It just summarises the stuff that they should be talking about to inform whether or not they’ll agree. It leaves the parties no better off than just having no travel orders at all, and just leaving it to section 65Y through to 65ZAA.
In my view, drafting those sorts of orders is both a waste of your time as a lawyer, and a waste of your client’s money in paying you to draft it.
The other thing that you need to be careful to avoid is just slavishly following a precedent. Orders need to make sense for the particular family, and in the context of the overall orders that are being drafted.
A recent example I dealt with was a matter where orders were drafted on a final basis at a court hearing. Everybody was at court. There was a bit of time pressure because they were there for an interim hearing or a mention or something, and decided to draft final consent orders there and then.
As best I could ascertain, those orders were drafted by the independent children’s lawyer, using that independent children’s lawyer’s usual precedents. Those orders included a travel provision, very much in the way that I’ve recommended drafting it. It had the notice requirements, it had the restrictions, and all that sort of stuff in it.
And it said that the parties could travel at any time when the child is scheduled to regularly spend time with the party under the parenting orders.
What that provision failed to take account of was that the only regular time specified in those orders for the child to spend with the father was two nights on three out of every four weekends. The context there was the parties lived several hours apart. Somewhat unusually, those orders did not include any specific time during school holidays. The three out of four weekends just rolled all the way through the year.
The effect of that was that whilst there was, to the understanding of at least the father, an order that permitted him to travel – and he thought it meant he could travel quite liberally during the holidays – what the orders actually did was permit him to travel overseas for two nights on three weekends out of every four.
Of course, given the distance from Australia (in this case, Victoria) to pretty much anywhere except New Zealand (or perhaps for people who live further north, parts of Indonesia, PNG, and other places around there), Australians can’t really do international travel in two nights. It’s not like we live on the border of Germany and France, and can just hop across the border and back for a weekend.
So those orders were really quite useless.
In that particular case, the father wanted to travel overseas to see family. Both the parents, and the child, were born overseas, but he couldn’t do it. The mother wouldn’t agree. He had to make an application to the court, and it was listed for a s 65DAAA threshold hearing.
You need to be really, really careful with how you draft these orders and don’t look at the orders in isolation for travel. Look at them in the context of the overall case and the overall orders.
In this episode, I discuss how the family law courts determine who gets to keep the family pet when a married or de facto couple separates.
Overview
Australia has very high pet-ownership rates. The RSPCA’s website cites statistics from Animal Medicines Australia which showed that, in 2022, 69% of Australian households have a pet. The most common pets are dogs, which are found in 48% of Australian households, followed by cats at 33%.
Those of us who have pets often consider them to be part of the family. People have strong emotional attachments to their pets, and many people treat them as if they were their children.
However, pets are not children as far as the law is concerned.
As much as it will pain pet lovers, animals are property and are to be treated as such. Questions of attachment are not relevant and the Court is not, in effect, to undertake a parenting case in respect to them.
Chattels
So the family pet is, in the eyes of the law, just another chattel.
In most cases, the pet is unlikely to have great monetary value, so it is, rather sadly, akin to a household item like the TV or washing machine.
Can the Court make an order for shared custody?
Given that a family pet is an item of property, the “clean break” principle found in sections 81 and 90ST applies.
In Davenport & Davenport (No 2), Judge Tonkin observed that the Court has no jurisdiction under Part VIII of the Family Law Act to make an order for “shared custody” of a dog.
In the recent decision of Arena & Arena (No 4), a father in a parenting proceeding sought orders that the family pet move between the parties with the child, contending that the pet provided therapeutic value to the child, who had special needs.
Final property orders had already been made between the parents, and they provided for ownership of the pet.
Curran J, with reference to Grunseth & Wighton and Davenport, determined that the Court did not have jurisdiction to deal with the pet in parenting proceedings.
How Does the Court Decide Who Gets the Pet?
Chattels are more often than not disregarded when tabulating the property available for adjustment between parties, because it’s not cost-effective to have an expert value them.
The determination as to who gets to keep a chattel – including a family pet – is ultimately a discretionary one.
A reasonably recent example of a family law pet dispute is Judge Boymal’s 2022 decision in Barrese & Arrico.
The matter involved a modest property pool of about $147 k and a dog which the parties had acquired around the halfway mark of a short relationship of around 4 or 5 years.
Following separation, the dog remained in the wife’s care. The husband tried at least a couple of times to take the dog from the wife. One of those occasions involved breaking into the wife’s home, for which husband was arrested, an ultimately served a prison sentence.
There was no agreed monetary value for the dog, but on either party’s view the value was modest. Her Honour determined not to include the dog in the asset pool.
Judge Boymal referred to the wife’s evidence that she had purchased the dog, and that she had paid for veterinary services (including de-sexing), registration, food and toys.
The husband disputed this, asserting that he had purchased the dog.
