Monthly Archives: June 2014

“Reasonable Practicality” in Family Law

on by

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.

Latest posts by Prajesh Shrestha (see all)

reasonably-practicable-in-family-lawIn 2006, the Federal Government amended the Family Law Act to incorporate shared parenting provisions.

These Family Law act amendments were heralded for finally providing for meaningful equal time or shared parenting outcomes, but under what conditions was at that point not fully clear.

After 8 years of operation, the effect of these reforms is finally clear.

This article will consider the meaning of “reasonably practicable” as it appears in section 65DAA of the FLA , and how it operates to allow or prevent cases where one of the parties seeks equal time or shared parenting orders.

Section 65DAA(1) of the FLA provides that:

(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) Consider whether the child spending equal time with each of the parents is reasonably practicable [my emphasis]; and

(c) If it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents. 1

Subsection (2) provides that if a parenting order provides that a child’s parents are to have equal and shared parental responsibility for the child but the court does not make an order for the child to spend equal time with the parents, then the court must consider whether the child should spend substantial and significant time with each of the parents having regard to the best interest of the child and whether it is reasonably practicable. 2

Subsection (5), meanwhile, provides that in determining whether it is reasonably practicable, the court must have regard to a list of factors. [3 Ibid]

According to part VII of the FLA, parents are assumed to have equal shared responsibility. The presumption applies except where there are reasonable grounds to believe that a parent of the child has engaged in violence or abuse or the presumption is otherwise rebutted by evidence. 3

Application of s 65DAA

There has been some uncertainty about the application of s 65DAA. This uncertainty was clarified by the High Court in the case of MRR v GR 4 HCA 4] in 2010. The High Court in 2010 reversed a long line of Federal Court decisions which it held were contrary to the intent of s 65DAA in the FLA.

Prior to 2010, the Federal Court had held that a court is only required to consider if an equal time arrangement is reasonably practicable and in the child’s best interests and a court is at liberty to make such orders as may be in the child’s best interests 5

Similarly, Taylor v Barker suggested a court need only consider whether an arrangement is reasonably practicable. In Korban, the court held that:

When there is an order for equal shared parental responsibility, or a court proposes to make such an order (as was agreed in this case) the legislation obliges a court to consider whether the child spending equal time with each of the parents would be in the best interests of the child; and whether the child spending equal time with each of the parents is reasonably practicable; and if it is, consider making such an order [My emphasis]. 6 FamCAFC 143]

Thus, prior to 2010, the Federal Courts interpreted s 65DAA as giving them a wide discretionary power in taking account whether the child spending equal time was in their best interest and was reasonably practical.

The High Court, however, rejected this approach. MRR v GR 7 was a case about parenting order made in pursuant of part VII of the FLA. In that case, a family, comprising of two parents and a child (M), had moved from their residence in Sydney, NSW to Mount Isa in Queensland. The couple subsequently separated with the mother returning to her family home in Sydney and the father remaining in Mount Isa. The father applied for a parenting order under the FLA.

In the Federal Magistrates Court, FM John Coker made an order providing that M spend equal time with both parents, however, he also provided that if the mother should leave Mount Isa then the father would have sole custody of the child. The mother unsuccessfully appealed to the Federal Court. The High Court granted special leave to hear the case.

In MR v GRR, the High Court held that s 65DAA (1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time (par (a)) with each of the parents and the question whether it is reasonably practicable (par (b)) that the child spend equal time with each of them.It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order 8

Thus, a determination that it is reasonably practical that equal time be spent with each parent is a “statutory condition which must be fulfilled” before the court has a power to make a parenting order granting equal time.9 In other words, the court’s power to order equal time is contingent upon the court finding, as a matter of fact, that spending equal time is reasonably practicable.

Thus, on the facts of the case, the High Court held that the evidence did not allow the Court to conclude that an equal time order was reasonably practicable as per s 65DAA (1)(b), thus, the Court concluded that there was no power to grant an equal time order.

What is Reasonably Practicable?

In deciding whether it is reasonably practicable for the child to spend equal time under with both parents the Court must have regard to a host of factors. These factors are listed in s 65DAA(5) 10. When deciding whether an arrangement is reasonably practical, the Court will look at:

  1. how far apart the parents live from each other; and
  2. the parents’ ability to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
  3. the parents’ ability to resolve difficulties in relation to the proposed arrangements; and
  4. the impact that an arrangement of that kind would have on the child; and
  5. any other matters as the court considers relevant.

