Article, Articles, Articles written by Peter Hooper, Blog, Family Law, Parenting

Family Law Amendment Act 2023 (Parenting)

Family Law Amendments

The Family Law Amendment Bill 2023 provides for significant changes to the family law system in Australia. These amendements will likely prove to be as significant as the Family Law Reform Act 1995; and the Howard Government 2006 amendments to the Family Law Act 1975 (“FLA”) that these reforms will largely displace.

At the date of writing this, the Bill has passed both Houses of Parliament (as of 19 October 2023) and received Royal Assent on 6 November 2023.

The genesis of these amendments is primarily from the Australian Law Reform Commission’s Final Report No 135: Family Law for the Future – An Inquiry into the Family Law System. The 2023 Bill implements elements of Government responses to the Joint Select Committee on Australia’s Family Law System.[1]

The scope of this article is to examine the following key elements of the Family Law Amendments to come:

Priority to be assigned to children’s safety issues.
Repealing the presumption of equal shared parental responsibility contained with section 61DA FLA.
Replacing the current “best interest” factors in section 60CC(2) and (3) FLA with a new list of factors.
Increased prominence to children’s views; and
Clarifying the role of Independent Children’s Lawyers.

There are further significant changes from these Family Law Amendments relating to parenting matters that will not be expanded upon herein, but they include:

Amendment to the Objects and Principles in section 60B. In the 2006 amendments, these changes added context and overlapped with best interest factors. Interestingly this amendment is very narrow and very broad at the same time. The objects single out safety as a specific object and then refer generally to the Convention on the Rights of the Child – New York 20 November 1989 – which is a broad range of issues.
Simplification and clarification to the process for dealing with contravention of Orders.
Process concerning vexatious litigants.
Changes and simplification to law concerning publication of information regarding family law matters and parties.
Regulation of Family Report Writers.
Case management process.

It should also be noted that significant changes to property divisions of the Family Law Act are also making their way through the parliamentary process with the Family Law Amendment Bill 2023 No2.

When will these Family Law Amendments occur?

The 2023 Bill has passed both houses and it received Royal Assent from the Governor General on 6 November 2023.

The Bill sets out commencement provisions in a table providing for a transition to the new system 6 months after proclamation for the majority of the substantive provisions. Thus, amendments relating to Objects, Parental Responsibility and Best Interest Factors, Contravention Applications, Independent Children’s Lawyers Duties and Hague Convention matters, Case Management and Procedures, Publication of Family Law Proceedings, communications and identifying parties and Family Report writers, will take effect from 6 May 2024.

Priority to children’s safety issues

As stated above, section 60B concerning the “objects and principles” is to be repealed and substituted for 2 objects. These are (paraphrased):

Ensure the best interests of children are met by ensuring their safety[2].
Give effect to Convention on the Rights of the Child done at New York on 20 November 1989 [3].

In terms of matters that relate to the “safety” of children, the Bill does not repeal definitions contained within FLA of “Abuse”[4] or Family Violence[5]. Notably, section 4AB(3) definition of family violence provides:

For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

Thus, there are numerous factual situations that can be relevant to the object of ensuring the safety of a child, with family violence and exposure to family violence likely to be a prominent consideration.

With respect to the second limb of the objects, the Convention Articles 1 to 41 in Part 1 refers to a wide range of matters including the following examples:

Freedom from discrimination – race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
Ensure the child has such protection and care as is necessary for his or her well-being.
A child shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents.
States parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.
Parents (or guardians) have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

The above are just some examples of matters covered by the convention and it behoves family law practitioners to become familiar with the contents. Many of the Convention Articles also cover matters which relate to ensuring the safety of children, overlapping with the new section 60B(a).

The former version of section 60B also made it clear it was an object of the FLA to, inter alia, “protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. The new section 60B(a) omits the word “neglect” however neglect is referred to in the new section 60CC(2)(a).

There is a clear focus on safety issues and these changes are not occurring in a vacuum. Family Violence is a high-profile political issue nationwide, and as of August 2023 in Queensland significant changes occurred in Domestic and Family Violence legislation. These changes included:

Amendments to the Criminal Code and definitions.
For cross applications – changes with respect to the way in which applications are heard and to identify which applicant may be in greater need of protection.
Use of criminal and domestic violence history and a requirement for this information to be made available.
Wider power to award costs.
Reopening of proceedings where orders were made in the absence of the respondent and rules of substituted service of the respondent.
Explanations with respect to what constitutes evidence of domestic violence.
Directions to a jury in criminal proceedings involving domestic violence.
Transitional provisions.

You can read about these changes in our article here.

Practitioners will need to consider responses to Protection Order Applications very carefully given the broader consequences for Parenting Proceedings after these Family Law Amendments.

The old and new section 60B both refer to protecting children however the 2023 Bill’s removal of a reference to rights of children, for example, children’s right of having the benefit of both of their parents (and other significant persons) meaningful involvement in their lives, adequate and proper parenting, ensuring parents fulfil their duties, and meet their responsibilities, etc. The changes appear to elevate the protective concerns and relegate the former rights and duties to the broad range of matters referred to in the Convention.

