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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):

  1. Ensure the best interests of children are met by ensuring their safety[2].
  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)

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Domestic Violence 2023 – Queensland Law Amendments

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In August 2023 significant changes were made to domestic and family violence legislation in Queensland by way of the first round of system wide legislative reforms.

These reforms will the culmination of investigations into the current system including from the Women Safety and Justice Taskforce “Hear Her Voice” and the “Not Now, Not Ever Report” by the Special Taskforce investigating strategies to address domestic and family violence issues.

Recommendations from the latter report have now been incorporated into the existing domestic violence legislation with the passing of the Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023, coming into effect on 1 August 2023.

In a press release dated 14 October 2022 the Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence stated the purpose of the reforms as including:

  • Laying the foundation for an offence of “coercive control”.
  • Shift the approach to domestic and family violence to focus on patterns of abusive behaviour occurring over a period of time.
  • Modernise and strengthen the definition of “stalking” in the Queensland Criminal Code.
  • Widen the definition of “domestic and family violence” to include patterns of behaviour.
  • Strengthen the court’s response to cross applications for protection orders to identify and protect a person most at risk.
  • Ensure the court’s consideration of previous domestic violence history.

While there have been substantial changes to the criminal law and domestic violence legislation since 2012 including National Domestic Violence Scheme, harsher penalties for breaches, ‘Ouster’ conditions to remove perpetrators from the family home, orders more tailored to specific circumstances, hearing of cross application together etc, the August 2023 are likely to be significant in their effect.

Key changes in the 2023 domestic and family violence legislation

The key changes relate to the following, and will be discussed in more detail below:

  • 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.

Criminal Code definitions amended

Several amendments to definitions within the Criminal Code have been made relating to sexual misconduct and with respect to “unlawful stalking”.

Unlawful stalking is widened to include “intimidation, harassment or abuse”. Further in section 359B(c) Criminal Code the following has been inserted to broaden what is unlawful stalking:

“…monitoring, tracking or surveilling a person’s movements, activities or interpersonal associations without the person’s consent, including, for example, using technology”

The section further provides examples of the above, such as:

  • Using a tracking device or drone to track a person.
  • Checking the recorded history in a person’s phone.
  • Reading SMS messages.
  • Monitoring email accounts or internet browser history.
  • Monitoring social media platforms.
  • Publishing offensive material on a website, social media platform or online social network in a way that will be found by, or brought to the attention of, a person.

There are also significant amendments to the definitions in the Domestic and Family Violence Protection Act 2012. Most notable is the change to the definition of the meaning of domestic violence and other forms of behaviour in section 8 (this includes emotional or psychological abuse and economic abuse).

In these sections the word “behaviour” is extended to “behaviour or pattern of behaviour”.

A behaviour/pattern of behaviour:

  • May occur over a period of time.
  • May be more than one act (or series of acts) when considered cumulatively is abusive, threatening, coercive or causes fear.
  • To be considered in the context of the relationship between the parties.

Cross Applications in the 2023 Domestic Violence changes

Where there is a cross application i.e., where both parties bring a Protection Order application against each other, the Court must decide which of the applicants is the person who is most in need of protection and dismiss the other party’s application. The exception to this is where there is clear evidence both people require protection (i.e., exceptional circumstances).

To determine who is most in need of protection the court will examine:

  • The context of the relationship as a whole.
  • Which of the parties is “more likely than not” to be abusive, threatening or coercive, controlling or dominating causing fear for the safety or wellbeing of the party, child or an animal (including a pet).
  • Whether the conduct of the person most in need of protection is “more likely than not” due to self-protection (including a child or animal), in retaliation or attributable to the cumulative effect of domestic violence.

In determining the above the Court must consider:

  • The relationship and domestic violence history.
  • The history of domestic violence including the nature and severity of the harm, the level of fear, which party has the capacity to seriously harm the other person or control, dominate or cause fear to the other person.
  • Whether a person who has characteristics that make them vulnerable.

The examples of the types of people who have “characterises making them vulnerable” are:

  • Women and children.
  • Aboriginal peoples and Torres Strait Islanders.
  • People from a culturally or linguistically diverse background.
  • People with disability.
  • Lesbian, gay, bisexual, transgender or intersex.
  • The elderly.

Criminal and domestic violence history

Police are required to provide the criminal and domestic violence history of the respondent to the Court where there is a Police application/Protection Notice or if a clerk of the court gives an application for a Protection Order to the officer in charge of a Police station.

The criminal history means: “…a document that states each conviction of, or charge made against, the person for an offence in Queensland or elsewhere…”

Domestic violence history means a document that states a domestic violence order (including interstate or Order under the repealed legislation), Police Protection Notice or NZ order has been made.

The court must consider the criminal and domestic violence history when:

  • Deciding if a protection order is necessary or desirable to protect the aggrieved.
  • Deciding whether to vary a domestic violence order or to make a temporary protection order if the Court considers it is relevant to do so.

The criminal and domestic violence history must be considered by the Court when determining whether a Protection Order is “necessary and desirable”. Further, the criminal and domestic violence history may be considered in determining whether to make a Temporary Protection Order or in an application to vary an Order.

When a Respondent consents to a Protection Order (including without admission), the Court may conduct a hearing (if the Court considers it is in the interests of justice) to consider the criminal and domestic violence history.

Costs in domestic violence applications in the 2023 Domestic Violence changes

In the 2012 Act costs could only be awarded if an application was dismissed and it was determined the party making the Application acted in a “malicious, deliberately false, frivolous or vexatious” manner.

