Part 3 of our 3-part series discussing the changes to the Family law amendment act, covers the following schedules:

  • Schedule 5: Case Management and Procedure;
  • Schedule 6: Communication of details of family law proceedings;
  • Schedule 7: Family report writers;
  • Schedule 8: Review of the operation of the FCFCOA
  • Schedule 9: Dual appointments
  • Schedule 10: Review of appointments

Schedule 5: Case Management and Procedure

Schedule 5 introduces two new parts into the Family Law Act:

Part 1: Harmful Proceedings Orders

Courts gain the authority to issue harmful proceedings orders, either on their own initiative or upon application by a party during ongoing proceedings. These orders restrict vexatious litigants from filing and serving new applications without obtaining prior leave from the court. Prior to making a harmful proceedings order, the court must be convinced that there are reasonable grounds to believe that further proceedings would cause harm to the respondent, which can include psychological harm, oppression, major mental distress, actions detrimental to a party’s ability to care for a child, or financial harm.

Part 2: Overarching Purpose of Family Law Practice and Procedure

Part 2 broadens and extends the overarching purpose of family law practice and procedure, as well as the accompanying duty, to all proceedings initiated under the Family Law Act. The overarching purpose is to facilitate the just resolution of disputes:

  1. a) In a manner ensuring the safety of families and children
  2. b) Particularly in proceedings where the best interests of a child are paramount, promoting the best interests of the child
  3. c) In adherence to the law
  4. d) As swiftly, inexpensively, and efficiently as possible.

Parties and their legal representatives are duty-bound to conduct proceedings consistently with this overarching purpose. Breaches of this duty may lead to cost orders against parties and legal representatives.

Commencement and Application Information

Schedule 5 will commence on May 6, 2024.

Part 1 applies to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date.

Part 2 applies to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date, excluding cases where the final hearing has commenced.

Schedule 6: Communication of Details of Family Law Proceedings

Schedule 6 repeals section 121 of the Family Law Act and introduces new Part XIVB, maintaining existing penalties and offences. The purpose is to simplify language and clarify when individuals can share identifiable family law information.

Currently, section 121 of the Family Law Act imposes penalties and offences on parties who publish information about family law proceedings. The new Part XIVB will provide further clarity about those penalties, and will have separate offences and penalties for different types of disclosure/publication. The simplified outline of the new part reads as follows:

It is an offence to communicate an account of proceedings under this Act to the public, if the account identifies certain people involved in the proceedings. It is an offence to communicate a list of proceedings that are to be dealt with under this Act to the public, and that are identified by reference to the names of the parties to those proceedings. A communication is not made to the public if the communication is made to a person with a significant and legitimate interest in the subject matter of the communication that is greater than the interest of members of the public generally.

Commencement and Application Information

Schedule 6 will commence on May 6, 2024, and apply to acts or omissions occurring on or after that day.

Schedule 7: Family Report Writers

These changes empower the Government to create regulations establishing standards and requirements for family report writers, akin to existing powers for family dispute resolution practitioners and family counsellors. Regulations will be developed following stakeholder consultation.

Commencement Information

Schedule 7 will commence on May 6, 2024.

Schedule 8: Review of the Operation of the FCFCOA

The review of the FCFCOA Act will commence in September 2024, two years earlier than originally planned.

Schedule 9: Dual Appointments

This change explicitly permits a person to be appointed and serve as a Judge of the FCFCOA (Division 1) irrespective of whether the person holds office as a judge of the Family Court of a State.

Schedule 10: Review of Amendments

A review of the Amendment Act’s operation will start as soon as possible after its third anniversary and be completed within twelve months. A report of the review must be tabled in Parliament.

Commencement Information

Schedules 8, 9, and 10 commenced on November 7, 2023.

If you need legal advice regarding changes to the family law amendment act or a new enquiry regarding a family law matter, please contact our office on (07) 3252 0011 to book an appointment with one of our friendly family lawyers today.

 

Part 2 of our 3-part series discussing changes to the Family law amendment act, covers the following schedules:

  • Schedule 2: Enforcement of child-related orders;
  • Schedule 3: Definitions of ‘member of the family’ and ‘relative’;
  • Schedule 4: Independent Children’s Lawyers and Hague Convention proceedings.

Schedule 2: Enforcement of child-related orders

This schedule encompasses:

  • A revision of Division 13A of Part VII (enforcement of child-related orders).
  • Amendments enabling registrars to be delegated the authority, to issue ‘make-up time parenting orders’

Division 13A Redraft

Division 13A of Part VII of the Family Law Act has undergone a redraft to enhance clarity regarding the consequences of non-compliance with parenting orders, making the provisions more accessible for the courts to implement.

The redraft introduces several policy changes while preserving the fundamental principles of compliance and enforcement provisions. These policy changes include:

  • Removal of specific cost order provisions from Division 13A (cost orders for non-compliance will now be made under section 117 of the Family Law Act).
  • Elimination of the court’s power to issue Community Service Orders in cases of non-compliance as this was not being used by the Courts.
  • Clarification that the court may order additional time for a child with a person, alter a parenting order, or mandate parties to attend parenting programs at any stage of a contravention proceeding, without necessarily making a finding on a contravention.

The redraft maintains a broad spectrum of sanctions that the court can apply when orders are not adhered to. The existing law on determining a ‘reasonable excuse’ for contravention of orders, including situations involving safety concerns, has also been retained.

