Monthly Archives: March 2014

2011 Family Law (Family Violence) Amendments & What They Mean

on by
Ewa Zieba

Ewa Zieba

Online Legal Information Author at Family Law Express
Ewa is completing a Bachelor of Social Science and Laws at Macquarie University with a major in Anthropology. With experience at specialist family law firms and Women's Legal Services NSW, Ewa is pursuing a career specializing in family law. Special interest areas include the care and protection of children and alternate dispute resolution, with an aim to improve access and participation in parenting matters.
Ewa Zieba

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2011-family-law-amendmentsThe Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 came into effect in July 2012 in response to recommendations in three key reports evaluating the previous 2006 changes. The main changes to the Family Law Act are as follows:

  • –          Changed definition of family violence
  • –          Changed definition of abuse
  • –          Prioritising protection from harm
  • –          Supporting disclosure

Changed definition of family violence

The new definition of family violence means ‘violent, threatening… behaviour by a person that coerces or controls’ the family member ‘or causes the family member to be fearful’.[1]The definition of family violence in the Act was changed to remove the requirement that a person need to ‘reasonably’ fear for their safety as well as to include controlling or coercive behaviour. The definition also states that a child may be considered to be exposed to family violence if ‘the child sees or hears family violence or… experiences the effects of family violence’.[2] Additionally the definition provides a non-exhaustive list of examples of circumstances that may constitute a finding of family violence. These examples are intended to be informative and will not prove an instance of family violence on their own. Examples include economic abuse, property damage, harm to animals and exposure of children to family violence.

Changed definition of abuse

The new definition of child abuse has been extended to include two new categories of behaviour. The new categories provide that abuse can be defined as actions causing a child ‘serious psychological harm’ and expressly including subjection or exposure to family violence and serious neglect of the child.[3]The previous categories of assault, including sexual assault and sexual activity with the child, are still in force and have not been amended. The definition also includes a non-exhaustive list of examples of behaviour that may constitute abuse of the child. Examples include emotional or psychological abuse such as overhearing threats, seeing or hearing an assault and providing assistance to an assaulted person.

Prioritising Protection from Harm

The paramount consideration for the court when deciding whether to make a parenting order is the best interests of the child. The primary considerations for determining the best interests of the child are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected or expose to abuse, neglect or family violence. The 2011 amendment has resulted in a new subsection which decrees that the court is to give a greater weight to the consideration to protect the child from harm.[4]

Supporting Disclosure

The provision obligating mandatory costs orders against parties who have made false statements and the ‘friendly parent provision’[5] which directed the courts attention to the degree that a parent had encouraged the child’s relationship with the other parent have both being repealed. These changes have contributed to a court environment which is supportive of disclosure.

Criticisms

The amended definition of family violence has attracted broad support, however there has also been opposition on the basis of the breadth and the range of behaviour captured. The predominant concern is that the definition is too wide and may capture innocent behaviour or enable false positives.

The Australian Law Reform Commission (ALRC) stated that while the amended definition does set out a wide range of example behaviour, the core requirement of controlling or coercive behaviour should act ‘as a filter’ to ensure only threatening behaviour is captured by the definition.[6] The effect of this filter is to exclude conduct which is not considered controlling or coercive.

In a 2012 case a father argued that the mother was engaging in family violence by preventing him from spending time with his daughter[7] which was outlined as an example in the amended 2011 definition of family violence. The Federal Magistrate stated however that there was no evidence that the father was coerced, controlled or felt fearful and thus there had been no family violence.

The ALRC have however acknowledged that the definition may be over inclusive and this may lead to false positives where the victim perceived abuse but no actual abuse occurred.

Professor Chrisholm explained that on a literal reading any behaviour that causes a person to be fearful may be seen as family violence. He explained that a family member who accidently frightened another in the course of a practical joke may be caught within the definition. He suggested however that the definition is not intended to capture such behaviour and he believes that the courts will act to interpret the definition as to enable a sensible operation.

A reformulation which focuses the definition upon the person’s intention to cause a family member to be fearful has been suggested to ensure that the definition does not allow false positives.[8]

Have the 2011 Amendments been successful?

The recent nature of the 2011 legislation has meant that no formal evaluations of the changes have been completed by any government bodies to indicate whether the changes have been successful. Justice Strickland has suggested a few indicators which may suggest whether the legislation has been successful in its aims. The legislations aim of prioritising protection may be shown to be successful by an increase of court orders requiring time spent with children to be supervised and a reduction in orders requiring a child to spend equal time with both parents where family violence is a concern. The legislations aim of supporting disclosure may be shown to be successful by an increase in the number of notices of family violence made in applications for parenting orders.[9]

The Australian Institute of Family Studies (AIFS) is in the process of formally evaluating the Family Violence Amendments. Their findings will be invaluable in assessing whether the amendments have had a positive impact and whether further reforms should be undertaken.