The amendments open up the discretion to award costs to circumstances where the Court determines the person making the Application intentionally engaged in domestic violence through “systems abuse”. This is where the legal process is used to bully, intimidate, or harass a person.

The author’s view is that this costs provision may make “tit for tat” cross application a more dangerous prospect for a party with insufficient evidence to establish the matters required for a Protection Order or if the application is dismissed as set out above under the new rules relating to cross applications.

Reopening proceedings and substituted service

Rules regarding service have been relaxed to allow a Respondent to be served via “substituted service”.

Before making the Order, the Court must be satisfied reasonable attempts have been made to serve the application and that substituted service is necessary and desirable to protect the aggrieved.

When a Respondent is served via substituted service, and the application is determined in the Respondent’s absence, there are rules inserted to allow for a reopening of the proceeding within 28 days of becoming aware of the Protection Order.

Where the proceeding is reopened:

  • It does not affect the operation of the Protection Order or variation.
  • The Court may stay the Order until the reopened proceeding is determined.
  • The Court may determine the reopened proceeding “in any way it considers appropriate”.
  • The Court may hear the whole or part of the proceeding.

What constitutes evidence of domestic violence

Division 1A sets out what includes evidence of domestic violence. The following matters are referred to:

  • The history of domestic violence between the Respondent and Aggrieved or family members.
  • The cumulative psychological effect of domestic violence.
  • Social, cultural, or economic factors of the Aggrieved or family member of the Aggrieved.
  • Responses by relatives or the community to the domestic violence to prevent domestic violence or in retaliation for it.
  • The way in which social, cultural, or economic factors have effected help-seeking behaviour of the Aggrieved.
  • The way the domestic violence or lack of safety options was exacerbated by “inequities” such as race, poverty, gender identity, sex characteristic, disability, or age.
  • The dynamics of the relationship.
  • The psychological effects of the domestic violence.
  • Social and economic factors.

Expert evidence can be adduced with respect to:

  • The nature and effects of domestic violence generally.
  • The effect of domestic violence on a particular person.

An expert is someone who can demonstrate “specialised knowledge gained by training, study or experience of a matter that may constitute evidence of domestic violence.”

Directions to a jury in criminal proceedings involving domestic violence

The following applies to criminal proceedings where domestic violence is an issue (such as for breaching a Protection Order).

A direction to the jury may be requested by the prosecution or defence at any time unless there are good reasons to do so.

On the judge’s own initiative, the judge may direct the jury with respect to self-defence and behaviour or patterns of behaviour that constitute domestic violence. Behaviour includes (but is not limited to) the following:

  • Dependent or subordinate relationships.
  • Isolating a person from family, friends, and support.
  • Controlling day to day activities.
  • Restricting freedom of movement or action.
  • Restricting ability to resist violence.
  • Frightening, humiliating, degrading, or punishing a person.
  • Compelling a person to engage in unlawful or harmful behaviour.

The judge may also inform the jury with respect to the matters above which constitute evidence of domestic violence.

Transitional provisions

The changes apply to all applications currently before the Court regardless of whether the proceeding commenced prior to 1 August 2023.

Peter Hooper and Shaun Mill have extensive experience in the area of Domestic Violence.

If you need assistance wtih matters relating to Domestic Violence, contact us here or call us on (07) 3207 7663.

Breaching a Parenting Order – What happens when a Parenting Order is not complied with?

Separated parents may or may not require Parenting Orders to regulate how post separation co-parenting will occur. 

For some people, a Parenting Plan will be sufficient, that is, a written record of the parenting arrangements, signed and dated, while for others no written agreement is necessary. 

A written Parenting Plan is evidence of the agreement if the matter subsequently goes to Court, but unless the parties have either a Parenting Order made by consent or made by a Judge, the arrangements are not enforceable.

In this context “enforceable” means that if the Orders of the Court are not complied with there are punishments and/or further Orders that can be made. 

If you have Parenting Orders, and you believe there has been a breach/contravention of the Orders, the following considerations ought to apply.

What is the nature of the contravention?

Section 70NAC Family Law Act 1975 (“FLA”) sets out when a Parenting Order has been contravened. These circumstances are:

  1. When someone intentionally fails to comply with an Order.
  2. A situation where a person makes no reasonable attempt to comply with an Order – thus if a reasonable attempt to comply is made and frustrated by circumstances beyond that persons control it will not be a breach.
  3. Intentionally prevents a person bound by the Order from complying with it.
  4. Aids or abets contravention by a person bound by the Order.

It is also important to consider that it can also be raised as a defence to a contravention that while a contravention may have occurred, the person in breach of the Order has a “reasonable excuse”.

What is a “reasonable excuse” is set out in section 70NAE FLA and can be summarised:

  1. If a person did not understand the obligations imposed by the Order and the Court is satisfied the person ought to be excused. 
  2. The person bound by the Order believed that the contravention was necessary to protect the health and safety of a person (including the child) and the contravention did not last longer than was necessary than to protect that person’s health and safety. 

Process for breach of parenting orders

Before a Contravention Application is filed in most cases a mediation and section 60I Certificate needs to be obtained. This allows the parties to negotiate an outcome to the dispute before the step of having a Court sanction. 

If a resolution cannot be reached, and once the section 60I Certificate has been issued, the Contravention Application Court form setting out the breaches, and Affidavit setting out the evidence relied upon needs to be filed. 