Further emphasis of the priority to be afforded to safety is contained within the amendments to the best interest factors discussed below.

Presumption of equal shared parental responsibility removed in Family Law Amendments

Two of the Howard Government’s most significant amendments to the determination of parenting matters were the introduction of 61DA and section 65DAA.

Sections 61DA and 65DAA relate to the creation of the rebuttable presumption that equal shared parental responsibility is in the best interests of a child[6]; and specifying the pathway for the Court to take in determining a parenting matter where the presumption applies[7]. The presumption does not apply to matters where there are reasonable grounds to believe a parent had engaged in family violence or abusive behaviour.

The pathway provides for consideration of equal time (subject to best interests and reasonable practicability) before moving to consider “substantial and significant time” (again subject to best interests and reasonable practicability) before looking at other time should the former two considerations be ruled out (subject to best interests).

The changes in 2006 had a significant effect on the conduct of interim applications, as set out in the decision of Goode v Goode[8]. The often-cited case with respect to the conduct of interim proceedings prior to that time was Cowling v Cowling[9]. Put simply, Cowling provided that on an interim application the best interests of children were usually served by maintaining the status quo of the arrangements prior to the application.

Goode v Goode had the effect of displacing Cowling and Cowling’s significance due to the necessity of following the pathway in section 65DAA when the equal shared parental responsibility presumption applied. Over time in practice the Court “side stepped” the necessity of applying the pathway in Goode v Goode on an interim application by not making any Order allocating Parental Responsibility. Section 61DA(3) provides:

When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

The Bill repeals sections 61DA, 61DB and 65DAC and substitutes a new section 61DAA which provides:

61DAA Effect of parenting order that provides for joint decision‑making about major long‑term issues

(1) If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
1. (a) to consult each other person in relation to each such decision; and
2. (b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

The notable differences between the new and old sections are:

The removal of the word “parental” and substituting the language to refer to “decision making responsibility”. Part 2 of the 2023 Amendment Bill refers to Parental Responsibility in the heading.
Removal of section 65DAC – and specifically subsection 2 that requires a decision regarding major long-term issues to be made jointly. The new section simply requires consultation and a genuine effort to come to a joint decision.

Therefore, it seems it will no longer be a breach of a Parenting Order allocating shared decision making if a party unilaterally decides to change a child’s school, initiate a medical procedure, change a child’s name or relocate a child’s residence etc, provided there has been consultation and a genuine effort to reach agreement. The effect of this is unclear, and there will likely need to be clarification as matters involving these issues are litigated.

An immediate observation is that under the section 65DAC requirements, the litigation typically occurred before a decision was made on a major long-term issue. Now it appears to be likely that any litigation will occur subsequently – when changing a child’s circumstances post decision may be a significant consideration with respect to best interests.

Understanding the new factors – what do they mean in practice?

The Howard Government repealed the old section 68F and replaced it with section 60CC(2) and (3) best interest factors. The 2006 changes further introduced two categories of factors – “primary and additional” with the two primary considerations relating to the child having a meaningful relationship with both parents and the need to protect children from harm.

The 2023 Family Law Amendments amend section 60CC and removes these two categories and replaces them with “general considerations” and “additional considerations” (with the latter solely referring to Aboriginal and Torres Strait Islander culture issues).

The new general considerations in subsection 2 are:

(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
1. consider the matters set out in subsection (2); and
2. if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
1. (a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
  1. (i)the child; and
  2. (i) each person who has care of the child (whether or not a person has parental responsibility for the child);
2. (b) any views expressed by the child;
3. (c) the developmental, psychological, emotional and cultural needs of the child;
4. (d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
5. (e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

anything else that is relevant to the particular circumstances of the child.

The protective factors in section 2)a) above are further amplified by section 2A which provides that in considering the matters in section 2)a) the Court must also consider:

History of family violence, abuse or neglect involving the child or a person caring for the child.
Any Family Violence Order applied to the child or member of the child’s family.

Subsection 4 relates to Consent Orders and widens the Court’s discretion. For Consent Orders in a parenting matter the Court is no longer required to be satisfied as to best interests but “may, but is not required to, have regard to all or any of the matters set out” in section 60CC(2) or (3).

In terms of the differences between the 2006 best interest factors and the 2023 Family Law Amendments, the following differences stand out:

As stated above, there is a clear move away from primary and additional factors. The amendments to section 60CC refer to general and additional consideration however the additional considerations only relate to cultural issues for Aboriginal and Torres Strait Islander children. There is no priority given to any of the general considerations in the 2023 Bill.
The wording of the factors for protective issues have changed. The former version of section 60CC(2)(b) referred to “the need to protect the child from… harm”. The new section 60CC(2)(a) refers to “what arrangements would promote the safety…of the child and each person who has care of the child.”