[1] Family Law Courts Publications, Family Violence Best Practice Principles (Edition 3.1), 2013.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Australian Law Reform Commission (ALRC) Publications, Family Violence and Commonwealth Laws – Improving Legal Frameworks. Report 117.
[7]Carra& Schultz (2012) FMCAfam 930
[8] Australian Law Reform Commission (ALRC) Publications, Family Violence and Commonwealth Laws – Improving Legal Frameworks. Report 117.
[9] Hon. Justice Steven Strickland, Attachment Theory and Family Violence: a judicial perspective, 2012, 29-30.

 
Related Family Law News Items

Do Parents Have Rights or Responsibilities in the Family Law Act?

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Joe Azzi

Joe Azzi

Online Legal Information Author at Family Law Express
I am a 2nd year student at the University of Sydney studying a combined law degree with mathematics. I am currently balancing my study with tutoring high school children, interning as a solicitor and playing competitive basketball.

Most of all, I am thankful that the flexible discipline of law enables me to be on the frontiers of social, political, economic and international issues where one can play a role in paving the way for a bright future.
Joe Azzi

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rights-responsibilitiesThere is a common misconception by parents entering family law litigation of seeking to preserve their parental rights, however this is not the case as the Family Law Act 1975[1] is almost entirely focussed on a parental responsibilities – especially when there is the underlying principle in family law that the “best interests of a child” must come first.

Thus, despite section 51 of the Australian constitution, which introduces the term “parents’ rights”, the Family Law Act instead prioritises the wellbeing of the child in whatever the circumstances of the situation are.

Parental rights 

Generally important parental rights tend to arise when family courts consider the “best interests of a child” and what provisions would thus enable that to be reached, such examples include:

The right of ‘spousal maintenance’

This refers to parties of marriage (either husband or wife) being legally obliged to financially support the other under certain circumstances, which are clarified at S72 (1)(a-c)[2] of the Act as;

  • Having to care for a child of the marriage who has not yet reached 18 years of age.
  • Not being able to find employment as a result of age, physical or mental disadvantage.
  • Any other “adequate” reason.

There are however limits with ‘spousal maintenance’, by financially supporting the other party one should not put such financial pressure on themselves. Courts overcome this problem with what is called a “reasonable able” test.

A case that utilises this is DJM and JLM [1998][3], where the husband appealed the trial judge’s decision of “spousal maintenance” particularly owing to the financial strain it would cause, especially when considering his income and expenses. The court also had to consider other factors such as his wife’s ability to find work and thus financially support herself, but nevertheless the fact that she had to support five kids made it certain to the court of appeal that the husband must contribute. What courts tend to do in such complex situations is find a compromise where costs may be reduced in order to benefit both parties.

The right to spend time with ones child after divorce

The Family Law Act clarifies this notion under ‘parenting orders’ which basically are legal documents that allocate the time a child spends with his/her parents. Parents are both entitled under S65DAA[4] of the Act to spend “substantial and significant” time with their child unless it conflicts the child’s “best interests”.

Parental responsibilities

Essentially, Division 2 of the Act is dedicated to the concept of parental responsibility, which at S61B[5], defines as the “duties, powers, responsibilities and authority” parents may have over a child. This makes parental responsibilities a highly important aspect of the Family Law Act as it directly impacts all decisions and aspects of a child’s upbringing. As a result, a reoccurring motif in this division of the Act is satisfying the “best interest of the child”.

Taking into account the “best interest of the child” under S60CC [6]of the Act; family courts use two categories of consideration in assigning responsibility for parenting orders:

Primary considerations S60CC(1)-(2a)[7]

These are the main criteria that a court has to meet in its allocation of parental responsibility; they primarily revolve around the relationship with a child to their parents and also their protection from any harm (which includes both physical and psychological). Primary considerations take priority over Additional consideration such that they must first be satisfied, as in the long run, the court sees them as foundations for Additional considerations.

Additional considerations S60CC(3)-(6)[8]

There are many points under this set of consideration but basically the court here seeks to take into account all possible aspects of a child’s development and thus formulate a manner in allowing the child to attain the best possible upbringing. Secondary factors such as grandparents or other family members affiliated with each parent are brought up under these considerations in assessing the impact a change of lifestyle would have on the child.

Furthermore, courts operate under the presumption of equal shared parental responsibility which can be found at S61DA(1)[9] of the Family Law Act. It is important to consider a common misconception that “equal shared responsibility” translates to equal time with the child. This is not the case, instead the court allocates parental time and money as it sees fit in attaining the “best possible interests” of a child.

To further clarify the issue of a child’s “best interest” consider the case ; Taylor & Barker [2007][10]., which revolves the fairly common issue of relocation between a formerly married couple with an 11 year old child. The mother wanted to move interstate with her child, and therefore away from the father.

