Category Archives: Family Law

Children – Intellectual disability – Sterilization – Family Law

May 6, 2015 Legal Helpdesk Lawyers

Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 (6 May 1992).

“Children – Intellectual disability – Sterilization – Power of parents to consent – Assault – Parens patriae jurisdiction of court – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187 188.

Family Law (Cth) – Family Court – Jurisdiction – Welfare – Parens patriae – Intellectually disabled child – Sterilization – Power of Court to authorize operation – Effect of authorization on criminal law – Family Law Act 1975 (Cth), ss. 63, 64, 64E – Criminal Code Act 1983 (N.T.), ss 1, 26, 181, 187, 188.”

The court held that the parents of a 14 year old mentally retarded girl from the Northern Territory could not lawfully authorize a sterilization procedure on their child without an order of a court.

The court held that the Family Court of Australia has the jurisdiction to authorize the carrying out of a sterilization procedure but could not approve consent being given to the parents unless the court authorizes the procedure.

Whilst parents or guardians may authorize or consent to the carrying out of a therapeutic treatment of their child, they have no such power regarding non-therapeutic treatment.

Sterilization of an intellectuallly disabled minor falls outside of the ordinary scope of parenal powers if the procedure is not obviously necessary.

Children have the right to personal integrity under domestic and international law. Procedures, such as sterilization, are “invasive, irreversible and major surgery”. It is up to the court, not the parents or guardians, to decide the appropriate circumstances that are in the best interests of the child.

http://www.austlii.edu.au/au/cases/cth/HCA/1992/15.html

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Constitutional law, Family Law, LAW FIRM

Harris v Caladine [1991] HCA 9 | 17 April 1991

April 17, 2015 Legal Helpdesk Lawyers

ON THIS DAY in 1991, the High Court of Australia delivered Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 (17 April 1991).

Parts of the Family Law Act 1975 (Cth) allowing Judges of the court to make rules delegating judicial powers to registrars and non-judical officers were held to be valid and not in breach of the doctrine of separation of powers found in s71 and Chapters II and III of the Australian Constitution.

Family Court Judges may make rules and delegate their powers as long as they continue to bear the major responsibility for the exercise of judicial power. The delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions must be subject to review or appeal by a Judge.

Sydney, Australia

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Family Law, Landmark cases, LAW FIRM, Property disputes

Mallet v Mallet [1984] HCA 21 | 10 April 1984

April 10, 2015 Legal Helpdesk Lawyers

ON THIS DAY in 1984, the High Court of Australia delivered Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 (10 April 1984).

Equality had long been the starting point when dividing matrimonial property on divorce. The High Court in this case held that there is not to be a presumption of equality and that each case is to be determined upon a consideration of it’s particular circumstances.

Section 79(4) of the Family Law Act 1975 (Cth) requires consideration of the financial contributions, non-financial contributions and parental and/or homemaker services.

Sydney, Australia

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Courts and Tribunals, Family Law

Australian Standards of Practice for Family Assessments and Reporting

February 18, 2015 Legal Helpdesk Lawyers

The Family Court of Australia, Federal Circuit Court of Australia and the Family Court of Western Australia have jointly released The Australian Standards of Practice for Family Assessments and Reporting. The standards aim to:

“promote good practice in conducting and reporting in full family assessments by social workers and psychologists in family law matters…”
“provide information to the judiciary, agencies, legal professionals and parties who utilise the services of family assessors to increase the understanding in the broader sector as to what constitutes good practice in family assessments and reporting.”
“inform what can be expected as a minimum standard of practice when conducting family assessments and preparing reports.”

To access the standards, visit http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb55680719c88d0/standards%20of%20practice_WEB_091214.pdf.

Australian Standards of Practice for Family Assessments and Reporting

Sydney, Australia

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Equity, Family Law, LAW FIRM, Property disputes, Property Law, Trusts

Baumgartner v Baumgartner [1987] HCA 59 | 10 December 1987

December 10, 2014 Legal Helpdesk Lawyers

ON THIS DAY IN 1987, the High Court of Australia delivered Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (10 December 1987).

http://www.austlii.edu.au/au/cases/cth/HCA/1987/59.html

The parties had lived together in a de facto relationship. They pooled their earnings to meet all outgoings of the joint relationship, including mortgage payments over the family home purchased with the husband as the only registered proprietor.

After about four years the relationship came to an end. The wife sought a declaration that she held an interest in the property in trust. The husband asserted that only he held the legal title to the house.

The court held that the wife held a beneficial interest in the property by way of constructive trust.

Per Mason CJ, Wilson and Deane JJ at 149:

“The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.”

The High Court declared that the parties hold beneficial interests in the property of 55% to the husband and 45% to the wife, subject to adjustments.

