Amendments to the Family Law Act 1975 (Cth) which took effect on 6 May 2024 significantly change the way the family law matters will be decided. While previously the law focused on the rights of the child and the responsibilities of the parents, the amendments now bring into sharp relief that the focus should be on the best interests of the child, including ensuring their safety.

Changes to the Family Law Act

Parental responsibility means all the duties, powers, responsibilities and authority which parents have in relation to children. Unless there is a court order allocating parental responsibility to a particular parent, each parent can make decisions relating to the long-term care, welfare, and development of a child, for example, enrolling them in a school. Where there is no court order, parents can exercise this decision-making power either in agreement with the other parent or on their own. This understanding of parental responsibility is not changing under the amendments.

However, a significant change to the law is the removal of the presumption that it will be in a child’s best interests for parents to be allocated equal joint decision-making responsibility for decisions about long-term issues, such as schooling, health, and education. Further, the requirement that a court must consider an ‘equal time’ arrangement has been removed.

What the changes may mean for schools

• There may be more variety in the types of parenting orders that are made, and schools should not assume that parents have equal joint decision-making power, even if the child is living in an “equal time” arrangement.

• There may be more orders that allocate decision-making responsibility to only one parent for some matters (such as schooling) and to both parents for other matters (such as religion and health).

• Where there are no court orders or there is an order for equal decision-making for all matters, schools can continue to rely on one parent’s communicated decision as if it is a joint decision of the parents.

• However, if there is an order for joint decision-making and parents communicate conflicting instructions, there is no decision the school can make – they should put the responsibility back on the parents to resolve the dispute between themselves.

In the context of a school, some examples of major-long term issues relating to the care, welfare, and development of a child could be:

•  Enrolment of a student

• Termination of an enrolment

• Providing counselling services to a student

• Senior subject selection

• Long camps

• Inherently dangerous activities like horse-riding and contact sports

Whereas some examples which may not require the consent of both parents are:

• Participation in a workshop or series of workshops designed to improve a student’s social interactions

• Sporting events

• Most camps

What about Domestic and Family Violence?

In the wake of recent public outcry, there are significant changes on their way in many states in relation to their domestic and family violence laws.

In Queensland, for example, laws to try to address coercive control were passed on 6 March 2024 and will come into force in 2025 (click here for more information).

It is very important for schools to be aware of any Domestic Violence protection orders that may exist between parents, to ensure that they do not accidentally enable a breach or otherwise expose children and other adults to domestic and family violence.

It is important to remember, however, that it is not the responsibility of a school to enforce the requirements of a protection order or otherwise protect a victim-survivor from abuse.

Schools should have specific policies for dealing with protection orders and violent incidents on-campus to ensure that they are meeting their obligations to protect students and staff.

Next Steps

We regularly provide advice to schools about how to interpret family court orders, how they interact with domestic and family violence orders, and the school’s obligations generally when dealing with separated families. We can also assist to prepare formal family law and domestic and family violence policies.

If you require advice in this area, or would like one of our family lawyers to give a presentation to your school on any of the matters raised above, please contact us.

This article was written by Tabitha Gulley.

DFVP Month aims to raise awareness of domestic and family violence in the community, and to communicate Queensland’s position that domestic and family violence is not tolerated.

Domestic and Family Violence can occur in all walks and stages of life, and can impact not only the individuals involved, but also their children, and any organisation that they interact with. It is important that everyone understands domestic and family violence so that they are equipped to handle any issues that arise because of it.

What is Domestic and Family Violence?

Domestic Violence is defined in the Domestic and Family Violence Prevention Act 2012 (Qld) (“Act”) as behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship, where the behaviour is:

• Physically abusive;
• Sexually abusive;
• Emotionally abusive;
• Psychologically abusive;
• Economically abusive;
• Threatening;
• Coercive (i.e. compelling or forcing a person to do or refrain from doing something); or
• in any other way controls or dominates the second person and causes the second person to fear for their safety or wellbeing or that of someone else.[1]

The Act gives some specific examples of behaviour that would constitute domestic violence, but domestic violence is certainly not limited to these examples:

• causing personal injury to a person or threatening to do so;
• coercing a person to engage in sexual activity or attempting to do so;
• damaging a person’s property or threatening to do so;
• depriving a person of the person’s liberty or threatening to do so (including financial dependence or isolation);
• threatening a person with the death or injury of the person, a child of the person, or someone else;
• threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
• causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
• unauthorised surveillance of a person (including reading a person’s SMS messages or monitoring a person’s social networking site); and
• unlawfully stalking a person (under section 359B of the Criminal Code).

A person who counsels or procures (i.e. encourages or asks) someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.

As you can see through the above examples, domestic and family violence is not limited to physical abuse. In recent years we have seen a rise in coercive control as form of abuse in domestic and family violence relationships. Coercive control can sometimes be more difficult to identify than other forms of abuse. On 6 March 2024, coercive control laws were passed in Queensland, which will come into force in 2025.[2]

Some acts of domestic and family violence also have corresponding criminal offences under the Criminal Code or other legislation (for example, assault, stalking etc).