Delegating New Powers to Registrars

These changes also amend the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) to empower registrars of both Divisions of the FCFCOA to be delegated the authority to issue further parenting orders, allowing a child to spend additional time with a person (commonly referred to as a ‘make-up’ time or ‘compensatory time’ order).

Commencement and Application Information

Most provisions of Schedule 2 fall under Part 1, Division 1 (Enforcement of Child Related Orders) – main amendments and will come into effect on May 6, 2024.

Schedule 3: Definitions of ‘Member of the Family’ and ‘Relative’

The amendments outlined in Schedule 3 broaden the definitions of ‘relative’ and ‘member of the family’ to incorporate Aboriginal and Torres Strait Islander cultural concepts of family.

The changes include an expanded definition of ‘relative of a person’ in subsection 4(1AD). According to this amendment, if a person is an Aboriginal or Torres Strait Islander child, another person is considered a relative of that child if, in line with the child’s Aboriginal or Torres Strait Islander culture (including, but not limited to, any kinship systems of that culture), they are related to the child.

This modification to the definition of ‘relative of a person’ extends to the definition of ‘member of the family’ in subsection 4(1AB). Consequently, the definition of ‘member of the family’ now applies to:

  • The definition of step parent in subsection 4(1),
  • The definition of family violence in section 4AB, and
  • The new standalone best interest factor for Aboriginal or Torres Strait Islander children in paragraph 60CC(3)(a).

It’s important to note that the expanded definition of ‘member of the family’ does not impact the obligations of parties to proceedings under the Family Law Act regarding the disclosure of specific matters under sections 60CF, 60CH, and 60CI. The original definition of ‘member of the family,’ excluding the expanded component, continues to govern the obligations under sections 60CF, 60CH, and 60CI, even for Aboriginal or Torres Strait Islander parties to proceedings.

These definitions are designed to be interpreted and applied in connection with a child’s Aboriginal or Torres Strait Islander culture, as defined in subsection 4(1) of the Family Law Act.

Commencement and Application Information

The changes introduced by Schedule 3 are applicable to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date, except in cases where the final hearing has commenced.

Schedule 4: Independent Children’s Lawyers and Hague Convention Proceedings

This schedule introduces amendments to provisions concerning Independent Children’s Lawyers (ICLs), encompassing a new requirement for ICLs to engage directly with the children whose best interests they have been engaged to represent, allowing them an opportunity to express their views. Furthermore, it expands the use of ICLs in cases governed by the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

Requirement to Meet with the Child and Provide an Opportunity to Express a View

ICLs are now mandated to meet with the relevant child/children and afford them an opportunity to express their views, unless exceptional circumstances apply. This ensures consistent engagement in every suitable case, promoting national uniformity in ICL practices. Offering children the chance to express their views is crucial, aligning with children’s rights under Article 12 of the CRC, while maintaining their safety and well-being.

Notably, an ICL cannot compel the child to express their views on any matter, in line with section 60CE of the Family Law Act. The legislation grants the ICL discretion regarding when, how often, and how meetings with the child occur, as well as when, how often, and how the child is provided with an opportunity to express views (new subsection 68LA(5AA)). This discretion is subject to any court order or direction.

Exceptions exist where an ICL is not obliged to perform duties if: the child is under 5 years of age, the child declines to meet with the ICL or express their views, or if exceptional circumstances, such as potential harm to the child, (new subsection 68LA(5B, 5C)).

There is no specific timeframe for performing these duties, allowing flexibility based on the case’s facts and circumstances. However, the ICL must fulfill these duties before the court makes final orders – the Court cannot make final orders unless they are satisfied that either these duties have been fulfilled or an exceptional circumstance applies. If exceptional circumstances prevent duty performance, the court evaluates whether such circumstances exist and may nevertheless issue an order requiring the duty’s fulfillment (new subsection 68LA(5D)).

ICLs may seek external evidence to support their decisions, such as advice from family consultants, relevant experts, or treating practitioners. The weight given to this advice is at the ICL’s professional discretion and is considered by the court.

Expansion of the Use of Independent Children’s Lawyers in Hague Convention Cases

The amendments eliminate the requirement that ICL appointments in Hague Convention cases be made only in ‘exceptional circumstances.’ Judges can now appoint ICLs in these cases without the exceptional circumstances constraint. This aligns Hague Convention proceedings with other family law matters under the Family Law Act, allowing ICL appointments under the same circumstances.

The changes repeal subsection 68L(3) and substitute subsection 68L(1) to clarify that the court’s consideration of appointing ICLs applies to proceedings where a child’s best interests are paramount or a relevant consideration, including proceedings under regulations for the Hague Convention (section 111B).

Repeal of Section 111B(1B) – Child’s Objections Exemption in Hague Convention Cases

The amendments eliminate section 111B(1B) in its entirety, removing the higher threshold requirement under the Family Law Act for considering a child’s objections to return under the Hague Convention. This realignment with Article 13 of the Hague Convention removes the criterion that the objection must exhibit strength of feeling beyond a mere preference or ordinary wishes.

Commencement and Application Information

Schedule 4 takes effect on May 6, 2024. Parts 1 (Requirement to meet with the child) and 2 (Convention on the Civil Aspects of Child Abduction) apply to all proceedings initiated on or after May 6, 2024, and ongoing proceedings as of that date, except when the final hearing has commenced.

If you need legal advice regarding changes to the family law amendment act or a new enquiry regarding a family law matter, please contact our office on (07) 3252 0011 to book an appointment with one of our friendly family lawyers today.