Her Honour held that:
While there is a dispute about who paid for the dog and how much the dog cost those details are of little consequence. The circumstances of the purchase of the dog is [sic] not, in itself, determinative of ownership, nor does it determine the future ownership of him. Both parties have a sentimental attachment to the dog but that is also not determinative of who should retain him. The husband’s tenacity in endeavouring to have the dog in his care in my view does not determine that he has a better entitlement to the dog than the wife.
Her Honour found that the wife had made significantly greater financial contributions to the dog, had cared for the dog, and was the registered owner of the dog.
Her Honour held that
Given the wife’s financial expenditure on the dog and her maintenance and care of him the orders include that she shall retain the dog.
The Full Court in Grunseth & Wighton suggested an alternative approach, which I imagine would be taken by many animal lovers as an affront. It suggested:
If the ownership is contested, there is much to be said for each party making a blind bid for the pet, with the highest offer accepted and taken into account in dividing the property.
Conclusion
All in all, the family law landscape in relation to pets is likely to be an upsetting one for many parties. The Family Law Act makes no specific provision for pets, and they are given no higher status than whitegoods or couches.
Whilst each matter will be determined by the Court on a discretionary basis, the published cases suggest that factual matters such as registered ownership, and financial contributions to the upkeep of pets, can be important factors in determining who ultimately gets ownership of a pet.
In this episode, I discuss the judgment of Judge Glass in Shams & Alkaios (No 2), which is the first published parenting case determined on the basis of the 2023 amendments to Part VII of the Family Law Act.
Since the first Exposure Draft of the bill was released, there has been much discussion about the effects of the amendments.
I was on the record early with a view that the amendments were, for the most part, a simplification and rewording of the same concepts, aimed at making the provisions easier to understand for self-represented litigants, rather than a massive upheaval. Whether I was right or wrong, my views will forever be freely available online to haunt me in a TEN Fireside Chat with Jacky Campbell.
The amendments took effect on 6 May 2024. That day, Judge Glass of the Federal Circuit and Family Court of Australia (Division 2) in Melbourne commenced a 3-day parenting trial.
No doubt many other judges did the same, but Judge Glass has the distinction of delivering the first published judgment applying the amended provisions.
His Honour delivered judgment in Shams & Alkaios (No 2) on 20 May 2024.
It was a fairly straightforward relocation matter where the children had been living with the father in Melbourne, and the mother sought a change of residence for the children to live with her in Queensland.
There’s nothing extraordinary about the facts of the case, but it is the first (and at the time of writing only) published decision based on the freshly amended Part VII.
So, how did Judge Glass consider and apply the new provisions?
Are there drastic impacts as a result of the new simplified objects of Part VII?
Does the absence of a presumption in favour of equal shared parental responsibility mean that sole decision-making orders will be the new normal?
Have the section 60CC best-interests considerations changed everything?
Decision-Making
The first thing one sees when looking at the judgment is order 1, which reads:
The parties make joint decisions in relation to all major long-term issues in relation of the Children…
This is the new equivalent to the old order for equal shared parental responsibility, but in language which makes it absolutely clear that the order is about decision-making, and nothing else which might have been read into the term “parental responsibility”.
Of course, absent from the judgment is any discussion of a presumption, as none exists anymore.
Decision-making is now just another aspect of the discretionary assessment of best-interests considerations.
However, in determining the allocation of decision-making (after analysis of the best-interests considerations, which I discuss below), Judge Glass referred to the “encouragement” prescribed by section 61CA, which provides:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a) to consult each other about major long-term issues in relation to the child; and
(b) in doing so, to have regard to the best interests of the child as the paramount consideration.
New s 60B – Objects of Part VII
Judge Glass noted that he was guided by the objects of Part VII, as found in section 60B, but did not otherwise refer to them.
Section 60CC Factors
The new section 60CC is much shorter and simpler than the old one.
The old language of protecting children from harm has been replaced by a focus on the safety of not only the child, but also the child’s carers.
Section 60CC(2)(a) – Arrangements which would promote the safety of the child and carers
Under this factor, Judge Glass traversed the history of the parenting arrangements, what his Honour termed as “generalised assertions” by the mother about the father in relation to abuse and controlling behaviour, allegations of physical violence, and other allegations of family violence.
His Honour also included in this part of the judgment discussion about what in this case was a lack of family violence orders.
On my reading, there was nothing novel in the discussion. It encompassed the matters which his Honour would have discussed pursuant to the old s 60CC(2)(b) and 3(j) and (k).
His Honour was ultimately not satisfied that the father had caused harm to the children, and was therefore not satisfied that a change of residence was necessary to promote their safety.
Section 60CC(2)(b) – Views expressed by the child
In the familiar way, his Honour discussed the children’s views as relayed by the family consultant.
This is unsurprising, as the wording of the new s 60CC(2)(b) is a truncated version of the old s 60CC(3)(a).
