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In the “he said, she said” world of family law, making a recording of the other party (usually conducted surreptitiously) is in the author’s experience often regarded by litigants as best evidence to establish a particular version of events.

Sometimes this is true.

Before deciding to record however it is prudent to consider the legality of the recording, whether the recording may be admitted as evidence, how the recording may be perceived by the judicial officer hearing the matter, and what of the obligation to disclose the recording if it doesn’t achieve what the person behind the recording device was hoping it would.

The issue of the legality of the recording and its admissibility usually goes hand in hand; and there are both State and Commonwealth statutes relevant to the issue.

In Queensland it is lawful to record a conversation without the knowledge of other parties provided the person making the recording is a party to the conversation.[1] Therefore A can record a conversation between A, B and C but cannot record the private conversation[2] between B and C when A is not a party to the private conversation.

Commonwealth legislation applies to the interception of telephone calls, commonly called “wire tapping” back when telephones needed to have wires.

With improvements in technology (such as the iphone) and new applications (“apps”); recordings often encountered in the family law arena are conversations between parties over the telephone, utilising technology built into the phone or device.

The Commonwealth Telecommunications (Interception and Access) Act 1979 makes it an offence to “intercept” a communication passing over a telecommunication system.[3] Before devices had in built recording functions, in the author’s opinion, the safest way to record a telephone conversation was to have the conversation on speaker, and record the conversation on a separate recording device.  Thus the communication had been received, was not intercepted, and was not passing over the telecommunications system.

But what of modern devices with inbuilt recording functions? When does an “intercept” take place? Is the communication passing over the system, and can recording made this way offend the Telecommunications (Interception and Access) Act?

An interception passing over a telecommunications system is defined as:

“Listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.”[4]

Having regard to the above, the relevant question would seem to be: when is the communication “passing over that telecommunications system”?

For the purposes of the act:

“a telecommunications is taken to start  passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.”[5]

Thus it would seem with modern devices such as an iphone with built in recording capability, the communication would be “accessible” at the time of recording, and therefore not “passing over” or intercepted.

In the event that the recording was unlawfully obtained, can it still be relied upon?

Leaving aside specific provisions of the Commonwealth and Queensland legislation in relation to admissibility of illegally obtained recordings[6], the Commonwealth Evidence Act section 138 provides illegally or improperly obtained evidence may be excluded.

A recent decision where recorded evidence was not admitted is Badger & Ors [2013] FMCAfam 124 (14 February 2013). In this case a police officer litigation guardian made an admission that he had “tapped” a phone without the knowledge of the other party to the call. The police officer was a party to the conversation and it is not clear from the judgment what “tapping” the phone meant in this context.  It should also be noted throughout the judgment reference is made to the Telecommunications Act 1997 which it would seem is not the relevant act.

Having found that the recording was illegal, His Honour said[7]:

“The statutory provisions relating to the admission of improperly or illegally obtained evidence is found at section 138 of the Evidence Act 1995. That section makes it clear that such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting such evidence. Without prescriptive limitation the court is required to take into account eight separate matters. Those matters are explored below.

The court must consider the probative value of the evidence. That is, is the evidence sufficiently useful to prove something important in the case. The court must also consider the importance of the evidence in the proceedings and the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings.”

It is also important to note that section 138 Evidence Act (Cth) 1995, prima facie, applies to child related proceedings, and is not excluded by section 69ZT Family Law Act 1975 as are several other evidentiary provisions.

What if the recordings are admissible? Will they help or hinder?

It depends on what they reveal.

The court is savvy to the fact that he or she who records is on their best behaviour; while the other party is unguarded. Litigants can expect the weight to be attributed to the recording shall reflect this idea.

At their highest, if the recording catches the other party making a false deposition they may be a very important piece of evidence.

At their lowest, recordings may indicate a propensity on the part of one of the litigants to attempt to try and trap the other party, or engage in conflict causing, litigious conduct in an attempt to provoke the other party to perform on tape.