The Not-for-profit and charity legal landscape has many associated buzzwords; one of the most prevalent phrases being “DGR status”. DGR status is a concept that is particularly attractive to charities that rely solely or partly on donations from organisations or members of the public to fund its operations, but not every charity is eligible to obtain DGR status. This article will identify what DGR status is, different types of DGR status, the eligibility requirements for obtaining DGR status, and the benefits of a charity obtaining DGR status.

What is “Deductible Gift Recipient Status”?

Deductible Gift Recipient (‘DGR’) status describes the Australian Taxation Office’s (‘ATO’) endorsement of a particular entity as a Deductible Gift Recipient. The primary benefit of being endorsed as a DGR is that DGR status enables donors who make donations to the DGR to claim those donations against their income tax, which often incentivises donors to make larger or more frequent donations to the entity.

Entities that are applying for DGR status can either apply for:

  1. Whole-entity DGR status (where the entity in its entirety and all its operations fit within a specified DGR category); or
  • Partial-entity DGR status (where the entity in its entirety does not fit into a specified DGR category, but a distinct fund, authority or institution that it operates does).

Donors can only claim income tax deductions on donations they have made to a DGR, or the DGR-endorsed fund/authority/institution operated by the entity. For example, if a non-DGR charity operates a DGR-endorsed building fund, any donations made to the charity in general will not be tax-deductible; however, any donations made specifically to the building fund will be tax-deductible.

At the time of writing, there are approximately 52 different types of DGR categories endorsed by the ATO for which an entity may register, each classified into the below groups:

  • Health
  • Education
  • Research
  • Welfare and Rights
  • Defence
  • Environment
  • The family
  • International affairs
  • Sports and recreation
  • Cultural organisations
  • Fire and emergency services
  • Ancillary funds

An additional four categories are regulated and granted endorsement by other governmental departments. These include:

  • Cultural Organisations
  • Environmental organisations
  • Harm prevention charities
  • Overseas aid funds

Eligibility Requirements for Deductible Gift Recipient Status

Any entity applying for DGR status must comply with the eligibility requirements of the particular category under which it is seeking DGR status. Furthermore, as of December 2021, funds, authorities or institutions seeking DGR status must also satisfy the broad eligibility requirements by being either:[i]

  • A charity registered with the ACNC (read more about ACNC charity registration here )
  • An Australian Government agency; or
  • Operated by a registered charity or an Australian government agency.

NB: This does not extend to ancillary funds or entities listed specifically as DGRs under taxation law.

DGRs must be operated and established in Australia, although its purposes and beneficiaries can lie internationally for some categories. However, some DGRs, such as public funds for providing religious instruction in government schools or an Australian war memorial fund, must have purposes and beneficiaries contained exclusively within Australia.

Some DGR categories will also require an entity, as a prerequisite to being granted DGR status under that category, to obtain pre-approval from particular government departments (e.g. overseas aid funds require pre-approval from the Department of Foreign Affairs and Trade).

Gift Funds

Where an entity does not have full-entity DGR status but instead seeks to obtain DGR status for a particular fund, authority or institution it operates, the entity must maintain a gift fund to be used only for that fund’s/authority’s/institution’s primary purpose. All money or gifts donated to the entity for the purposes anticipated by the gift fund must be made to that gift fund, and no other types of money or property can be held by the gift fund.

Furthermore, upon the DGR fund/authority/institution winding up or having its DGR status revoked, the entity will be compelled to transfer all remaining assets to another DGR fund/authority/institution. If the DGR fund/entity was a registered charity, the remaining assets held by the fund/entity may need to be transferred to another charity (DGR fund, authority or institution) with similar charitable purposes.[ii]

Revocation of Deductible Gift Recipient Status

The ATO may revoke DGR status of an entity if:

  • The fund/entity no longer has entitlement to be endorsed as a DGR;
  • The fund/entity fails to provide documents or information as requested by the ATO; or
  • The fund/entity fails to provide specified information on its receipts for tax-deductible gifts and contributions.[iii]

If a change in the structure or operations of the DGR will have the effect of making the DGR ineligible for DGR status, the DGR bears the responsibility to report its ineligibility to the ATO. Failure to do so may result in the ATO taking legal action against the DGR. If you are seeking advice regarding applying for DGR status or reviewing your entity to ensure it complies with its DGR obligations, the NFP and Charity team at Corney & Lind Lawyers can help. Our experienced lawyers will assess your entity’s circumstances and help guide you through the process. Contact our friendly team on (07) 3252 0011 or email us at enquiry@corneyandlind.com.au

This article was written by Jackson Litzow 


[i] Australian Charities and Not-for-profits Commission, ‘Deductible Gift Recipients and the ACNC’, Deductible Gift Recipients and the ACNC (Webpage, 3 November 2022) <https://www.acnc.gov.au/tools/factsheets/deductible-gift-recipients-and-acnc>.

[ii] Australian Taxation Office, ‘Deductible gift recipient eligibility’, Rules and tests for DGR endorsement (Webpage, 13 October 2021) <https://www.ato.gov.au/Non-profit/Getting-started/Getting-endorsed-for-tax-concessions-or-as-a-DGR/Is-my-organisation-eligible-for-DGR-endorsement-/Rules-and-tests-for-DGR-endorsement/#Endorsementfortheoperationofafundauthori>.