Section 60CC(2)(c) – Developmental, psychological, emotional and cultural needs of the child
Here, his Honour’s discussion turned to the family consultant’s opinions about the care provided to the children in their primary residence, and the support the children received at home and school.
His Honour also referred to the family consultant’s evidence about potential emotional distress which would be occasioned on the children by a move from their familiar environment and community to a new life in Queensland.
Section 60CC(2)(d) – 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
Judge Glass’s discussion of this factor is reflective of the discussion one would have expected in relation to the old s 60CC(3)(f).
It has the usual themes of parental capacity and insight, child-focus and support of the children’s relationships with the other parent.
Section 60CC(2)(e) – Benefit to the child of 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
Here, his Honour considered the nature of the children’s relationships with each of the parents and other significant adults, ultimately determining that the children had strong and sound relationships with each parent, which could be sustained despite the geographical distances between them.
Having found earlier that there was no risk to safety, the last seven words of paragraph (e), being “where it is safe to do so” had no work to do in this case.
In the absence of safety concerns, the new s 60CC(2)(d) appears to reflect the old s 60CC(2)(a) and (3)(b), (c) and (d).
Section 60CC(2)(f) – Anything else relevant to the particular circumstances of the child
This new version of the old s 60CC(3)(m) catch-all provision.
His Honour did not discuss any relevant matters.
Conclusion
No doubt, we will see more and more judgments in the coming months, which will show us how various judges in all three Court – Division 1, Division 2, and Family Court of Western Australia, are applying the new provisions.
In time, we will get further clarification from the Full Court and eventually the High Court.
Based on this first published judgment, though, it looks like we may all be able to relax a little bit about the amendments, as nothing much seems to have changed.
In this episode, I discuss contempt in family law, including types of contempt, the relevant tests, and how contempt interacts with Division 13A contravention proceedings.
The Federal Circuit and Family Court of Australia (Division 1) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
Section 142(1) provides the mirror provision for Division 2.
Section 112AP of the Family Law Act
Section 112AP of the Family Law Act 1975 makes up the entirety of Part XIIIB – Contempt of Court.
Application of s 112AP
Section 112AP(1) sets out the required elements for a finding of contempt under the Act:
Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
Contempt other than Contravention
Section 112AP(1)(a) needs little explanation. It relates to conduct which falls within the ordinary meaning of the word “contempt”.
“told the Court many times during the hearing that the proceedings were ‘moot’ and that they did not matter to him”;
“sought to intimidate [the judge], seemingly believing … that he might be able to intimidate [the judge]into finding in his favour”; and
“insincerely said to [the judge] at one point ‘I forgive you for your ignorance’” and then “blatantly lied to the Court when he was asked to confirm that is what he said”.
Forrest J was “quite satisfied that the husband [had] contemptuous feelings towards” his Honour and the Court.
Beyond Reasonable Doubt
The Full Court in Tate held that an application that a person be dealt with for contempt is “properly characterised” as “a proceeding for an offence” and that,
Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s 141(1) of that Act, namely proof beyond reasonable doubt.
Elements
Aldridge J in Ganem & Ganem (No. 2) summarised the elements of a contempt as follows:
The respondent knew the terms of the orders.
The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent.
The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intended to do the act which is alleged to be the contempt.
The act must involve a flagrant challenge to the authority of the court. …
What Constitutes a Flagrant Challenge to the Authority of the Court
The alleged contemnor must have known both the contents of the contravened order, and what the order meant.[3]
In order to establish a contempt, I need be satisfied that there has been a deliberate defiance of a court order, as distinct from a breach of a court order.
The Full Court in Kendling approved the following passage from English:
it must be established that the respondent knew of the undertaking or order and that his act or omission in breach of that order or undertaking was a wilful, that is, a deliberate act by him as distinct from accidental or inadvertent. It is not necessary in addition to establish that the conduct was contumacious; that is, it is unnecessary to show that the act or omission was done with a deliberate intention to break or disregard the undertaking or order.
The Full Court in Kendling held that a lack of adverse consequences to the other party to the proceeding does not absolve the contemnor. The Court there said that there were at least two reasons:
the consequences of the most flagrant challenges to the authority of the Court could be avoided by the rectification of the breaches of the orders at any time prior to the imposition of sentence. There would be a clear incentive in those circumstances for parties to flagrantly challenge the authority of the Court in the hope that the other party would not incur the expense of bringing the application pursuant to s 112AP, safe in the knowledge that if and when that was successfully undertaken, remedying the breaches of the orders would obviate the imposition of sanctions pursuant to the section
where rectification of breaches of court orders can be achieved by financial transactions or payments, is that it has the potential to elevate the wealthy to a level of impunity not enjoyed by those less affluent.
Sentencing
Kent J, in Cluny & Skinner (No 2), conveniently summarised “general principles or guidelines” with respect to sanctions for contempt. Essentially:
Section 112AP provides the code for dealing with sentencing. State and federal sentencing laws have no application.