The court in its ruling had to consider the “best interest” of the child particularly when it came down to a primary consideration of the Family Law Act that stated that the child ideally should have a “meaningful relationship” with each parent. The judge did not stress upon the details as to why the mother wanted to relocate, but rather, how this relocation would impact on the child’s life. The court determined in its reasoning that despite moving with his mother, the child would still be able to sustain a “meaningful relationship’ with the father if he were to see him in school holidays and thus the mother was granted leave.

What does the reference of “rebuttable presumption of equal shared parental responsibility” in the family law act actually mean?

Equal shared parental responsibility is an inherent principle of the Family Law Act and thus provides a foundation for the structure of parenting orders. It is instituted at S61DA(1) of the Act where both parents are assumed to have an equal say in the welfare of their child’s upbringing. However in circumstances where the “best interests of a child” are compromised, for instance –their safety; the Family Law Act does allow the presumption of equal shared parental responsibility to be rebutted.

This concept of rebuttal is further clarified at S61DA(2)and (4)[11] of the Act where certain conditions must be met in order to have the legal power to override equal shared parental responsibility – it is pivotal to have convincing evidence before the court for the rebuttal to be successful.

What standard of evidence do the courts require for rebutting the presumption?

An answer to this can be found in the case Dundas & Blake 2013][12] which upon trial had the presumption rebutted under the reasoning of “poor of communication” between the parents, which the court determined would result in a dysfunctional upbringing of their child. Whilst on the other hand, the appeal court ruled that it could not restrict a parent’s responsibility merely on the basis of such evidence, but rather the rebuttal can only be reached on “explicit and cogent” grounds that demonstrate that the “best interests” of a child would be potentially threatened .

The most convincing cases of rebuttal revolve around family abuse/violence or instances of violence to the child or another member of the family.

OTHER SOURCES

[1] Family Law Act 1975 (Cwlth)

[2] Family Law Act 1975 (Cwlth) S72 (1)(a-c)

[3] DJM and JLM [1998] FamCA 97 (15 July 1998)

[4] Family Law Act 1975 (Cwlth) S65DAA

[5] Family Law Act 1975 (Cwlth) S61B

[6] Family Law Act 1975 (Cwlth) S60CC

[7] Family Law Act 1975 (Cwlth) S60CC(1)-(2a)

[8] Family Law Act 1975 (Cwlth) S60CC(3)-(6)

[9] Family Law Act 1975 (Cwlth) S61DA(1)

[10] Taylor & Barker [2007]FamCA 1246

[11] Family Law Act 1975 (Cwlth) S61DA(2)and (4)

[12] Dundas & Blake [2013] FamCAFC 133

Estate Disputes & Contesting a Will

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Jessica Goddard

Jessica Goddard

Online Legal Information Author at Family Law Express
I am currently studying my fourth year of a combined Law and Social Science degree, majoring in development and cultural studies at Macquarie University, NSW. I have a strong passion for social justice and humanitarian issues and highly value the role of legal research and legal reform in positively impacting these areas. I have paralegal experience spanning a number of areas of law and endeavour to use my legal knowledge and skills to assist those facing legal complications or a challenge of their rights.
Jessica Goddard

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will-and-testamentEstate disputes are an unfortunate yet common place legal issue in contemporary society. However, estate disputes are not solely the result of familial animosity, relationship power imbalances and difficult family dynamics as many assume them to be.

Estate disputes often arise as a result of miscommunication and in cases where Wills and Trusts have been constructed or amended both as the result of, and in the circumstance of, impaired physical or mental states.

Nonetheless, estate disputes are highly circumstantial and can involve a number of parties, many of which may be unaware of their rights and entitlements. One such party includes children, whether adult or infant children, who have been excluded from their parents’ Will, and thus have an inclination to contest it.

“Never say you know a man until you have divided an inheritance with him.” ~ Johann Kaspar Lavater

There is a strong case for such children, children generally being entitled to their parents’ estate, or part thereof, despite their exclusion from their parents’ Will. Previously dealt with under the now repealed Family Provision Act 1982 (NSW), the main basis for this entitlement lies within the Succession Act 2006 (NSW) in the form of a family provision claim.

Defined under Section 3 of the Succession Act 2006 (NSW), a family provision order is an order made by the Court relating to the estate of a deceased person to provide from that estate for an eligible person. There are of course rules defining the eligibility of a claimant and the use of estate provisions but such rules are conducive for a child who has been excluded from their parents Will.

Succession Act s 57(2)(e).

Section 57 of the Succession Act 2006 (NSW) sets out the criteria of eligibility to make a family provision claim, or in other words, contest a Will. Among those eligible is a child of the deceased person whose Will is in contestation 1, including a child born into 2 or adopted 3 by a de facto or domestic relationship, or a child whose long term welfare the deceased had parental responsibility for 4. Moreover, it is assumed that there is a moral obligation on the deceased to provide for the maintenance, education and advancement in life of their child.

