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)

It is permissible to adopt your partner’s child in Queensland, provided the process prescribed by law is followed. 

In Queensland the governing legislation is the state Adoption Act 2009 (Qld) (“AA”) and the Commonwealth Family Law Act 1975 (Cth) (“FLA”). The adoption process is conducted in the Family Court of Australia, a Queensland Magistrates Court (“Children’s Court”) and via the government department, Adoption Service Queensland – Department of Communities, Child Safety and Disability Services (“DOCS”).

The effect of step-parent adoption is a person assumes parental responsibility and becomes a parent for the child of their married or de facto partner, while the biological parent ceases being a parent and ceases to have parental responsibility under the FLA. Any parenting orders that previously existed cease to be in force.

What is the adoption process?

The adoption process starts with an application filed in the Family Court for leave (i.e. permission) to enter your name in the expression of interest registrar with DOCS to adopt the subject child, and then make an application to the State Magistrates Court.

Section 60G FLA provides:

Family Court may grant leave for adoption proceedings by prescribed adopting parent:

  1. Subject to subsection (2)…the Family Court… may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
  2. In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

The requirements of this section were examined by Murphy J in Lowe and Anor & Clayton [2011] FamCA 1024. In this case the application was heard ex parte as the subject child’s biological father couldn’t be located. His Honour noted of the process, “It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter’s ordinary jurisdiction. Nevertheless, that is the consequence of the provisions of the Family Law Act 1975.

1. FLA section 60HA(3)(a) and 60F(4)(a)
2. FLA section 61E
3.  FLA section 65J

4.  Lowe and Anor & Clayton [2011] FamCA 1024 at 3

In dealing with the ex parte application His Honour considered evidence from the mother as to the biological father’s whereabouts, her efforts to contact him, past history of significant family violence, his history of psychiatric illness and made an Order dispensing with the requirement for service. 

What are the requirements for leave to adopt a step child?

Section 60G requires that the court consider granting leave only if it is in the best interests of the child to do so, and having regard to:

  • In considering leave for the adoption proceedings to be commenced, best interests must be looked at in light of the fact the child will cease to be a child of the marriage for the purposes the FLA Section 4 FLA defines “child of the marriage” by reference to section 60F(1) to (4) as children to which children the FLA applies. The effect of this is a biological parent is effectively removed from being a person with standing (i.e. a person who is able) to bring an application in relation to the child for a parenting order This also applies to children of de facto relationships.
  • The court must consider that parental responsibility will be re allocated to another person.
  • The Court must consider the effect of existing parenting orders no longer being in effect after adoption.
  • The note to the section makes it clear that “best interests” is determined by reference to the matters that are typically considered by the court exercising jurisdiction pursuant to Part VII FLA in making a parenting order. 

In the decision referred to above Murphy J went on to hold that as an application pursuant to section 60G was “a child related proceeding”, Division 12A FLA also applied, which allows the judge to determine whether strict rules of evidence apply in conducting the hearing. Further, His Honour observed that also these applications are child related proceedings that section 96ZN ought to apply, which requires the court to consider the impact of the conduct of the proceeding on the child, and that the court actively direct and manage the proceeding to avoid undue delay, technicality and form. 

While the Family Court is not required to consider the matters to be determined by the Sate Magistrates Court these matters do bear upon whether the decision to grant leave is in the best interests of the child. 

Her Honour Hogan J said in Hurst and Anor & Chapman [2014] FamCA 506 that in considering section 208 AA the Family Court should not grant leave if appeared proceedings in a State court were doomed to fail because of non-compliance with mandatory prerequisites.

Another requirement of the AA section 16 and 175 is that the biological parent consents to the adoption. In the two cases referred to consent was not available because in one the biological parent was deceased, and in the other couldn’t be located. 

After leave to adopt has been granted

Once leave has been granted the process commences with the adopting parent’s name being entered in the expression of interest registrar with DOCS – Adoption Services Queensland.

This commences a process which culminates in a “suitability report” being produced which is put before the Children’s Court in ultimately determining the final adoption application. An approved form, known as a Form 7 commences this process.