Bearing in mind that recordings are likely to occur in the context of a parenting matter; the likelihood surreptitious recordings leading to increased conflict, social science research supporting that conflict between parent’s causes emotional harm to children, and the perception of lack of insight or regard for children by recording, the risks are obvious.

In the decision of Simmons & Simmons [2013] FCCA 304 (24 May 2013) a mother planted the recording device on the children before sending the child off to spend supervised time with the father. The recorded evidence was admitted however both parties were criticised. Judge McGuire said at paragraph 109:

On the material before me and, in particular, the tape recordings, I am satisfied on the balance of probabilities that the father did act in this way. This is insightful and selfish behaviour. It fails to recognise the potential effect on a young child of being embroiled in such a way in parental dispute. Similarly, however, the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour. The actions of both these parents are at best naïve and at worst a form of child abuse. In this sense they are equally culpable.

What if the recording is harmful to the case of the person recording?

Section 3 Evidence Act 1995 also refers to Acts Interpretation Act 1901 for definitions of terms including “document”. A document includes any record of information, and includes anything from which sounds, images or writings can be reproduced”.[8] i.e. recordings.

Both the Family Law Rules 2004 and the Federal Circuit Court Rules 2001 provide for general obligations to make disclosure, including relevant documents. Thus even if the recording is harmful to the case of the person recording it must be disclosed which creates yet another element of risk prior to making a decision to record.

For the solicitors acting for the person making the recording, the solicitor cannot accept instructions not to disclose relevant evidence[9]. If the client decided the recording was not helpful (or was harmful to their case) the solicitor acting for them would be required to cease acting if the client refused to make disclosure.

Before considering secretly recording, obtain advice from a family lawyer.



[1]Invasion of Privacy Act (Qld) 1971 section 43(2)(a)

[2] Invasion of Privacy Act (Qld) 1971 section 4 at “private conversation is defined as “any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.

[3] Telecommunications (Interception and Access) Act 1979 section 7

[4] Telecommunications (Interception and Access) Act 1979 section 6

[5] Telecommunications (Interception and Access) Act 1979 section 5F

[6] Telecommunications (Interception and Access) Act 1979 part 3.4 division 3 and section 46 Invasion of Privacy Act (Qld) 1971

[7] Badger & Ors [2013] FMCAfam 124 (14 February 2013) at 26 to 27

[8] Acts Interpretation Act 1901section 2B

[9] A solicitor has a fundamental duty to the court and administration of justice (Rules 3 of the Australian Solicitor Conduct Rules 2012).

Article – Recordings

“A highly relevant matter which distinguishes litigation under the Family Law Act 1975 from ordinary civil litigation…is the fact that very often the wealth of the parties is controlled by one rather than both of them” – per Nicholson CJ, Lindenmayer and O’Ryan JJ in Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856.

Due to injustice that can arise when one party to a marriage controls the wealth of the marriage, Courts exercising jurisdiction pursuant to the Family Law Act 1975 (“FLA”) have developed guidelines to create a means by which a party not in control of funds, can apply to have the other party meet their litigation expenses. These types of orders have been referred to by several names but are commonly known to Family Lawyers as “Hogan Orders”[i].

Although it is more technically correct to refer to these types of orders simply as “orders for litigation expenses”, for the sake of brevity and consistency hereafter they will be referred to as “Hogan Orders”.

Jurisdiction

Hogan Orders are not specifically provided for in the FLA however, it has been established that there are a number of sources of jurisdiction for the Court to make such orders. These are:

  •  Interim or “partial” property settlement[ii] (section 79 FLA);
  • Interim costs order[iii] (section 117 FLA);
  • Interim spousal maintenance order[iv] (section 72 and 74 FLA);
  • Injunction[v] (section 114 FLA).