The other party can choose whether to file an Affidavit responding to the allegation of breaches. A date for the Application will be set down and the parties will have the opportunity to cross examine anyone who seek to have Affidavit evidence relied upon.

After hearing the evidence, the Court will determine:

  • Whether the breach is established.
  • Whether the breach is established but there is a reasonable excuse.
  • Determine if an established breach with no reasonable excuse is less serious.
  • Determine if an establish breach with no reasonable excuse is more serious.

If a breach is established there are a number of options available for the Court. These range from making a variation to the original order, Order attendance at parenting or conflict courses, make up time, payment of the other party’s legal costs, payment of expenses, fines, community service or imprisonment. The penalties are set out in Division 13A Part VII family Law Act 1975.

For serious breaches where the Court may consider imprison the standard of proof changes from “the balance of probability” i.e. 50% more likely that not, to the higher “criminal Court” standard of proof i.e. “beyond a reasonable doubt.”

Situation where the Court will regard imprisonment as appropriate is, for example, where a party demonstrates a flagrant disregard for the authority of the Court by continuously disregarding Orders in a serious way such as repeatedly failing to make a child available to spend time without a reasonable excuse. 

What to do if an Order is breached or if you have breached an Order and believe you have a reasonable excuse to do so

The first thing to do is obtain legal advice. The consequences of breaching an Order can be serious and if an Order is being breached it is important to address the situation quickly.

Often with the benefit of legal advice and the matter can be resolved to assist the parties to understand whether or not they are doing the right or reasonable thing. 

For example, if a child is ill. In some situations, a parent may feel justified in not sending a sick child to spend time however the circumstances would need to justify the withholding because illness per se is not sufficient to amount to a reasonable excuse. 

Every case needs to be examined on its merits to determine what the best course of action is something a lawyer will be the best person to assist you with.

Peter Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law Specialists, providing Expert Family Law advice and representation. 

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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:

  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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Parenting orders – holiday travel within Australia and overseas

With Christmas approaching and the world seemingly getting back to normal after Covid 19, many people will be thinking of taking a well-earned break to end 2020, either domestically or perhaps overseas.

Some people have family overseas and they may wish to take advantage of the holidays for a visit and to be reunited with loved ones. This is not at all an uncommon scenario with Australia hosting people from many diverse backgrounds, and unsurprisingly children from separated families may have grandparents or other extended family living in other countries.

Travel within Australia for separated families 

Separated parents will be faced with decisions for their children (their own and the other parent’s decisions) that may not have been an issue when they were together. In my experience, quite a common decision where disputes can arise is when one parent may want to take children on an interstate holiday. The reasons why this is an issue can be complex ranging from lack of trust post separation, concerns as to the capacity of the travelling parent to care for the child responsibly – to a parent feeling uncomfortable about a child being far away etc. 

The family law system recognises that making decisions for children is part of the responsibilities of parenthood. Further, where there is “equal shared parental responsibility”, section 65DAC Family Law Act 1975 (“the Act”) requires that parents consult with each other, make a genuine effort to make a joint decision, and that a decision is made jointly. This applies to decisions relating to “major long terms issues” defined in sections 4 of the Act as including things such as religion, health, change of name, living arrangements that would make a parent’s time significantly more difficult and education. 

An interstate holiday is not likely to be a major long-term issue. Section 65DAE of the Act provides that decisions that are not major long-term decisions don’t need to be made jointly and therefore an interstate holiday doesn’t need to be agreed to by the other parent. If there is an order, it would need to be taken during the travelling parent’s time – if children are at school it should be during school holiday time.

When an interstate holiday arises as an issue, sometimes a parent will seek a specific order regulating or preventing interstate travel. 

The Federal Circuit Court, Family Court or a State Court exercising jurisdiction under the Act has power to make this type of order in relation to a child. Section 64B(2)(i) allows the Court to make orders about “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. Further power is contained within section 68B to restrain a person from entering or remaining in a specific area.

An order pursuant to section 64B requires that the Court treat the “best interests of the child” as the paramount consideration for the Judge exercising his or her discretion. Thus, a parent seeking to restrict the travel would need to establish why the order sought is in the best interests of the child. 

For an injunction pursuant to section 68B the Court would have regard to best interests and whether the order was appropriate for the welfare of the child. 

International travel for separated families 

In this context I’m talking about an overseas holiday and not a decision to relocate overseas. An international relocation would be a major long-term issue and required to be made jointly where there is equal shared parental responsibility.

If a proceeding is before the Court, or a parenting order has been made, a party is not permitted to remove a child from Australia without permission. Section 65Y and Section 65Z make it an offence punishable by up to 3 years imprisonment to remove the child from Australia without the written consent of the other parties.

If you are in the process of negotiating a parenting order, and you would like to take a child on a holiday overseas, permission of the other party ought to be obtained and recorded in the parenting order. This can be done on an interim or final basis. If you already have a final order and missed including an international travel clause, you will need written permission to go. 

Usually conditions will be agreed to/placed on the travel such as sufficient notice before travelling, restrictions on what country having regard to Government travel information such as Smart Traveller, a copy of the itinerary being provided to the other party, and contact details while overseas.

If no agreement is reached by the parents, then once again the Court has power to make an order allowing the overseas travel on an interim or final basis (the same power as for interstate travel).