5. Lowe and Anor & Clayton [2011] FamCA 1024 at 32
6. FLA section 60F(4)(a)
7.  However, section 65C(c) may allow a person with an interest in the care, welfare or development of a child standing to bring an application.
8. FLA section 60HA(3)(a)
9.  FLA section 61E
10.  FLA section65J
11.  Lowe and Anor & Clayton [2011] FamCA 1024 at 15
12. Lowe and Anor & Clayton [2011] FamCA 1024 at 16
13.  AA section 208
14. Lowe and Anor & Clayton [2011] FamCA 1024 at 20 to 22
15. Hurst and Anor & Chapman [2014] FamCA 506 at 8
16. AA sections 138 and 203
17.  AA sections 92 and 93

To be eligible to adopt the following must be established:

  • The applicant is a spouse (or de facto spouse) of a parent of the child.
  • The applicant has lived with the spouse parent and the child for a continuous period of at least 3 years.
  • Leave has been granted by the Family Court (as above).
  • The applicant is an adult and resident or domiciled within Australia.
  • The applicant and spouse are Australian citizens.
  • The subject child is agreed between 5 years and 17 years (an application for a child who is 17 can be made if the process can be completed before the child turns 18 and the grounds for the adoption are likely to exist.)

Consent of the biological parent

The general position is that the child’s parents must consent before the adoption can take place in Queensland. The AA provides for counselling to take place as part of this process.

In some circumstances the requirements for consent can be dispensed with, such as:

  • Applicant can’t establish the identity of the parent.
  • The applicant cannot locate the parent after all reasonable enquiries.
  • The parent is a lineal relative of the mother.
  • The conception was as a result of an offence by the relevant parent.
  • There would be unacceptable risk of harm to the child or mother if the relevant parent were made aware of the birth or proposed adoption.
  • Other special circumstances for giving dispensation. 

The term “exceptional circumstances” is referred to in section 208(f) (requirements for making a final Order) and the example given is “a parent of the child has died or cannot be located after making all reasonable enquiries.” 

18. 18.  AA section 92
19. AA section 16 and 175
20.  AA section 36(4)

Children’s Court

After the permission from the Family Court is granted to commence the adoption and all of the assessments have been made, an Application is filed in the Queensland Magistrates Court (sitting as the Children’s Court) for a final Order.

The final Order is made pursuant to section 208 AA and the requirements are:

  • The child is present in Queensland.
  • The step-parent is an adult resident or domiciled in Queensland.
  • The step-parent or their spouse is an Australia Citizen.
  • The suitability matters (referred to above) are satisfied.
  • An Order for the adoption would promote the child’s well being and best interests other than could be achieved via a Parenting Order made pursuant to the Family law Act 1975.
  • There are exceptional circumstances that warrant making an Order (such as death of the biological parent).

If you are considering adopting a step-child Hooper Mill Family Lawyers can guide you through the process and requirements.

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

Separation and divorce are unfortunate and significant life events that many people go through.

For people separating while there is the obvious grief, anger and pain over the loss of a relationship, these feelings are often compounded by fear of an uncertain future, financial concerns and child custody issues.

Read more

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Mill Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://hooperandmillfamilylawyers.com.au/

The family report has significant weight in parenting proceedings and to assist with parenting arrangements post separation. It is often very helpful to have a family report prepared prior to mediation or family dispute resolution to assist separated parents. It is important to understand what the report entails, who writes it, and how it affects custody arrangements. 

Who writes it?

The court appoints a specialist family report writer to write the family report. The family report writer is an independent expert and can be appointed privately by the parties or as Court appointed “family consultant”. Strictly speaking the report writer has the status of being a Court Expert (Federal Circuit Court Rules) or Single Expert witness (Family Court Rules). This means the family report writer is not a witness for either party and may be cross examined by either party. The specialist normally has a background in psychology and/or social work.

How is the report written?

Once the court appoints the report writer or consultant they begin the interview and observation process. They will interview both parents and people close to the family and often observe the children in an informal interview, observe transition between adults, and see how they interact with the adults. The children have the option to speak with the family report writer or consultant but can choose not to.

What factors are considered?

In a custody matters, the aim is to ensure the best interests of children are met. Interviews with family members assist to determine issues in the custody matter that need to be addressed and provide recommendations as to the best interests of the children:

  • The nature of the existing parenting arrangements and important relationships in the lives of the children (parental and other)
  • Examination of allegations of unacceptable risk of harm (physical, psychological or sexual)
  • The responsibility parents have shown towards obligations as parents
  • The parent’s capacity to care for their children
  • The views of the children in the case

To keep in mind

It is important to make sure you attend the interview process. Failing to attend may cause delay, potentially cause costs against you, or that the family report is admitted into evidence without your input. Your divorce lawyer should provide you with date, time and other necessary information in advance. 

