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Ground-breaking project to manage high-risk family law matters
MICHAEL ESPOSITO
A technological innovation that originated in South Australia will be used to help vulnerable litigants going through the Family Court and Federal Circuit Court.
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The Lighthouse project is a framework that will screen for high-risk cases, particularly parenting matters where participants are exposed to the threat of family violence.
The project will be rolled out in Adelaide, Paramatta and Brisbane and involves: • Early identification and management of safety concerns. • Assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management. • Referring high-risk cases to a dedicated court list, known as the Evatt List in the FCC.
The Lighthouse Project is based on the Family DOORS program, developed in South Australia and originally implemented by Relationship Australia SA as an evidence-based risk screening framework to keep children safe.
The web-based application is designed to assist professionals to detect and evaluate risks before they escalate, and is designed to be used by all helping professionals, including family law practitioners, counsellors, psychologists and social workers.
The tool was created by clinical child psychologist Professor Jennifer McIntosh, who piloted the tool with Relationships Australia SA before it was adopted around Australia and even internationally.
The technology has been adapted for the family law system, and the Family and Federal Circuit Courts have received $13.5 million in funding over 2.5 years to run the Lighthouse Project.
The funding also covers the appointment of additional registrars, including Senior Registrar Kathryn Heuer in South Australia, and extra family consultants. One of the key roles of Ms Heuer will be to help parties navigate the system by hearing interim orders and making trial directions (in consultation with the judge) for the Evatt list. Fellow staff, such as other registrars, family counsellors, and case coordinators, will be involved in triaging the cases, which includes placing parties in appropriate streams (for example placing parties on the Evatt list if the risk profile is “Red”, or referring parties to alternative dispute resolution if their risk profile is on the lower end.
The pilot program involves a four-step process for assessing and responding to risk as effectively and efficiently as possible:
SCREENING
When an Application or Response for parenting only orders is filed with the Courts, parties will be asked to complete a questionnaire via a confidential and secure online platform known as Family DOORS Triage. Developed specifically for the Courts, this can be completed safely and conveniently from any device including a PC, mobile phone or tablet.
Responses are confidential and are only used for risk screening and referral to health support, and to identify suitable case management to improve the safety and wellbeing for children and families.
TRIAGE & CASE MANAGEMENT
A dedicated, specialised team will assess and direct cases into the most appropriate case management pathway based on the level of risk. The team is made up of highly skilled registrars, family counsellors, and support staff with detailed knowledge in family violence and family safety risks. The team will triage matters and identify parties who may require additional support and safety measures.
Those cases needing greater support will be offered appointments with family counsellors to engage with health services and implement safety measures. Cases will also be offered safety planning and service referrals as part of the online screening process.
EVATT LIST
This specialist court list is designed to assist families that are identified as being at high risk of family violence and other safety concerns. The Evatt List focuses on early information gathering and intervention, through a judge-led support team. The team has specialised training and is experienced in working with families where high-risk safety issues have been identified.
The way in which the court responds will be based on the program’s “traffic light” risk indication system, where a red light indicates high-risk, amber light indicates medium risk and green light is low risk.
The process of evaluating risk considers a number of factors such as family violence, mental health issues, and drug or alcohol misuse. The courts will then be able to provide tailored supports to participants, depending on their risk profile. This may include referring participants to external supports such as a domestic violence services or psychologists, or it may involve the engagement of an in-court family counsellor.
Critically, those cases identified as high risk will be heard and determined swiftly through the Evatt List. In South Australia, Judge Kari, Judge Kelly and Judge Brown will sit on the Evatt list.
There will also be a greater focus on referring less complex matters to alternative dispute resolution, rather than unnecessarily putting parties through a costly and timeconsuming trial process. This benefits the parties involved and also reduces delays in the more complex matters that do need to be heard in court.
The project team is undertaking a program of consultation and training with key stakeholders. For enquiries please email the Courts at: LighthouseProject@ familycourt.gov.au
Details of the Bill to establish the project can be found here: https://www. aph.gov.au/Parliamentary_Business/ Bills_Legislation/Bills_Search_Results/ Result?bId=s1267 The Bulletin expresses its thanks to Family Court of Australia and Federal Circuit Court of Australia Registrar Lisa O’Neill, who has been instrumental in setting up the Lighthouse Project, for taking the time to speak to the author about the establishment, purpose and roll-out of the project. B October 2020 THE BULLETIN
PAUL INGRAM, MINTER ELLISON
The Principal Place of Residence (PPR) exemptions of the Land Tax Act 1936 (SA) (Act) are relatively complex, and raise some tricky issues in practice. There also appears to be some confusion as to how they have been affected by the Land Tax (Miscellaneous) Amendment Act 2019 (the Amending Act). This article will summarise the key points.