The Full Court in Strahan & Strahan (Interim Property Orders) [2009] FamCA 116, recently confirmed that the while the Court can make a Hogan Order utilising any of the above sources of power, it is necessary to identify the source of the power, because it is the source of the power that determines the necessary preconditions and relevant considerations for making the Hogan Order.[vi] Thus for example, seeking a Hogan Order as an interim property order will have different requirements, and implications, than seeking litigation expenses as interim costs, spousal maintenance or as an injunction.

Matters of common relevance

While the requirements will differ depending on the source of power, there are some matters relevant to all such Applications. Three such matters were identified in Zschokke and Zschokke (1996) FLC 92-693 and confirmed in Strahan. These are:

  • A position of relative financial strength on the part of the Respondent;
  • A capacity on the part of the Respondent to meet his or her own litigation costs;
  • An inability on the part of the Applicant to meet his or her litigation costs.

In Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578, in addition to the three matters described above, the following were also identified as being relevant regardless of the basis upon which the order is sought:

  • The Applicant has an arguable case for substantive relief which deserves to be heard;[vii]
  • Evidence of the Applicant’s likely costs of the litigation;[viii]
  • It is not an essential precondition that the Applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis;[ix]
  • The order may make a provision for litigation expenses at a rate that appears reasonable in all the circumstances;
  • An order can be made in respect of costs already incurred as well as for future costs;
  • Whether the order is to be in respect of costs already incurred, or costs to be incurred, and whether the applicant’s lawyers will continue to act in the absence of provision for costs to be incurred, may be relevant to the discretion to make an order and its quantum;
  • Any such order should be framed to protect the parties from any risk of injustice arising from the manner in which the funds are expended. This may be done by requiring that the funds be administered solely by the applicant’s solicitors and applied only to meet the expenses referred to in the order, with detailed records being maintained to permit review by the Court at the time of the exercise of its discretion in the substantive property proceedings or on the final determination of the issue of costs;[x]

The above matters need to be specifically addressed in the Applicant’s Affidavit material and/or the Affidavit of the Applicant’s legal representative. Any relevant documents should be exhibited i.e. documents such as:

  • Letters evidencing litigation funding has been applied for and rejected;
  • Letters evidencing that Legal Aid has been applied for and rejected or alternatively, evidence such as material from the Grants Handbook showing that the Applicant would not qualify for Legal Aid;
  • Identify the assets and income of the Respondent from the disclosure documents which establish the capacity of the Respondent to meet his or her own litigation costs. If necessary, documents from the Respondent’s solicitor can be requested or subpoenaed to show what the Respondent has paid his or her solicitor and the Respondent’s liability to meet litigation costs;
  • Identify from the disclosure documents or by other means a source from which the litigation expenses can be paid.

Matters specifically relevant to different sources of jurisdiction

As stated above, with each potential source of jurisdiction there are also differing considerations that are required to be addressed.

Section 79 FLA – Interim Property Settlement

The Court is generally reluctant to make an interim property order, preferring to exercise the jurisdiction once at a final hearing. The source of the power is contained within section 79 while section 80(1)(h) is the “enabling provision” by which the order is made.

Applying for an interim property order is a two step process requiring:

  1. An adjectival or procedural step to determine whether it is appropriate that the interim order be made;
  2. A substantive step i.e. regard must be had to the matters contained with section 79 before the power conferred by section 79 can be exercised.

It was indicated prior to Strahan that the first step required the applicant to show that there were “compelling circumstances” why the interim order should be made[xi]. However, the Full Court in Strahan, had regard to comments made by Federal Magistrate Reithmuller in Wenz v Archer (2008) 40 Fam LR 212, and determined that the Applicant need not establish compelling circumstances but rather “whether in all the circumstances it is appropriate” to make the interim order. It is submitted that where the three relevant matters from Zschokke are established, the “test” for step 1will be satisfied.

Having established step 1, the considerations for the Court are the same as those involved in making a “final property adjustment order”, that is, the Court must consider the matters in sections 79(4) relating to contributions, the relevant matters in 75(2) by virtue of 79(4)(e), relating to any further adjustment for “future” factors and the requirement in 79(2) that any order be “just and equitable”.