Like previous legislation listing Best Interest factors, the 2023 Bill contains a broad statement in section 60CC(2)(f) which provides for “anything else that is relevant to the particular circumstances of the child.” Thus, the matters the Court can have regard to are not limited and will depend on the facts of each case. However, the following factors from the prior version of section 60CC have been removed and not replaced specifically:

The nature of the child’s relationship with parent’s or other persons such as grandparents.
The extent to which each parent has participated in decision making about major long terms issues, spending time, and communicating.
The extent to which a parent has fulfilled or failed to fulfill maintenance obligations.
The likely effect of a change in the child’s circumstances.
Practical difficulties and expense of spending time.
Maturity, sex, lifestyle and background of the child and parents.
Attitude towards the child and responsibilities of parenthood demonstrated by each of the child’s parents.
Whether it would be preferable to make an Order less likely to lead to institution of further proceedings.

The tone of the Howard Government amendments seemed to elevate the status of a parent. The above factors that were omitted refers specifically to parents in many instances, along with the changes to 60B, and removal of the phase “parental responsibility” from the new section 61DA seems to indicate parents and people caring for a child have no distinction. The new section 60CC(2)(e) is similar in language to the old section 60CC(2)(a) however it also refers to “other people who are significant to the child” and not parents exclusively as the former provision did.

How will a child’s views be given greater prominence and independent children’s lawyers?

Children’s views have featured in each version of the Best Interest Factors:

Pre 2006 – section 68F(2) – any wishes expressed by the child and any factors (such as age and level of maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes.
2006 – section 60CC(3)(a) – any views expressed by the child and any factors (such as maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
Post 6 May 2024 – section 60CC(2)(b) – any views expressed by the child.

The new wording removes the reference to factors such as maturity and level of understanding however it is safe to assume judicial officers will continue to take these circumstances into account (for younger children in particular).

Currently children’s views are typically determined and communicated to the Court through the Family Report interview process. Independent Children’s Lawyers (“ICL”) and Judges can meet with children to determine their views – however this rarely occurs in practice. This will change post 6 May 2024 with amendments to section 68LA making it mandatory for ICL’s to meet with children unless exceptional circumstances apply.

In the Family Law Amendments, section 68LA(5) provides that an ICL must meet with the child and provide the child with an opportunity to express any views to which the proceedings relate. The ICL can determine when, how often and how meetings take place; and when, how often and how the child is provided with the opportunity to express a view[10].

The ICL is not required to meet with the child if:

The child is aged under 5 years.
The child does not want to meet with the ICL.
There are exceptional circumstances that justify not meeting with the child[11].

Exceptional circumstances include if performing the duty would:

Exposing the child to the risk of physical or psychological harm that cannot be managed safely.
Have a significant adverse effect on the wellbeing of the child[12].

If the ICL proposes to not perform the duty, before making Final Orders the Court must:

Determine whether it is satisfied the exceptional circumstances exist.
If the circumstances do not exist – make an Order requiring that the ICL meets with the child and that the child has an opportunity to express his or her views[13].

The above is likely to amount to a significant change in the process in matters where an ICL is appointed and underscores that the 2023 Bill places an emphasis on children being heard in the proceeding. Another effect may be less resort to Impact Reports and Family Reports in cases where children are older, more mature, and able to articulate a clear view.

Other matters and conclusion

Further changes of interest are the insertion of the “overarching purpose of the family law practice and procedure provisions” in section 95. To paraphrase these provisions to facilitate the just resolution of disputes, matters must be conducted in a way:

Ensure safety of families and children.
Consistent with best interests being paramount.
According to law.
Resolution as quickly, inexpensively, and efficiently as possible.
Just determination of proceedings.
Efficient use of judicial and administrative resources.

The above also needs to be read in the context of section 96 which places duties upon parties and practitioners. Parties are required to conduct proceedings consistently with the overarching purpose while lawyers have a duty to:

Take account of the duty of parties.
Assist a party to comply with the duty.

Section 96 also provides the Court may take into account failure to discharge the above duties in making Costs Orders[14] and that the Court has a discretion to make such Costs Orders against lawyers personally – that cannot be recovered from the client[15].

In conclusion 2024 will see a significant shake up to the way in which practitioners will need to approach parenting matters and the conduct of proceedings. Similarly, to the years following the 2006 amendments, there will likely be further guidance provided by important cases clarifying what the changes mean in practice. In the meantime, practitioners should familiarise themselves with the amendments and be cognisant of their duties towards the overarching purpose.

Peter Hooper and Shaun Mill specialise in all areas of Family Law. Please contact us here or call us on 3207 7663 if you require assistance wtih your family law matter.

[1] Family Law Amendment Bill 2023 – Attorney General Department – Citizens Space.

[2] Family Law Amendment Bill 2023 section 60B(a).

[3] Family Law Amendment Bill 2023 section 60B(b).

[4] Section 4 – an assault including sexual assault or involving a child in sexual activity directly or indirectly.