[iii] Australian Taxation Office, ‘Revoking endorsement’, Revoking endorsement (Webpage, 04 August 2022) <https://www.ato.gov.au/non-profit/getting-started/in-detail/types-of-dgrs/public-ancillary-funds/?page=6#:~:text=We%20can%20revoke%20a%20DGR’s,specified%20information%20on%20its%20receipts.>.

Humanity’s intrinsic sense of benevolence is often the primary motivator that inspires people to donate to, or even start up, Charities and Not-for-Profit organisations (‘NFPs’). There are many structuring options for entities seeking to provide benefit to the public – each differing in its reporting and regulatory obligations and eligibility for tax exemptions.

The bullseye model (below) is a useful conceptual tool when considering the regulatory requirements and taxation exemptions of particular types of not-for-profit entities. As one moves towards the centre of the bullseye, reporting obligations on the entity become more extensive – but as a tradeoff, the entity is eligible for greater tax concessions.

Those looking to set up a not-for-profit entity will inevitably arrive at the decision as to whether they wish to register their organisation as a charity with the Australian Charities and Not-for-Profits Commission (‘ACNC’). This article outlines what charitable status is, and some of the benefits obtainable by an entity if they are successful in registering their charity with the ACNC.

What is a “Charity Status”?

An organisation is colloquially said to obtain “charity status” upon its registration with the ACNC as a “charity”. The ACNC will apply the definition provided in section 5 of the Charities Act 2013 (Cth) (the ‘Charities Act’) in determining whether the entity seeking registration is in fact a “charity”.

An entity will be a “charity” and registrable with the ACNC if:

  1. It is a not-for-profit entity;
  2. All its purposes are “charitable purposes” that are for the public benefit – or are purposes that are incidental or ancillary to, and in furtherance or in aid of, the “charitable purposes” of the entity;
  3. The entity has no “disqualifying purposes”; and
  4. The entity is not an individual, political party or government entity.

 

1.Not for Profit

An entity will be not-for-profit where the organisation does not operate for profit, personal gain or other benefit to particular people – such as members or shareholders.[i] Whilst there are limited situations where the entity can provide benefit to a member, this must only occur in circumstances where the benefit is provided whilst the organisation is genuinely carrying out its purposes. A general prohibition on operating for the profit of members should be reflected in the charity’s governing document (such as its constitution or rules).

2. Charitable Purposes and “Public Benefit”

The entity must have exclusively charitable purposes or purposes that are incidental to the carrying out of charitable purposes. Such as the different types of relief that charities provide is highly diverse, so too are the different types of charitable purposes recognized by the ACNC and Charities Act. Overall, there are 14 different types of recognized charitable purposes, some of which include:

  • Advancing education;
  • Advancing religion;
  • Advancing health;
  • Promoting/protecting human rights;
  • Advancing human rights;
  • Advancing culture.

These purposes must also be of public benefit, and the purpose must direct a benefit to the general public or a sufficient section of the general public.[ii] It is unlikely that an organisation that passes on a benefit to a very small portion and demographic of the public will be registrable as a “charity”.

3. No “Disqualifying Purposes”

The organisation cannot be founded for a “disqualifying purpose” as defined by the Charities Act. This means it cannot operate for the purpose(s) of:

  • Engaging/promoting unlawful activities or activities against public policy; or
  • Promoting/opposing a political party or candidate.

Benefits of ACNC Registration

In most circumstances, ACNC registration is highly desirable for charities due to the abundance of benefits it provides. The types of benefits available to a charity will depend on the charity’s designated “subtype”, and might include:[iii]

1) Taxation Benefits:

  • The ability to apply to the Australian Taxation Office (‘ATO’) for tax concessions/exemptions (such as income tax exemptions and GST concessions) and particular kinds of deductible gift recipient (‘DGR’) status available only to ACNC-registered charities;
  • For Public Benevolent Institutions, Health Promotion Charities or charities for the advancement of religion – further tax benefits available only to these types of institutions;
  • Potential eligibility for further financial benefits and tax exemptions provided under Commonwealth law, such as:
    • Mobility allowances;
    • Family tax benefits or double orphan pensions;
    • Fringe benefit tax exemptions.

2) Regulatory benefits (where the entity is also registered with the Australian Securities and Investments Commission (‘ASIC’) and is a Company Limited by Guarantee):

  • Reporting is required only to the ACNC instead of both the ACNC and ASIC, meaning that ASIC filing and annual review fees are not payable and the need for a directors’ report to be prepared (which can reduce costs in the event of an audit) is no longer applicable;
  • The ACNC also assesses reporting size thresholds based upon revenue only (without consideration of DGR status), meaning an entity that may have been classified as a “medium” sized entity under the Corporations Act 2001 (Cth) and would have hence required audit and review might instead be classified as “small” under the Australian Charities and Not-for-profits Commission Act 2012 (Cth) and therefore not required to undertake audit or review.

3) Other benefits

The ability to publicly display registration publicly and provide your details on the ACNC website, which can assist in attracting potential partners and donations for the charity.

If you are looking to register your not-for-profit entity with the ACNC and to maximise the taxation and other benefits available to your organisation, the Not-for-Profit and Charity team at Corney & Lind Lawyers can help. Our experienced lawyers can assist you in all aspects of the process – from structuring and setting up your entity through to ACNC registration and preparation of taxation concession applications. Give our team a call on (07) 3252 0011 or email us at enquiry@corneyandlind.com.au

This article was written by Jackson Litzow 


[i] Australian Charities and Not-for-profits Commission, ‘Benefits of Registration’, Why Register (Webpage, 7 September 2022) <https://www.acnc.gov.au/for-charities/start-charity/you-start-charity/why-register>.