Therefore in seeking litigation expenses as an interim property settlement, the Applicants Affidavit should contain evidence with respect to the 4 step process[xii] used to determine the range of entitlement pursuant to section 79, that is:

  • The nature and extent of the matrimonial property pool;
  • That the Applicant has an entitlement to property on the basis of contributions;
  • Any adjustments for relevant section 75(2) factors;
  • That it is just and equitable to make the order.

With regard to what is just and equitable, it is important to show that, prima facie, the Applicant is not receiving an interim settlement in excess of his or her likely entitlement at the final hearing.

Any exercise of power pursuant to s.79 is on a “final basis” although the Court does not have to exercise the power at only one time. The power can be exercised by a succession of orders until the power is exhausted i.e. there is no matrimonial property not dealt with.[xiii] Thus provided there is property remaining, the Court has jurisdiction to make further orders regarding all the property of the parties or either of them, and can reallocate property previously allocated by the interim order. Further, any property/funds allocated for the payment of legal fees and spent, will likely be “added back” as notional property which is consistent with the Courts approach to the treatment of legal fees paid from matrimonial property[xiv] and the general rule in section 117(1) that each party bears their own costs.

Section 117(2) – Interim Costs

The general rule in matrimonial proceedings is that each party bears their own costs[xv]. However, the court may make an order for costs on a final or interim basis pursuant to section 117(2) if:

  •  The circumstances justify the order being made;
  • The order is just; and,
  • Subject to the maters in sections 117(2A), (4) and (5).

In Zschokke the Court held that if the source of jurisdiction for the Hogan Order is section 117(2), then the matters in section 117(2A) must be addressed in so far as they are relevant[xvi]. It is submitted the following could or will be relevant in an Application for a Hogan order:

  • The financial circumstances of each of the parties to the proceedings;
  • Whether any party to the proceedings is in receipt of Legal Aid;
  • The conduct of the parties i.e. refusal to make funds available;
  • Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
  • Such other matters as the court considers relevant.

If an interim costs order is made, the funds provided to the Applicant are not automatically added back as notional property. However, it is common for the Court to make an order that the trial Judge retains a discretion as to how the funds are treated at trial.

Section 74 – Interim Spousal Maintenance

With regard to spousal maintenance, section 74 empowers the Court to, “make such Orders as it considers proper” for spousal maintenance. What is proper is that “which is not insufficient or excessive in the circumstances”.[xvii] The type of spousal maintenance order here is an interim, as opposed to final, spousal maintenance order but this is of little consequence as the requirements for interim and final spousal maintenance orders are the same. Like an interim property order, section 80(1)(h) is the section by which the order is made. This is because both spousal maintenance and interim property orders are contained within Part VIII FLA and section 80(1) applies to, “the court in exercising its powers under this Part”.

Before the Court can order spousal maintenance, a “threshold test” for determining eligibility must be met.  The threshold test is contained within section 72(1) and provides that a party to a marriage is liable to maintain the other party, if that party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

  • By reason of care of children under 18;
  • By reason of incapacity for gainful employment;
  • Any adequate reason;
  • Having regard to any relevant matter referred to in s.75(2).

Thus the Applicant’s Affidavit material should specifically address the threshold issues and relevant section 75(2) matters.

It is submitted that an advantage to the Hogan Order being paid as spousal maintenance is that it would be unusual for the Court to add back spousal maintenance.

Section 114 – Injunction

Section 114 is the least utilised section for Hogan Orders and, to the best of the authors knowledge, most of the authorities have simply commented that the question is open that section 114 is available, without taking the issue any further.[xviii]

The relevant provisions are:

  • Section 114(1)(e) The Court may make such order or grant such injunction as it considers proper, including “an injunction in relation to the property of a party to the marriage“; or
  •  Section 114(3) “a court exercising jurisdiction under [the FLA] in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise…in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

Injunctions may be granted if there is a serious question to be tried, and the balance of justice and convenience favours an injunction (Stowe and Stowe (1980) 6 Fam LR 75). Affidavit material should address the above considerations.