Who can be a victim/survivor of domestic and family violence?

Domestic and family violence commonly occurs between people who are, or have been, in an intimate relationships, such as spouses, de facto partners and dating couples.

However, domestic violence also occurs in families. The terms ‘Domestic violence’ and ‘family violence’ are often used interchangeably in order to account for violence that occurs not only between partners but wider family members as well, such as children, parents, grandparents, aunts/uncles, cousins, nieces/nephews etc.[3]

Domestic and family violence also affects people of all ages, cultures, religions and sexual preferences. In particular, the Act seeks to protect those most vulnerable to domestic and family violence, including women, children, people with a disability, elderly people, LGBTQIA + people, and Indigenous people.[4]

Why is it an issue?

There is significant research suggesting that the exposure of children to domestic violence, particularly between loved ones, is highly psychologically damaging.

For the most part, domestic violence is considered, and treated in family law and child protection as child abuse.  There is also some research that suggests that experiencing domestic violence as a child changes the way the child’s brain develops.

Research completed by the Centre for Family and Domestic Violence Research concluded that if an adult woman was subjected to physical abuse at ANY stage of their current relationship, they were 7 times more likely to demonstrate symptoms of a severe psychological issue.  If that abuse was in the past 12 months, it jumped to 21 times more likely.  If the woman was subjected to sexual abuse at any stage of the current relationship, they were 17 times more likely to demonstrate symptoms of severe psychological issues.

Records compiled by the Australian Institute of Criminology suggest that during 2007-2008, 52% of homicides in Australia involved victims who shared a family or domestic relationship with the offender.  31% were homicides involving partners. Those figures have not improved with time.

For victims of domestic violence, the implications reverberate through their lives – it affects their mental, spiritual and physical health.  On a secondary level it affects the ability of a victim to care for a home and family, and to perform to their normal standard at work, and in a social setting.

Some of our recommendations to help you take a stand against domestic and family Violence, or to assist you in helping someone who is experiencing domestic and family violence are as follows:

What you can do to prevent domestic and family violence

We’re all in it together to reduce the prevalence of domestic and family violence in our communities. Your response to domestic and family violence may help save someone’s life.

The Department of Child Safety, Youth and Women have published a helpful brochure on things you can do to support someone experiencing domestic and family violence. Here are a few key things we note that you can do to help reduce and prevent domestic and family violence in your community:

1. Notice the signs that suggest someone is experiencing domestic and family violence.

Common signs can include:

• They seem afraid of their partner or always very anxious to please them
• They stop seeing you, other friends or family and become isolated
• They become anxious or depressed, unusually quiet or less confident
• They have a partner who is controlling, obsessive or jealous
• They have a partner who has threatened to harm them, their children or pets
• They have a partner who continually phones or texts to check on them
• They have a partner who is depressed or suicidal
• They have physical injuries (bruises, sprains or cuts on the body) and may give unlikely explanations for these injuries
• They finish phone calls when their partner comes into the room
• They are reluctant to leave their children with their partner
• They suspect that they are being stalked or followed
• They say their partner or carer gives them no access to money, makes them justify every cent that is spent or makes them hand over their money
• They are denied adequate care if they are an older person or a person with a disability and the person caring for them is abusive.[5]

2. Focus on the person’s safety.

If you notice signs of domestic and family violence, or your friend, colleague or family member discloses acts of domestic and family violence with you, the most important thing to consider is their safety. You can express your concerns for their wellbeing and politely ask if they have a safety plan (i.e. a safe place to go if they need to or a safe person to talk to). If the person is in immediate danger, encourage them to call Triple Zero.

3. Let the person suffering from domestic and family violence know about the support services that are available to them.

Support services are important to helping victims of domestic and family violence consider their options and find access to safety. Familiarise yourself with the domestic and family violence support services available in your area, which could include:

• DVConnect (Womensline) – 1800 811 811
• Mensline – 1800 600 636
• Brisbane Domestic violence services –07 3217 2544
• Sexual Assault Helpline – 1800 010 120
• Women’s Legal Service – 1800 957 957
• Immigrant Women’s Support Service – 07 3846 3490

Domestic and Family Violence Protection Orders

Victims of domestic and family violence can seek to protect themselves and their children or relatives from harm by seeking a Domestic Violence Protection Order (“DVO”) from a Magistrates Court. A DVO can be sought in circumstances where:

1. A relevant relationship exists between the perpetrator (Respondent) and the victim (Aggrieved);
2. There has been at least one act of domestic and family violence committed by the perpetrator against the Aggrieved;
3. The DVO is necessary and desirable to protect the victim from further acts of domestic and family violence.[6]

DVOs will impose certain conditions on the perpetrator of domestic and family violence to ensure the safety of the victim moving forward. Failure to comply with a DVO could amount to a criminal offence.

A victim of domestic and family violence may make an application for a DVO themselves or with the assistance of a lawyer. Alternatively, victims can contact the police and the police may make the application on the victim’s behalf in appropriate circumstances.

If the need for a DVO is not urgent it is a good idea to seek legal advice before making the application to ensure that you have taken appropriate and necessary steps to protect yourself and your children and to ensure that you are accessing the right process.