[ii] Australian Charities and Not-for-profits Commission, ‘What is ‘public benefit’’, Public Benefit (Webpage, 3 November 2022) <https://www.acnc.gov.au/for-charities/start-charity/public-benefit

[iii] Australian Charities and Not-for-profits Commission, ‘What is a not-for-profit’, NOT-FOR-PROFIT (Webpage, 7 September 2022)

A recent decision by Justice Porter KC of the Brisbane District Court provides valuable insights into the procedural and evidentiary aspects of substituted service applications. The ruling underscores the importance of diligence, accuracy, and adherence to statutory requirements in handling such legal matters.

THE LAW

Rule 116 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides that in circumstances where it is impracticable to effect service of court documents in compliance with the regulations, the court may make an order substituting another way of serving the document.

THE FACTS

On 2 August 2023 the Applicant commenced proceedings in the District Court of Queensland against the First Defendant, Jacksolo, for alleged lease-related debts, and the Second and Third Defendants as guarantors of Jacksolo under the lease.

In attempting to effect service of these initiating court documents, the Applicant experienced extensive difficulties:

  1. Express post – a sealed copy of the claim and statement of claim sent via express post to the First Defendant’s registered office was returned marked ‘RTS’ (return to sender);
  2. Personal service attempts by the Process Server were plagued by:

    a. conflicting information about the existence of the Unit in question;
    b. uncertainty about the Second Defendant residing at the specified addressed;
    c. unsuccessful interactions with occupants;

  3. Mobile phone – no response to voice messages; and
  4. Email – no acknowledgement of emails sent to the address previously provided.

Owing to these difficulties, the Applicant sought an order for substituted service of the proceedings on all three defendants under rule 116 of the UCPR.

THE DECISION

His Honour Porter KC found that on the whole of the evidence, and having regarding to several steps that had not been taken to locate the Defendants, no inference arose that personal service was impracticable. A corollary of this finding, his Honour was also not satisfied that the alternative methods of service proposed by the Applicant would have a sufficient prospect of bringing the claim to the Defendants’ attention.

KEY TAKEAWAYS

This case serves as a valuable educational tool, highlighting the intricacies and challenges associated with substituted service applications and emphasising the need for meticulous preparation and execution.

Personal Service Not Impracticable

The court scrutinised attempts (or lack thereof), made by the Applicant to locate / verify the location of the Defendants. Specifically:

a. no motor vehicle registration search was undertaken in respect of an Audi which was alleged to link the Second Defendant to a residential address;

b. photographs of the Second Defendant were not provided to the Process Server, which may have facilitated identification of a resident who opened the unit door at the residential address in question;

c. on the evidence before the Court, it appeared that no electoral roll search, title search or other investigation had been made by the Applicant; and

d. Bundaberg is not a particularly large town, such that if the Second and Third Defendants remained in the area, it was likely that reasonable efforts to locate or confirm the residence of the Debtors would be successful.

Substituted Service Must Bring Proceedings to Attention of the Other Party

It is not proper to substitute service of process in a court of law when there is no belief that the service will bring the proceedings to the knowledge of the person in question.[1]

Here, there was evidence before the Court that the email address of the Third Defendant, previously provided to the Applicant in separate legal proceedings, remained functional. Notwithstanding, the Court found that it was not reasonable to infer that a person keeps up to date with messages received in their inbox:

It is notorious that an email address can become flooded with irrelevant messages to the extent where it becomes an ineffective tool of communication.

Accordingly, His Honour was not satisfied that an email sent by the Applicant to this address would come to the Defendant’s attention.

Admissibility and Reliability of Evidence

The judgment identified issues of admissibility, reliability and completeness of information, which could impact the court’s ability to make a well-informed decision:

a. certain evidence relied on by the Applicant contained information from unidentified sources. This lack of identification raised questions about the credibility and reliability of the information provided; and

b. an email exhibit relied on by the Applicant’s solicitor to sustain the relief sought was based on hearsay statements, and was “inadmissible and inherently ambiguous”.

Requirements of an Ex Parte Application

A substituted service application is an ex parte application. That imposes a particular obligation on legal practitioners to ensure admissible evidence is tendered and any submission made is reasonably open on the admissible evidence.

For legal advice on navigating such matters, contact us today.

This article was written by James Tan and Courtney Linton.

[1] Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274.

Could a Binding Financial Agreement be set aside on the ground that a party to it had been subject to duress at the time of execution? To answer this, one must first consider what conduct amounts to duress in the eyes of the law. Not all forms of duress are unlawful.. For  ‘duress’ to be detrimental to the validity of the agreement, it must be unlawful. The case of Kennedy & Thorne[1] considered whether the presence of duress was sufficient to warrant setting aside of a binding financial agreement.

The Story

Mr Kennedy (‘the husband’) and Ms Thorne (‘the wife’) met on a dating site. The wife was at the time living outside of Australia, had no children and no substantial assets to her name. The husband was an Australian property developer, had three adult children and had at least $18 million in assets to his name. The parties made arrangements for the wife to come to Australia with the intention of obtaining a more permanent visa once the parties were married.