“I want to leave my children enough that they feel they can do anything, but not so much that they do nothing.”

This moral obligation of a parent to provide for their children, even after death, arises from long held community values and expectations, a number of which have been alluded to in case law. Namely, the expectation that parents are to raise and educate their children to the best of their ability and provide them with a stable and positive start in life; to provide a buffer against contingencies their child may face; and in the case where an adult child remains dependent on the community, to make provision to fulfil that ongoing dependency after death. 5

The basis upon which children are generally entitled to a claim from their parents’ estate despite being excluded from their Will has been emphasized in a number of cases. In the 2011 New South Wales Supreme Court Case of Andrews v Andrews 6, a case in which an estranged daughter claimed a greater provision from her mother’s estate than the legacy left to her in her mother’s Will, Associate Justice Philip Hallen reiterated a number of common law principles relating to family provision claims.

Amongst these, Hallen cited that it is not the courts role to rewrite the testators Will7 or to make estate distributions on the basis of fairness and equity8. Rather, it is the courts role to ensure that adequate provision is made for proper maintenance of the child9, proper maintenance being defined by accepted and relevant community standards.

A similar case to Andrews v Andrews, the 2011 New South Wales Supreme Court case of Bourke v Keep 10 involved an estranged daughter enacting her right as a child of the deceased to inspect her mother’s Will despite her exclusion from it. The case also brought to light the legislative basis upon which family provision claims are both made and assessed.

Whilst a child is entitled to claim from their parents’ estate on the aforementioned moral and statutory basis, the court must take into account a number of matters before making an estate provision in their favor 11. Among these matters of consideration are the child applicants’ contribution to the estate or welfare of their deceased parent 12, the deceased parents’ contribution to the applicant child 13, the character and conduct of the applicant child 14, and evidence of the deceased parents’ wishes 15.

There is a question then, as to the rights and entitlements of an estranged child to their parents’ estate upon their exclusion from the Will. The answer to this recurrent question can be found in case law, and specifically, in the appeals of the two aforementioned cases. When taken to the New South Wales Court of Appeal in 2012, Andrew v Andrew 16 held that estrangement between a parent and child should not be given disproportionate significance when considering the expectation that a parent will provide for a child whose condition in life is unfavourable.

The decision in this case demonstrates the significantly wide discretion of the Court in assessing family provision claims. Where the now repealed Family Provision Act was stricter in its wording and more limiting on the discretion of the Court, the wording of the Succession Act.

Decisions on behalf of your Children: The doctrine of ‘Parens Patriae’ in Australia

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Katherine Patricia Finch

Katherine Patricia Finch

Online Legal Information Author at Family Law Express
University of Sydney
Katherine Patricia Finch

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Parens-PatriaeParens Patriae means ‘parent of the country’ in Latin, and refers to the common law doctrine by which the Sovereign has an obligation to protect the interests of those unable to protect themselves, such as children and mentally incapacitated adults.[1] For example, the State has a duty to protect children or the mentally ill who are abused or neglected.

In the earliest days of the doctrine in England, Parens Patriae was restricted to only the mentally incompetent, but in the seventeenth century, the Lord Chancellor extended the duty towards children as well.[2]Parens Patriae jurisdiction does not extend to mentally competent adults, deceased persons or unborn foetuses.

Today in Australia, Parens Patriae jurisdiction is vested in the Supreme Courts of the States and Territories. Many cases involving Parens Patriae concern the protection of children. For example,if a child does not have a guardian or has a negligent or abusive guardian, the state may intervene to ensure the child receives the care they require.

In New South Wales, the Director General may take whatever action is necessary to safeguard or promote the safety, welfare and well-being of a child or young person, if he or she forms the opinion on reasonable grounds, that the child or young person is in need of care and protection. [3]

Examples of action that the Director General would take could be providing, or arranging for the provision of, support services for the child and his or her family, or development in consultation with the parents (jointly or separately), of a care plan to meet the needs of the child or young person and his or her family that doesn’t involve taking the matter before the Children’s Court, or may be registered with the Children’s Court, or is the basis for consent orders made by the Children’s Court.

Other forms of action could be the development, in consultation with one or more primary caregivers for a child or young person, of a parent responsibility contract instead of taking a matter concerning the child’s or young person’s need for care and protection before the Children’s Court (except in the event of a breach of contract), or ensuring the protection of the child or young person by exercising the Director-General’s emergency protection powers, or seeking appropriate orders from the Children’s Court.[4]

The primary concern of the courts in these cases is to come to a result that is in the best interest and welfare of the child. If the child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given the opportunity to express those views freely and to be given due weight taking into account the developmental capacity of the child or young person and the circumstances.[5]

Any action that is taken by the Director General must be age appropriate for the child, taking into account any disability the child or his or her family members may have, as well as the circumstances, language, religion and cultural background of the family.