How can we help?

Vocare Law offer free 30 minute consultations for Domestic and Family Violence matters, for both Aggrieved and Respondent parties.

We also regularly provide advice to schools and other organisations who may have concerns about the impact of Domestic and Family Violence in their particular setting.

If you have any questions or concerns, or would like to arrange an appointment, you can Contact our office on (07) 3252 0011.

Helpful Links

• The Ongoing Fight Against Domestic Violence. 
• Domestic and Family Violence – FAQ 
• How does the Court address Domestic and Family Violence? 
• DV Resource Centre Victoria – Guide for families, friends, and neighbours
• Help for Others guide

Article written by Tabitha Gulley.

[1] Domestic and Family Violence Prevention Act 2012 (Qld) section 8.

[2] https://www.widebay.health.qld.gov.au/about-us/news/february-2025/coercive-control-is-now-a-crime-in-queensland see also https://www.legislation.qld.gov.au/view/html/bill.first/bill-2023-007 and https://statements.qld.gov.au/statements/99847.

[3] Ibid, section 19.

[4] Ibid, section 4(2)(d).

[5] Department of Child Safety, Youth and Women, Support someone experiencing domestic and family violence brochure, 2022.

[6] Domestic and Family Violence Prevention Act 2012 (Qld) section 37.

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.

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. 

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. 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. 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.

Going through a divorce is a difficult process.  

This process can be complicated by various factors including: 

• Emotional and Financial strain 
• Legal aspects of Finalizing Separation  
• Parenting Arrangements  
• Property Arrangements  

What are the requirements when applying for a divorce?

Generally, there are only two (2) requirements: 

1. Connection to Australia  

One or both of the parties of the marriage must have a connection to Australia. This can be satisfied if they are an Australian citizen, an ordinary resident of Australia, or they have been a residing in Australia for 1 year prior to the date of filing for a divorce.[1] 

2. More than 12 months of separation and living apart  

The parties to the marriage must have been separated and lived apart for 12 months prior to applying for a divorce. In some circumstances, the parties may be separated but living under the same roof due to financial difficulties or to care for the children of the marriage. 

What if you’ve been living under the same roof, but are separated?  

If the parties have been living under the same roof, proof of separation may still be possible.[2] This will require parties to show:  

• that they have lived separate lives; 
• this type of proof may include:  
• Separate sleeping arrangement 
• Separation of financial arrangements 
• Notification to friends and family of separation 

There is also is an additional requirement when the parties have been married for less than 2 years.  

What are the requirements if I have a short marriage (of less than two years)?

In addition to satisfying the two previous requirements, divorcing parties also must attend counselling and obtain a signed counselling certificate to accompany their application for divorce.[3]

The counselling certificate must state that the parties have considered the possibility of reconciliation with the assistance of a family counsellor, an individual or organization nominated as a family consultant, or a person nominated by an officer of the court. 

Why is there a counselling requirement for couples with a short marriage?

The counselling requirement aims to preserve and protect the institution of marriage.  

It hopes to provide a space to explore the potential for reconciliation or the improvement of the parties’ relationship to each other and their children.[4]  

Ultimately, the Court wants to be satisfied prior to granting any divorce that there is no possibility of the parties reconciling their relationship. 

Despite this, there are some exceptions to the counselling requirement. 

What are the exceptions to the counselling requirement?  

Some special circumstances may include:  

• Current protection order  
• History of domestic violence  
• Inability to locate a party of the marriage. 

Additionally, special circumstances may exist where one party refuses to attend counselling.  

CASE STUDY 1 – Marriage of Nuell [5]  

The wife was allowed to file an application for divorce without a counselling certificate because she had attended counselling by herself (and confirmed that she did not want to reconcile) and the husband simply did not respond to the counsellor’s request for him to attend. 

A mere refusal to attend may not be sufficient to establish special circumstances.  

CASE STUDY 2 – Marriage of Philippe [6] 

The wife made an application for divorce citing special circumstances because the husband had a new partner and told the wife he was not prepared to consider a reconciliation. The Court did not find that any special circumstances existed (distinguishing the wife’s application from that in Nuell) because the parties had not in fact considered reconciliation. 

What if special circumstances apply?  

If special circumstances are present in a marriage less than 2 years, the party making the application for divorce must file an affidavit indicating why counselling has not occurred and the details of any special circumstances that may be applicable. 

Have you had a short marriage and have questions?

If you or your spouse wishes to apply for a divorce, it is important that you seek legal advice prior to doing so. It is also important to find out whether any limitation periods for family law property settlements apply in relation to your circumstances. 

For more information on the divorce application process in general, you can find more information here. 

Footnotes 

[1] See Family Law Act 1975 (Cth) s 39(3). 

[2] See Family Law Act 1975 (Cth) s 49(2). 

[3] Family Law Act 1975 (Cth) S 44(1B). 

[4] See Family Law Act 1975 (Cth) s 43(1)(a), (d). 

[5] (1976) 9 ALR 533. 

[6] (177) 20 ALR 381.