On 8 August 2007 and again on 14 August 2007 the parties met with the husband’s solicitor with the intention of drafting a pre-nuptial agreement. The husband was adamant during these conversations that the marriage would only proceed if the wife signed the agreement. The reason for this was that the husband intended his children to inherit his wealth.

On 20 September 2007, the wife sought independent legal advice about the particulars of the pre-nup and the husband’s financial position. The solicitor advised the wife that the agreement was “no good” and that she should not sign it. It was around this time that solicitors for the husband and the wife communicated and the wife’s solicitor raised the possibility of duress. Despite her solicitor’s advice, the wife signed the pre-nup (“the first agreement”). The agreement contained a provision which provided that another agreement would be entered into within 30 days.

The parties married in late September 2007.

On 26 October 2007 the husband visited his solicitor regarding the second agreement. The solicitor for the wife advised her not to sign the second agreement because it was “terrible and she should not sign it”. The wife again rejected this advice and signed the agreement (“the second agreement”).

The parties separated in late 2011.

The wife commenced proceedings on 27 April 2012 seeking an order that the agreements be declared non-binding and be  set aside on the basis of duress, undue influence and/or unconscionability.

The husband died in May 2014.

The decision at first instance

Judge Demack found that the wife had entered into both agreements under duress. Her Honour stated that to establish duress ‘there must be pressure – the practical effect of which is compulsion or absence of choice’ (at [87]). Her Honour found that there had been unequal bargaining power between the parties to the extent that no fair or reasonable outcome was available to the wife. That is, even though the wife had no choice that she could reasonably see other than to sign the agreement.

The decision on appeal

The Court of Appeal overturned the decision at first instance finding that Judge Demack had applied the wrong legal test for duress. The correct test is ‘whether there is threatened or actual unlawful conduct’. Applying this test, the Court found that the wife had not been subjected to the requisite degree of duress that would warrant setting aside the financial agreement. The Court gave a number of reasons for this finding including that:

  • whilst there was no doubt that she relied on the husband both financially and emotionally, the husband had met these expectations and the wife had accepted them;
  • the wife knew of the husband’s significant financial position and that it was his desire that his children benefited from this;
  • the wife had obtained her own independent legal advice;
  • she was advised not to sign the agreements and did so anyway; and
  • the wife’s solicitor had made changes to each of the agreements showing that they were not non-negotiable.

A finding of no unlawful duress meant that the appeal by the husband’s estate was allowed and the agreement was declared binding.

Lessons

In life many acts are done under pressure even some to the extent that one can say they had no choice but to act. However this is not the type of duress the law accounts for. A financial agreement will only be set aside on the basis of duress, where the duress involves threatened or actual unlawful conduct. In this case, the wife disregarded independent legal advice and was aware that the husband intended his wealth to fall to his children. Ultimately this meant that the duress she faced could not be considered unlawful in the eyes of the law to warrant the agreement being set aside.  A profound lesson that emerges from the decision is – not to disregard independent legal advice – especially when it is unpalatable or not what you want to hear!

If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.

 

Footnote

[1] [2016] FamCAFC 189.

If you are caring for a child and you are not the child’s parent you may be able to apply for child support from one or both of the child’s parents. To do this, you must still make an application to the Department of Human Services in the ordinary manner and will be subjected to a Child Support Assessment.

Some common examples of non-parent child support carers include members of the child’s extended family such as grandparents, older siblings, aunts and uncles or those entrusted by the child’s parents or the court to care for that child including legal guardians.

To enable you to claim child support as a non-parent carer, you must not be in a domestic or intimate relationship with one of the child’s parents. This applies to step-parents or de facto partners as they are prevented from receiving child support from either of the child’s parents whilst that relationship continues.  Additionally, to be an eligible non-parent carer you must be able to show that you have at least 35% care[1] of the child. This means that you must care for the child at least 128 nights per year[2] or an equivalent time arrangement if not wholly overnight time.

It is also important to note that adoptive parents are not eligible to receive a Non-Parent Child Support Assessment to receive support from the child’s biological parents. This is because, under section 5 of the Child Support (Assessment) Act 1989, the term “parent” includes a person who legally adopts a child. This person becomes the child’s ‘legal parent’. This is different to a person becoming a child’s legal guardian.  “If a non‑parent carer has care (however described) of a child under a child welfare law, the non‑parent carer may apply for child support for the child only if the non‑parent carer is a relative of the child”.[3]

How do you apply for Child Support?

Firstly, you will need to submit an application through the Department of Human Services the Child Support Agency who will assess your entitlement to Child Support based on the information you provide. You will need to be able to show that the parties named in your application are the legal parents of the child and that you are an entitled person to claim support.

The Child Support Agency will have a look at your application and determine the amount of child support that will be payable and this will be based on the income of both parents and the amount of care that you have of the child. In this case, your income is not a relevant factor and will not be assessed by the Child Support Agency.

Ordinarily, child support will be paid by both parents and your application must name both parents if they are known. However, there is an exception to this rule if; the identity or whereabouts of a parent is unknown, the parent is deceased, does not ordinarily reside in Australia and does not reside in a country that recognises Australian Child Support Arrangements.

Under the Child Support (Assessment) Act 1989[4]the percentage of care is calculated by the time the child is likely to spend with each party to the Child Support Arrangement and the care that each party is likely to provide during that period. If there is any change to the living arrangements during a child change over time, the support assessment is likely to change as well. It is important that you keep the Child Support Agency informed of any change in circumstances.  