Conclusion

Applications for Hogan Orders ought to be fairly uncommon as they are Applications of last resort. As stated above, it will be necessary to establish in Affidavits that all avenues of obtaining funds have been exhausted. This obviously includes asking the other party for funds as interim spousal maintenance or as an interim property settlement by consent.

In summary, if the Application for expenses is necessary, it is important to consider the source of jurisdiction to be relied upon, identify it in your Application, ensure that any matters particular to that type of order are addressed and ensure the general considerations relevant to all such Applications are addressed as well.


[i] Hogan and Hogan (1986) FLC 91-704

[ii] Zschokke and Zschokke (1996) FLC 92-693

[iii] Breen v Breen (1990) 65 ALJR 195

[iv] ibid

[v] Poletti and Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990)

[vi] Strahan & Strahan (Interim Property Orders) [2009] FamCA 116 at 84

[vii] Chester v Chester (1995) FLC 92-612

[viii] ibid

[ix] Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987); see however Coomes and Coomes [1995] FamCA 103; (1995) FLC 92-558 per Cohen J

[x] Breen v Breen (1990) 65 ALJR 195

[xi] Harris and Harris (1993) FLC 92-378

[xii] Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395

[xiii] Gabel v Yardley (2008) 40 Fam LR 66 at 57

[xiv] Chorn v Hopkins (2004) FLC 93-204

[xv] S.117(1) Family Law Act 1975

[xvi] Because s.117(2) requires the judicial officer to consider the matters in s.117(2A) before making a costs order

[xvii] Robinson and Willis (1982) FLC 91-215

[xviii] Poletti and Poletti (Unreported, Family Court of Australia, Nygh J, 2 March 1990); Zschokke and Zschokke (1996) FLC 92-693; Strahan & Strahan (Interim Property Orders) [2009] FamCA 116 at 84

 Article – Hogan Orders

Most people would be familiar with the idea that adverse consequences can flow from lying to courts in sworn evidence under cross examination or in affidavits.

Equally most people would understand that lying to government departments such as Centrelink in statutory declarations or other official documents may result in criminal charges being laid, including fraud.

What happens though when for one reason or another a person desires to “set the record straight” in a family law proceeding and give evidence contrary to what they might have previously told a department?

It happens quite a bit.

This situation arose in Benedict v Peake [2013] FCCA 332 (23 May 2013) when a de facto wife (“the wife”) who had previously asserted to Centrelink and the ATO she was not in a de facto relationship; now sought to lead evidence before the Federal Circuit Court that a de facto relationship had in fact existed for 17 years.

Solicitors for the de facto husband (“the husband”) raised as an objection to the wife’s evidence the “Elias principle”, a notion that “when a party has made representations of fact to third parties and has gained advantage from so doing, it is open for the court in subsequent proceedings under section 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.[1]

The court in Benedict and Peake considered numerous authorities (including Chisholm J in Jordan & Jordan [1996] Fam CA 15) and found as follows with respect to the “principle”[2]:

