Family & Relationship Law Update – June 2022

Welcome to our latest update in the world of family law. In this edition:

• Operation of the new Federal Circuit & Family Court of Australia Act 2021.
• Case update: High Court decision on the breakdown of a de facto relationship.
• Vaccination and family law.
• Accessing superannuation information in family law matters.
• KHQ Family & Relationship Law team update.

The new FCFCOA: Pre-action procedures and managing client expectations in our new Court

When our new court commenced on 1 September 2021, family lawyers were also faced with a new Act (The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act)) and a new set of Rules.  It has been an extensive overhaul of our court system, with the promise of stark improvement to both processes and outcomes for family law litigants.

Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules) states that the overarching purpose of the new court framework was to “facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.

Practitioners were also issued with a Case Management Direction by our Chief Justice on 1 September 2021, which provided specific direction and guidance as to how family law cases where to be conducted moving forward.

Viewed through the lens of the overarching purpose, it is clear that the pre-action procedures are now a cornerstone of the new FCFCOA.  The clear intention is for the Court, and legal representatives to deal with family law cases in a way that minimises Court resources and legal costs, but aims to maximise potential outcomes for family law litigants by engaging in an exploration of the issues in dispute, financial disclosure and dispute resolution from the outset.

Objectives of pre-action procedures

The objectives of the pre-action procedures are stated to be to:

1. Encourage early and full disclosure in appropriate proceedings by the exchange of information and documents;
2. Provide parties with a process to avoid legal action by reaching a settlement of the dispute before commencing court proceedings;
3. Provide parties with a procedure or process to resolve the proceedings efficiently and to limit legal costs;
4. Ensure the efficient management of proceedings in the court, should it be necessary to proceed to litigation;
5. Encourage the parties to a dispute to seek only those orders that are “reasonably achievable on the evidence”; and
6. Give effect to the overarching purpose of the provision as specified in s67 of the Act.

The requirements set out in the pre-action procedures are regarded by the Court as the standard and appropriate approach for a person to take in most circumstances before filing an application in a court.

In summary there are three steps that must be taken to comply with the pre-action procedures which are:

• participate in dispute resolution;
• exchange a notice of intention and explore settlement options in correspondence; and
• comply with the duty of disclosure.

Noncompliance is treated seriously, unless you fit within the exceptions set out in the rules.  Consequences for non-compliance include costs penalties or a stay of proceedings pending compliance.

Impact on practice of family law

The reality of this for family lawyers, is that before a matter is to be litigated, save for urgent cases, all avenues for settlement must be explored.  Parties must make genuine steps to resolve the dispute and comply with their obligations for full and frank disclosure, or face the wrath of the Court.

Further, once proceedings are issued, litigants are expected to have advanced the case from the outset ensuring that valuations and reports are obtained or, if not finalised, in the process of being finalised.  Non-urgent cases will only be granted an interim hearing if the matter is ready to proceed, and not before.  The reality of this is that those that are not prepared at the outset of the case will face significant delays in having a judicial determination despite the significant appointment of new

Judicial Registrars and Judges in each Registry.

Does this work in practice?

Whilst we applaud the ambitions of the stated overarching purpose, for us the reality has been increased requirements prior to litigation, and if a case cannot be resolved through dispute resolution or negotiation, significantly more documentation needing to be filed at Court from the outset.

All of this can be mean increased legal costs for each party, which in many way is contrary to the overarching purpose.

Recent High Court Decision regarding breakdown of a de facto relationship

The recent High Court decision of Fairbairn v Radecki ((2022) FLC ¶94-083; [2022] HCA 18, 11 May 2022) considered the question of whether a de facto relationship had ceased in circumstances where the term “breakdown” has no exhaustive definition under the Family Law Act 1975 (“Family Law Act”).

This is a pivotal case. In marriages, the breakdown of the relationship is not a necessary requirement for the Court to have jurisdiction to make orders regarding the adjustment of property interests. However it is necessary to demonstrate that the relationship has broken down before the Court can make any property orders for a de facto relationship, which are increasingly common these days.

In this case, the parties commenced a de facto relationship in late 2005/early 2006. Their financial relationship was unusual insofar as they retained separate finances, and investments, but resided together in a house owned by the appellant.

The appellant was subsequently diagnosed with dementia and by 2017 her capacity to make long-term decisions was largely, if not completely, absent.

In January 2018 a trustee was appointed to make health and welfare decisions on behalf of the appellant and decided to move the appellant into an aged care facility, where she has since resided.

By 2019, the trustee had formed the view that the de facto relationship had broken down and commenced proceedings in the Federal Circuit Court of Australia on behalf of the appellant seeking property settlement orders pursuant to s90SM. In particular, the trustee sought an order for the sale of the home.

The primary issue before the Court was confined to whether the de facto relationship had broken down.

