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)

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.

Since the merger of the Federal Circuit and Family Court almost 12 months ago, it has become common practice during the early stages of a child custody dispute for a Registrar or Judge to order a Child Impact Report.

The power for the Court to order these reports is found within section 11f and section 62g Family Law Act 1975, which are the same sections utilised to order reports, short reports, and memorandums prior to the merger. The sections allows the Court, upon its own motion, or upon the Application of a party or independent children’s lawyer, to order one or more parties and subject children to attend upon a Court Child Expert or Family Consultant for an appointment or series of appointments. After these appointments a report is produced to assist the Court and the parties to determine what is in a Child’s Best Interests.

Regulation 7 Family Consultant or Court Child Expert?

The primary difference between a Child Expert and Regulation 7 Family Consultant is the Child Expert is an employee of the Court working in the Court Children’s Services department, whilst a Regulation 7 Family Consultant is a private practitioner engaged by the Court on a fee for service basis. Further, the duties of the Child Expert are wider in scope than the Family Consultant.

Typically, these practitioners are professionally qualified as either psychologists or social workers and have specialist knowledge and experience in dealing with children from separated families, family violence and other issues associated with relationship breakdown.
A person who is engaged as a Child Expert holds a statutory appointment as a Family Consultant and an authorisation to act as a Family Counsellor however, they cannot take the role of a Family Consultant or Family Counsellor in the same case that they have been appointed a Child Expert.

Child Impact Report

The Child Impact Report is usually ordered to occur at an early stage of the parenting dispute. Having this information early is of assistance to the Court and parties to understand how the separation and issues arising from the separation are affecting children.
The types of issues explored include:

  • The nature of the children’s relationship with each parent and other family members relevant to the orders sought.
  • The children’s views with respect to any aspect of the orders sought by a party.
  • How post separation changed circumstances are affecting the children.
  • Obtaining information with respect to the children’s developmental needs and experiences.
  • Investigating what future arrangements may best meet children’s needs.
  • Making recommendations for further information and/or steps to be taken to facilitate or assist with the above.
  • Primarily the purpose of the report is to assist the Judge or Registrar to understand the issues specific to the family in framing interim orders and for case management moving forward.

The Child Impact Report process

The process commences when the order is made for the parties and children to attend with a Court Child Expert. The date for the appointment may be given by the Judge or Registrar either at the time the order is made, or notification may issue from the Court subsequently. The costs of the report are met by the Court.

Once ordered parties are required to attend and any failure to attend may result in delay, an adverse costs order being made against the non-compliant party or even an adverse inference as to a party’s attitude towards their responsibilities as a parent.
The process typically followed to produce the report is as follows:

  1. Each parent meets separately with the Court Child Expert for approximately an hour and a half or so. The Expert will have likely read the documents filed in the Court and ask questions regarding proposals, post separation parenting, difficulties and issues, family violence etc. It is not uncommon for these meetings to occur via a video link.
  2. After the parents have had their meetings, an appointment will be made for the child or children to meet with the Expert. Children may meet separately or together. The purpose of the meeting is for the Expert to offer to the children the opportunity to express their views, experiences, concerns and feelings regarding the separation, arrangements and other issues relevant to the proceeding. These interviews are conducted so as to present a safe and neutral environment for the children. While children have the opportunity to present their point of view there is no compulsion for them to speak if they don’t want to.

It is important to note that if there are issues of personal safety the Court should be made aware prior to engaging for the first meeting. Notification can be made by calling the national Enquiry Centre on 1300 352 000. The Court will work with an affected person to put in place a safety plan.

It is also important to note that the conversations between parties, children and the Expert are admissible as evidence in the proceeding. This is important to note because in some circumstances such as counselling or mediation the discussions are confidential and protected from disclosure. Also, the Court Child Expert is required to notify relevant authorities (Police or DOCS) in the event a disclosure is made during the process causing a reasonable suspicion that abuse or risk of abuse or harm has occurred.

After the Report has been completed

Once the Report has been written it will usually be sent to a party or their lawyer prior to the next Court event. The recommendations, observations and accounts form part of the evidence in the case and will likely be used to facilitate agreements between the parties or submissions if a defended hearing is required.

At an interim hearing there is not no automatic right to cross examine the Court Child Expert. However, a Senior Judicial Registrar or Judge does have the power to require the Expert to be available for cross examination if the case requires it. But this is not at all typical. There is no ability for a party to have a further discussion with the Expert after the report has issued. If the matter is to proceed beyond the interim stage to a full hearing (i.e. a Trial) it is likely a full Family Report will be ordered if issues addressed in the Child Impact report remain unresolved and in dispute.

Peter Hooper – Hooper and Mill Family Lawyers – We are family lawyers in Brisbane. Find us searching family lawyers Brisbane; divorce lawyers Brisbane; family lawyer Brisbane; Brisbane family lawyers; family law solicitors Brisbane; divorce lawyer Brisbane; family law lawyers Brisbane; divorce solicitors Brisbane; divorce lawyers in Brisbane; best divorce lawyer Brisbane.

Hooper Family Lawyers has been providing Family Law services to the Brisbane Bayside, South Brisbane and Greater Brisbane area since 1 July 2010. Like any business or project starting from scratch it has been a journey with many ups and downs. From working in my bedroom at home and worrying about whether the phone would ring today – to leasing my first commercial premises and employing my first solicitor and other support staff members, it has been an exciting, sometimes scary yet rewarding journey.