Distance Between Shared Households

One important factor in deciding whether it is reasonably practicable for an equal time arrangement to be made is the distance between shared households. In Acharya v Sinha, 11 FamCA 1041, 322] it was held that the question of how far apart the parents live with each other would raise issues of great significance about reasonable practicality.

In MRR v GR, Justice Kenneth Hayne stated that in circumstances where the parents are living at a distance, reasonable practicality involves questions whether a party has to move 12 HCATrans 248]. The court further held that reasonable practicality encompasses issues such as the financial impact one of the party having to move to another places bearing in mind the prospects of finding employment, finding reasonable accommodation and, more generally, the quality of living conditions 13

In Polites v Stathos, 14 FamCA 1002 89] the court held that it was not reasonably practicable for the courts to order equal time arrangements with their parents because, partly, of the distance between the parent’s households. The parties in that case only lived 40 kilometres apart. The mother lived at the Northern Beaches in Sydney while the father lived in Sydney’s west. The children attended school at an unspecified suburb.

The court held that “the number of kilometres between the households might not preclude equal time were it not for the fact that it spans much of one of the busiest cities in the world.” Thus, “it would be burdensome for the children and could adversely impact on their parenting if they were to regularly travel across Sydney to go to and from school.”

Conclusion

In conclusion, when making an order under s 65DAA for an equal time arrangement, the Court must come to the conclusion whether it is reasonably practicable to do so.

In having regards to whether it is reasonably practicable, the court must consider the distance between the parent’s household and whether either of the parents would have to move in order for an equal time order to be reasonably practicable. The court is bound to have regard to the distance between the parties as well as the financial implications for a parent if that parent moved.

  1. Family Law Act 1975 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65daa.html ↩
  2. Family Law Act 1975 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s65daa.html ↩
  3. Family Law Act 1975 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61da.html ↩
  4. MRR v  GR  [2010 ↩
  5. Chris Turnbull, ‘Rosa: Reasonable Practicability and a Child’s Best Interest’ 10 (2010) 152-153 ↩
  6. Korban v Korban [2009 ↩
  7. MRR v GR, see above n 5 ↩
  8. MRR v GR, above n 5, 13 ↩
  9. Ibid ↩
  10. Family Law Act 1975 ↩
  11. [2013 ↩
  12. MRR v GR [2009 ↩
  13. MRR v GR, above n 5, 15-17 ↩
  14. [2013 ↩

How the 2014 Federal Budget will impact Separated Families

on by
Susan Jayne

Susan Jayne

Online Legal Information Author at Family Law Express
Susan Jayne is currently in her fourth year of attaining degrees in both Law and Psychology. While volunteering at a Psychology Clinic throughout her university studies, she’s aspiring to find a career which utilises her new found knowledge in both of her chosen fields.
Susan Jayne

Latest posts by Susan Jayne (see all)

2014-Federal-BudgetOn May 13th 2014, the Abbott Government released its proposed budget for 2014-2015.

The budget has yet to pass the Australian Parliament and it is in some doubt as to whether many of the proposed reforms will pass the Australian Senate.

If these reforms are passed in their original form, they will have a significant impact on families, and in particular separated families.

Outlined below are some of the effects the proposed budget will have on separated families if passed in its current form.

Separated families and Government Payments

Family Tax benefits

Family tax benefits are payments supplied by the government subject to certain criteria to assist with the cost of raising children. Under the proposed 2014 budget, their payment rates will be frozen for two years. 1 This means that while inflation (and thus prices of milk, bread etc.) rises, these payments will not.

Family Tax Benefit Part A

Family Tax Benefit Part A is a payment per child under 15 years, or aged 16-19 depending on meeting certain education and training criteria. It is awarded if you satisfy a means requirement, a residence requirement, your child is fully immunised and you care for the child at least 35% of the time. 2 Currently, the maximum payment per fortnight is $172.20 for each child aged 0-12 and $224 for each child aged 13-19 who satisfies the criteria. 3

The main payment itself does not have any changes, but some ofthe following changes are connected to this payment.

Family Tax Benefit Part A –Child add-on.