The Court will treat the best interests of the child as paramount once again in making the order. Typically, in this situation the Court will be balancing the benefit to the child in experiencing the travel against any risk that a parent may not return the children to Australia. This is not a legal requirement, but it is the most common reason in my experience why a parent raises an objection to travel. Like with any Court application, evidence would be required to demonstrate why there is a risk a parent won’t return to Australia.

If a parent has concerns and wants to prevent a child’s international travel, they can take steps to place the name of the child on the Family Law Watchlist through the Federal Police. This would prevent a child being removed pending an application to the Court being made with respect to the child. 

If a child’s name is placed on the Family Law Watchlist and later orders are made for travel, it is important to make sure that the child’s name has been taken off the Watchlist before travelling and take a copy of the sealed order to the airport with you.

Family law advice

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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Tips for separating “successfully”

Separation is a very difficult time for many people which is not surprising given that typically it combines some form of loss with fear and uncertainty as to the future. 

Family lawyers are not counsellors but a good family lawyer ought to be able to empathise with the situation clients find themselves in; and provide some guidance as to what the best course of action will be in their circumstances.

The best solution for separation is reconciliation provided that underlying issues are addressed. The Family Law Act 1975 section 12C and 12E create obligations on legal practitioners to provide separating people with information regarding reconciliation services that may assist them. 

Often however once people have made the decision to attend the lawyer’s office, they have already explored every option to save the relationship and have arrived at their point of no return.

Everyone’s circumstances are different but, in my experience, the following tips can help make the process less stressful, costly and timelier.

What to do when you have just recently separated?

The very first thing in my view is to get family law advice. You can typically do this in an attendance at a lawyer’s office for a “first meeting” with a lawyer. 

The difficult part for clients is knowing which lawyer to choose, which can also be the most important part. 

For some people budget will make a difference. Many lawyers offer free initial consultations, some give a 20-minute free phone consultation and there are community legal centres available. The thing to remember here is “you get what you pay for”. 

My view is that the initial attendance is of critical importance in providing information that can affect the entire process or outcome of a client’s case. 

Because everyone has different situations and circumstances, I don’t believe a lawyer can be adequately assess a client’s needs, provide advice as to the law, process, evidence and costs within 20 minutes or just “over the phone”. But because lawyers sell their time, it must be costs effective for the lawyer to take the time and manage the client’s budget. 

We overcome this by placing no strict limit on the time a client attends upon us for the advice, while charging a “fixed fee”. Thus, the client doesn’t have to worry about looking at their watch and is free to explore all the questions they may have in an unrushed environment. In my experience at this first meeting, with a well-managed meeting, typically within 1 to 2 hours (at an average of 1 hour 30 minutes) most client’s report leaving our office “feeling better”, with an understanding of what they need to do moving forward. We also offer an after-interview phone call if there is something unclear or if a further question arises.

The information that we impart at this meeting covers issues such as:

  1. A summary of the law and how it applies to the client’s situation.
  2. An explanation of the processes available to resolve the matter by consent and processes if an agreement is not readily forthcoming.
  3. Provide a case strategy.
  4. Provide a strategy to get to an agreement with the other party, how to communicate and the steps most likely to maintain or promote amicable discussions.
  5. What to do and not to do in terms of proposed actions.
  6. Referral if necessary, to other information or service that may assist.
  7. As accurately as possible longer-term costs estimates, estimated costs for different outcomes/strategies, advice as to how to reduce legal costs, examining strategy and outcomes in the context of budget.

In essence, most legal services are about providing “damage control” for a client. “Cost exposure” is a necessary element of damage control, and also important in terms of the information a client needs to make commercial decisions.  

Equally important is expertise. You need to have confidence in the advice you are receiving because, frankly, you’re dealing with your life savings and your children in many family law matters. 

Family lawyers like anyone have different levels of experience and ability. Once thing that can help differentiate between lawyers is whether they are a “family law accredited specialist”. An accredited specialist has been through very rigorous further study, academic examinations, practical examinations and has had a minimum of 5 years’ experience.  Looking at a lawyer’s bio on their firm’s website can be helpful as well.

Some general tips to assist post separation 

From a practical perspective, after receiving initial advice and making contact with a lawyer, negotiations can commence. A negotiated outcome is by far the best outcome that can be achieved in family law. The quicker this can occur is better (and cheaper) still.

My view is that without some information and guidance from a lawyer you shouldn’t really start negotiations. The reason I say this is because unless you understand family law, you’re likely to get into an “information dispute” with the other party. Different people have different ideas about how the system works and if a clash arises, conflict which is counterproductive to negotiation, can result. 

Another reason is a party can become “positioned”. This means something discussed is agreed to or misunderstood, and it can be difficult to move away from later on (say after getting advice). If both parties get advice there should be a fair degree of overlap in terms of expected outcomes, making an agreement more likely.

Maintaining good communication is another tip. I’m not sure if this is ever easy post separation. If you are able to keep things as amicable as possible it will make resolution much more likely. I normally recommend for to people to keep communication “businesslike”, if possible, to negotiate in writing and to avoid “mirroring” if someone says something you don’t like. Mirroring is where someone says something irritating and the other person does the same in return, usually leading to an escalation in conflict.

It is most important though to remember that everyone’s case is different, and strategy should be tailored to your situation. There is no one size fits all in family law. 

Family law advice

If you have any queries in relation to family violence or parenting orders, 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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Domestic Violence Orders and Parenting Orders

It is not uncommon in family law parenting matters for issues of domestic violence to arise. Family violence is relevant evidence for the court to consider in determining what parenting order will be in the best interests of children. 