[5] Section 4AB – violent or threatening behaviour, coercive behaviour, assault, sexual assault and abuse, stalking, derogatory taunts, intentionally damaging property, injury or death to an animal, unreasonably denying financial autonomy or financial support to meet reasonable living expenses, keeping family or cultural connections, depriving liberty.

[6] Section 61DA

[7] Section 65DAA

[8] [2006] FamCA 1346 (15 December 2006)

[9] [1998] FamCA 19

[10] Section 68LA(5AA)

[11] Section 68LA(5B)

[12] Section 68LA(5C)

[13] Section 65LA(5D)

[14] Section 96(4)

[15] Section 96(5) and (6)

Articles, Family Law, Featured Articles, Federal Circuit Court

Family Law and Covid 19 vaccinations for children in Australia

Vaccination for Covid 19 is one of the most divisive issues currently facing Australian society and in many other countries around the globe.

It is difficult to recall any issue that has been so characterised by divergent opinion, censorship, extraordinary new Government powers, authoritarian policing and uncertainty surrounding the efficacy of the vaccinations.

The most controversial proposed recipients for the vaccines are children, especially given that it has been widely reported the risk to children from Covid 19 is less than the seasonal flu.

In these circumstances it is unsurprising that parents may have a different view on what is best for their child in terms of risk of Covid 19, risk from vaccination, and the ability to access services stemming from Government mandates restricting the freedoms of the unvaccinated.

Equal shared parental responsibility

The decision on whether to vaccinate a child is a medical decision and a major long-term issue as defined in section 4 Family Law Act 1975 (“the Act”).

As such where a Court has made an order allocating equal shared parental responsibility parents have obligation created by the Act in section 65DAC to consult with each other regarding the decision, make a genuine effort to reach a joint decision and that the decision be made jointly.

Where parents can’t reach a joint decision, the Court can make in order with the best interests of the child being the paramount consideration for the Judge in determining what order to make.

Orders for the welfare of children

Section 67ZC of the Act also confers power on the Court to make orders for the welfare of children. The power to make welfare orders is also subject to the Court having regard to the best interests of the child as paramount in making such an order.

In the medical context, the section was examined in Secretary, Department of Human Services v JWB and SMB (1992) 175 CLR 218 (Marion’s Case). The medical issue was whether the parents ought to be permitted to sterilise their intellectually disabled, 14-year-old daughter. The parent’s concerns related to her capacity to cope with issues surrounding menstruation and potential pregnancy.

The primary issue for the Court was whether the parents had authority to make this decision or whether Court authorisation was required. The court determined that some medical procedures required more than authority from the parents, and that Court approval would be necessary.

The decision to vaccinate is not one that falls within the category or non-therapeutic medical decisions requiring court approval and thus it is for the parents to reach agreement with respect to vaccination if they wish to avoid Court intervention.

Family law vaccination cases

There are numerous cases with respect to traditional vaccines that have been determined under the Act. These cases have been determined in accordance with best interest principles on the on the basis of expert evidence with respect to the particular vaccine as would be typically expected.

Some examples of these cases are:

Mains & Redden [2011] FamCAFC 184 the trial judge ordered immunization for measles, mumps, rubella, diphtheria, tetanus, and a host of other diseases determining it was in the child’s best interests. The mother appealed and sought to adduce new evidence that the child would suffer adverse reaction because she had suffered adverse reactions to immunization as a child. The mother asserted she was not anti vaccine. On appeal, the Court found it was open to the judge on the expert evidence before him to make the decision that he did and that the reaction risk was remote on the evidence.
Howell & Howell [2012] FamCA 903 In this case the husband’s religion required strict vegetarianism including anti vaccination because the process contained animal products. The parents had agreed the child would not be vaccinated and, lodged the necessary conscientious objection forms. The Court ordered the wife would be responsible for medical decisions including vaccination because it was in the best interests of the child.
Kingsford & Kingsford [2012] FamCA 889 in this case the father took the child for vaccinations without the mother’s knowledge or consent. The mother sought orders stop further vaccination without her express permission (she wanted homeopathic immunization procedures instead of traditional medicine). Expert evidence before the Court showed the benefits of vaccination outweighed the risks. The judge was critical of the father vaccinating the children in secret and without consent but made detailed orders for vaccination.
Gerber & Beck [2020]FamCA 210 In this case the father raised a concern that the maternal grandmother was a anti vaccination activist who believed vaccinations were a ploy of the pharmaceutical industry. The mother said she would have the children vaccinated but she admitted she has previously made false vaccination certificates and she admitted her mother had sourced the doctor who assisted in falsifying the certificates. This evidence supported denying the mother permission to relocate the children’s residence to an overseas country.
Pieper & Jesberg & Ors [2020] FamCA 989 here the court found the father’s beliefs were “highly conspiratorial” and “whacky”. The beliefs included the earth is flat, the government conceals that we live on a flat earth, the 9/11 attacks were plotted by the US government to create Islamic terrorist concerns and that the moon landing was fake. At the final hearing, the father denied being opposed to all vaccinations and said that his comments related only to the vaccine for the COVID-19 virus.

