Myth 1: I have a right to see my children and make decisions about their wellbeing.

There is a common question I have been asked by people seeking advice in relation to family law disputes that involve children.

That question is:

“What are my rights in relation to my children now that we are separated?” 

My answer to this is usually quite short, “None”.

The first thing we need to clear up in these situations, is the concept that children have rights – and parents have responsibilities.  We see this principle reiterated in both the Convention on the Rights of the Child and also in the Family Law Act 1975 (Cth).

The Convention on the Rights of the Child was adopted in 1989 and came into force in 1990.  A copy of the convention can be found at the Australian Human Rights Commission.  Under the convention, children in Australia have a right to a number of things including (but not limited to):

    1. be cared for with their best interests being the paramount consideration;
    2. be provided for in a manner consistent with the evolving capacities of the child;
    3. be protected against all forms of discrimination;
    4. be protected against harm;
    5. life;
    6. know and be cared for by his or her parents;
    7. maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests;
    8. express their views freely in all matters affecting the child where the child is capable of forming his or her own views.

The convention also states that “both parents have common responsibilities for the upbringing and development of the child” and that “The best interests of the child will be their basic concern.”

While a child has a right to have a meaningful relationship and spend time with both parents, it must also be safe and in the child’s best interest to do so.

Section 60CC of the Family Law Act 1975 (Cth) sets out a number of factors that the Court must consider when determining whether it is in the child’s best interests to spend time with both parents. Depending on the circumstances, a child’s best interest may find Courts imposing conditions on time spent with a parent.

The ability to make decisions concerning your child is referred to as “parental responsibility”. Under section 61B of the Family Law Act, parental responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

Under section 61DA of the Family Law Act, the court must apply the presumption that it is in the child’s best interests for both parents to have “equal shared parental responsibility”. This means that the starting point in any dispute regarding the parenting of children is that you and your partner are obliged to make major long term decisions about your children jointly.

However, under subsection 2, this presumptiondoes not apply in circumstances of:

    • abuse
    • neglect
    • family violence.

In these circumstances, the court must be persuaded that it is in the child’s best interest for the parents to share parental responsibility. It is important to know though that the mere existence of historical family violence does not automatically prevent the court from making an order for equal shared parental responsibility and/or equal time between both parents.

For more information about what happens when equal shared parental responsibility is not ordered refer to our case note on sole parental responsibility.

Myth 2: If I am the primary carer of my children, I will be responsible for making all of the decisions about their care and well being.

This is a case of “putting the cart before the horse” for lack of a better expression.  Who bears the decision making authority must be determined before decisions are made as to the child’s residence.  This is because the Family Law Act makes it clear that if the court decides parents should share the decision making authority for their children, i.e. that the parents have equal shared parental responsibility, the court must then go on to consider whether equal time is in the child’s best interests.

There are of course a number of reasons why it may not be in the child’s best interests to have equal time with both parents including the maturity and development of the child and practicalities of facilitating such time. Such impediments may result in the child residing predominantly with one parent.  However, it does not necessarily follow that the parent with whom the child primarily resides will be the sole decision maker and it is often the case that both parents will be required to share parental responsibility and continue making decisions together.

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.

Domestic Violence is a destructive and prevalent issue locally in Australia, and globally. Domestic violence homicides account for a significant proportion of Australian homicides, and the detrimental effects on victims can be long lasting.

With Australia being a “no fault” jurisdiction for Family Law, the traditional view in property matters was to reject the relevance of domestic violence, except in cases where it was seen to have a direct financial consequence.

In more recent times, the impact of domestic violence is becoming more acknowledged, not just in parenting matters, but also in property matters. This article talks about cases where domestic violence impacts property settlement.

This is illustrated in these cases:

1. The Kennon decision

One of the leading decisions where Domestic Violence was a key consideration in determining a party’s entitlement to the matrimonial property pool is the decision of Marriage of Kennon (1997) 22 Fam LR 1 (Kennon”).