At the same time, a party to the parenting orders may have obtained a domestic violence order against the other party (or both parties may have orders) and often the children the subject of a parenting order will be named on a domestic violence order.

In my experience this can create confusion for people uncertain whether they can still interact with their children or the other party while an exclusion provision under a domestic violence order (such as not coming within 100 metres of a party or child’s school or residence), is in place,

What is the difference between Domestic Violence and Parenting Orders?

One difference between domestic violence orders and parenting orders is jurisdiction. Domestic violence orders are created under State legislation while parenting orders come under Commonwealth jurisdiction conveyed by the Family Law Act 1975.

Thus, different States have different law and names for these orders. The different State and Territory names are:

  • Queensland – Protection Orders. 
  • NSW – Apprehended Violence Orders.
  • ACT – Family Violence Order.
  • Victoria – Family Violence Intervention Order.
  • Tasmania – Family Violence Order or Police Family Violence Order.
  • South Australia – Intervention Order.
  • Western Australia – Restraining Order.
  • Northern Territory – Domestic Violence Order.

While the names are different, they all serve the same purpose which is to impose conditions on the Respondent to the order to do, or refrain from doing things such as:

  • Be of “good behaviour” and not commit domestic violence towards a person.
  • Not contact or approach a person or within a certain distance of a person.
  • Not approach within a certain distance of where a person works or lives. 
  • Other conditions that are authorised by the State legislation.

These orders are civil not criminal order, but a breach of an order is a criminal offense. 

Parenting orders typically regulate who children live with, how parents are to cooperate in making decisions for their children, and when and how a person spends time and communicates with their children. There is also power in the Family Law Act 1975 to make personal protection injunctions similar to the conditions in domestic violence orders. 

Obviously when one order is saying, for example, a person is not to come within 100 metres of a child or school, but a parenting order provides, that person is to collect the child from school at a certain time, conflict between the orders would appear to arise.

Resolving conflict between Domestic Violence Order and Parenting Orders

A situation similar to the above example recently arose in Tasmania in PQR v Sundram [2020] TASSC 21 where a Magistrate convicted a father of breaching a Police Protection Order when the father attended a school at various times to either speak to the principal and/or visit his daughter. 

The Magistrate dismissed some of the charges, but found him guilty on others, with the above case concerning a review of the charges he was convicted of. 

The issue was an earlier parenting order allowed the father to spend time with his daughter for certain periods of a fortnightly cycle, and that he collect her from school. The subsequent domestic violence order provided that the not come within 50 metres of his daughter or the school. 

Some of the charges related to times when the father was authorised by the parenting order to collect and spend time with the daughter; while other charges related to times not covered by the parenting order. 

The father argued that section 33 of the Tasmanian Family Violence Act 2004 provides, “…[a domestic violence order] operates subject to any Family Court order…” Also, the order with respect to coming within 50 metres of his child was expressed to be “except in accordance with an order of a court of competent jurisdiction…”. Not surprisingly he wasn’t convicted on the charges where he was authorised by the parenting order to spend time.

However, the domestic violence order preventing him from attending the school was not expressed to be “except in accordance with an order of a court of competent jurisdiction”. Therefore, the question was whether it was capable of co-existing with the parenting order. 

The Magistrate found that the father could collect the child from school without approaching within 50 metres of it. It was acknowledged this wasn’t ideal and might present other consequences, but it wasn’t inconsistent. The father was convicted with respect to the counts where he attended the school.

However on review Chief Justice Blow determined the order not to approach the school was “adjunct” to the order not to approach within 50 metres of the children, and neither operated during times that the father was to spend time pursuant to the parenting order.

This left one charge where the father attended the school outside of parenting order times. An argument was raised by counsel for the father that one of the parenting orders allowed for “equal shared parental responsibility”. Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”, and it was argued this also meant attending a school to speak with teachers. The Chief Justice determined that while the domestic violence order was an impediment to parental responsibility it was not inconsistent.

Queensland Domestic Violence Law

The relevant domestic violence legislation in Queensland is the Domestic and Family Violence Protection Act 2012. There are several sections of this legislation that refer to the interaction of family law orders and Protection Orders:

  • Section 5 and the dictionary schedule define “family law order”.
  • Section 78 requires the State court to “consider” a family law order.
  • Section 79 an applicant must disclose any family law order. 
  • Section 107D requires that a police officer issuing a Police Protection Notice ask about any family law order and not make a condition inconsistent with a family law order or apply to a Magistrate to have a proposed inconsistent condition made.

Within the Family Law Act 1975 section 68R empowers a State Magistrates Court in a domestic violence proceeding to revive, vary, discharge or suspend an existing order, injunction or arrangement under the Family Law Act.

Tips for Domestic Violence matters involving children

If you find yourself as the Respondent to a domestic violence proceeding, I recommend the following:

  • Get legal advice at an early stage. It is important that you speak to someone to give you some orientation and understanding of the laws, system and process you find yourself in. Legal services are expensive however most lawyers, my firm included, only charge a relatively modest fee for initial advice.
  • Make sure you participate in the court process. If you fail to attend court, you will have no control over the conditions on the Protection Order and a final order could be made in your absence. If you’re anxious about court, you can hire a family law solicitor to appear for you or sometimes a “duty lawyer” may be available to assist. In some circumstances you can seek Legal Aid assistance.
  • Tell the court about any family law orders or parenting plans that you have. Depending on the seriousness of the domestic violence allegations most Magistrates will want to ensure children’s rights to have contact with parents is advanced, provided it is consistent with their safety. 
  • If possible, have your lawyer negotiate on your behalf with the aggrieved. Most family violence orders will make exception for things such as communication via lawyers, attending other court or mediation or spending time and communicating with children. Make sure your orders contain these conditions.
  • Make sure you have read and understood the Protection Order conditions. If in doubt, ask your lawyer (or even the Magistrate) what the conditions mean. 
  • Abide by the conditions. Breaching a Protection Order is a criminal offence. 