Covid 19 vaccinations are new and thus at the moment there are only a handful of cases that have been determined, but this may soon change as more cases make it through the Court system in the Covid 19 list (discussed below).

One of the recent cases is Covington and Covington [2021] FamCAFC 52. In this case the mother initially consented to orders for a child aged 11 years to be vaccinated. Subsequently the mother appealed and withdrew her consent.

One of the orders she sought on appeal was a stay of the appeal pending the High Court determining an Application she brought pursuant to section 51xxiiiA of the Commonwealth Constitution. This constitutional provision provides the Commonwealth has power to make laws with respect to:

“…the provision of maternity allowances, widow’s pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental service (but not so as to authorise any form of civil conscription), benefits to students and family allowances.”

The mother’s argument was that this provision conferred constitutional freedom from compulsory vaccination. The Court opined there was no authority for this interpretation and that it had little prospects for success. The Court referred to the decision of General Practitioners Society v The Commonwealth [1980] HCA 30 where it was held the phrase “civil conscription” applied to medical and dental services and “refers to any sort of compulsion to engage in practice as a doctor or a dentist or to perform medical or dental services.” The term seems to relate to compulsory service similarly to the military context of the word “conscription”.

In any event the mother’s application for special leave to the High Court failed.

The Covid 19 List

The Covid 19 List has been set up to deal urgently with disputes that have arisen as a result of the pandemic.

To be eligible to file the following criteria must be satisfied:

The application must be as a direct result of or has a significant connection to the pandemic.
The matter is urgent or of a priority nature.
Accompanied by an Affidavit following a particular template.
Subject to safety issue, attempts have been made to resolve the matter.
The matter is suitable to be dealt wit via telephone or video link.

The types of matters this may cover include border difficulties, Covid related family violence, financial hardship from Covid for maintenance applications etc and vaccination. There are a list of rules that apply to the form of affidavit in support and it’s length, specific evidence that must be submitted relating to the urgency etc.

Where the Covid list applies the first Court date will likely be within 3 business days of filing if urgent and within 7 days if priority.

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663.

Articles, Family Law, Featured Articles, Federal Circuit Court

The Federal Circuit and Family Court of Australia 2021

The Federal Circuit of Australia and Family Court of Australia have merged utilising one common set of Rules from 1 September 2021. The new Court has imaginatively been renamed as The Federal Circuit and Family Court of Australia (“the Court”) while the full title of the Rules is The Federal Circuit and Family Court Rules 2021 (“the Rules”).

As of 1 September 2021, practitioners and litigants coming before the Court are to be expected to follow the new Rules and procedures with a 6-month grace period during the transition. Further to the new Rules are a series of Practice Directions for guidance as to how the Rules will be implemented.

Central to these Practice Directions is the Central Practice Direction – Family Law Case Management (“CPD”) setting our principles and procedures when coming before the Court. The Central Practice Direction states that all other Practice Directions are to be read within its framework.

Purpose

The purpose is expressed to establish a consistent national framework to achieve:

Reduce unnecessary cost, delay and conflict.
Ensure the safety of families.
Facilitate the just resolution of disputes according to law, quickly, inexpensively and efficiently as possible.

A copy of the CPD must be provided to clients and self-represented litigants at the commencement of a proceeding and contains strong statements as to the necessity to comply in all matters. Further, there are prohibitions on making ambit claims, being unnecessarily aggressive and filing unnecessary voluminous material (regardless of complexity).

Penalties for noncompliance include an adverse costs order to both practitioners and non-complying litigants.

Application of the Practice Direction

The CPD applies to all family law applications except for appeals, divorce proceedings and consent orders however the core principles of the practice direction do apply across the board.

Core Principles of the new Family Law system

There are 10 “core principles” to be underpinning the new procedures. These are:

Risk – addressing risk that may be present for vulnerable parties such as children and litigants from allegations including family violence.
Parties, Lawyers and Court overarching purpose is to resolve disputes according to law and as quickly and in expensively as possible.
Efficient use of resources – identifying the issues and allocating resources accordingly.
Case management approach – will include a consistent approach, triaging of matters towards appropriate case pathway – again early issue identification, prioritising early mediation and Family Dispute Resolution (“FDR”).
Importance for dispute resolution – Subject to safety, before commencing proceedings parties will have been expected to explore mediation and FDR. This includes following the section 60I Family Law Act 1975 FDR requirement.
Noncompliance – There will be serious consequences of noncompliance including costs against parties and lawyers.
Lawyers’ obligations about costs – refers to ensuring that costs are necessarily incurred and proportional to the issues in the case. Lawyers must keep client updated as to the situation regarding the actual costs incurred.
Identify and narrow issues – By making disclosure, ensuring applications are justified, trying to negotiate certain issues, engaging a single expert to resolve an issue etc.
Preparation for hearings – Lawyers must be ready and fully prepared for Court events.
Efficient and timely disposal of cases – faster court dates and delivery of judgements.