In Kennon, the husband and wife began cohabitation in April 1989, and married in September 1991. They separated in March 1994. The length of the relationship was comparatively short at about 5 years. There were no children of the relationship.

The husband in that matter brought significant wealth into the relationship. At trial he had about $8.7 million in net property in his name, and an annual income of approximately $1 million. Conversely, when the parties commenced cohabitation the wife had net assets in her name of about $49,000 and income of approximately $45,000 per annum. At trial the wife had about $94,500 in net assets in her name, and income of approximately $36,000.00 per annum.

Throughout the relationship, the wife was allegedly the victim of Domestic Violence. The husband was described as prone to fits of rage, usually after excessively consuming alcohol. Physical violence was alleged, and the wife had occasions where she allegedly feared for her safety. She also allegedly developed a psychological injury. Her doctor described her as suffering from “an anxiety state”.

At first instance, in relation to the property settlement, the trial judge awarded sum of $200,000.00 to the wife.

Upon appeal, the majority held that the property settlement award of $200,000.00 was outside the range of reasonable exercise of discretion of the Court, and awarded $700,000.00 instead.

While there a number of factors that led to the Court majority forming this view, one of the considerations was the impact of the Domestic Violence. The Court majority held that there was a “discernible impact upon the contributions of the other party” because of the Domestic Violence during the marriage.

We also note the comments of the Court in Marando v Marando (1997) FLC 92 – 754, decided around the time of Kennon. As described in the headnotes for Marando, “There was evidence, accepted at the trial, that over the period of the marriage the husband abused and denigrated the wife and the children, and gave the wife no assistance with the house or the children over a long period of time, necessitating the wife working especially hard, harder than would be usual in normal situations as a homemaker and parent.” In this regard, these special factors resulted in an increased adjustment of the overall contributions of the wife.

We also note the decisions below following Kennon that have developed the law in this area.

In Kozovski & Kozovski [2009] FMCA fam 1014, His Honour Tom Altobelli (FM) as he then was stated that:

“My real concern, however, is as to the artificiality of a Kennon-type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10 percent or any other figure could possibly be characterised as compensatory because no amount could compensate her for what she experienced at the hands of the husband. On a property pool of about $1.3 million, 10 percent is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. But clearly the adjustment that the Full court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one spouse in persisting with contribution in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon-type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.”

In Coad & Coad [2011] Fam CA 622, the husband was incarcerated in prison for “attempting to murder his wife, intentionally causing serious injury to the wife and conduct endangering life in respect of a person who came to her assistance.” In that decision, the wife was awarded 90% of the property pool.

In Coad, Her Honour Justice Bennett stated that “I am satisfied that the injuries inflicted to the wife by the husband made the discharge of her care of the child more onerous than it would otherwise have been. I accept that the wife was seriously disabled in the months after the attempted murder but, very significantly, that she has sustained residual and life long disabilities which cause her pain and interfere with her capacity to work and, presumably, make it more difficult her care for the child.”

2. Gillard v Gillard & Anor

The case of Gillard & Gillard and Anor[1] is another property settlement decision of the Family Court of Australia. The decision is particularly interesting as it applies a principle that is not widely considered in property settlements. In this case the wife relied on the Kennon principle to argue that she was entitled to a greater share in the property pool because her contributions were made significantly more arduous due to family violence.

The Story

Mr Gillard (66 years old) and Ms Gillard (64 years old) commenced cohabitation and were married in 1974. They have three adult children together. The parties separated on 27 September 2010 and divorced on 31 December 2011. Two of the most significant issues in the case were the wife’s Kennon claim and the husband’s truthfulness as to his financial position.

The wife sought a 70/30 division of the assets. The husband sought a 50/50 division of the assets.

The Court was required to determine what order adjusting the property, assets and liabilities of the parties was just and equitable in the circumstances.

The Decision

The Kennon Claim

The Full Court in Kennon & Kennon[2] said:

‘… where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, to put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.’