Additionally, entitlement to child support will automatically cease under section 12[5] if;

  1. The child dies;
  2. The child turns 18;
  3. The child is adopted by the non-parent carer;
  4. The child is no longer ordinarily resident in Australia or is no longer an Australian Citizen.

In some cases the Child Support Agency will be required to give consideration to other factors not mentioned above. To find out more about your entitlement to Child Support you may access the Child Support Guide from the Department of Human Services here.

If you have any concerns about your entitlement to child support or would like to appeal a decision of the Child Support Agency please contact our office for your free initial consultation with one of our family lawyers.

 

Footnotes

[1] Department of Human Services QLD

[2] Department of Human Services QLD

[3] Child Support (Assessment) Act 1989 (Cth) Section 26A

[4] Child Support (Assessment) Act 1989 (Cth) Part 5, Division 4

[5] Child Support (Assessment) Act 1989 (Cth)

If you are paying or receiving child support payment, then you can apply to the Child Support Agency to change the child support assessment in special circumstances.   

The administrative process is set out in Part 6A of the Child Support (Assessment) Act 1989 (Cth)  for a child support assessment to be changed, in limited situations. The Child Support Agency sets out ten reasons which allow a person to bring an application for changing child support assessment pursuant to the Child Support (Assessment) Act 1989 (Cth). 

In our experience, some of the reasons that are commonly relied upon by a parent for changing the assessment are: 

  • Reason 2 – The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs. 
  • Reason 3 – The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended. 
  • Reason 8 – The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents. 

An applicant cannot simply apply for change of assessment because they think the assessment is unfair. They must nominate at least one of the ten reasons in their application as well as provide details of their financial circumstances.  There are also legal elements that the application must satisfy under these reasons, with relevant evidence and reasoning. 

The application is usually lodged with the Child Support Agency. The Child Support Agency has the power to set a new annual rate of child support in substitution of the original assessment. 

Two common situations that may trigger an Application for change in child support

Liability to pay cost towards private schooling

Where a child has attended a public school prior to the parents’ separation, and subsequent to separation, one parent enrols the child in a private school without consulting with the other parent, an application for changing the child support may be made under Reason 3.

Generallyunless a parent has consented to contribute towards private school fees, he or she should not be obliged to contribute. This would also be in the case where a parent has not consented to the child attending that school.   

In some special circumstances, a parent may have to contribute towards private schooling even though they may not have consented or being consulted on the matter. This is only if there is clear evidence that it is in the best interest of the child to attend private school as opposed to attending public schoolIt may be appropriate in this case for he or she to contribute towards the private school fees. 

Earning capacity of a parent 

A parent may also change their child support assessment under Reason 8 in cases where the other parent decides either to give up work completely, or to adjust their financial 

 position so they do not earn nearly as much as they did before. This may be done to avoid their child support obligations or has the benefit of financial resources (such as an interest in a business or company). 

In these kinds of situations, the Child Support Register may change the child support assessment based on the other parent’s higher earning capacity, not the actual earnings. The Child Support Register may look at the parent’s ability to work, whether there is an opportunity to work, and their willingness to work. 

Next Steps 

An application for change in a child support assessment allows the parties to respond to unanticipated changes in the parents’ and children’s lives. Such applications have long lasting effects, as these payments will generally continue until the child or children turn 18. 

If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.

A Child Support Agreement is a useful tool for parents to use where there is agreement as to the amount of child support payable.

Child Support Agreements bypass the use of the Child Support formula to allow parents to agree on terms of payment.

How do you create a Child Support Agreement?

There are two (2) ways in which a Child Support Agreement can be formulated:-

1. Binding Child Support Agreement

Binding Child Support Agreements are written agreements for child support signed by both parents after getting independent legal advice about entering into or ending an agreement.

This legal advice must be provided by a legal practitioner who has been admitted by the Supreme Court of a State or Territory of the Commonwealth of Australia and holds a current practising certificate.

The legal practitioner must provide a statement they have provided the parent with independent legal advice as to the effect of the agreement on their rights and the advantages and disadvantages of entering into such an agreement.

The agreement must include an acknowledgement of this advice.

A Binding Child Support Agreement can be made and accepted, even if a child support assessment has not been made. The agreement can be made for any amount that both parents agree to.

2. Limited Child Support Agreement

Limited Child Support Agreements are formal agreements for child support that are in writing and signed by both parents.

Legal advice is not needed before entering into a Limited Child Support Agreement.

Before the Department of Human Services (Child Support) (“the Department”) can accept a Limited Child Support Agreement:

  1. there must be a child support assessment already in place; and
  2. the annual rate payable in the agreement must be equal to, or more than the annual rate of the child support assessment.

Importantly, a Limited Child Support Agreement can only be in place for a maximum of three (3) years. After this time, either parent can terminate the agreement.

Lump sum payments

A Child Support Agreement can include lump sum payments including transfer of property, to be credited as child support, instead of monthly cash or electronic payments.

A child support assessment must be in place for lump sum payment agreements.

The lump sum must be equal to or greater than the annual child support rate under that assessment.

The lump sum will be credited at the rate of 100% of the child support payable, or at a lesser rate if specified in the agreement.

The remaining lump sum will be indexed every year by the Consumer Price Index as published by the Australian Bureau of Statistics (“the ABS”).

Notional assessment

When a Child Support Agreement is accepted, the Department will make a provisional notional assessment of how much child support would be payable if an agreement was not in place.

The provisional notional assessment is given to both parents to check that their circumstances are properly reflected.