Under the current system, the maximum amount able to be earned before the Family Tax Benefit Part A is affected is increased by $3 796 for the second and every subsequent child. 4 Under the proposed 2014 budget, this will be removed. 5

Family Tax Benefit Part A –New $750 payment

For those eligible for the maximum rate of Family Tax Benefit Part A, a new allowance of $750 will be introduced for each child aged between 6 and 12 years of age. 6 If you receive over $1478.25 in child support or spousal maintenance per year you may no longer be eligible for the maximum rate 7 and consequently not eligible for this new payment.

Family Tax Benefit Part A -Large family supplement

Under the current system a large family supplement exists where, subject to certain criteria, $12.04 is provided for the third and every subsequent child. 8Under the proposed 2014 budget, this payment will instead be awarded for the fourth and every subsequent child. 9

Family Tax Benefit End of Year Supplement

The Family Tax Benefit End of Year Supplement is awarded to those receiving Family Tax Benefits based on the final income for the year. 10 Under the proposed budget, these will not rise with inflation and will be lowered to $600 per annum for each child under Family Tax Benefit Part A, and $300 per annum for each family under Family Tax Benefit Part B. 11

Family Tax Benefit Part B

Family Tax Benefit Part B is a payment for single parents and families with one main income. It may be awarded where the primary earner’s income is under $150 000 per year to a parent, foster carer, grandparent of other carer who has a dependent child under 16 or a secondary student under 18 for at least 35% of the time. 12 Currently, the maximum payment per fortnight is $146.44 where the youngest child is under 5 years old, or $102.20 where the youngest child is between 5 and 18.

Under the proposed 2014 budget, there are two very large differences that may affect separated families. Firstly, the maximum income of the primary earner will be lowered from $150 000 to $100 000. 13 Secondly, Family Tax Benefit Part B will no longer apply to children aged 6 or older from 2015. 14 However, this restriction will not commence until 2017 for those who currently receive Family Tax Benefit Part B.15

Separated families with low incomes

For many separated families, new and increased costs will need to come out of an already tight income.One such change is the heavily criticized introduction of a $7 co-payment for doctor’s visits, where maximum of ten payments applies to children under 16. 16

Fuel

A further measure that will particularly affect separated families is unfreezing the fuel excise, so it continues to rise with inflation. 17 This will directly impact the separated families with some form of shared custody, which usually involves transporting the children from one home to another on a regular basis.

Concession cards

Many single parents have a Commonwealth Health Care Card or Pensioner Concession Card. Under the proposed 2014 budget, the National Partnership Agreement on Certain Concessions for Pensioners Concession Card and Seniors Card Holders will be terminated. 18 Without the federal funding for these programs, the State Governments may end concessions for programs such as public transport. However, there is no evidence that this would be the case at this point in time and it is possible that the state governments may find another way to fund concessions.

Separated families attempting to reconcile

The budget also included the unveiling of the “Stronger Relationships” program, where couples can sign up online to receive a $200 voucher to be used on counselling and education. 19 It is available for “all couples in a committed relationship, including engaged, married, de-facto and same-sex couples” 20 to be used on counselling or education, including working through financial management or conflict resolution. This means that separated couples attempting reconciliation may receive some financial assistance to undergo counselling.

Paid Parental Leave Scheme

The federal budget has provided very little detail on Prime Minister Tony Abbott’s signature paid parental leave scheme, which has made it difficult to determine precisely what impact this scheme will have on separated families.

The paid parental leave scheme was not included as a separate item in the budget, however the Treasurer Joe Hockey did recently confirm that the threshold had been reduced from $150,000 to $100,000.

Hockey stated that the changes to the paid parental leave threshold was in line with changes to the family tax benefit payments Part A and B, which now cut off or phase out around the $100,000 income level. 21

Download Presentation (PPTX)