Removal of the child or young person from his or her usual caregiver may occur only where it is necessary to protect the child or young person from the risk of serious harm.[6]

If a child is taken temporarily or permanently out of his family environment, the child is entitled to special protection and assistance from the State and his or her name, identity, language, cultural and religious ties should, as far as possible be preserved. Unless it is against the best interests and wishes of the child, the child will be able to retain relationships with significant people in their lives such as, birth or adoptive parents, siblings, extended family, peers, family friends and community.

If it is decided that the child should be placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment. Arrangements for this should be made in a timely manner, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.[7]

The jurisdiction of Parens Patriae does not only cover children in unsafe environments, but can extend to a number of situations such as consent of medical treatment. In New South Wales, the refusal or consent of medical treatment made by a child can be overridden by the court to ensure the decision made is in the child’s best interests, because children are legally too young to consent for themselves.

The Director General or an authorized medical officer can also consent in writing to surgical operations on involuntary adult patients (patients detained in a mental health facility or correctional center) if the patient is unable to give consent and it is necessary, as a matter of urgency, to perform a surgical operation in order to save the patient’s life, to prevent serious damage to the patient’s health, or to prevent the patient from suffering or continuing to suffer significant pain or distress.If this happens, the authorized medical officer of the mental health facility in which the involuntary patient is detained must notify the Mental Health Review Tribunal of the operation as soon as possible after the performance of the operation. [8]

Parens Patriae’s jurisdiction can be quite wide, but is fundamentally designed to protect the people that legally do not have the ability to consent or make their own decisions because they are either too young or are not in the right frame of mind to make informed decisions that adhere to their best interests.


[1]Butt, Peter J., and David Hamer. “Parens Patriae.” Concise Australian Legal Dictionary.4th ed. 2011. Print.

[2] E. v. Eve, [1986] 2 SCR 388, para 72 line 9

[3] NSW Children and Young Persons (Care and Protection) act 1998- sect 34.1

[4] NSW Children and Young Persons (Care and Protection) act 1998- sect 34

[5] NSW Children and Young Persons (Care and Protection) act 1998- sect 9

[6] NSW Children and Young Persons (Care and Protection) act 1998- sect 36

[7] NSW Children and Young Persons (Care and Protection) act 1998- sect 9

[8] Mental Health Act 2007- sect 99

How to make a Freedom of Information (FOI) Request

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Prajesh Shrestha

Online Legal Information Author at Family Law Express
'My name is Prajesh Shrestha and I am currently in my 3rd year of the Juris Doctor at the University of Sydney.Upon graduating, I am interested in becoming a legal practitioner. My areas of interest includes family law and conveyancing. I also have a strong and abiding interest in social justice and as such I am undertaking a legal internship at the Public Interest Advocacy Centre performing legal research, client interviews and drafting.

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freedom-of-information-requestIn Australia we live in a society which places emphasis in the principles of open-government and transparency.The Freedom of Information Act 1982 was designed to make government more open and accountable by providing a right of access to information in possession of government. Individuals have rights under the Freedom of Information Act 1982(Cth)to request access to such documents. This includes documents containing personal information about them or unpublished information about government programs, policies and decisions. It is also possible for individuals to ask Ministers and agencies to correct or add a note to any information that is being held about them. Most Australian Government agencies are subject to theFreedom of Information Act (the FOI Act) the general rule being that the Act applies unless it is expressed not to apply.

While making a formal request under the FOI Act may seem daunting and overly complicated, in reality it is relatively simple and easy to do.

Who Can Make a Request?

Any person, including children, or companies can make a FOI request. It is not necessary to use your real name to make an FOI request. However, if you are seeking access to documents that contain your personal information, ministers or agencies will need evidence of your identity. Acceptable identity documents include passports, an Australian driver’s licence or a proof of age ID.

What Can Be Requested

The right of access enshrined in the FOI Act applies to ‘documents’. This term is defined to include maps, photographs, and any article from which sounds, images or writing are capable of being reproduced (for example, emails)

Before You Get Started

Before making an FOI request, you should first contact the minister or the agency if they are willing to provide the information you want without an official request. This will often be faster and more convenient than making an official FOI request. However, if the minister or an agency, for whatever reason, refuses to accede to your request then you should consider making an official FOI request.

Making an FOI Request

To request for documents under the FOI Act, an applicant must

  • Put the request in writing. It should be noted that, under recent changes to the FOI legislation, email counts as writing.
  • Explicitly state that it is an application under the FOI Act
  • Describe the documents sought
  • Provide a return address (including an email address)
  • Send the request to a minister or an agency. Request can be made either by post, personal delivery or via email.

Costs

There is no application fee for making an FOI request or for processing a request for your personal information. However, there may be charges for processing a request for other types of information. It is up to the department’s discretion to decide whether to impose a charge or not.