Both children gave evidence of their father’s violent history both towards them and their mother. The wife’s treating psychiatrist also gave evidence that her difficult home life had contributed and had in fact been significant to her depression and anxiety. The Court accepted the wife’s assertion and inferred that the proven history of the husband’s violence meant that the wife’s contributions as homemaker and parent were made significantly more arduous as a result of the husband’s conduct. In light of this the Court made a further 7.5% adjustment in the wife’s favour.

Future needs – s 79(4)(d)-(g) matters

The wife was in remission for cancer and was still suffering from long standing difficulties with depression and anxiety.  The husband whilst at a retirement age still had earning capacity and importantly had failed to make full and frank disclosure of how he was currently exercising this earning capacity. The husband had also not been truthful about his involvement in activities and processes carried out by a number of businesses, including receiving royalties from the sale of intellectual property, from which he had benefited. For these reasons a further 5% adjustment was made in favour of the wife.

The final order for the division of assets was 72.5% to the wife and 27.5% to the husband.

Lessons

All family situations are different. That is why the Court is willing to take into account matters that are specific to families in deciding what kind of property settlement will be just and equitable. In this case this meant taking into account the principles from Kennon in determining how much weight should be given to the wife’s contribution. The Court found that a just and equitable order required her contributions as homemaker and parent to be considered significantly more arduous as a result of the husband’s conduct both towards her and her children.

What to do:

  • For starters, if you are unsafe call 000.
  • If you are supporting a victim of domestic violence, check out the advice here.
  • If you need legal information, try our summary here or Legal Aid Queensland.

Still have questions regarding domestic violence and property settlement?

Talking about domestic violence is a difficult exercise for survivors, especially if you have recently left the known environment . If you’re fearful or still want an understanding of how domestic violence affects property settlement, contact our team to make an appointment with our family law team today.

Footnotes

[1] [2016] FamCA 841.

[2] [1997] FamCA 27.

Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA is a recent New South Wales Court of Appeal decision which considered the constitutional validity of the Commonwealth’s Schools Assistance Act 2008 (Cth) and the Australian Education Act 2013 (Cth) (“the Acts”). The Acts provide the framework for substantial government funding to Australian schools, of which non-government religious schools substantially benefited.

In this case, the Hoxton Park Residents Action Group (“the appellants”) sought the cessation of government funding pursuant to the Acts to an Islamic school in the residents’ area (and consequently all religious schools). They claimed that the funding was unconstitutional pursuant to sections 96 and 116 of the Australian Constitution. Under the Acts, the Malek Fahd Islamic School received an annual payment of $17, 589, 958.

The Impugned Acts and the Australian Constitution

Section 96 of the constitution allows the Commonwealth parliament to make laws which provide financial assistance to the States. Section 116 prohibits the parliament from creating laws which establish any religion, impose any religious observance or prohibit the free exercise of religion.

The appellants argued that firstly the Commonwealth Parliament could not pass the Acts under section 96 as the Acts indirectly regulated education and religion. Education and religion are matters which only the States can pass laws on. As such, the Commonwealth could not rely on section 96 as a head of power.

The appellants also argued that the Acts funded religious schools, and therefore helped establish religion and impose religious observance (activities prohibited in the Constitution). The appellants argued that the public should not be forced to pay taxes for such purposes.

The Purpose of the Acts

The Commonwealth Government passed the Schools Assistance Act and the Australian Education Act in 2008 and 2013 respectively for the purpose of elevating Australia’s education ranking internationally. The Acts operated by providing for financial grants to the States under the condition that the money was applied to eligible schools under the schemes.

It was found that 88.7% of the schools which received funding were affiliated with a particular religion from a variety of denominations. One of the schools which benefitted from the Acts was the Malek Fahd Islamic School in Hoxton Park, Western Sydney. The school adhered to the Islamic faith, and participated in compulsory rituals in line with their ethos. Comparisons could be drawn to Christian based schools where students participate in daily prayer or weekly chapel services, or where students are required to wear modest uniforms.