  1. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  2. Family Tax Benefits http://www.humanservices.gov.au/customer/services/centrelink/family-tax-benefit-part-a-part-b. ↩
  3. Family Tax Benefit Part B Payment Rates http://www.humanservices.gov.au/customer/enablers/centrelink/family-tax-benefit-part-a-part-b/ftb-a-payment-rates. ↩
  4. Budget 2014-15: Family Payment Reform http://www.humanservices.gov.au/corporate/publications-and-resources/budget/1415/measures/families/42-90009. ↩
  5. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  6. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  7. Family Tax Benefit Part A Income Test http://www.humanservices.gov.au/customer/enablers/centrelink/family-tax-benefit-part-a-part-b/ftb-a-income-test. ↩
  8. Family Tax Benefit Part A Payment Rates http://www.humanservices.gov.au/customer/enablers/centrelink/family-tax-benefit-part-a-part-b/ftb-a-payment-rates. ↩
  9. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  10. Family Tax Benefit Part A Payment Rates http://www.humanservices.gov.au/customer/enablers/centrelink/family-tax-benefit-part-a-part-b/ftb-a-payment-rates. ↩
  11. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  12. Family Tax Benefitshttp://www.humanservices.gov.au/customer/services/centrelink/family-tax-benefit-part-a-part-b. ↩
  13. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  14. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  15. Budget 204-2015 Social Services Overview End Notes http://www.budget.gov.au/2014-15/content/glossy/welfare/html/welfare_18.htm. ↩
  16. Budget 2014-2015 Health Overview http://www.budget.gov.au/2014-15/content/glossy/health/html/health_09.htm. ↩
  17. Budget 2014-2015 Infrastructure Overview http://www.budget.gov.au/2014-15/content/glossy/infrastructure/html/infrastructure_03.htm. ↩
  18. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  19. Budget 2014-2015 Paper No. 2 http://www.budget.gov.au/2014-15/content/bp2/html/bp2_expense-21.htm. ↩
  20. Budget Fact Sheet – Stronger Relationships http://www.dss.gov.au/about-the-department/publications-articles/corporate-publications/budget-and-additional-estimates-statements/2014-15-budget/budget-fact-sheet-stronger-relationships. ↩
  21. Doubts over paid parental leave scheme http://www.afr.com/p/national/budget/doubts_over_paid_parental_leave_7P7wizKB5bqYntWMNApnPO. ↩

Violence Against Men – What Support Services & Resources are available for Men

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

Latest posts by Ewa Zieba (see all)

men can be victims of domestic violence tooGovernment support services and resources have traditionally assumed that domestic violence victims are female and perpetrators male. Thus while many services have been established to meet the needs of female victims, the needs of male victims remain largely unmet.

Government policy and resources have begun to change, demonstrated by studies1 acknowledging and legitimising males as potential victims, however many services are still exclusively focused on the needs of female victim and ignore the needs of male victims. This is perhaps due to public perception that still views victims as exclusively female and males solely as perpetrators.

A recent viral video by the UK Mankind Initiative perfectly illustrates this gendered stereotype.2 The video demonstrates the public’s inconsistent reaction when they witness a male abusing a female and a female abusing a male. Bystanders were quick to step in and confront the male perpetrator once they witnessed him abusing his female partner.

However once the roles were reversed the reactions were vastly different. Onlookers are seen laughing at or ignoring the situation as the woman physically and verbally abuses her male partner. The video highlights that the public will often disregard male victims, assuming that they are probably at fault and should endure any abuse directed at them.

This societal discrimination is particularly troubling when paired with recent statistics from the 2012 Australian Bureau of Statistics Personal Safety Survey. The survey found that an estimated 448,000 men and 1,479,900 women had experienced partner violence since the age of 15.3 While the survey does show that women are more likely to experience violence, it also illustrates that violence against men is a significant problem with approximately 1 in 4 victims being men.

Forms of abuse may include:

  • –          Physical violence
  • –          Intimidation and threats
  • –          Sexual, emotional, psychological, verbal and financial abuse
  • –          Property damage; or
  • –          social isolation4

Male victims can often experience legal and administrative abuse, which is the use of institutions to inflict further abuse on a victim. For instance, a perpetrator may take out a false restraining order or not allow the victim access to his children.5

Male victims often experience similar difficulties as female victims, such as fearing for their safety, uncertainty about where and how to seek help and the dangers that disclosure may have on their partner’s already abusive behaviour. Male victims can often experience additional barriers due to their gender and prominent public belief that males are often the perpetrator. They may suffer shame, embarrassment, social stigma6 or may be made to feel that there must be something they did to provoke the perpetrators abuse. Additionally, male victims may feel that upon disclosure they may be met with scepticism and disbelief by authorities and family or friends.

Services and Resources

General Help

Police – In an emergency, call 000. The police should be called to intervene in the event of physical and sexual violence, or stalking.