The sentencing judge has a wide discretion, which is to be exercised transparently.
Review of punishments in other cases is of limited assistance, as each case turns on its own facts.
As the section provides no maximum term of imprisonment, the exercise of the discretion is particularly difficult.
Whilst the purpose of contempt proceedings is normally to coerce compliance with orders, another purpose may be punishment, for the purposes of individual and general deterrence, and for retribution. Retribution may be called for because effective administration of justice requires demonstration that the court’s orders will be enforced.
Who can Apply?
Am application for a person to be dealt with for contempt may be made by:
a party to the proceeding, if the contempt is in connection with a proceeding;
the Marshal, or another officer, of the Court;
an officer or staff member of the Australian Federal Police; or
Rule 11.71 sets out the requirements and processes for contempt applications. As a contempt proceeding is quasi-criminal, strict compliance with the Rules and legislation is required, so be sure to peruse r 11.71 before making an application.
Contempt vs Division 13A Contravention Proceedings
A party aggrieved by way of contravention of a parenting order may elect to seek that the offending party be dealt with for contempt (if the requisite flagrant challenge exists), in addition to, or rather than, seeking that the offending party be dealt with under Division 13A of Part VII.
In Wylie, Forrest J held (with my emphasis added):
Section 112AP(2) of the Act expressly empowers the Court to punish a person for contempt of the Court “[i]n spite of any other law”. I consider that provision confers power on the Court to hear and determine contempt proceedings against a party regardless of whether proceedings have or are being brought against the alleged contemnor pursuant to Division 13A of Part VII of the Act or a provision of any other State or Commonwealth legislation, such as the Queensland Criminal Code. As Coleman J went on to say in McClintock & Levier:
In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.
Where the Contravention Constitutes a Crime
Where a person chooses to prosecute a contempt based on an alleged contravention of a parenting order, but without prosecuting a contravention under Division 13A, the obligation under s 70NDB to either adjourn or dismiss the contravention proceeding where the alleged contravener is subject of criminal proceedings arising out of the contravention is not mandated.
However, the Full Court in Sahari and Sahari (1976) FLC 90-086 said (my emphasis added):
Where the alleged facts constituting the contempt also constitute a crime the court has a careful and considered discretion to exercise. In some cases protection of the applicant will demand urgent action. In others the applicant’s protection can be left to the processes of the criminal law. Where only the affront to the court’s authority is involved and the same facts constitute a crime, the criminal processes should first be allowed to take their course. When they are concluded the court may then turn to the question whether the disobedience of its order merits further punishment in the public interest.
Conclusion
As you can see, an application for someone to be dealt with for contempt under the Family Law Act should not be made lightly.
Great care needs to be taken to comply strictly with the legislation and the Rules, and, of course, the standard of proof required is higher than what we are normally used to in family law, because it’s the criminal standard of proof beyond a reasonable doubt.
In this episode, I am joined by Robert Heath KC, for a discussion about asset preservation orders.
Transcript
Johannes:
Welcome to Divorce is Schmidt: A Family Law Series.
In this episode, I’m joined by a special guest. Rob Heath KC is a leading commercial silk at the Victorian Bar. In addition to his busy, and broad, advocacy practice, Rob is a highly sought-after mediator and arbitrator, both in Australia and overseas.
I had the privilege of being led by Rob in a matter in the Major Complex Financial Proceedings list in 2023, Rob’s first foray into family law.
That included a two-day interlocutory stoush, primarily about our topic of discussion in this episode: asset preservation orders.
Rob, what is an asset preservation order, and what is it for?
Rob:
The purpose of granting an asset preservation order is to prevent the frustration or inhibition of the court’s process, by seeking to meet a danger that a prospective judgment of the court will be wholly or partly unsatisfied.
Johannes:
And how does an asset preservation order operate?
Rob:
Asset preservation orders operate to prevent the party against which they are made from divesting or dissipating assets.
They’re intended to prevent the abuse or frustration of the processes of the court by preventing the respondents from dissipating their assets, or disposing of their assets, so as to deprive applicants of the fruits of any judgment obtained in the proceedings.
Johannes:
Okay, so an asset preservation order is a species of interlocutory injunction. In the family law context, we’re looking at section 114(3) of the Family Law Act. Now, that section provides that the court may grant an injunction if it appears to the court to be just and convenient to do so.
How does the court work out whether it’s just and convenient to grant an injunction, generally?
Rob:
In ABC and O’Neill, the High Court explained the organising principles relating to interlocutory injunctions.
According to these principles, on such applications, the court must make two inquiries.
The first inquiry is whether the applicant has demonstrated a sufficient likelihood of success to justify in the circumstances the preservation of status quo pending trial.
And the second inquiry is whether the balance of convenience favours the granting of the injunction sought.