What Happens After

When the agency or minister receives your FOI request, they must notify you within 14 days that they have received it. In cases where the agency does not have documents you are seeking but is aware that another agency or minister is likely to have them; your request will be transferred to that other agency or minister.

An agency or minister is required to make a decision on the request within 30 days of receiving the request. There are certain exceptional circumstances that allow the agency or minister to extend the time period, for example, if the request is unusually complex or large, where the charge has not been paid or where foreign government, international organisation or other people needs to be consulted.

Improper Application

According to the FOI Act, where an agency receives an application that is invalid, i.e. it does not comply with the Act, it is the duty of the agency to help you to make a valid application.

Refused Applications

Under the FOI Act every person has a legally enforceable right to obtain access to a document of an agency or minister. However, there are certain limitations to this right. You will not be provided with documents that are exempt. A document may either be exempt or conditionally exempt. Conditionally exempt documents will not be disclosed if their disclosure is contrary to public interest. If an agency or minister refuses your request on the grounds that it is exempt or conditionally exempt, they must explain their reasons in the notice of decisions.

Review

If you disagree with a decision, you can ask for an ‘internal review’. This means that a different officer will consider your request and make a decision within 30 days. If you disagree with the internal review decision or do not wish for an internal review to take place, it is also possible to ask the Information Commissioner to review the decision. If you disagree with the Information Commissioner’s decision, it is possible to lodge an appeal with the Administrative Appeals Tribunal.

Disposal of Property and the Family Provisions Act

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Corina Barrington

Online Legal Information Author at Family Law Express
My previous positions have included working with families and individuals experiencing family, substance, housing and employment issues.

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will-and-testamentMany people believe there is a right to dispose of their property on their own terms when they die. This could be outlining who is included and how much they should receive. Many believe this to be a natural right which should be unrestricted. Others disagree. The law outlines when and how much restrictions should be applied.

Legislation

In NSW, the Government is neither for nor against the free disposal of property.  Instead they focus on ensuring the outcome is fair. This is done by balancing the provision and support of people who should be entitled to it (what they should receive) with reasonable disposition of property. Basically, family provision legislation attempts to minimise the injustices which some Wills may cause. To be rectified, a person (that should be provided for) must make a family provision claim.

The primary source of legislation is the Succession Act 2006 (NSW) ‘The Act’. The Amendment in 2009 extends the scope of people eligible to make a family provision claim, when the will does not adequately provide for them.

Who can claim?

Generally, if the deceased has a spouse, then they will be the beneficiary of the provisions. However, things become more complicated when there are multiple spouses, children from other spouses and children from the deceased with no spouse. Adoption, IVF and surrogacy further complicate the matter. Essentially, anyone who is left without adequate provisions in the Will may be able to submit a claim.

When there is a spouse and a child from another relationship, the spouse shall receive a legacy of $350, 000 (changes according to the consumer price index and formula in legislation), plus the personal effects of the deceased and half of the remainder of the estate. The other half is given to the child. Where there are no spouses and multiple children, the estate is divided equally (Succession Act 2006 (NSW)).

Children

‘The Act’ s 57 outlines that a child or grandchild of the deceased may make a claim. This includes children who were adopted, had parents from a de facto relationship (2 years). For gay women, the child is considered to be that of both parents, where there is a long term welfare responsibility (see Children and young persons (care and protection) Act 1998 and Status of Children Act 1996).Meaning that under law, a child who is adopted or who was owed welfare by an adult may make a claim regardless of their age (Family Provision Act 1982 (NSW)).

Estranged Children

A rift in relations between the deceased and the child may be used as a reason to decrease or deny the allocation of provisions in a Will. The child will still be able to make a claim, however the cause of the estrangement is most important. Ideally, there should be no presumption of fault by the child, or any notion of acting unreasonably. If the actions of the deceased can be justified, then provisions may be excluded or reduced (Andrew v Andrew (2012) NSWCA 308). The court may still grant the child a provision, due to believing the deceased owed the child a moral duty (Keep v Bourke (2012) NSWCA 64; Succession Act 2006 (NSW)).

Procedural matters

Within 12 months of the death of the deceased (s 58), a person may make a family provision claim (plaintiff) by filing a summons or in some circumstances, a statement of claim outlining their name, that of the executor and date of death of the deceased. Along with the summons, affidavits by the plaintiff supporting their claim and of legal costs, a notice outlining the name and contact information of eligible persons for a provision should be provided up until 5 days until the first hearings. Claims may be held in the District Court, however due to limitations on cases over $250, 000, most cases are held in the Supreme Court (District Court Act 1973 s 134(1)(c) s 2; District Court Rules 1973 Pt 51 D R2). The claim is then entered into and managed in the Family Provision List within the Equity Division of the Supreme Court (if it is a claim only for the provision).

