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:

  1. The application must be as a direct result of or has a significant connection to the pandemic.
  2. The matter is urgent or of a priority nature.
  3. Accompanied by an Affidavit following a particular template.
  4. Subject to safety issue, attempts have been made to resolve the matter.
  5. 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.

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:

  1. Reduce unnecessary cost, delay and conflict.
  2. Ensure the safety of families.
  3. 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:

  1. Risk – addressing risk that may be present for vulnerable parties such as children and litigants from allegations including family violence.
  2. Parties, Lawyers and Court overarching purpose is to resolve disputes according to law and as quickly and in expensively as possible.
  3. Efficient use of resources – identifying the issues and allocating resources accordingly.
  4. 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”).
  5. 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.
  6. Noncompliance – There will be serious consequences of noncompliance including costs against parties and lawyers.
  7. 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.
  8. 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.
  9. Preparation for hearings – Lawyers must be ready and fully prepared for Court events.
  10. 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:

  1. 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.
  2. Take genuine steps to resolve the matter prior to commencing proceedings (subject to risk considerations) and file a “Genuine Steps Certificate”.
  3. 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:

  1. 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.
  2. The suitability for the matter to be included in a specialist list.
  3. Whether pre action compliance has been made.
  4. 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:

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

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

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

The factors to determine the appropriate Division are:

  1. Complexity of factual, legal, or jurisdictional issues.
  2. International issues.
  3. Multiple parties.
  4. Multiple expert witnesses being necessary.
  5. Questions of importance to the development of family law jurisprudence.
  6. Length of the case.
  7. Division 1 and 2 workload – delay.
  8. Impact of litigants.
  9. Any allegations of criminal misconduct.
  10. 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:

  1. All documents to be served in accordance with the Rules.
  2. 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.
  3. 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:

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

For parenting cases it will also be considered:

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

For financial cases it will also be considered:

  1. Timetable for exchange of disclosure documents.
  2. Any single expert reports that are necessary.
  3. 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:

  1. Minute of Order sought.
  2. Case Outline – setting out the major contentions and issues.
  3. 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:

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

In addition, lawyers must:

  1. Ensure documents are disclosed in accordance with Chapter 6 of the Rules.
  2. Comply with reasonable requests of the mediator.
  3. 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:

  1. Disclosure in accordance with Chapter 6 has been made.
  2. Any expert reports have been filed.
  3. 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
  4. Costs advice as for private FDR above.

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

  1. List the matter in an appropriate list including before a Judge for directions or consideration of dismissal.
  2. 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:

  1. Whether the parties attended.
  2. Any significant issues in dispute.
  3. Compliance with costs notification.
  4. 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:

  1. The parties made a genuine effort but couldn’t resolve the issues.
  2. Issues are clearly identified and limited in scope.
  3. Expert reports have been obtained.
  4. 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.
  5. The parties are in a position to present their case with 28 days’ notice of the hearing date.
  6. 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:

  1. Amended Application or Response setting out precise order sought.
  2. Undertaking as to disclosure in accordance with Rule 6.02.
  3. Certificate of Readiness certifying – compliance with orders and directions, valuations completed, confirm the matter is ready and if it is not then why not.
  4. 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:

  1. The factual issues requiring determination.
  2. Legal and factual contentions in relation to each issue.
  3. Proposed witnesses and availability.
  4. Whether interpreters, video facilities etc are required.
  5. Length of hearing.
  6. 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.

 

 

 

 

 

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:

  1. The financial circumstances of the parties.
  2. Whether any party is in receipt of legal aid and, if so, the terms of the grant of legal aid.
  3. The conduct of the parties.
  4. Whether the proceedings are necessary due to a failure to comply with an order.
  5. Whether any party has been wholly unsuccessful.
  6. Whether either party to the proceedings has made an offer in writing to settle and the terms of any such offer; and
  7. 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.

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