Johannes:
I’m guessing, Rob, that the first limb there is quite important in general civil litigation, where a plaintiff or applicant needs to make out a cause of action.
In the context of family law property proceedings, that will virtually always be satisfied, won’t it?
Rob:
Yes, I think so.
Johannes:
And how does the court determine the balance of convenience in the second limb of that test?
Rob:
In order to succeed in obtaining an asset preservation order, an applicant must demonstrate the following.
First, a sufficient probability that they will obtain a favourable judgment, which, as we’ve just touched, on is usually a given in a family law property case.
And, second, the risk that, if not restrained by order of the court, the respondent will do something that brings about an unjustifiable dissipation of assets under the respondent’s control, with the consequence, Johannes, that this will interfere with the due administration of justice.
And, third, as a matter of discretion, the order ought be made.
Johannes:
So the real meat is in the second limb there, isn’t it? A risk of unjustifiable dissipation of assets under the respondent’s control.
How does the applicant for the asset preservation order show that?
Rob:
The applicant will discharge that burden if they can show that there’s a real risk that a judgment will go unsatisfied, in the sense of a real risk that unless restrained by injunction the respondent will unjustifiably dissipate, or dispose of, their assets, other than in the ordinary course of business.
Second, unless the respondent is restrained by injunction, assets are likely to be dealt with in a way such as to make enforcement of any judgment more difficult, unless those dealings can be justified for normal and proper business purposes.
Johannes:
Okay, and what’s the level of evidence required to demonstrate a real danger of judgment frustration?
Rob:
The applicant must show by evidence, and not by assertion, that there’s a real danger of dissipation of assets such as to render the judgement wholly or partly ineffective.
The applicant must prove facts from which a “prudent, sensible commercial” person can “properly infer a danger of default if assets are removed from the jurisdiction” or dissipated.
Johannes:
So it can’t just be a fear or speculation on the part of the applicant that the respondent might do something dodgy, and a prudent person needs to be able to draw an inference of default from the evidence.
What if conflicting inferences are open on the evidence?
Rob:
In 1952, the High Court in Luxton and Vines held that courts cannot draw the “appropriate inference” if the admissible evidence gives rise to “conflicting inferences of equal degrees of probability so that the choice between them is mere matter of [speculation or] conjecture”.
Johannes:
And you said earlier that the third limb of the test is whether, in the court’s discretion, the order ought to be made. What does the court consider there?
Rob:
Courts must consider the customary discretionary calculus.
Johannes:
What does that involve?
Rob:
First and foremost, analysing the first and second considerations together and doing so with an appreciation of both the underlying purpose of the rule and the relative risks of granting or withholding relief.
Second, considering other matters, such as the breadth of the orders sought and the likely impact of those orders upon the person against whom it’s made, and also upon third parties.
Johannes:
Okay, and is there any remedy for the respondent, or third parties, if they suffer losses because of the asset preservation order being made?
Rob:
Yes. On the assumption that it should not have been made as things turn out, courts look back to an undertaking as to damages, which the applicant may have had to have provided. And the authorities make it clear that, ordinarily, an application for an asset preservation order should be coupled with the giving of an undertaking as to damages by the applicant.
In exercising the discretion at the final steps, courts have regard to the likely difficulties associated with the quantification and recovery of damages pursuant to the usual undertaking, if it should turn out that the order should not have been granted, and the likely problems for the identification of events which would trigger that entitlement to damages at the end of the whole process.
Johannes:
Thanks, Rob.
So what are the key takeaways for our listeners here?
Rob:
First, there needs to be a real risk of unjustifiable dissipation of assets – not justifiable dissipation; it has to be unjustifiable.
Second, there needs to be a risk that such dissipation will undermine the administration of justice.
And, third, there must be evidence of the risk. Not mere speculation or conjecture, and not assertion. That won’t cut it.
Johannes:
So, actual evidence.
Rob, a lot of the authorities on asset preservation orders come from outside the family law sphere. For the people listening to this who, like me, are mere family lawyers, where can they find all of the citations of the principles that you’ve spoken about today?
Rob:
Mercifully, Johannes, they’re all set out in our article in issue 1 of volume 33 of the Australian Family Lawyer, which is published by the Family Law Section of the Law Council of Australia.
Johannes:
Rob, thank you so much for joining me, and for your insights on asset preservation orders.
Rob:
My pleasure. Thanks for having me.
Johannes:
This is Robert Heath KC. I’m Johannes Schmidt. Thank you for listening.
In this episode, I discuss privilege issues related to litigation funders, and whether communications between litigation funders, lawyers, and parties, are subject to discovery or subpoenas.
Overview
It appears to be increasingly common that clients who have good prospects of obtaining a property settlement in a family law proceeding are unable to afford legal fees upfront.
At the same time, it is less and less common for lawyers to be prepared to run family law litigation on the promise of payment at the end of the matter.