Victims’ Support Line – A general help line for all victims of physical or sexual assault, male and female. The 24 hour support line can provide information, practical support, crisis accommodation, counselling and referrals. Assistance and information regarding preparing a victim impact statement. Call 1800 633 063 (free call) or visit the website at http://www.lawlink.nsw.gov.au/vs

Domestic Violence

The One in Three Campaign – Provides information for male victims and a list of appropriate services for victims to access. Currently in the process of seeking expressions of interest for a male support group. Visit the website at http://www.oneinthree.com.au/

Mensline Australia – A generic 24/7 helpline for men covering all relationship issues, including domestic violence. Offers a telephone and online counselling service. Service information and practical advice sheet available on their website at http://www.mensline.org.au/improving-relationships/are-you-experiencing-violence-or-abuse-in-your-relationship . Call 1300 78 99 78 or visit the website http://www.mensline.org.au/

1800 RESPECT – A national sexual assault, family and domestic violence confidential telephone and online counselling service. Website includes information regarding services for states and territories. Available 24/7. Call 1800 737 732 or visit the website at https://www.1800respect.org.au/

Parent Line – Provides parenting support for families and victims dealing with a broad range of matters including domestic violence. 24/7 telephone counselling and support service. Call 1300 1300 52 or visit the website at http://www.parentline.org.au/

Start Safely – Subsidy assistance provided for short to medium term financial help to secure private rental accommodation for victims of domestic violence. More information at http://www.housing.nsw.gov.au/Help+with+Housing/Homelessness/Domestic+Violence+and+Homelessness.htm

  1. Tilbrook, E.,  Allan, A., and Dear, G. 2010, ‘Intimate Partner Abuse of Men’ , http://www.ecu.edu.au/__data/assets/pdf_file/0007/178297/10_Tilbrook_Final-Report.pdf.  ↩
  2. Violence Is Violence: Domestic abuse advert Mankind http://www.youtube.com/watch?v=u3PgH86OyEM.  ↩
  3. Australian Bureau of Statistics 2012, Personal Safety Survey. http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4906.0Chapter7002012.  ↩
  4. One in Three Campaign, Male Victims of Family Violence. http://www.oneinthree.com.au/malevictims/.  ↩
  5. Ibid. ↩
  6. Ibid. ↩

Understanding Enduring Guardianship and Enduring Power of Attorney

on by
Tony Ko

Tony Ko

Online Legal Information Author at Family Law Express
Tony is currently studying law and business at the University of Western Sydney. He has a keen interest in civil liability and hopes to work in the area upon graduation.
Tony Ko

Latest posts by Tony Ko (see all)

enduring power of attorneyLife has a way of presenting us with the unexpected. While we can’t always see what’s around the corner there are many ways to prepare for difficult times. Enduring guardianship and enduring power of attorney are two ways you can protect yourself when things go wrong. They basically grant a person, nominated by you, the legal authority to make decisions for you should you be incapacitated in an accident or lose mental capacity through old age or illness.

The following information is a general guide and most applicable to those living in NSW. If you are from another state please check your state’s relevant sources as some rules may be different.

Enduring Guardianship

What is Enduring Guardianship?

An enduring guardian is someone you legally appoint to make decisions for you should you become unable to make those decisions for yourself. You may be unable to make those decisions for yourself due to various circumstances such as old age or accidents. An enduring guardian can consent to medical treatment and decide where you live on your behalf.

The word “enduring” indicates that the responsibility is continual, typically until death of the appointer or appointee. This is different to a standard guardianship which is usually used in cases of children and ceases when they turn 18 years of age.

Why appoint an Enduring Guardian?

An enduring guardian can save a lot of time and paperwork when things go wrong. It also ensures that the person making decisions for you is the person you want. If you do not have an enduring guardian and you were incapacitated by illness or accident then your family members would have to make those decisions. But different opinions between family members can cause conflict and disagreement and your best interests may not be looked after. In these situations your case will be taken to the NSW Civil and Administrative Tribunal to decide what is best for you. Appointing an enduring guardian beforehand can avoid delay and ensure the person making decisions for you is the person you want.

Who can be an Enduring Guardian?

Your enduring guardian must be over 18 years of age and understand the responsibility. They cannot be someone who receives payment for taking care of you (excluding Carer’s Allowance). You can nominate more than one person. Your enduring guardian should be someone you trust, who knows you well and that you can rely on to make the best decisions on your behalf.