The report is only one piece of evidence in the case but the judge usually places a fair degree of weight on the opinion of the independent expert. The report writer or consultant makes recommendations about custody and access to children but the court isn’t obliged to follow them. If there’s an argument about the report, there’s an opportunity to cross-examine the consultant and the family members they interviewed.

Lastly, there’s no such a thing as off the record in a meeting with the report writer or consultant. They’re obliged to write a thorough report. Anything they’re told either goes in writing or sent to the court.

Family Consultant FAQs

What is a family report?

In 2006 the Howard Government made changes to the Family Law Act 1975. This made Family Dispute Resolution (generally mediation) compulsory in most parenting matters. An Accredited Family Dispute Resolution Practitioner conducts the mediations. They have the authority to issue a certificate related to section 60I of the Act.

The Certificate (or final report) is like a piece of evidence for the Court. It includes whether the parties both attended mediation and made a genuine attempt to mediate or whether the Family Dispute Resolution Practitioner determined mediation is inappropriate.

Child focused or child inclusive mediation are two mediation models made to help parents work out a suitable parenting arrangement after their separation. Below is basic information on these models, the mediation process and recording of agreements.

What’s child focused and child inclusive mediation?

Child focused mediation seeks to encourage the parties to look beyond their disputes and consider how the agreements benefit the children. Often the mediator will educate the parents to better understand how the dispute and separation negatively impacts their children, both in the long and short term. Hopefully this information will help the parents to look beyond their positions, personal
wants and needs and encourage them to focus on the children.

The child inclusive mediation takes this a step further by arranging for the children to have an interview with a qualified child consultant. They speak with the children in a separate session, and will relay the children’s thoughts and feelings to the mediator and the parents. The child consultant carefully considers what information to report; their priority is the child’s welfare in the separation.

Child focused mediation resulted in greater fulfilment with the mediation process and longer lasting agreements. Child inclusive mediation, though, provided even better results than child focused mediation in these areas. (McIntosh, Wells et al, 2008:46McIntosh 2007:4)

Screening process

In this initial process, each parent meets with the Family Dispute Resolution Practitioner mediator. They screen for factors that may make mediation inappropriate. These factors include family violence, substance abuse, mental health and other imbalances affecting a party’s ability to participate in mediation.

On occasion the Family Dispute Resolution Practitioner will need to “balance power”. It’s not unheard of for both sides to try and “tip” the balance in mediations to their advantage. Therefore, the screening is vital to determine the needs of the parties and if mediation is a realistic route to take.

Facilitative mediation

The Family Dispute Resolution Practitioner’s role is to assist the parties to determine the outcome for the dispute themselves. It isn’t the role of the Family Dispute Resolution Practitioner mediator to advise or influence a party.

Generally, the Family Dispute Resolution process will require these steps:

  1. Mediator opens the proceedings and explains the rules;
  2. Receive opening statements from the parties. Both sides should speak uninterrupted;
  3. The mediator acknowledges and identifies common ground; An agenda is set in terms of the topics that need discussing;
  4. Both sides engage to explore the topics in the agenda;
  5. The mediator identifies options and obstacles;
  6. The mediator holds confidential private sessions with each party to discuss the viability of the options covered in the meetings;
  7. Negotiation between the parties;
  8. If an agreement is reached, it’s put on record.

Parenting Plans

Parenting Plans are methods of recording the agreements. These are written, signed and dated. These plans aren’t enforceable in a Court. But if the matter makes it that far, the Parenting Plan is evidence that an agreement exists, and is usually persuasive with the Court’s final decision.

The emotional stress of divorce is felt through any family, especially to the youngest and most sensitive members. The children. The child inclusive mediation method was developed in response to research about the effect parental conflict during separation has on children. The primary goal of this method, according to Professor Lawrie Moloney, is to re-establish and maintain a secure emotional base for children post separation (Moloney 2012:3)

What’s the child inclusive mediation method?

Dr Jennifer McIntosh, a clinical child psychologist, describes some of the fundamental elements of the CI process as follows (McIntosh 2007:5):

  • The session with the children must be supportive and appropriate as to the dispute and separation
  • Decision making shouldn’t be a burden the children carry
  • A therapeutic element is needed to help children with coping, providing information and validating their experiences
  • Assisting parents to hear and reflect upon the children’s experiences to better understand the children’s needs

Child inclusive mediation “ups the ante” by directly involving the children. This way the parents truly understand how their child feels and what they want. Expert advice is still considered in the proceedings as they’d meet with the children to gauge their state of mind during the separation.