Litigation funders are often the answer to filling that gap.
Litigation funders assess the merits and prospects of a property case, necessarily with input from the client and the solicitors, and then agree to lend funds to cover the legal fees, typically with some security provided by the client.
The information sought by litigation funders from solicitors largely mirrors the sort of information which a solicitor might provide to a client when advising on the merits of their case.
When it comes to actually disbursing funds, the usual process is that the solicitors provide copies of their invoices to the litigation funder, and the funder pays the solicitors directly. Those bills often contain detailed narrations which may reveal strategy or steps about to be taken by the client.
So what happens if the other party to the litigation demands discovery of communications with the litigation funder, or issues a subpoena to produce documents, directed to the litigation funder?
Litigation Privilege
Let’s first look at the law of litigation privilege.
To avoid any confusion, I want to be clear that family law in Australia is a federal law, and so the Evidence Act 1995 (Cth) is the legislation which applies, rather than any state or territory Evidence Act.
Division 1 of Part 3.10 of the Evidence Act relates to Client Legal Privilege. At common law, this concept is known as legal professional privilege.
Personally, I prefer the term client legal privilege, because the privilege belongs to the client, not to the legal practitioner.
Evidence Act s 119 relates to a particular kind of Client Legal Privilege known as litigation privilege.
Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:
(a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or
(b) the contents of a confidential document (whether delivered or not) that was prepared;
for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
For the purposes of this discussion, where we are talking about production of documents in an Australia family law proceeding, we are really just interest in 2 aspects of s 119:
whether the document in question is a confidential communication; and
whether the document was prepared for the dominant purpose of the client being provided with professional legal services.
Confidential Document
The term “confidential communication” is defined in s 117, which contains the definitions relevant to Division 1 of Part 3.10:
confidential communication means a communication made in such circumstances that, when it was made:
(a) the person who made it; or
(b) the person to whom it was made;
was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
Lawyers are obviously under both legal and ethical confidentiality obligations.
But are documents prepared for the purpose of obtaining litigation funding prepared for the dominant purpose of the client being provided with professional services?
There are two leading Australian authorities on this issue, both decided in 2006:
In Rickard Constructions, Bergin J held that the dominant purpose of confidential communications with the litigation funder
was to ensure the overall capacity of the plaintiff to have funding and to ensure that such funding would be forthcoming for the continued funding of the litigation.
The Court concluded that the documents were privileged pursuant to s 119 of the Evidence Act 1995 (NSW), which is in identical terms to s 119 of the commonwealth Act.
Spotless was determined on the basis of common law legal professional privilege, as Victoria had not yet enacted its current Evidence Act (which largely mirrors the Commonwealth Act).
Chernov J pointed out:
It is common ground that the original communication, namely, the legal advice that was provided to the respondent, was subject to legal professional privilege. And it was that communication — that advice — that was passed on to the third parties. That the re-communication was in written form is, as I have said, irrelevant to this issue. What is of relevance is that, on its proper characterisation, the communication that was made to the third parties, effectively by the respondent, was the legal advice which it had received and to which privilege attached.
In the family law arena, in the 2007 case of Blue & Blue [2007] FamCA 1444, Carmody J, after considering Rickard Constructions, Spotless, and other authorities, found not only that the litigation privilege applies to communications between solicitors and litigation funders, but also that the principle was “concomitant with public policy”, in that it was in the public interest for litigants to be able to access litigation funding.
So the answer is clear: communications with litigation funders are covered by client legal privilege.
In this episode, I discuss Strum J’s recent judgment in Stella & Stella, which involved Stanford arguments, multiple pools and late inheritances.
Overview
Stella & Stella was a matter heard by Strum J in the Major Complex Financial Proceedings list.
Each of the husband and wife was in their early- to mid-50s. They had 3 adult children together.
The total value of the non-superannuation property of the parties, or either of them, was around $16 M. There was controversy about add-backs and treatment of contingent tax issues. Around $10.5 M worth of the non-superannuation property had been obtained by the parties by way of inter vivos gifts or inheritances received from the husband’s late grandmother, or by distributions from a trust associated with her.
It’s important to note at the outset that those property interests were variously received by each of the parties, not only by the husband.
The crux of the case was how those gifts, inheritances and distributions to each of the parties were to be treated.
Positions
The husband’s position was that it was not just and equitable for there to be any property adjustment at all. He was running what family lawyers often call a Stanford argument.
The wife contended for a 2-pool approach:
Pool A consisting of so-called “non-inherited interests”
Pool B consisting of the property interests derived from the husband’s late grandmother.
She contended that it was just and equitable for there to be property adjustment with respect to Pool A, but not with respect to Pool B. In other words, she was running a Stanford argument only in relation to Pool B.
Legal Principles
His Honour traversed the authorities in relation subsection 79(2), being the subsection which requires the Court to assess whether it is just and equitable to make a property adjustment order.