In 2015 the case was dismissed from the New South Wales Supreme Court. The appellants appealed to the New South Wales Supreme Court of Appeal.

Issues before the Court of Appeal

While the Court addressed a number of issues (including whether the appellant had standing to bring the action), the two main issues considered in relation to the Acts were:

  • Whether the Acts were invalid because the States have exclusive power over matters of religion and education? On the proper construction of section 96 could the Commonwealth create laws which incidentally affected these matters?
  • Whether the Acts were invalid because they contravened section 116 of the Constitution?

Held

The New South Wales Supreme Court of Appeal dismissed the appeal with costs.

Did the Acts have a Head of Power?

The appellants argued that the Acts did not have a head of power because section 96 only allows for the funding of States in so far as the Act has a purpose which the Commonwealth can legislate on (for example, education), and in so far as the Act does not infringe on explicit restrictions outlined in the constitution (religion).  Here is was argued that creating laws which granted financial assistance to the States for the purpose of affecting education was not within the scope of power of section 96; creating funding laws which indirectly affected matters which were the exclusive jurisdiction of the States – education and religion – was unconstitutional.

The Court rejected this argument.

Section 96 of the Constitution allows the Commonwealth Parliament to “grant financial assistance to any State on such terms and conditions as the Parliament thinks fit”. The Court held that this section should be construed in light of case law and other provisions of the Constitution. Particularly, Beazley P and Macfarlan JA held that section 96 be read in conjunction with sections 51 (xxxvi) and 51 (xxxix) to uphold the funding Acts. Section 51 (xxxix), in particular, states that the Parliament can pass laws on matters incidental to the execution of a power under the Constitution. Therefore, in this instance the parliament could create laws which indirectly affected education as the affect incidental to the execution of section 96. The Commonwealth can pass laws under section 96 whether or not the object of the Act (education) is outside the Commonwealth’s legislative power, as long as this law does not encroach on explicit restrictions in the constitution. This was explained to mean that:

The Commonwealth may enact laws that provide for the payment of grants to the states on specific conditions and, provided that the conditions do not contravene an express or implied limitation on Commonwealth power, there is no limit on the subject matter or type of conditions that may be imposed.”

Her honour Beazley P cited the decision of Mason J in Ex rel Black in affirming that section 96 could therefore be used to “make the State a conduit pipe in channelling the fund to the intended recipient.” Here, the State could be used as a means to channel funds for the purpose of education.

Did the Acts offend Section 116?

Basten JA discussed that there needs to be a balance between the pubic interest of not imposing religion on the public (the first limb of 116) and the private interest of protecting the free exercise of religion (the third limb); to say that the State has no concern in this private interest of religion “or should have no interest in them, is to assume that tolerance and harmony are more likely to prevail where the state maintains secular neutrality and intervenes only at the margins.”

Basten JA cited Black J in the New Jersey case of Everson to highlight that while the public should not be forced to pay a tax which will directly or indirectly fund a religion, the state should not deprive the religious sector of neutral services such as “ordinary police and fire protection”. In the same way, religious schools should not be deprived of funding of neutral services such as for core educational subjects. For this reason the Supreme Court has “upheld numerous schemes whereby government funds are distributed to schools for secular non-religious purposes”.

Both Beazely P and Basten JA (with Macfarlan JA agreeing) concluded that on the construction of the Acts, the purposes were for these secular and not religious purposes. Namely, the objects were all directed to the “education of Australian children in what I will describe as the core secular disciplines such as reading, mathematics, science, writing and numeracy.” For this reason, the Acts did not infringe on the restrictions outlined in s116.

Our Comments

Hoxton Park illustrates the Australian Constitution’s and the Court’s recognition of the role that religious bodies play in Australian society. The Constitution strikes a balance between the public and private realms, and serves to protect religious bodies from being deprived of being the delivery vehicles of education (albeit from their worldview).