Of the above my view is the first point and the last point are the most important. Get information early and make sure you don’t breach the order.

Family law advice

If you have any queries in relation to family violence or parenting orders, 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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What to expect when going to the Family Court

The vast majority of Family Lawyers will do everything they can to keep their client’s out of Court and try to settle the cases they run amicably (if possible) and as early on as possible to reduce legal costs. 

A good lawyer achieves this through making sure their clients are well advised as to the range of potential outcomes, has identified issues that may affect the range of outcomes, has worked to resolve information disputes by obtaining valuations and disclosure and provided their client with as accurate as possible costs estimates. This information allows a client to make an informed assessment of risk and weigh the cost/benefit of settling early.

Early settlements are also achieved by maintaining a respectful and non-confrontational communication style with the lawyer representing the other party or self-represented litigant. Third parties such as mediators are also of enormous assistance in resolving disputes at the early stages.

However, despite the best efforts of lawyers and parties sometimes it is necessary to file a proceeding in Court in order to move it forward or resolve a dispute that is intractable. 

To be frank, in any civilised society there is only two options to resolve a dispute, and they are by an agreement reached between the parties or by a Court making an order. 

What does it mean to go to Court?

For Family Law disputes there are three Courts that most often exercise the jurisdiction conferred by the Family Law Act 1975. These are:

  • State Magistrates Court exercising jurisdiction under the Family Law Act 1975. It is not often that a Family Law proceeding would be filed in a State Magistrates Court. Typically, a State Magistrate Court would only be involved to make a “Consent Order” and not hear a disputed matter.
  • The Family Court which is the “higher Court” exercising jurisdiction under the Family Law Act 1975. The Family Court typically hears matters that are more complex such as complex property matters, matters where serious allegation of risk towards children are made and other particular matters such as adoption or disputed medical procedures for children.
  • The Federal Circuit Court is the “workhorse” Court in Family Law matters. This Court is likely where your matter will be commenced, and this Court handles the majority of the “usual” property and parenting disputes.

Many people think that once their matter “goes to Court” it will be heard by the Judge at the first date and resolved. This is not the case. Once a matter is filed in Court a process commences that may take many Court appearances before a resolution can occur.

Why are there numerous Court appearance before a Judge can make a decision?

This is necessary because the reality is matters in dispute are numerous, Judges are few and Court time is expensive for the taxpayer. 

Once a matter is started in Court by filing an Application, the basic process is for the Court to make directions for evidence to be gathered before a “hearing” can occur and for the parties to make further attempts at negotiation or mediation.

The Court process is formal and must be fair to both parties so there are rules that must apply to how the matter is conducted and how the Court receives evidence. Thus, Court appearances have different designations as to what is to occur on a particular day. Again, agreements between the parties are encouraged and almost any agreement can be made, and the matter finalised, regardless of what the purpose of the day is.

The types of Court days are:

  • Mention or Directions – A “mention” is a Court date when the Judge will be informed as to what the matter is about, what the issues are, and what “directions” may need to be made for the collection of evidence or further Court dates. The first date after the Application and Response is filed is usually a mention unless there is some urgency to making an “interim” decision. In the vast majority of cases interim orders for children and what needs to occur by way of directions will be negotiated and agreed at the first Court date. 
  • Interim Application – This is a Court date when the Court must make a decision on a particular issue before the main hearing. Interim hearings are a short process of up to 2 hours duration only. This would occur for example where the interim parenting orders could not be agreed or in a property matter where assets needed to be protected, a party wanted to exclude another party from living at the home or a party needed maintenance or access to some funds. An interim hearing is conducted by affidavits without cross examination and therefore the Court cannot determine any disputed facts. 
  • Callover – This is when the Court will allocate a trial date if the matter is ready to proceed. Trial time is valuable so before allocating this time to a matter the Judge will want to know how many witnesses, how long the matter might take, whether any issues have been resolved etc.
  • Trial – This is likely the last Court date. A trial is where the parties are cross examined on their affidavit, lawyers make submissions and the Judge will make “finding of fact”. This means that after hearing the evidence the Judge will determine what evidence is found to be true. The Judge will then apply the relevant law to those facts.

There are other Court dates that can occur such as “Conciliation Conference” which are similar to mediation or Appeals if a party believes a Judge made an error. 

The good news is that most matters don’t make it all the way to a trial. Most matters settle at some point along the way once the benefit of further evidence is obtained, the Judge may focus attention on a particular issue, costs increase and as other issues are resolved creating motivation for closure.

What should you do when you’re in Court?

The Judge sitting in Court represents the authority of the State to determine a dispute. 

The origin of which date back to the early Norman Kings in England (who had the “divine right of Kings” i.e. said to be appointed by God) and allowed subjects to come before the King to determine disputes. This had a stabilising influence on society by establishing a “rule of law”. I said earlier there are two ways to determine a dispute in a “civilised” society i.e. an agreement or an order from the Court. Without the Court there would be agreements …or whoever was able to use force to get what they want. 