His Honour referred to the observation by the Full Court in Bevan & Bevan that subsection 79(2) is unlikely to impact most cases, as the just & equitable requirement will readily be satisfied by virtue of the parties no longer living together, and there is no longer the common use of property.
Importantly, his Honour discussed the 2017 Full Court decision in Zaruba, where it was held that, whilst in the vast majority of cases the justice & equity question is appropriately addressed without making distinctions between individual assets, “the position is likely to be different in circumstances where … the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly…”
In relation inheritances, Strum J considered the two 2017 Full Court decisions, Holland and Calvin & McTier, which in turn referred to well-known authorities like Bonnici, and Farmer & Bramley.
The upshot is that the Court has a discretion as to how to treat late inheritances, including whether to include them in a global pool or deal with them separately, and how much weight to give to contributions made directly to the inheritance as opposed to global contributions in the relationship.
Strum J also, of course, discussed the principles arising from Gosper and Kessey, and how Chisholm J in 1997 discussed those principles in Pellegrino.
At paragraph 87 of his judgment, Strum J summarised the principles arising from the authorities. I highly recommend that you read that paragraph in full.
Some key points relevant to my discussion here are the following:
(q) Whilst, in the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets, the position is likely to be different in circumstances where the characteristics of the property and the circumstances of its acquisition, conservation and improvement can be seen to differ significantly and where the parties’ relationship has taken on quite different characteristics during the period to which the s 79 enquiry is directed.
(r) The expression “any property of the parties to a marriage or either of them” in s 79(4)(a)–(b) is sufficient to encompass both the entirety of their property and their individual assets, such that if the parties’ interests in specific items of property differ, or they have made differing contributions, justice and equity may best be served by proceeding upon an asset by asset basis in the division of the property between them.
(s) The nature of a particular interest or interests in property, and when and how it was acquired, conserved, improved, or used, may be very relevant to whether a s 79 order should be made at all; whether contributions should be assessed globally or asset by assets or by reference to two or more pools; and what is the nature and extent of each party’s contributions. This calls for the exercise of discretion, to be exercised not by reference to whether property might conveniently be described as “an inheritance” or “after-acquired” but, rather, by reference to the nature, form and characteristics of the property in question and the nature, form and extent of the parties’ contributions of all types across the entirety of their relationship. However, there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest.
(t) Whilst it might be convenient to describe property by reference to a characteristic (for example, as an “inheritance” or “post-separation” or “after-acquired” property), its place within the ambit of s 79 is determined by the fact that it exists as a legal or equitable interest of the parties to the marriage or either of them and that the nature, form and characteristics of it and the contributions of all types made by the party suggest that it should be treated in a particular way.
(u) A party cannot be regarded as contributing significantly to an inheritance received very late in the relationship or after it has terminated, except in very unusual circumstances, including the care of the testator prior to death.
(x) Where a relative of one of the parties to a marriage gifts property to both of the parties, dependent upon the circumstances of the case, it is open to the Court in such a case to look at the actuality and treat that as a “financial contribution made directly … on behalf of” the party related to the donor. In many such cases, that gift was only made because of that relationship and, in reality, as a means of benefiting that relative in the marriage. In other cases, the evidence, including evidence that the donor intended to benefit both spouse parties, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.
On the facts of the case, his Honour determined that it was just and equitable to make a property adjustment order with respect to Pool A – the property which was not derived by way of inter vivos gifts or inheritances from the husband’s grandmother.
Without going into the detail, essentially, there was, irrespective of the husband’s initial contribution, jointly owned property, and no express consideration by the parties of how their property interests should be arranged.
In relation to the inter vivos gifts, Strum J held that there was insufficient evidence of the late grandmother’s intentions to find that the gifts to the wife were intended to specifically benefit her, rather than the parties jointly or the husband.
This was despite his Honour finding that the wife and the husband’s grandmother had had a close relationship.
In relation to the inheritances, particularly the inheritance received by the wife, Strum J considered the fact that there were separate bequests to the husband and the wife (among many others). His Honour gave significant weight to the language of the late grandmother’s will, including a reference to her “granddaughter-in-law”, as opposed to a term such as “my grandson’s wife”.
His Honour found that the evidence established a clear intention on behalf of the grandmother to separately benefit each of the husband and the wife by her separate bequests to each of them.
On that basis, his Honour determined that it would not be just and equitable to make an adjusting order with respect to the parties’ respective inheritances from the husband’s late grandmother.
However, the same could not be said of the inter vivos gifts, which his Honour grouped with the Pool A assets, and which were therefore subject to adjustment.
In this episode, I discuss how forum disputes are determined in family law, and how the process can differ depending on the subject matter of the proceedings.
Overview
A forum dispute arises when two different Courts are asked to determine the same subject matter.
In the family law context, this generally means a forum dispute between the Federal Circuit and Family Court of Australia (Division 1 or Division 2), and a Court in another country.
