Recent Cases Of Interest In The Area Of Family Law

Parental Responsibility – Cameron & Brook [2018]

In Cameron & Brook [2018] FamCAFC 175 (13 September 2018), the Full Court of the Family Court of Australia considered the power of the court to vary a final order providing for parents to share parental responsibility for a child, where parents are deadlocked about making a particular decision.

In this case, the parents had consented to orders three years previously, including for them to share parental responsibility for their 14 year-old daughter, who wished to apply to be selected to take part in an overseas exchange programme with her school.   The child’s wish was supported by her mother but opposed by her father, who considered her insufficiently mature to participate in the programme.

The trial Judge refused the mother’s interim application, considering he did not have the power to make such an order where a final order had already been made giving the parents equal shared parental responsibility.  His Honour determined this required a joint decision by the child’s parents save for in limited circumstances (which he did not consider applied in this case) and concluded that in the event of disagreement, “one parent’s will will prevail if the disagreement continues”; in this case, the father’s will, by virtue of his refusal to consent to the child’s application to be considered for the exchange programme.

The mother’s appeal was expedited to meet the extended deadline for the child’s application for selection to the exchange programme.  The Full Court allowed the appeal, making it clear that the court has both jurisdiction and power to vary an aspect of an order for parental responsibility if parents cannot agree.  The Full Court observed this was not a case to which the principles from Rice and Asplund (1979) FLC 90-725 applied or were analogous as it was not an attempt by the mother to revisit issues previously addressed and settled by the final orders.  Rather, it involved a new question relating to an aspect of parental responsibility.

The Full Court found that there was sufficient evidence to conclude that it was in the child’s best interests for the mother to be authorised to take all steps required for her consideration into the exchange programme.  The court determined that if the child was selected to participate in the exchange programme and upon details of the placement being known, a decision could then be made in light of the evidence at that time, including any further evidence as to her maturity.

The father was ordered to pay the mother’s costs, fixed by the court.  

 

Variation Of Superannuation Orders – Agar & Dunst [2018]

In Agar & Dunst [2018] FamCA 782 (10 July 2018), Justice Benjamin of the Family Court of Australia made orders with the parties’ consent, varying orders made in 2001 in respect of superannuation, on the ground of impracticability. 

The 2001 orders were made before amendments were made to the Family Law Act enabling the division of superannuation interests between spouses upon marriage breakdown.  Those amendments did not act retrospectively and applied only to orders made after 28 December 2002. 

The 2001 orders instead provided the parties would each hold on trust, an agreed sum to be paid to the other upon their retirement or access to their superannuation, increased in line with interest payable to the whole of the fund.

While the parties’ consent was insufficient to vary the orders, His Honour agreed with the parties’ joint submissions that a number of things had occurred since the orders were made in 2001 to make it impracticable for the orders to be implemented, including:

• Two of the superannuation interests had been transferred or rolled over into other funds and the orders required the parties to take action in respect of those particular funds;
• The trustee of one of the funds no longer existed or didn’t exist in the same capacity; and
• There were no funds available to the husband from which he could make the required payment to the wife.

Justice Benjamin varied the 2001 orders, by deleting the previous orders relating to superannuation and making new superannuation splitting orders, the trustees of the new super funds having been afforded procedural fairness with respect of those proposed orders.

His Honour’s order was made pursuant to section 79A(1)(b), which provides for a final property order to be varied or set aside at the discretion of the court if  “in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out”.

For more information, please email our Family Law team or call us on +61 3 8540 0200.