Case Management

Case management procedures have been set up to facilitate the above principles being achieved.

Pre-action Family Law procedures

There are several requirements placed on a party prior to commencing proceedings. These are:

Comply with schedule 1 of the Rules 2021 which sets out pre action procedures for property and parenting matters (set out in a separate blog) and comply with section 60I.
Take genuine steps to resolve the matter prior to commencing proceedings (subject to risk considerations) and file a “Genuine Steps Certificate”.
Unless the matter is urgent – Notice is to be given to the potential respondent prior to filing setting out the claim.

Failure to comply may result in the application being adjourned or stayed.

Filing and Service of Court Applications

Initiating Application must be served as soon as is reasonably practicable after filing.

Urgent Family Law Applications

A litigant must apply for an urgent interim hearing which will be assessed by a Judicial Registrar. If accepted as urgent it will be granted the earlies available hearing date. If appropriate there will be a referral to FDR after the urgent hearing.

Triage and assessment

A case may be referred to the National Assessment Team at any time for consideration of:

Whether the matter needs to go to Division 1 of the court – such as for a specialist court list such as the Magellan list or complex property list.
The suitability for the matter to be included in a specialist list.
Whether pre action compliance has been made.
Whether section 60I FDR regime has been complied with.

Allocation between Divisions of the new Family Law Court.

The Court operates with two Divisions being what was the Federal Circuit Court and the Family Court. The appropriate Division will depend on:

As part of triage and assessment whether the case is a specialist matter for immediate transfer to Division 1.
Compliance and readiness hearing where the appropriate Division will be determined to conduct the final hearing.
At any appropriate time to consider transfer.

Determination of the appropriate Division for hearing will be at the Court’s discretion having regard to:

The Rules and Family Law Act 1975.
The National Assessment Team’s assessment.
Party’s submissions.

The factors to determine the appropriate Division are:

Complexity of factual, legal, or jurisdictional issues.
International issues.
Multiple parties.
Multiple expert witnesses being necessary.
Questions of importance to the development of family law jurisprudence.
Length of the case.
Division 1 and 2 workload – delay.
Impact of litigants.
Any allegations of criminal misconduct.
Complexity in financial matters.

Court Events

While the Court will retain a discretion to be flexible in terms of case management to assist parties in the most efficient and effective way, the following will be the typical pathway to be followed in Court matters:

First Family Law Court event

The first Court event will be before a Judicial Registrar for Directions and aim to be listed for 1 to 2 months after the date of filing.

Before the first Court event the following is expected to occur:

All documents to be served in accordance with the Rules.
Lawyers must provide to the Court and each party a Notice:
1. Confirming the client has made a genuine effort to resolve the dispute or issues subject to an exemption applying.
2. Advising whether there is Legal Aid funding and setting out total costs and disbursements to date – estimate of costs for each stage.
3. Estimate of the likely duration and costs of the final hearing.
If a party has not filed a Financial Statement as part of the proceeding, they must advise whether they are in receipt of Legal Aid and if not set out their expenses and income regarding their ability to fund or contribute to the costs of an expert report. This does not apply where the parties have agreed to privately fund a report.

The purpose of the first Court date is:

Make any directions or orders by consent.
Determine whether the pre action procedures have been complied with.
Identify the issues in the case and how to resolve them.
Is an interim hearing required?
Determine whether Court based, or external FDR is required.
Is individual case management required?
Consider urgency or special circumstances that require the matter to be transferred to a judge.
Directions for the preparation of expert reports, issuing subpoenas and future progression.

For parenting cases it will also be considered:

Whether an independent children’s lawyer is required.
Whether a written or oral report from a family consultant, social scientist etc may promote resolution.

For financial cases it will also be considered:

Timetable for exchange of disclosure documents.
Any single expert reports that are necessary.
Suitability for Arbitration.

In typical matters orders ought to be made for FDR and preparation including identify issues in dispute and considering the evidence necessary with respect to those issues.

Interim Hearing

In non-urgent cases any Interim Application in the Initiating Application or Response will be listed for hearing before a Senior Judicial Registrar or Judge after the first Court event.

This would normally occur before FDR and after any subpoenas or expert evidence relevant has been obtained, provided this wouldn’t cause undue delay.

No less than 2 business days before the Interim Hearing the parties must forward to the Associate of the relevant Judge or Senior Judicial Registrar:

Minute of Order sought.
Case Outline – setting out the major contentions and issues.
List of the documents to be read at the interim hearing.

Lawyers will be expected to be ready to proceed on the day.

Subsequent Interlocutory Applications

After proceedings have commenced, a party should not file an Application in a Proceeding unless Rule 4.03 has been complied with – to make a genuine and reasonable attempt to resolve the dispute.

Each party can file a maximum of 2 Application in a proceeding without leave and Chapter 5 contains requirements for Affidavits.