If you do not have any close relatives or friends that you can rely on with this responsibility, NSW Trustee and Guardian is available to act as your guardian. NSW Trustee and Guardian is a government organisation with a specific role to administer guardianships, powers of attorney, wills and trusts.

When does an Enduring Guardianship start and end?

An enduring guardianship only comes into effect once you are unable to make decisions for yourself. Since you cannot appoint an enduring guardian when you are incapacitated it is important to plan ahead. You can cancel an enduring guardianship at any time whilst you still have the mental capacity to understand what you are doing.

How to appoint an Enduring Guardian

You can appoint an enduring guardian by downloading and filling out the form from the Public Guardian website. However, it is suggested that you seek legal advice prior to signing anything to ensure you and your guardian have a clear understanding of the rights and responsibilities of an enduring guardianship.

Enduring Power of Attorney

What is an Enduring Power of Attorney?

An enduring power of attorney is a legal document which allows a nominated person to make financial decisions for you after you lose capacity to make those decisions for yourself. Like an enduring guardianship, this is useful in cases of old age or accidents. A power of attorney only allows your nominated person to make decisions regarding financial matters such as using your bank account, paying bills for you and the sale and purchase of property.

Difference Between Enduring and Non-Enduring Power of Attorney

It is important to note the difference between a general power of attorney and an enduring power of attorney. A general power of attorney ceases to operate if you lose mental capacity. An enduring power of attorney continues to operate even if you lose mental capacity. A general power of attorney is useful if you have mobility issues and have trouble getting to places to manage your financial matters, or you may be overwhelmed with the burden and need someone else to help you.

Why appoint an Enduring Power of Attorney?

Having an enduring power of attorney can have the same benefits of having an enduring guardian. You get to choose who you want to handle your financial affairs if you are unable to. If you do not have an enduring power of attorney and you are incapacitated, no one has the legal authority to manage your finances. Your family members would have to apply to the NSW Civil and Administrative Tribunal to have someone appointed as your power of attorney. Planning ahead and having an enduring power of attorney can save a lot of time and confusion.

Who can be an Enduring Power of Attorney?

Your enduring power of attorney must be over 18 years of age and understand the responsibility. They cannot be someone who receives payment from you for any personal services. You can nominate more than one person. You should consider appointing someone who is capable of managing finances since your enduring power of attorney will have control of your finances when you are incapacitated. You should trust that they will be responsible with your money before appointing them.

When does an Enduring Power of Attorney start and end?

You can choose when your enduring power of attorney begins. You may want it to start immediately or you may want it to only come into effect when you lose capacity. This should be specified in your enduring power of attorney form. You can cancel an enduring power of attorney at any time whilst you still have the mental capacity to understand what you are doing. An enduring power of attorney ceases to operate upon your death or your attorney’s death.

How to appoint an Enduring Power of Attorney

Power of attorney forms can be downloaded from the NSW Land and Property Information website. It is suggested that you seek legal advice prior to appointing a power of attorney. Your lawyer can also draft a power of attorney for you or you can visit NSW Trustee and Guardian who can draft a power of attorney for you for free.

Frequently Asked Questions

Can I appoint the same person to be both Enduring Guardian and Enduring Power of Attorney?

Yes. But you should be careful as this gives a lot of power to one person with regards to your life. This person should be someone you trust strongly, who knows you well and will respect your wishes.

I have a Will. Is that enough?

A will sets out the distribution of your estate when you pass away. It does not set out who makes decisions for you when you are still alive. If you are incapacitated then an enduring guardian or enduring power of attorney can make decisions on your behalf. For example, an accident may leave you in a coma. Your will does not come into effect yet, whereas an enduring guardianship and enduring power of attorney does.

Does my Power of Attorney have to be a legal practitioner?

No. The word “attorney” is only used to describe the person acting on your behalf. They do not need any legal qualifications to be your power of attorney.

Family Law Reform in Australia: Government Bodies

on by
Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

Latest posts by Valerie Cortes (see all)

family-law-reform-in-australiaLaw reform is a process by which the laws, such as family laws, are modernized and shaped over time to better reflect the important social values of the modern society.