Thus, the Courts are imperative to maintaining a civilised society and it is very important the authority of the Court is respected.

Respect for the Court today means that while you’re in Court:

  • Bow to the Judge if the Judge is sitting at the bench when you enter or leave the Court room.
  • Do not wear any hat or have sunglasses on your head. Dress appropriately. You don’t have to wear a suit or tie if you’re not a lawyer but dressing appropriately communicates to the Court you respect the process you’re involved in. 
  • If you are speaking to the Judge the proper address is “your Honour”.
  • Do not speak to the person next to you in the gallery unless it is absolutely necessary. Sometimes lawyers will whisper to each other with last minute negotiations before their matter is called but this ought to be avoided. The Judge is focused on the matter before them and typically they don’t appreciate being distracted. 
  • Often when you are in Court and supporting a friend, or if it is your matter, you will hear something you don’t like or don’t agree with. In this situation keep your poker face. Don’t smile, roll your eyes, stare at someone, shake your head etc. Don’t be argumentative or rude – especially with the Judge.
  • If you’re self-represented or addressed by the Judge directly focus on listening and not on speaking. It is natural that you’ll want to tell the Judge all of your concerns however this is rarely appropriate unless you’re making submissions at a trial or interim hearing. More often than not this goes badly for the person speaking. The Judge might want specific information so to give that information and don’t try to qualify it or give context. There will be time for that later. The same applies if you’re being cross examined. It’s an exercise in listening and not speaking. Cross examination is where the other party is scoring their points. Your points are in your affidavit so just answer the questions as honestly and succinctly as possible, and if you don’t understand ask the question be repeated and/or say if you don’t understand.

There are fewer physical appearances while Covid 19 is upon us but the same rules apply if you’re appearing by video or phone.

Going to Court is stressful, especially if you find yourself in a trial. It is also expensive and time consuming and it is much preferred that a negotiated settlement can be reached. Before deciding to go to Court you should have a good reason why. You should know what the impediment to settlement is, what will the costs be financially and emotionally, and you need to have confidence in your Family Lawyer providing the advice you are relying on to make these decisions.

Family law advice

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.

Covid 19 Border Restrictions Queensland

The Covid 19 pandemic has created chaos for the lives of many people and industries. Within the Family Law and wider legal industry, the effects have largely been to cause lawyers to adapt to new ways of practice and for Courts to modify how they operate. Obviously, the thrust of these changes is to remove/reduce physical contact and interactions.

For Gold Coast Family Lawyers with clients in Border Zones there are increased challenges in parenting matters when Orders are in place, but children live at different times on both sides of the border. 

I live in a Northern New South Wales in a border zone and commute to my Gold Coast and Victoria Point law practices, and thus do a cross border commute each day. Having lived with this situation for some time, and having clients regularly asking me how the border rules work, I thought it might be a good topic to write about this week.

Border Restrictions Direction 12 

At the moment, Border Restrictions Direction 12 is in effect from 1.00 am Thursday 20 August 2020 until 2 October 2020 unless it is extended by regulation (and my money is on it being extended). 

The restrictions are made under the Public Health Act 2005, when on 29 January 2020 the Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency in relation to COVID 19.

The direction requires that all people who come into Queensland practice “social distancing” which means staying within 1.5 metres of another person and regularly washing hands.

Entering Queensland 

A person entering Queensland from New South Wales must obtain a Queensland Border Declaration Pass and provide an undertaking to present for a COVID 19 test if they develop COVID 19 symptoms. 

To obtain a Border Declaration Pass you must declare via the website the following information regarding the last 14 days:

  • Whether you have been overseas.
  • Have you been to COVID 19 “hotspot” or been in contact with an infected person?
  • Whether you have COVID 19 (entry will be denied).

The information required on the declaration is:

  • Name, date of birth, phone number, address and email address.
  • Evidence of identity such as a driver’s license or Medicare care card.
  • For a border resident, state the post code to establish that the person if from a border zone. A “border zone” is one of the post codes set out in the schedule of the 

The Border Declaration Pass is valid for the following periods:

  • Expires after 7 days from the day the declaration is made; or
  • If any of the person’s circumstances have changed since making the declaration.

There are some people who are not required to provide a border declaration pass. These people are:

  • Someone responding to an emergency in Queensland and performing an essential activity related to national or state security, police, health or emergency services.
  • A maritime crew under the Protocol for Maritime Crew approved by the Chief Health Officer.
  • A prisoner remanded in custody subject to an extradition order who is required to enter Queensland to comply with a court order or assist with an investigation at the direction of the law enforcement agency.

Quarantine is necessary if a person entering Queensland:

  • Has travelled overseas in the prior 14 days.
  • Has had contact with a person who is a confirmed case of COVID 19,
  • Has been in a COVID 19 hotspot.
  • Has had symptoms consistent with COVID 19.
  • Is a border zone resident who is a Queensland resident who traveled outside the border zone in New South Wales.

Conflict between Parenting Order and the COVID 19 restrictions 

People are required to meet their obligations under Parenting Orders unless either the parent or the child is restricted by the COVID 19 rules. Thus, if the children cannot travel interstate because of restrictions this would likely be determined to be a “reasonable excuse” and a defense to a breach of a Parenting Order. As with any Contravention Application ultimately each case is decided on its particular facts.