POSITION BEFORE THE AMENDING ACT a. The Land Tax Act contains a series of different PPR exemptions: i. complete exemption: • section 5(10)(a) – the base exemption; • section 5(10)(ab) –where the relevant building has been destroyed or rendered uninhabitable; • section 5(10)(ac) – where the relevant building is being renovated or rebuilt; • section 5(10)(ad) – which appears to cover newly acquired land that contains a building that is being renovated or rebuilt; • section 5(10)(ba) – hotels, motels, serviced holiday apartments or similar where more than 75% of the total floor area of all buildings on the land is used for the owner’s PPR; ii. partial exemptions where more than 25% but less than 75%, of the total floor area is used for a business or commercial purpose: • section 5(10)(b) – the base exemption; • section 5(10)(bb) – an additional exemption for hotels, motels, serviced holiday apartments or similar.
Each exemption has its own eligibility criteria and qualifications, and will need to be carefully considered. Refer in particular sections 5(10a) to 5(12a) inclusive.
The term ‘principal place of residence’ is not defined. However, the Commissioner’s ‘Guide to Legislation’ states as follows (at page 18):
‘A principal place of residence is where the property: –is the primary residence of the natural person owner(s); –is the natural person owner(s)’s usual abode; (i.e. where they eat and sleep); and –is occupied on an ongoing basis and occupation is not merely transitory or an intention to occupy.’ b. Importantly, where there are two or more joint owners, the house only needed to be the PPR of one of those joint owners. However, this was subject to the ‘minority interest provisions’ of section 13A, which: • automatically ignored interests of 5% or less (subject to the Commissioner’s satisfaction that the creation of the interest was for purposes unrelated to reducing land tax); • gave the Commissioner the power to ignore interests of greater than 5% but less than 50%, if satisfied that one of the purposes for the creation of the interest was to reduce land tax. c. All of the exemptions required the relevant owner to be a natural person.
However, the term ‘natural person’ did not exclude a natural person holding in his or her capacity as trustee.
Accordingly the exemption could be claimed where one of its owners was a natural person trustee who can pass the
PPR test. But it could not be claimed where the relevant owner: • was a natural person trustee who could not pass the PPR test (ie. because he or she did not reside at the property, even though another beneficiary did so); or • was a corporate trustee. POSITION AFTER THE AMENDING ACT a. The Amending Act does not change the wording of the PPR exemptions themselves. However, there are a couple of other changes that need to be noted (see below). b. Where there are two or more joint owners, the house still only needs to be the PPR of one of those joint owners and while the minority interest provisions of section 13A have been repealed. New section 5AA re-enacts them (with some differences in wording) for the purposes of the PPR exemptions only. Accordingly, the position summarised in paragraph 1(b) is essentially unaltered. c. But the Amending Act actually expands the scope of the PPR exemptions in relation to trusts. While it is still not possible to claim the PPR exemptions where the trustee is either: i. a corporate trustee; or ii. a natural person trustee who does not satisfy the PPR test, it may be possible to access the PPR exemptions where the following conditions are satisfied, namely: iii. in the case of land held by a discretionary trust- the interest was held in the discretionary trust as at midnight on 16 October 2019, the corporate trustee or non-qualifying natural person trustee nominates a ‘designated beneficiary’ under section 13A on or before 30 June 2021, and that designated beneficiary can pass the PPR test; iv. in the case of land held by a unit trust or fixed trust – the corporate trustee or non-qualifying natural person trustee makes a nomination under section 12 or 13 (as relevant), and all unitholders/beneficiaries can pass the PPR test.
The provisions achieve this by deeming the designated beneficiary/unitholder/
beneficiary to be the owner of the land for the purposes of the PPR exemptions.
In this regard, Revenue SA’s new portal allows the designated beneficiary/ unitholder/beneficiary to indicate that the land is his or her PPR. Many advisers thought that this would be sufficient claiming of the exemption, without having to also lodge an additional application form. However, it is now understood that where RevenueSA are unable to verify that the designated beneficiary/unitholder/beneficiary uses the home as his or her PPR through their own investigation, they will be contacting taxpayers and asking them to lodge the additional application form. d. One other point is that where the trustee of a discretionary trust is itself exempt (ie. because that trustee is a natural person who can pass the PPR test): • there is no need to nominate a designated beneficiary in order to seek the exemption; • but the trustee may wish to do so anyway, in case the land ceases to be his or her PPR at any point in time after 30 June 2021 (as otherwise the higher tax rates will apply, as no designated beneficiary can be nominated for a discretionary trust after that date).
In this regard, section 13A(10) appears to confirm that the PPR exemption will continue to apply while any trustee continues to occupy the land as his or her PPR, even if the designated beneficiary has moved out.
Tax Files is contributed on behalf of the South Australian based members of the Taxation Committee of the Business Law Section of the Law Council of Australia. B
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