Parents have fourteen (14) days from when it is issued to contact the Department and update their details, if necessary.

The provisional notional assessment becomes a notional assessment fourteen (14) days after it is issued or when all requests to vary details have been finalised.

The notional assessment amount is used in calculating the relevant amount of Family Tax Benefit Part A as determined by the Australian Department of Human Services (Centrelink) (“Centrelink”).

The notional assessment is updated:

  1. every 3 years;
  2. if the amount of child support payable under the agreement changes by more than 15%; and
  3. for limited agreements, whenever either parent asks for a new notional assessment.

When is a Child Support Agreement terminated?

The child support legislation provides that a child support agreement may be terminated by:-

  1. entering into a new agreement;
  2. a court order; and
  3. if a Limited Child Support Agreement is more than three (3) years old.

Parties to a Child Support Agreement are not able to vary the terms of the agreement.

A new Child Support Agreement must be entered into.

How is a Child Support Agreement set aside?

If either party are able to establish the following grounds, a Court may set aside a Child Support Agreement:

  1. where the agreement of one of the parties was obtained by fraud, undue influence or unconscionable conduct;
  2. where there has been a significant change in circumstances;
  3. where the annual rate of child support payable under the agreement is not proper or adequate; or exceptional circumstances arise after the agreement is made.

If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.

Typically, child support is only payable until the relevant child becomes a legal adult. That is, the day the child officially turns 18, any child support agreement becomes void. However, there are two main exceptions to this rule found under section 66L of the Family Law Act 1975 (Cth) (‘the Act’), where child support can continue after the child turns 18.

They are as follows:

    1. The child is completing secondary or tertiary education; or
    2. The child has a mental or physical disability.

The Child is Completing Secondary or Tertiary Education

If the child turns 18 during their final year of high school, the parent receiving child support payments can apply to the Department of Human Services (Child Support) (‘DHS’) to extend the support until the end of the year. However, this application must be done before the child turns 18. This can be completed by either the child or the care giving parent.

In relation to tertiary education, however, the exception is not so straight-forward. Currently, there is no legal obligation to provide financial support to a child undergoing a post-graduate degree.

However, if payment is deemed necessary under the circumstances of the case, maintenance can be provided for any course completed at TAFE or University, or as part of an apprenticeship or vocational course.

According to Everett v Everett (‘Everett’), the payments are necessary if they are substantially required by the child and it is reasonable to require the parent to contribute in light of the parties’ financial and other related circumstances. These payments need not be absolutely essential to be considered ‘substantially required’.

Further considerations that can be made are as follows:

  • There must be a reasonable possibility of the child succeeding and finishing the course they wish to undertake.
  • The course must be appropriate in assisting the child in becoming independent.
  • A child’s entitlement to a government student allowance will not be considered when assessing adult child maintenance applications.
  • It does not matter if the child is completing multiple degrees or has been able to undertake prior studies without extra financial support.
  • The expenses that require adult maintenance must be necessary for the completion of the child’s study.

The Child has a Mental or Physical Disability

To be eligible for adult child maintenance due to circumstances of a mental or physical disability, the child must be so dependent that they are unable to support themselves. Medical evidence must be presented to prove they cannot provide their own income.

The amount of maintenance paid depends on the following key factors:

    1. The child’s capacity to earn their own income
    2. Each parent’s capacity to contribute financially
    3. The child’s necessary living expenses

How the Courts Assess the Appropriateness of the Child Support Claim

When determining whether to grant child support and in what amounts, the test is an objective one, in that the amounts must be objectively reasonable in the particular circumstances. Necessary expenses for the child include learning equipment and any expenses associated with special needs, but do not include HELP or HECS expenses.

There is an expectation that the child will contribute money to their expenses by way of part- time or casual work if they are capable.

When assessing the parent’s capacity to contribute, their income earnings and their other commitments will all be considered (Bienke v Bienke-Robson (1997) 23 Fam LR 569, 572). This includes any other children they have and/or need to support.

It does not matter how strong or warm the relationship is between the child and the parent making support payments. Under section 66J(1) of the Act, there is no consideration made for the relationship between the child and the parent unless it is a very special circumstance under section 66K(1)(e). However, the courts have been known to lightly consider: how estranged the child is with their father/mother, if the parent will be able to enjoy the child’s academic achievements, if the parent helps with the child’s academia, and if the parent will receive gratitude for the financial support.

Essentially, an estranged parent can be required to pay child maintenance after the child reaches 18 years of age, even if their relationship is limited or there is no relationship between them at all. If the parent wishes the Court to take into account their lack of relationship with the child when making a decision, they must prove failure to do so would result in injustice or undue hardship to themselves or someone else.

How to ensure the child support is actually paid

For the maintenance to be legally binding, the parent or child must apply for a Court Order which sets out the amount of adult maintenance that needs to be paid. Once granted, the parties may then apply to the DHS to register the Court Order.

This makes the child support registrar obliged to enforce the order. If any circumstance changes regarding either parties’ income earning capacity, the child’s education or any other relevant circumstance change, the DHS must be notified to update or adjust the plan accordingly.

Alternatively, if both parents can reach a consensual agreement outside of court, they may submit an application for consent orders. This means the parties are not bound by the s 66L exceptions and can extend the child support payments on any terms they can both agree upon so long as they are still reasonable.

These Orders can also be registered with the DHS.

If you have any questions about your family law issue, please contact our office for your free initial consultation with one of our family lawyers.