The Court will use a two-step approach to determine the application. Firstly, it needs to be determined if the provisions were inadequate and improper for the maintenance, education and advancement of the child in their life. If it is considered inadequate, the court then seeks to determine the amount they should receive. Factors such as the relations within the family with the deceased, nature and extend of perceived obligations, financial resources, character, conduct and disability of the child, and the liability of the deceased to support the child.

The Plaintiff may receive a lump sum payment and periodic payments, or any other methods as the court sees fit. In the case of a minor (under 18), the provision is not deferred until they are 18, they received it immediately (s 138).

Rights of a Child excluded from a Parent’s Will

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Dinesh Munasinha

Dinesh Munasinha

Online Legal Information Editor at Family Law Express
Dinesh is a lawyer with overseas experience currently completing the bridging course to be recognized as a lawyer in Australia. He has experience in successfully assisting individual as well as corporate clients in many areas of law. His strength is the ability to simplify complex legal issues, communicate effectively and find practical legal solutions for his clients.
Dinesh Munasinha

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disinherited-childrenThe ‘family provisions law’ is perhaps the most fiercely litigated area of inheritance law in Australia. The law that applies on inheritance is the law of the State. Although there are different statutes that apply for each State, they have very few differences among them. This paper will discuss the family provision rights of children who may be disinherited by their parents.

Freedom to draw up a will

Like most countries, Australia recognizes the freedom for anyone to draw up a Will setting out to whom his/her property should be distributed upon his/her death.  Therefore, upon death, the property should be distributed by the “executor” appointed by the Will, in accordance with details and proportions stated therein. However, the Executor needs to abide by certain other laws and rules which may limit his right to carry out the intentions of the Will. For instances, he would have to first pay off the taxes and debts of the deceased person and the Court could make a ruling to allow a person who is left out from the will or where that person’s portion of the distribution is insufficient to be compensated. The later part includes among other persons, the spouse, de facto partner, child, former spouse etc. This paper will spell out the legal position applicable to a disinherited child.

Who is a child ?

Although, this may sound simple or obvious, in most statutes the law defines ‘child’ to avoid confusion. The more common definition is a child born out of marriage between a natural mother and father. However, for the purposes of succession, children born outside marriage, or in a domestic relationship or adopted children are considered as children. The law in all states either specifically recognizes ‘step children’[1] or encompasses broader terms which are wide enough to include ‘step children’[2].

The parent-child relationship may get complicated where the child is born out of a fertilization procedure or when the child has been given to another in adoption, or where the child never has actual contact with the parent from young age. I will discuss these peculiarities in relation to the right of claim in a later stage of this paper.

Right of the child to make a claim

Under most State Laws, children of the aforementioned definition has the right to make a claim within 12 months from the death of the parent. However, in the case of Victoria it is 6 months.[3]  Nevertheless, this time period may be extended on exceptional circumstances at the discretion of the Court.

Under what circumstances can a child make a claim?

As a general rule, any child who finds the distribution of property in accordance with the Will, would put him or her in a situation where it becomes difficult to maintain, educate him/her self or hinder his/her advancement in life, could make a claim under the relevant law of the State.

A noteworthy famous case decided in High Court called, “Singer vs Burghouse” sets out what is famously referred to as the two stage process in determining the success of this claim.

Stage One

The first stage considers whether the provision made was “adequate” for the child’s proper maintenance of life.  Adequacy is a subjective criteria and the Courts will look at several factors when determining whether the provision was in fact adequate.[4] I have listed below the factors together with an explanation for the ease of reference.

Criteria Explanation
  • the financial position of the child
 Eg:- Is the child capable of earning for himself, or is he handicapped due to an illness or because he is a minor etc.

Also the net worth of the child and assets
  • the nature and size of the deceased’s estate
 Whether the value of the property left behind by the parent is substantial enough
  • the totality of the relationship between the child and the deceased
 Eg:- (i) If the father is merely a donor of sperm and was never a part of the life of the child, it is unlikely the Courts will hold in favour of the child.[5]

(ii) If the natural father leaves the child at a very young age and does not have much relationship, the Courts are unlikely to make a declaration in favour of a child.[6]

(iii) If the child was given in adoption at a young age, and the biological mother did not have much contact with the child, the Courts are unlikely to make a determination in favour of the child against the estate of the biological mother.
  • the strength of the child’s claim when compared with other competing claims against the estate of the deceased
 By providing a claim in favour of the child, which parties named in the Will, or parties who made similar claims would be affected, and to what extent?

Even if the judge decides that the provision made by the last will is inadequate, the judge will have to also necessarily look at the second stage before making an award. However, needless to say, if the judge decides that the claim is adequate, then he need not go to the next stage and the claim of the child will fail.

Stage Two

The second stage is only considered if the Court forms the opinion at stage one that the provision was inadequate. The second stage requires the Court to decide what provision will be made out of the deceased’s estate for the applicant. This stage involves the exercise of discretion by the Court.