Law reform improves access to justice, eliminate defects in the laws and suggest effective methods for administering the law and dispensing justice. 1 There are a few major agencies that influence on reforming the law, these are the Law Reform Commissions, the Parliament and its Committees, the media, and the non-government organisations.

Law Reform Commissions

Major formal means that investigate and recommend changes for law reform are through the operation of law reform commissions. The two main agencies of law reform in Australia are the Commonwealth and State Law Reform Commissions. The law reform agencies do not change the law but rather investigate legal discrepancies and make recommendations to the Parliament, who has the authority for incorporating law amendments.

These agencies of reform were also created to ensure independence of governments, political parties, and lobby groups; to ensure high quality of research of the development of well respected bodies, and; build up specific expertise and authority in the society.

  • Australian Law Reform Commission (ALRC): The ALRC is a federal agency that conducts inquiries into areas of law, such as Family law, at the request of the Attorney-General. It is operating under the Australian Law Reform Commission Act 1996 (CTH) and the Financial Management and Accountability Act 1997.

Its role is to make recommendations to the Parliament in relation to the need for reformation on a particular law and doing such without fear and without bias. The ALRC is an independent agency of the government and undertakes research, consultations and legal policy development. It aspires to make recommendations for law reform that:

  1. Modernizes the law, bringing it in line with current conditions and needs
  2. Remove defective areas in the law
  3. Make the law simple and easy for public understanding
  4. Adopt new and effective means for administering the law and dispensing justice, and
  5. Provide easy and improved access to justice. 2

The ALRC also ensures that Australian law still favourably compares to international law standards, such as the International Covenant on Civil and Political Rights in which Australia is a signatory. They also ensure that no proposals or recommendations made unduly trespasses on personal rights and liberties of citizens, or make those rights and liberties unduly dependent on administrative, rather than judicial decisions. They also take into consideration when making any recommendations the cost of access to and dispensing of justice.3

The ALRC’s report “For the Sake of Kids: Complex Contact Cases and the Family Court 1995” was a vital reason for the 1995 amendment of the Family Law Act 1975. This is called the Family Law Reform Act 1995 (CTH). Both parents were given responsibility for the care and control of their children involving provisions such as education, discipline and medical treatment, this was seen as effective to both parents. These provisions were made clear in the cases of Capodici v Capodici, In the Marriage of McEarney and In the Marriage of Chandler.

  • NSW Law Reform Commission (NSWLRC): The main role of the NSWLRC is to provide expert law reform advice to the government through the Attorney-General. It is an independent body established by statute under the Law Reform Commission Act 1967 (NSW). The NSWLRC conducts intensive research including academic literature reviews and empirical research. These are done through engagement with stakeholders and legal experts consultations.4

In October 2010, the ALRC and NSWLRC completed an inquiry into Family Law and Family Violence. The report highlighted the need to enhance collaboration between the Commonwealth family law system and the state and territory child protection systems. It further added recommendations to the existing law and expanding the evidence base that is used to examine the problems alleging family violence and child abuse. 5 Both Commonwealth and State Law Reform Commissions are seeking to better change existing laws in order to reflect the modern society.

Parliament and Courts

The Parliament or the lawmaking body of the Australian legal system has the legislative function to amend existing laws. The Parliament reforms the law by passing legislation, called statute laws. It seeks to reform the laws in order to better reflect the policies of the Government.

The Parliament has solidified the 1995 Family Reforms by introducing a rebuttable presumption of equal shared parenting in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (CTH). This was referred to as “the most significant family law change” in 30 years by Attorney-General Philip Ruddock’s media release.6

The courts, on the other hand, interpret the laws made by the Parliament and through judicial decisions the Courts can shape the law and reform it. Under the common law rule, judges can reform the law by setting precedent decisions that can be applied to subsequent cases of similar issues.

However, most cases are already bound by set laws, which inhibit judges to make laws. The Courts in the case of Korban v Korban applied the 2006 Reforms. 7

The Family Court of Australia also publicizes media releases to update the public in relation to any family law matters. In 2004 Chief Justice Bryant welcomed the Government’s proposed changes to the Family Law 8 such is a mechanism for law reformation.

House of Representatives

The House of Representatives is one of the houses of Australia’s Commonwealth Parliament with the role of determining the government, debates and passes laws, watches over government administration and expenditure, and provides forum for public debate on issues of national importance9 thus, an agency of law reformation.