For this reason, before a parent decides to breach an Order because of COVID 19, it would be prudent to look closely at the current state of the border restrictions and make sure that the information or understanding being acted upon is up to date and correct. Given that the rules can change swiftly this needs to be reviewed from time to time.

If a parent’s time cannot occur, alternative contact should be negotiated. Ultimately it is children who have the right to contact with their parents and coming up with a creative solution is a “child focused” response when COVID 19 gets in the way.

Family law advice

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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Time Limits in Family Law Matters

It’s not unusual in many areas of law to apply time limits to the performance of a task or making a claim. Typically, time limits are something that lawyers are very mindful of when first meeting with, and advising a client, because if time limits are missed, the family lawyer could potentially be liable if a client suffers loss.

Sometimes “timing” is important to a client as well. I have often been asked “should I wait to do my divorce before I finalise property settlement?” or with respect to relocating children “should I wait before going to Court”? These types of situations fall into the strategy of a case and there are many more examples where timing is important for a satisfactory outcome.

The following are some (not all) of the important references to time that occur when you’re involved in a Family Law matter.

Divorce

Since 1975 there has only been one ground for Divorce in Australia. That is “irretrievable breakdown of the marriage”. This is evidenced by a 12-month continuous period of separation. However, to promote the opportunity for reconciliation, married couples can get back together for up to 3 months without “resetting the clock”.

For example, if I’m separated for 3 months and get back together for up to another 3 months and then separate again, the first 3 months is counted as part of the 12-month continuous period of separation. If I get back with my husband or wife for 4 months though, the 12 months would need to start again. 

Also, if I’m only married for 2 years there is an additional requirement for a “counselling certificate” and counselling before the Divorce can be filed. Again, this is designed to “give love a second chance” and see whether the marriage can be saved. 

Limitation periods for property claims

There are restrictions on when a claim for property settlement can be brought which are slightly different for married or de facto relationship couples. Lawyers call these time limits “Limitation Periods”.

The time limits are:

  • For married couples within 1 year of the date of a Divorce.
  • For de facto couples within 2 years of separation. 

For married couples the time limit will not commence until a Divorce occurs. Many people think of the Divorce as covering all of the property and children’s issues however this is not the case. 

A Divorce is only the termination of the marriage. People can resolve parenting issues and property settlement without ever being Divorced. Conversely, people can be Divorced and not resolve property issues.

There are some cases where people have waited long periods of time, haven’t been Divorced and seek property settlement (some more than 20 years after separation). This is not advisable as it introduces much complexity into the issues to be resolved. Without delving too far into issues of “contributions”, contributions have a different character post separation and long period of separate economic activity can be difficult to assess. In some cases, Courts have determined that after such a long period it may be no longer “just and equitable” to adjust property interests, which is a requirement of the power of the Court to Order a property settlement.

Most married people make the property settlement a priority before the Divorce and in my view this is sensible. There is no danger of the Limitation Period expiring and it makes the process simpler. In my experience complexity in legal matters typically means higher costs.

For de facto couples since 2009 (in most states) they enjoy the same processes as married couples, and the substantiative law is largely the same. However, not so regarding the Limitation Period. While married couple have 1 year it operates from the date they obtain a Divorce. De facto couples have 2 years but this time starts running from the date they separate.

In practical terms a looming Limitation Period means to protect it from expiring a Court Application must be made. Most people don’t want to go to Court and would prefer to negotiate a settlement so making sure there is sufficient time is important. Going to Court doesn’t mean you can’t negotiate a resolution, but it adds to stress and costs.

What if the Limitation Period does expire?

If the Limitation Period does expire it doesn’t necessarily mean you can’t proceed with a claim. 

However before making the claim the other party would need to consent to it proceeding or permission of the Court (known as leave of the Court), would need to be obtained.

Leave of the Court will be granted if the Applicant can successfully establish “hardship” to a party or a child.

There are numerous cases with respect to hardship, some of the main points are as follows:

  • Hardship is akin to hardness, severity, privation, that which is hard to bear or a substantial detriment (Whitford [1979] FamCA 3).
  • Weight ought to be given to the intention of the limitation periods (Whitford [1979] FamCA 3).
  • Matters such as the length of the delay, reasons for the delay, prejudice to the respondent occasioned by the delay, the strength of the applicant’s case and the degree of hardship… are to be give weight. (Sharp [2011] FamCAF 150 citing Whitford).
  • The application ought to have a prima facie case worth pursuing not the mere loss of a cause of action. (Sharp [2011] FamCAF 150).
  • “Prejudice” to the respondent includes where a party is faced with a cause of action, he or she had no reason to expect or had been led to believe would not be brought.” (Frost & Nicholson [1981] FamCA 45).

If the other party requires the Applicant to obtain leave apart from the risk of the Court denying the Application, costs will be significantly increased.

The moral of the story is (in my opinion) there is no substitute for early advice from a specialist family lawyer for advice, including with respect to issues such as timing.

Other Family Law time considerations

Your family lawyer will be able to advise you with respect to timing issues from time under the Federal Circuit Court Rules 2001 or Family Law Rules 2004 to take certain steps, or the need to respond to a time limit imposed by a family law solicitor acting for your ex-partner. 

Being experienced lawyers, we know the tactical considerations that ought to be borne in mind. With parenting matters this can be critical to your case because a change in a child’s circumstances can be material to the outcome.

The bottom-line is don’t procrastinate, be proactive and find out where you stand early following separation.

Family law advice

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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