If you would like further information on Commonwealth Funding of Religious Schools

Please contact our office on (07) 3252 0011 to book an appointment with one of our lawyers today.

This article was written by Andrew Lind

The Queensland Government has recently announced significant developments within the Queensland early childhood education sector – with the Government committing an additional $645 million to its investment into kindergarten services to make kindergarten free for all Queensland families as of 1 January 2024. This is expected to save Queensland families around $4,600 per annum, and will allow over 50,000 more children to access kindergarten services for free. The newly-announced scheme details that the Queensland Government will cover the costs of a kindergarten-aged child enrolled in a government-approved educational program for up to 15 hours a week (or 600 hours a year). Accordingly, this means that funding will likely be accessible to all kindergartens to assist them in covering the costs of providing kindergarten education – provided that the kindergarten offers a “government-approved program”.[1]

Whilst we still await the full detail, the “government-approved program” limitation on accessibility to the scheme highlights that Schools offering kindergarten services and seeking to take advantage of the scheme will likely need to ensure that they are approved kindergarten program providers who offer approved kindergarten programs, and that they elect to opt into the scheme: [2]

  1. The School should be an approved kindergarten program provider in that:[3]

a. The School operates a service that has a current service approval under the Education and Care Services National Law or the Education and Care Services Act 2013 (Qld);

b. The School is registered as an “approved kindergarten program provider” and has not had such status suspended or revoked;

c. The School has a rating of working towards the National Quality Standard (or higher);

d. The School provides a learning program that:

i. Is available for children who are in the year before Prep (i.e. the children must be at least 4 years of age before 30 June in the year they commence kindergarten);

ii. Is run for 15 hours per week for 40 weeks (or 600 hours per year); and

iii. Is delivered by a qualified early childhood teacher (i.e. a person qualified as an early childhood teacher under the Education and Care Services National Law (and Regulations) or the Education and Care Services Act 2013 (Qld)); and

e. For particular types of providers:

i. It is a member or affiliate of a central governing body (sessional kindergartens only); or

ii. It has the correct eligibility status to receive Child Care Subsidy payments on behalf of eligible families (long day care service providers only).

2. The School must provide an approved kindergarten learning program that is based on either:[4]

a. the Queensland Kindergarten Learning Guideline; or

b. an alternative kindergarten learning guideline accredited by the Queensland Curriculum and Assessment Authority (this accreditation requires, amongst other things, that the guideline meets the educational and social criteria under sections 5 and 6 of the Education (Queensland Curriculum and Assessment Authority) Regulation 2014 (Qld)).[5]

3. The School will be required to opt into the free kindergarten scheme. It remains to be seen what further implications may accompany an opt in decision.

Whilst Schools offering kindergarten services should continue to comply with the current eligibility and subsidy requirements in the Queensland Government’s Queensland Kindergarten Funding Essentials, it is expected that updated requirements will be introduced to take effect from 1 January 2024 to reflect the announced reforms.[6]

The full joint ministerial statement from the Queensland Premier, Treasurer and Education Minister announcing the scheme can be found here: https://statements.qld.gov.au/statements/97916

This Update is general information only, and is not Legal Advice.

This Update was written by Alistair Macpherson & Jackson Litzow.


[1] https://earlychildhood.qld.gov.au/early-years/kindergarten/free-kindyhttps://earlychildhood.qld.gov.au/early-years/kindergarten/what-does-kindy-cost/kindy-savings

[2] https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/child-care/approved-kindy-programs/requirements

[3] https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-sessional-kindergartens.pdfhttps://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-sessional-kindergartens.pdfhttps://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-long-day-care.pdf

[4] https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/child-care/approved-kindy-programs/requirements

[5] https://www.qcaa.qld.edu.au/kindergarten/accreditation-guidelineshttps://www.qcaa.qld.edu.au/downloads/about/syll_accred_guideline_yrs1to12.pdf

[6] https://earlychildhood.qld.gov.au/early-years/kindergarten/free-kindy

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