For example, as it has been decided in several cases, if there is insufficient assets after paying off creditors, the Court will refuse to make an order (at stage 2) notwithstanding that the applicant was found to have been left without adequate provision for proper maintenance (at stage 1).

The aforementioned tests, have also been recognized in essence in the State Laws.[7]

Who should bear the cost of litigation

This will depend on the discretion of the Court. In certain instances, even an unsuccessful applicant’s cost of litigation can be ordered to be paid of the estate. However, there are times the Courts may refuse to allow recovery of the litigation cost.[8]

Conclusion

Therefore, it is clear that although there is freedom to draw a Will, the Courts could make exceptions by safeguarding the rights of dependants including children provided they satisfy certain criteria. However, it is also clear that the Courts take careful consideration of a number of factors before changing the intentions of the deceased, and balances the interest of all claimants in the interest of justice.

[1] section 40A and 41 of the Succession Act 1981 – QLD, section 6(g) of Inheritance (Family Provision) Act of 1972 – SA, S. 7 (1) (ea)&(eb) of the Family Provisions Act – WA, s. 7(1) (d) of Family Provisions Act of 1972 – NT

[2] section 91 of Administration and Probate Act 1958 – VIC, section 57 (1) (f) of the Succession Act of 2006 – NSW

[3] section 99, of the Administration and Probate Act 1958

[4] In the State of Victoria, section 91 (4) of the Administration and Probate Act 1958 elaborate and guides the Courts with greater detail on the grounds to follow, which will not be discussed in this Paper.

[5] Nicholls and Hall [2006] NSWSC 1377

[6] Gorton v Parks (1989) 17 NSWLR 1

[7] see; s.91(4) (c) of Administration and Probate Act 1958

[8] Manly -v- The Public Trustee of Queensland & Anor [2008] QCA 198

How False Allegations are treated in the Family Law Act

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Manisharaj Kaur Pannu

Manisharaj Kaur Pannu

Online Legal Information Author at Family Law Express
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s117ab family law act, false allegationsIn cases involving family law matters, there are concerns that a party to a case may provide the court with false or misleading evidence – in particular, false allegations of family violence and abuse, which could subsequently affect the outcome of a case.

Section 117AB was inserted into the Family Law Act 1975 (Cth) (‘Family Law Act’) to address this particular concern. The section mandates that a court must make a costs order against a party who ‘knowingly made a false allegation or statement in the proceedings.’

From 7th June 2012, however, section117AB was removed from the Family Law Act via the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011(‘Family Violence Act’).

Why was section 117AB removed?

The amendments brought about by the Family Violence Act was driven by the need to offer better protection for family members at risk of violence and abuse.[1]This necessitated the removal of section 117AB because previous research indicated that section 117AB has a discouraging effect on the disclosure of family violence. Parties may refrain from disclosing family violence or abuse due to fear of a costs order being made against them should they fail to substantiate the allegations.[2]

Secondly,there was no or scarce evidence that section 117AB was effective in preventing the making of false allegations of family violence.[3]In practice, costs orders under s 117AB are rarely made.[4]

How does the Family Law Act now deal with false allegations?

Removing section 117AB does not mean that no consequences are attached to the making of false allegations in court.Under section 117, the courts have discretionary powers to make costs orders if the court is of the opinion that there are circumstances to justify doing so. Section 117 is broad enough to deal with the making of false statements and it is likely that knowingly making false allegations of violence justify the making of a costs order.[5]

For better or for worse?

The fact that the courts can still make a cost order against a party who has made false allegations begs the question: what has the removal of section 117AB achieved?

Section 117AB carries with it the connotation that the courts are suspicious of parties who allege violence in family law matters.[6] Removing section 117AB represents a symbolic shift in thinking –the law is encouraging all information to be truthfully presented to the court[7]to ensure safe parenting arrangements can be made.

Additional amendments brought about by the Family Violence Act have further supported this change. The very definition of violence and abuse in the Family Law Act has been broadened to include physical and emotional abuse, and the exposure of children to family violence.[8]The Family Law Act also sets out anon-exhaustive list of examples of behaviour that may constitute family violence for guidance.[9]

The Family Law Act also imposes obligations on the court to take prompt action in relation to allegations of child abuse or family violence (section 67ZBB) and to question each party to child-related proceedings about the presence or risk of family violence or abuse (section 69ZQ).[10]


[1]Attorney-General’s Department, Family Violence Act – Frequently Asked Questions, 4.

[2]Parliament of Australia, Bill Digest, No 126 of 2010-11, 25 May 2011.

[3] Ibid.

[4]R Chisholm, Family Courts Violence Review, 2009, 112.

[5]Attorney-General’s Department, Family Violence Act – Frequently Asked Questions, 10.

[6]R Chisholm, Family Courts Violence Review, 2009, 118.

[7] Ibid.

[8]Attorney-General’s Department, Family Violence Act – Frequently Asked Questions, 8,9.

[9] Ibid.

[10]Ibid.