Family Law Mediation

Unless there are exceptional circumstances, parties must attend FDR within 5 months of the commencement of proceedings. FDR may not be appropriate in circumstances of violence.

Having regard to the means of the parties FDR may be Private mediation, Legal Aid Conference, Conciliation Conference, Judicial Settlement Conference or section 13C(1)(b) Family Law Act 1975 FDR conference.

Private Mediation and external Family Dispute Resolution

If attending mediation, the parties must provide the following within 7 days of attending:

Copies of the relevant Court documents filed in the proceeding.
Expert reports.
Relevant disclosure documents to a particular issue.
Minute of Order sought.
Case Outline in the approved form.
In financial cases – particulars of a financial resource, valuations or appraisals, superannuation valuation, procedural fairness to any super fund trustee.
Any current or previous family violence orders.
Certificate of Dispute Resolution for completion by mediator.

In addition, lawyers must:

Ensure documents are disclosed in accordance with Chapter 6 of the Rules.
Comply with reasonable requests of the mediator.
Attend FDR and make a genuine attempt to settle.

Before FDR lawyers must also provide notice of costs incurred to date and estimate of future costs to be incurred, estimate of duration of the final hearing and costs.

Costs penalties can be imposed if any unmeritorious claim is pressed at mediation.

Court based dispute resolution

For any Conciliation Conference or Court based FDR etc, at least 14 days prior the parties must:

Disclosure in accordance with Chapter 6 has been made.
Any expert reports have been filed.
Provide to the Court and each party a bundle of the following documents:
1. Case outline in the approved form.
2. Minute of Order sought.
3. Disclosure documents relevant to a particular issue.
4. In financial cases – particulars of a financial resource, valuations or appraisals, superannuation valuation, procedural fairness to any super fund trustee
Costs advice as for private FDR above.

The Judicial Registrar at the FDR may assess compliance and make costs orders and may further:

List the matter in an appropriate list including before a Judge for directions or consideration of dismissal.
Direct the parties to explain the lack of compliance.

If the FDR proceeds but can be resolved by negotiation the Judicial Registrar shall prepare for the parties and Court file a Certificate of Dispute Resolution stating:

Whether the parties attended.
Any significant issues in dispute.
Compliance with costs notification.
Compliance with the Rules.

Further directions can be made including listing the matter for a Compliance and Readiness Hearing.

Fast Track Hearing List

After FDR the Court may list the matter for a fast-track hearing where:

The parties made a genuine effort but couldn’t resolve the issues.
Issues are clearly identified and limited in scope.
Expert reports have been obtained.
The parties agree that the matter can be resolved on affidavit without cross examination and on the basis of written submission of no more than 10 pages.
The parties are in a position to present their case with 28 days’ notice of the hearing date.
The party’s consent to a short form judgement.

The Court may in the interests of achieving the purposes and principles can determine the proceeding or a discrete issue by way of fact track hearing.

Compliance and Readiness Hearing

For cases not “fast tracked” they will be given a date as close as possible to 6 months from the filing date for a Compliance and Readiness Hearing (CRH) before a Senior Judicial Registrar or Judge.

Prior to the CRH lawyers and parties will be expected to confer on producing a trial plan – witnesses and how long they will take to give evidence.

No later than 7 days prior to the CRH each party must file:

Amended Application or Response setting out precise order sought.
Undertaking as to disclosure in accordance with Rule 6.02.
Certificate of Readiness certifying – compliance with orders and directions, valuations completed, confirm the matter is ready and if it is not then why not.
Set out the duration of the hearing and costs information.

At the CRH the lawyers or parties must also be able to advise the Court of:

The factual issues requiring determination.
Legal and factual contentions in relation to each issue.
Proposed witnesses and availability.
Whether interpreters, video facilities etc are required.
Length of hearing.
Any other steps that are required.

Trial Management Hearing

The matter can be listed for a further management hearing before final hearing if necessary. This can be to consider costs of any non-compliance and make necessary directions.

Final Hearing, Unreached Matters and Judgment

The goal will be to achieve a final hearing within 12 months of the filing date.

If the matter cannot proceed on the listed trial date the parties can elect to attend FDR or it will be allocated to another Judge.

Judgement will be delivered as soon as is reasonably practicable or within 3 months of the final hearing.

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663.

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Costs in Family Law Matters

Most people understand that legal services are expensive. Lawyers are highly trained professionals who spend many years (and many dollars themselves) towards obtaining degrees, being out of the full-time workforce studying and incurring HECS debt.

Some lawyers have fixed fee agreements or a hybrid of fixed costs and time costing for different tasks however by far the most common method of costing is time costing. Research suggests legal services consumers prefer fixed fees however these can be risky for the lawyer if a client’s matter takes a turn for the unexpected.

Another difficulty with fixed fees and legal costs is that client’s can end up with large legal bills through no fault of their own. Sometimes costs are incurred when a lawyer is forced to react to what the other party is doing such as Court applications. If a party is belligerent, uncooperative or refuses to settle costs can also increase dramatically as litigation drags on.

