Family Law Update | Autumn 2020

By Amanda Graham, Principal

Coronavirus (COVID-19)  and the Family Court

The Family Court is following the advice of the Australian Government to minimise the spread of the virus in the community. If any person has travelled in areas affected by COVID-19 or developed any symptoms of the virus and has a matter before the court, or needs to visit a court registry, they should not attend and should instead contact the National Enquiry Centre on 1300 352 000.

Click to read about the effect of COVID-19 on the Courts and alternatives available

Joint Practice Direction 1 of 2020

On 28 January 2020, His Honour Justice Alstergren, Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, issued a joint practice direction relating to all family law applications in both courts.

The practice direction sets out ten core principles which underpin the exercise of the family law jurisdiction of the courts and applies to all family law applications whether filed before or after 28 January 2020.

The Statement of Core Principles refers to:
  a. Risk;
  b. Parties, lawyers and the Courts obligations and overarching purpose;
  c. Efficient and effective use of resources;
  d. Approach to case management;
  e. Importance of alternative dispute resolution;
  f. Costs consequences for failure to comply with orders;
  g. Lawyers obligations about costs;
  h. Identifying and narrowing issues in dispute;
  i. Preparation for hearings; and
  j. Efficient and timely disposition of cases.

His Honour has indicated that he has had a positive response from his peers commending the Statement of Core Principles and suggesting a possible take up in international family law jurisdictions.

PPP500

On 1 March 2020 the Federal Circuit Court of Australia introduced a new process to manage family law property disputes for cases where the value of the net property pool is under $500,000. The process, known as the Priority Property Pool 500 (PPP500), will operate as a pilot program for two years in Melbourne, Adelaide, Brisbane and Parramatta.

The aim of PPP500 is to provide a simplified way of resolving property disputes, minimising costs and better preserving the parties’ assets. The pilot program will be independently evaluated by the Australian Institute of Family Studies.

Reduction in the appointment of Independent Children’s Lawyers

Victoria Legal Aid funds the appointment of Independent Children’s Lawyers to assist the family courts in making decisions in the best interests of the children. No specific funding is provided by either the State or Federal governments for this service. Due to a reduction in general legal aid funding, commencing 17 February 2020, an Independent Children’s Lawyer will only be appointed based on the primary factor in the case of Re K (1994) 17 Fam LR 537, being where there are allegations of physical, sexual or psychological abuse of a child.

Arbitration

On 7 February 2020, MST Family Law Principal Amanda Graham, and Special Counsel Denise Foster, attended a seminar by His Honour Justice Alstergren and senior members of the Victorian Bar on the use of arbitration as an alternative to a final hearing in family law property matters. The process enables a timely resolution to matters with the security of an enforceable decision without the excessive delays and costs to which parties are currently subjected when their matter proceeds to a final hearing.

Complex property matters

On 5 March 2020, Senior Associate Joanne Dexter attended an all day conference at the RACV Club entitled “Splitting the Asset Pool” dealing with complex property matters. Topics included tax consequences of splitting business and trust entities, issues to consider when splitting self managed superannuation funds and the impact of bankruptcy in family court proceedings.

Mingos v FCT [2019] FCA 834

Mingos v Federal Commissioner of Taxation is a recent case relating to capital gains tax issues which arose in a family law matter. The husband in this matter attempted to claim a main residence tax exemption when transferring a property in accordance with court orders to a trust. He sought to claim he was entitled to the property in equity as he was the beneficiary of the trust and therefore the exemption should apply. He was deemed to have no ownership interest in the property and as such the main residence tax exemption did not apply. This case was reviewed by Senior Associate Carmel Morrison.