In 2003, the House Standing Committee Family and Community Affairs produced a report inquiring into child custody arrangements in the event of family separation. This report was entitled as “Every Picture Tells a Story: Inquiry into child custody arrangement in the event of family separation.” The government responded in the affirmative through the changes submitted by the House and agreed for a new approach to the family law system that is needed, allocating $397.2million over four years in the 2005-2006 Budget.10

Statutory Bodies

There are a number of statutory bodies that can advise and inform the parliament of areas that require law reform. They include the Family Law Council (a Federal body).

  • Family Law Council (FLC): The FLC is a statutory authority constantly improving the Australian family law system. It was established under section 115 of the Family Law Act 1975. It advises and makes recommendations to the Attorney-General on matters relating to:
  1. the operations of family law legislations, most especially the Family Law Act;
  2. the role of legal aid in relation to family law; and
  3. any other matters relating to family law.

In 2004 the FLC released an initial Discussion Paper in accordance with the uncertainty of the ‘best interests of the child’ principle. The FLC inquired about the function of the legislatives to amend the operation of the Evidence Act 1995 (CTH) in certain circumstances.11

The final letter was handed to the Attorney-General in 2006 emphasizing the apt processes to be considered in resolving the issue on when the ‘best interest’ principle applies and the need to amend the Family Law Act to express a single principle of application and enumerating the exceptions to such principle.12

The submission for changes to the application of the ‘best interest’ principle remains unchanged as this was not incorporated in the Family Law Amendment (Shared Parental Responsibility) Act 2006. The FLC also provided its advice to the Attorney-General on the impact of family violence on children and on parenting.13

  • Australian Institute of Family Studies(AIFS): The AIFS is also a statutory body established under the Family Law Act 1975. Its main role is to increase understanding of factors affecting how Australian families function by conducting research and disseminating findings.14 The AIFS released an Evaluation of the 2006 Family Law Reforms, providing empirical data about the impact of the 2006 changes to the Family Law Act 1975.15

 

  1. Law Reform Commission Act 1975, s.1. ↩
  2. Australian Law Reform Commission 2013, About, Australia, viewed 15 May 2014, <http://www.alrc.gov.au/about>. ↩
  3. Ibid. ↩
  4. New South Wales Law Reform Commission 2013, What we do, Australia, viewed 15 May 2014, <http://www.lawreform.lawlink.nsw.gov.au/lrc/lrc_whatwedo.html>.   ↩
  5. Attorney-General’s Department, Family Violence, viewed 15 May 2014, <http://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyViolence/Pages/default.aspx>. ↩
  6. Ruddock, P. 2006, Australian Family Embraces Family Law Reforms, <http://ruddockmp.com.au/BerowraElectorate/MediaReleases/tabid/66/articleType/ArticleView/articleId/424/AUSTRALIAN-FAMILIES-EMBRACE-FAMILY-LAW-REFORMS.aspx>.  ↩
  7. 2008 FamCA 292. ↩
  8. Family Court of Australia 2004, ‘Chief Justice welcomes proposed Family Law Reforms’, viewed 2 June 2014, <http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Media/Media_Releases/FCOA_Chief_Justice_Family_Law_Reforms> . ↩
  9. Parliament of Australia, House of Representatives, viewed 2 June 2013, ,<http://www.aph.gov.au/About_Parliament/House_of_Representatives> . ↩
  10. Australian Government 2005, A new family law system Government Response to ‘Every picture tells a story’, viewed 2 June, ,<http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=fca/childcustody/report.htm>. ↩
  11. Family Law Council 2004, The ‘Child Paramountcy Principle’ in the Family Law Act, AGPS, Canberra.  ↩
  12. Family Law Council 2006, Letter of Advice on the ‘Child Paramountcy Principle’, viewed 20 May 2014, <www.ag.gov.au/flc>. ↩
  13. Family Law Council 2009, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Canberra. ↩
  14. Australian Institute of Family Studies, About AIFS, viewed 21 May 2014, <http://www.aifs.gov.au/institute/aifs/index.html>.  ↩
  15. Australian Institute of Family Studies 2009, Evaluation of the 2006 Family Law Reforms, viewed 21 May 2014, <http://www.aifs.gov.au/institute/pubs/fle/summaryreport.html>.  ↩