The appellant argued that a de facto relationship can be taken to have broken down when parties stop residing together, as required by section 4AA(1)(c) of the Family Law Act.  In this case, that would have occurred when the appellant moved into the care facility.  However the High Court rejected this argument finding that it was contrary to “real-world considerations” and would be “productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship” [32].

The High Court allowed the appeal after concluding that, having regard to all of the circumstances, the de facto relationship between the appellant and the respondent had broken down by 25 May 2018. The considerations included the fact that the parties were occupying separate rooms and that the appellant lived at an aged care facility, but these were not determinative features. The “essential feature” was that the appellant and respondent kept their assets separate from each other but by 2017 the respondent had begun to act as if he were no longer bound by this arrangement.

The vexed vax issue and the Family Court

It has long been established that the Family Court has the ability to make orders about the vaccination of children. Unsurprisingly the advent of covid vaccines being available to children as young as five has and will continue to cause issues between parents both separated and unseparated.

As at 20 February 2022, a quick review of the latest figures from the Federal Government’s vaccine rollout update reveal that 85% of children between 12 and 15 have had two doses and so far 49% of children between 5 and 11 have had their first dose, with a very small percentage having had their second. It will be interesting to see how these figures play out over the coming months, but it seems that a reasonable percentage of parents are not lining up for their youngsters to be jabbed at this time. Whether or not any state government will make the covid vaccine mandatory for children remains to be seen.

As is always the case, the court will frame its decision around the best interests of the child. Of course when it comes to vaccination, views on what constitutes ‘best interests’ can vary greatly.

What case law tells us

In the recent case of Makinen & Taube [2021] FCCA 1878 the parents had agreed all living arrangements for their two children, 8 and 12 save for the issue of vaccinations. The mother was the primary carer for the children and the father spent substantial time with the children.

As the trial judge stated, clearly ‘on the basis of the mother’s evidence …she has firm and strong bias against vaccination of any kind’.

Whilst covid loomed large no application was sought for a particular disease, instead the father sought an order for sole parental responsibility to vaccinate according to general practitioners’ recommendations.

The father submitted that “the bulk of current medical information supports the proposition that immunisation/vaccination is in a child’s best interests.”

In contrast the mother submitted a great weight of material in support of her contention that vaccinations can have a whole range of negative impacts on children.

Her Honour held that:

“In my view, the literature which forms the basis for the Australian Immunisation Handbook ought to be given greater weight than the opinions expressed in the articles and literature annexed to the mother’s affidavits. The former are the basis for public health policy of the Commonwealth and State governments for the benefit of the community. In any event, the literature relied upon by the mother does not materially differ and certainly does not support a contention that no children should ever be vaccinated.”

It is noteworthy that in the circumstances of this case neither party called medical experts with respect to vaccinations or indeed any specific medical circumstances of their children.

In the absence of such evidence, the Court declined to make orders that any particular vaccinations be given to the children. Rather the father was granted the orders he sought in that he would have sole decision-making responsibility as to the vaccinations to be received by the children based on medical advice obtained by him. The Court took comfort from the view that doctors owe professional duties of care when administering vaccines as would be the case with any medication.

This may will be the first of a number of cases. What will become even more interesting as we continue down the covid journey is what expert evidence will be called upon in future cases where more specific orders may be sought and a judge is tasked with the unenviable role of sorting through what is information and what is misinformation. It is suggested that the issue of medical treatments for children, whether preventative or otherwise, will become more contentious over the coming years.

Accessing superannuation information in family law

From 1 April 2022 (“the Date”), parties to property proceedings under the Family Law Act will be able to apply to the Federal Circuit & Family Law Court of Australia registry for access to their former partner’s superannuation information, provided by the Australia Taxation Office to the Court. From the Date, obtaining a party’s superannuation from the Australian Taxation Office will be a two-step process:

1. First, the party requiring the information will need to submit a request to the court registry for the superannuation information.
2. The court registry will then make a request to the Commission of Taxation to disclose the relevant information of the party’s superannuation.

This information will then be provided to the parties and their lawyers.  It is hoped that this change will reduce both cost and delay in obtaining this information.

Team update

In case you missed it, we have welcomed two new team members to the Family & Relationship Law team in early 2022: Courtney Goodlet and Alexandra Long. Before joining KHQ, Courtney previously worked as a Judge’s associate at the Family Court and Federal Circuit Court of Australia.  Alexandra is relatively new to family law but has a wealth of experience from her previous career working as a marketing executive/manager for major companies, SME’s and start-ups. We are also thrilled to announce the promotion of Isabel Britten-Jones to Senior Associate commencing from 1 July 2022.

Contact us

If you would like to refer a client to a member of our team, we are happy offer a 30 minute free appointment.  You are welcome to contact our team on (03) 9663 9877 or by email to [email protected].

We also offer flexible billing options, including fixed fees.