The ultimate goal of any mediation involving young people is to reduce conflict and to prohibit agendas or “tactics” one parent may use over another to gain primary custody.

Does this method work?

In a 2006 study, 79% of the combined child-inclusive and child-focused mediation participants reported flattening out of their conflict. Other statistics from the study showed:

  • 82% of CI cases felt this method had improved the way their dispute was handled
  • 61% of children reported better outcomes for the family

In mediation, a clichéd image is the mother having primary custody awarded to her. However, there is an interesting result from the 2006 study. There was less acrimony, greater fulfilment with resolutions and a stronger sense of agreement among fathers in the year after the mediation (McIntosh and Long 2006:122). Fathers also had a greater perception of fairness from the child inclusive process (McIntosh and Long 2006:124)

For mothers there was a greater sense of preservation in the bond with their children. The benefits for the children included a perceived “closeness” with their father’s. They also reported being happier with agreements 1 year after the mediation (McIntosh and Long 2006:122).

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

  1. Children have rights; while parents have responsibilities;
  2. Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

  • Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
  • Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
  • If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
  • Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
  • Can they give a gift to the other parent?
  • Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

 

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

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 Brisbane Family Lawyers servicing all areas.

In the period leading up to Christmas our office routinely receives enquiries from people about “child custody”, “custody rights”, “family law custody” or “child custody laws”.

While these terms haven’t been used in the family law context since 1995[i], and given we are almost 20 years down the track; they’ve remained in the minds of some people presented with parenting issues.

There’s been a change in terminology in family law due to a shift in the context in which the court examines a parenting dispute.-In approaching the exercise of making a parenting order, the court comes from a perspective that while children have rights; parents have responsibilities.

Terms that suggest ownership or right such as “child custody rights” i.e. my right to child custody, are not relevant to the modern Family Court. Further, parents who think in these terms may be inadvertently doing a disservice to the presentation of their case.

So how should I approach Family Law child custody? And what if I don’t want to go to Court?

Whether or not you want, or need, to go to Court the best outcomes for your children (and most likely for you) will be achieved by “child-focused thinking”.

This means framing your proposal for the separated co-parenting arrangements according to the following types of considerations:

  • Is the proposal “businesslike”? Have you been able to put aside your animosity towards the ex partner when considering the proposal?
  • Has the proposal been considered in terms of what is practical for the children?
  • Is the proposal likely to be enjoyable for them?
  • Does the proposal make concessions as to what benefits they receive in the other household?
  • What are your motivations in making the proposal? i.e. are you looking to advance the children best interests?

Some of the rights children have are to enjoy spending time regularly with both parents, (consistent with what is necessary to keep them safe from harm), have meaningful relationships with both parents and extended family, receive adequate and proper parenting etc.

In my experience not many parents consulting a Brisbane family lawyer would disagree children should not have these rights or that children are “property” such as is suggested by thinking in terms of custody laws.

What about this Christmas – I don’t have parenting orders or a parenting agreement in place?

Some ex partners are difficult (believe me I know).

The best you can do is control what you’re doing. This is an area of law where two wrongs don’t make a right.

Remember you need to be child focused; and you should act “responsibly” for your children. Here are some tips for Christmas holidays negotiations:

  • Try and use email for your communications. While face to face may be best to repair a relationship, not so here. Remember your email may end up annexed to an affidavit so behave in a businesslike and child focused manner when communicating your proposal;
  • As part of being child focused think about your proposal. Cover the above points.
  • Avoid being reactive. He or she may say something stupid, insulting, threatening or abusive. Don’t react – you have it in writing;
  • During the festive season don’t drink text or email. At Christmas many people have a few drinks and emotions are running high with separation and absent children at a family time of year. Again, the focus needs to be the children and not your own pain. Things will work out long terms if you stay calm;
  • Look after yourself. Don’t overdo it and set those resolutions in place for the New Year. I often say to my clients “it’s a marathon not a sprint” which is particularly relevant when dealing with a difficult ex partner.

I hope anyone taking the time to read this has found it helpful and informative. Have a merry Christmas in 2014; and a Happy New Year in 2015.

Peter Hooper – Hooper Mill Family Lawyers


 

[i] The Family Law Reform Act 1995 (Cth) replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”.

The Family Law Act 1975 has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with”.

Copyright © 2023 Hooper & Mill Family Lawyers. All rights reserved. Website Designer