  1. In considering whether to apply the principle the court must take the wife’s case at it’s highest;
  2. The wife’s case taken at its highest was that the husband had full knowledge of the false statements made to Centrelink and the ATO and that the wife’s evidence would show the existence of a de facto relationship of some 17 years;
  3. While the wife received financial gain, taking her case at its highest, the husband also was aware of, and gained financially from the wife’s deception over 17 years;
  4. It was not appropriate to draw any distinction between de facto and married couples in applying the principle because:
    1. A broad range of factors needed to be considered in both de facto property and matrimonial property adjustment proceedings;
    2. Findings of fact are inherent in the exercise of discretion in both applications under the Act;
    3. The findings of fact required for de facto property adjustment matter are no more broad or limited than matrimonial property adjustment proceedings (with one exception)
  5. “Findings of fact are finding of fact”  the court did not accept a “Briginshaw[3]” like approach should be taken to differentiate between finding of fact or applications of rules in different contexts or for different purposes;
  6. Whilst accepting that the “Elias principle” may well represent a rule of law to be applied within and specific to the operation of proceedings under the Family Law Act 1975, it must, as with all rules of law, be applied with discretion to the facts and circumstance of each individual case;
  7. The Court must be particularly conscious to ensure that both the determination and the process of arriving at the determination is, and is perceived as, “just and equitable”. To apply the rule arbitrarily would be to equate law to justice and to treat them as equal and synonymous or one and the same. They are not. The law is a means by which justice is attained or sought to be attained not justice itself.
  8. Whilst there is much force in reliance upon the equitable principle that “those whom come to equity must come with clean hands” in support of the rule, one must also be conscious of the general principle that “justice must not only be done but must be seen to be done”.
  9. The principle or rule of law is not founded in and does not equate to the expression of a form of estoppel. If the principle or rule were to be applied arbitrarily and so as to exclude evidence in each case in which a false representation (or series of false representations) were found, then the rule would, in the absence of discretionary application by reference to the facts and circumstance of each case and the justice and equity of each case, be elevated to beyond, estoppel.
  10. In circumstances whereby the wife suggests knowledge of the statements at the time they are being made and were by the parties jointly (again taking the wife’s evidence at its highest) the exclusion of that evidence would have far greater potential for injustice, inequity and offence of public policy than its admission.

In terms of the above, most importantly his Honour identified the rule did not act as an estopple; and the court always retained a discretion whether to apply the rule.

Judge Harman in Benedict v Peake examined High Court authority on the Elias point however His Honour failed to turn up the decision of Nelson v Nelson [1995] HCA 25.

In Nelson, McHugh J said courts should not refuse to enforce legal or equitable rights simply because they arose out of or were associated with an unlawful purpose unless:

  1. The statute discloses an intention that those rights should be unenforceable in all circumstances; or
  2. The sanction of refusing to enforce those rights is not disproportionate to the seriousness of the unlawful conduct;
  3. The imposition of the sanction is necessary, having regard to the terms of the statute, to protect its objects or policies; and
  4. The statute does not disclose an intention that the sanctions and remedies contained in the statute are to be the only legal consequences of a breach of the statute or the frustration of its policies.

Having regard to Nelson it is likely courts exercising jurisdiction under the Family Law Act 1975 would allow a party to lead evidence notwithstanding prior representations.

Of course, in the event that a party who has made false representations is successful in having findings to the contrary made, that may not be the end of the matter.

In Mariani and Mariani [2012] FamCA 518 Cronin J had the following to say:

“In P & P [Tax Evasion] (1985) FLC 91-605 Lindenmeyer J said that in his opinion, as a court exercising the judicial power of the Commonwealth, it had a duty to protect the revenue of the Crown and that duty extended to requiring the court to take steps as it was able to take to ensure the revenue laws of the Commonwealth were not defrauded or evaded by litigants or others who came before it. It is not sensible for the court to simply turn a blind eye to findings of fact which might assert or might find that breaches of the Commonwealth laws have occurred.[4]

By Peter Hooper (29 July 2013)

Peter Hooper and Hooper Mill Family Lawyers Brisbane are divorce lawyers in Brisbane advising in all areas of family law, matrimonial and relationship law.



[1] Elias and Elias (1977) FLC 90-267

[2] Benedict v Peake [2013] FCCA 332 (23 May 2013) at 32 to 38.

[3] The “Briginshaw test” is the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and the circumstances in which it is sought to be proved. A similar principle is encapsulated in section 140 Evidence Act 1975 (Cth).

[4] Mariani and Mariani [2012] FamCA 518 per Cronin J at 6 and 7.

Article – Elias principle

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