Can I get an Order that the other party pays my family law costs?

This is a commonly asked question. The other common question is “can my ex force me to pay costs?”

It is not uncommon for some lawyers to make a threat about costs. On occasion, a lawyer will threaten in correspondence that if something isn’t done, and an application to the court is necessary, that they will seek “costs of and incidental to” their client’s application. In another scenario, a lawyer will put in their client’s application or response that the husband or wife pay the costs of the matter.

Not surprisingly these types of threats can be upsetting for people to read, and more often than not, they are empty threats. However, that is not to say costs aren’t sometimes awarded in family law matters.

The law regarding costs in family law matters

Section 117(1) Family Law Act 1975 (“the Act”) provides that subject to a number of other sections, each party in a family law matter “bears his or her own costs”.

This means that the starting position for the Court is that each party should pay for their own lawyer. Of course, you don’t need to have a lawyer. Everyone has the right to represent themselves, however family law is technical and nuanced, and it is advisable not to represent yourself if you can avoid it.

It is not unusual when a separation occurs that one of the parties has greater access to resources than the other party. This creates an obvious disadvantage for the person who can’t afford the expensive lawyer.

The “case law” for family law property matters has established that in order to maintain the integrity of section 117(1), that where one party has access to resources forming the matrimonial property pool (i.e., the net assets and superannuation subject of the family law litigation) and spends some of that money on their own lawyer, it should be “added back” to the matrimonial property pool. Added back means that the value accounted for as property already received by the party who had the benefit of it i.e., money spent on lawyers is an advance on the property settlement.

Like many situations within the law however, the general rule that each party bears their own costs won’t apply to every situation.

When can I get costs in a family law matter?

There are several situations most likely to result in costs being awarded by the Court to a party. Costs are always awarded at the discretion of the Judge.

The first situation where you may be able to get costs paid is in a property settlement matter when you make an offer to settle, the offer is not accepted, and subsequently a Court awards a Judgment for more than the amount of the offer.

This situation is provided for in section 117C Family Law Act 1975. Basically, this section places into the Family law Act what is known as a “Calderbank offer” under the common law.

Offers of settlement are protected by “without prejudice privilege” which means they can’t be put into evidence before the Judge. The reason for this is to encourage litigants to settle without the “prejudice” of the Judge seeing what they would have agreed to. However, after the trial is finished offers can be raised as evidence to support why a party should be awarded costs. The rationale being if the offer you made is exceeded by the Judgement, the other litigant had they accepted it would have prevented the costs from the day of the offer being incurred. As stated above, the Court can choose now to award costs and other factors (set out below) also apply.

The next situation when costs could be awarded is when a party has behaved in a way that has created costs unnecessarily. These types of costs order have a punitive component in that as well as reimbursing the wronged party they punish people for conduct such as missing time frames or failing to follow an Order etc.

Another situation where costs can be awarded is where there is a disparity in the financial ability of the parties to fund the litigation and the interests of justice would require this being balanced. Sometimes these types of orders are called “Hogan” or “Barrow” Orders. On this website there is an article I have written which details the circumstances where these types of costs orders can be made (see link: https://hooperandmillfamilylawyers.com.au/applications-for-litigation-expenses-aka-hogan-orders/).

These orders do defeat the general proposition that “each party bears their own costs” so are only made when the circumstances make them necessary.

What does the Court take into account in making a costs order?

The circumstances for the court to consider are listed in section 117(2A) Family Law Act 1975. These are:

The financial circumstances of the parties.
Whether any party is in receipt of legal aid and, if so, the terms of the grant of legal aid.
The conduct of the parties.
Whether the proceedings are necessary due to a failure to comply with an order.
Whether any party has been wholly unsuccessful.
Whether either party to the proceedings has made an offer in writing to settle and the terms of any such offer; and
Any matters the court considers relevant.

The last opens up what may be relevant to almost anything relevant to costs being generated.

What does costs mean?

Getting costs doesn’t necessarily mean you get back all of the costs incurred in funding your matter. If you are asking for costs you will need to establish for the Court how much you have paid and the basis upon which the costs have ben charged.

There are also different types of costs lawyers refer to. Some examples are:

Party and party costs – these are the base costs of running the action. Usually, they are about say 40% to 60% of the actual costs. These costs are the most common types of costs awarded. These costs are awarded where the Court doesn’t consider all the interactions with the solicitor and client should be paid for by the other party.
Solicitor and own client/indemnity costs – This is where all of the costs are paid by the other party and are typically awarded where there is a punitive element to the costs order.
Reserved costs – This is where costs are not awarded but delayed until a further time when an issue is to be determined. This type of order indicates that costs may be awarded in the future.

Family law advice

It is important to remember that you should not rely on “generic” advice in any legal matter. In every situation I strongly recommend that you obtain advice from a legal practitioner in the area of law before taking action. If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice.

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.