Tests
Most Australian lawyers will be at least vaguely aware that the usual test to be applied to a forum dispute is whether the Australian Court is a clearly inappropriate forum.
We were taught a bit about that concept in law school. We all have vague memories of authorities like Voth v Manildra Flour Mills.
However, like many other legal concepts, family law does things a bit differently.
Family Law Approach
In 1994, the High Court in ZP v PS, determined that the rule in Voth applied to all matrimonial proceeding except parenting matters.
Since then, the Full Court of the Family Court has repeatedly confirmed the approach to be taken in relation to forum disputes in family law.
The correct test to be applied depends upon whether the forum dispute involves parenting issues.
If parenting is in play, then it depends on whether the dispute is solely about parenting, or is about parenting amongst other matters.
In essence, if the forum dispute is solely about parenting, then the clearly inappropriate forum concept does not apply.
In those cases, it is the usual question of the child’s best interests which will determine whether the parenting dispute is to be decided in Australia or in the other jurisdiction.
If the forum dispute involves issues other than parenting, then the clearly inappropriate forum test applies.
Interestingly, where more than parenting is involved, it is open to the Court to split the forum question, such that the forum dispute about parenting is determined separately on the basis of the child’s best interests, and the forum dispute about the balance of the issues is determined according to the clearly inappropriate forum test.
Best Interests
If the forum dispute is to be determined on the child’s best interests, those interests are assessed by the Court in the usual way.
Clearly Inappropriate Forum Test
If the clearly inappropriate forum test applies, there is guidance to be found in several Full Court decision as to what matters ought to be considered, in addition to the non-exhaustive list of considerations set out in Voth.
The matters to be addressed and considered with respect to each of the competing jurisdictions include:
Whether each competing Court has jurisdiction to deal with the dispute. This is usually a given by the time the FCFCOA is asked to determine a forum dispute
Convenience, expense and location of witnesses. If most of the relevant witnesses are in the foreign jurisdiction, then that would weigh in favour of Australia being a clearly inappropriate forum
Each party’s ability to participate in the proceedings (which can include things like language, and whether a person is required to personally attend the relevant Court)
Connection to jurisdictions, and issues upon which relief may depend
Whether each jurisdiction will recognise the other’s orders and decrees – this is an important factor when parenting is involved but the clearly inappropriate forum test applies, I’ll have more to say about this factor shortly
Which forum may provide for effectively for a complete resolution of the parties’ controversy
The order in which competing proceedings were instituted, and costs which have been incurred
The governing law of the dispute
The place of residence of the parties
Availability of each forum, which includes issues like how long parties have to wait for a final hearing in each jurisdiction
Any legitimate juridical advantage to litigation in either jurisdiction
Recognition of orders by of other jurisdiction
The Full Court in the 2017 decision of Kentheld on this point that:
If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue.
If the matter involves parenting issues, this can be determinative of the forum dispute, so it is essential to research whether an order of the competing foreign jurisdiction will be recognised in Australia.
We need to look s 70G of the FLA provides for the registration of “overseas child orders”.
The term “overseas child order” is defined in s 4(1) of the Act. It means “an order made by a court of a prescribed overseas jurisdiction that…”
Sub-regulation (a) points us to Schedule 1A, and says that each country, or part of a country, set out in column 2 of that schedule is a prescribed overseas jurisdiction.
If the country, or part of the country, in which the competing court sits is not there, then the overseas child order will not be recognised in Australia.
For financial matters, the question is less clear. There is no equivalent provision to section 70G in relation to overseas property Orders.
There is, however, authority in relation to enforcement of overseas property orders. A recent example is the 2022 decision of the FCFCOA (Div 1) sitting the Apellate Jurisdiction in the case of Yadu and Orjit, where the Full Court held that the enforcement of an overseas property order fell within a matrimonial cause for the purposes of section 114(3).
In that case, the foreign Court had made orders about property in Australia.
In my experience, it can be necessary for parties to obtain Orders in both jurisdictions.
For example, a few years ago I was involved in a matter where the parties had property in Australia and mainland China. The parties had never lived in Australia prior to separation.
After separation, the husband had removed something like three quarters of a million dollars in matrimonial funds from China to buy real property in Australia with his new partner.
A Court in China made Orders about property owned by the parties there, but declined to make Orders about Australian property. Subsequently, my client, the wife, who had never lived in Australia, applied for property adjustment order here.
My client adduced expert evidence from her Chinese lawyer as to the inability of the Chinese Court to deal with Australian property.
The Court in Australia determined that it was appropriate for it to deal with the adjustment of the Australian property.
These are issues which, in my view, need to be investigated and assessed in each case and in relation to each jurisdiction.
In my view, the question of the recognition by each competing jurisdiction of the other’s decrees is not likely to be determinative in property-only proceedings.