Sydney, Australia

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Divorce, Family Law, LAW FIRM

Salacup and Salacup [1993] FamCA 120 | 23 November 1993

November 23, 2014 Legal Helpdesk Lawyers

Salacup and Salacup [1993] FamCA 120; (1993) FLC 92-431 (23 November 1993).

http://www.austlii.edu.au/au/cases/cth/FamCA/1993/120.html

Sydney, Australia

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Children, Family Law, LAW FIRM

G v H [1994] HCA 48 | 19 October 1994

October 19, 2014 Legal Helpdesk Lawyers

G v H [1994] HCA 48; (1994) 181 CLR 387; (1994) 124 ALR 353 (19 October 1994).

http://www.austlii.edu.au/au/cases/cth/high_ct/181clr387.html

A child’s paternity had been inferred by the Full Court of the Federal Court of Australia by reason of matters including the father’s refusal to undergo a paternity test.

On appeal to the High Court, it was argued that the adverse inference was not just in the light of the evidentiary rule set out in Briginshaw v Briginshaw (that for issues of importance and gravity arising in a civil case, serious consideration be given as to whether the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist).

The High Court held that whilst paternity is a serious matter, it was just to draw the adverse inference against the putative father because the paternity test was capable of conclusively determining the child’s paternity and that the child’s right to maintenance and support should not depend on establishing paternity in accordance with the Briginshaw test.

“ Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided … Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. …”

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Family Law, LAW FIRM

Women and Family Law (10th edition)

September 27, 2014 Legal Helpdesk Lawyers

Women and Famly Law (10th edition) is a useful online guide to family law put together by the solicitors of Women’s Legal Services NSW.

For more information about Women’s Legal Services NSW, visit http://www.womenslegalnsw.asn.au.

http://www.austlii.edu.au/au/cases/cth/HCA/2014/11.html

Sydney, Australia

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Divorce, Family Law, LAW FIRM

How to Apply for a Divorce

September 14, 2014 Legal Helpdesk Lawyers

Australia has a no-fault system of divorce.

The Family Law Act 1975 (Cth) defines “divorce” as the “termination of a marriage otherwise than by the death of a party to the marriage”.

The Family Court, state Supreme Courts and Federal Circuit Court have the jurisdiction to grant a divorce or a decree of nullity to either Australian citizens, persons domiciled in Australia or persons who are an ordinary resident of Australia and have been so for the 12 month period prior to proceedings being instituted. Proceedings are usually brought in the Federal Circuit Court.

A party may make an application for divorce if there has been an irretrievable breakdown of the marriage and the court is satisfied that the parties have separated and lived separately for a continuous period of 12 months before the application and there is no reasonable likelihood of the cohabitation being resumed. The divorce order takes effect 1 month after the date on which the divorce order is made.

The steps to be taken when seeking a divorce are as follows:

Complete an Application for Divorce which can be obtained by downloading the Application for Divorce Kit.
Swear or Affirm the application in the presence of a lawyer, Justice of the Peace or other authorised person.
Make two copies of the application and supporting documents.
File the an original and two copies of the application and a copy of the marriage certificate at a family law registry. The documents may be filed in person at the registry or by post. A filing fee must be paid.
Receive a hearing date and documents, which the court will give you at the time of filing the application.
Serve a sealed copy of the application and information brochure on your spouse at least 28 days if your spouse is in Australia, or 42 days if your spouse is overseas.
Attend the hearing. If there is no child under 18, you are not required to attend. If there is a child under 18 and the application is a joint application, you are not required to attend. If there is a child under 18 and the application is a sole application, your are required to attend.
Outcome. If the application is successful, the court will grant a divorce order which will become final one month and one day after it is made, unless another order is made. The court will then send a copy of the order to the husband and wife.

For further information, go the Family Law Court’s website.

Sydney, Australia

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Family Law, LAW FIRM

Parenting Plan Template

September 14, 2014 Legal Helpdesk Lawyers

A parenting plan does not have to take any specific form but it must be in writing and signed and dated by both parents. It must be freely agreed without any threat, duress or coercion.

Sample parenting plans can be found at the back of the Child Support Agency’s Me My Kids and My Ex and Relationships Australia’s Share the Care.

A parenting plan should cover:

The child’s place of residence.
Time spent with each parent.
Time spent with other people, such as grandparents.
How parents will share parental responsibility and consult about parenting decisions, such as selection of school.
Mode of communication with the parents and other people.
Special day arrangements, such as birthdays and holidays.
Processes for changing the plan.
Any other issue about parental responsibility or care, welfare or development of the child.

The agreement is voluntary and not enforceable. If the parties cannot reach agreement they can make an application for orders from the Family Court of Australia or the Federal Circuit Court of Australia.

For further information we recommend you go to:

Family Relationships Online, Parenting Plan Guide

Family Relationships Online, An Introduction to Parenting Plans

Legal Aid Victoria, Parenting Arrangements and Child Contact

Sydney, Australia

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