Now that journey has taken another twist, as of 1 July 2022 Hooper Family Lawyers is Hooper & Mill Family Lawyers, and it represents another milestone for me taking on my first business partner, long time former employee and friend, Mr Shaun Mill.

Shaun started with me in about late 2011 while he was studying his 4th year of law at QUT. At first, he was in the office to gain some experience and attend Court with me to see how things worked. Even back then I noticed he very quickly understood the principles behind what was going on, he had a common sense perspective, and he was genuinely interested in Family Law.

In 2012 Shaun went into his 5th year of his degrees and he continued doing work experience and odd jobs until he officially became a staff member in May 2012 – answering phones and helping out around the office.

In November 2012 Shaun graduated with a Bachelor Laws degree and Bachelor of Justice (Criminology) and after graduation he went straight in his PLT (Diploma of Practical Legal Training) through the College of Law in Brisbane.

He continued working at the firm and by now he was assisting me with legal work such as Court document production, subpoenas and correspondence. He also sat in with me for most new client appointments taking notes and gaining experience interviewing clients.

On 3 June 2013 Shaun was admitted into practice as a Queensland Legal Practitioner and I had the pleasure of moving his admission to practice before the Full Court in the Banco Court at Brisbane.

Shaun’s career continued to take off and in 2014 he married his long-term partner and high school sweetheart.

All work and no play would make Shaun an unhappy boy, so in 2016 he took extended leave enabling him and his wife to travel to Europe for a few months before returning to Australia and Hooper Family Lawyers.

Shaun and I have had many a conversation over the years about his career, opportunities available to him and how to best upgrade his skills and knowledge so refreshed from his travels he commenced his Masters Degree studies in Family Law in 2016, graduating in 2019.

While studying for his Masters and working, Shaun (with the assistance of his wife) managed to have his first daughter in 2018.

After graduating from his Masters he immediately enrolled in the first available Family Law Specialist Accreditation program which he successfully completed in 2019.

In 2020 he had his second daughter (again with the assistance of his wife) while taking over the running of the office at Victoria Point while I opened an office on the Gold Coast (you certainly can’t fault his work ethic).

What some people in legal circles might not know about Shaun is that in addition to being an exceptional family lawyer, he also an IT expert and he can build a computer from items commonly found in a garden shed (ok I exaggerated there but he does build computers).

As a confirmed luddite, I have terrible technology skills so you can imagine how much money he’s saved me in IT costs – including the time when he figured out why our Website was crashing a server when all the experts at the IT firm and digital marketing firm couldn’t work out what was happening.

As a more senior practitioner, I regularly ramble on to Shaun about how things were back in “the day”, and for the most part he usually appears to be listening. One of the things I have passed onto him is something my supervising solicitor told me back when I was doing Articles of Clerkship in the 1990’s. That is, that traditionally solicitors made agreements between each other with handshakes, not written contracts.

I know many lawyers would strongly disagree that a handshake is good business practice but for me it speaks to why I would be doing business with this person in the first place, that this person is someone I believe is of integrity, and that I trust my gut and judgement without reservation. Shaun Mill is without a doubt all these things and I am enormously proud of everything he has accomplished.

Congratulations mate it is well earned, and I look forward to working together into the future.

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

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

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

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

Equal shared parental responsibility

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

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

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

Orders for the welfare of children

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

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

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

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

Family law vaccination cases

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

Some examples of these cases are:

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

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

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

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

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

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

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

The Covid 19 List

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

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

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

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

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

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

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

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

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

Purpose

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

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

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

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

Application of the Practice Direction

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

Core Principles of the new Family Law system

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

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

Case Management

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

Pre-action Family Law procedures

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

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

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

Filing and Service of Court Applications

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

Urgent Family Law Applications

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

Triage and assessment

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

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

Allocation between Divisions of the new Family Law Court.

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

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

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

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

The factors to determine the appropriate Division are:

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

Court Events

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

First Family Law Court event

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

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

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

The purpose of the first Court date is:

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

For parenting cases it will also be considered:

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

For financial cases it will also be considered:

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

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

Interim Hearing

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

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

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

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

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

Subsequent Interlocutory Applications

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

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

Family Law Mediation

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

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

Private Mediation and external Family Dispute Resolution

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

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

In addition, lawyers must:

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

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

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

Court based dispute resolution

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

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

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

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

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

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

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

Fast Track Hearing List

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

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

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

Compliance and Readiness Hearing

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

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

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

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

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

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

Trial Management Hearing

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

Final Hearing, Unreached Matters and Judgment

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

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

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

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

 

 

 

 

 

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. 

There’s no doubt 2020 has been a difficult year. I don’t need to state the obvious or recap on what everyone already knows. 

I personally know how hard 2020 was for many people because in the latter half of 2020 my practice has been really busy and many other family lawyers in Brisbane and on the Gold Coast have told me they are in the same boat.

My belief is that as family lawyers we are in the business of “damage control”. Our role is to help minimise the inevitable damage relationship breakdown creates financially, for children, in terms of our society, and I think many of my colleagues would feel the same way. It’s understandable that people feel cynical about lawyers and the law, it’s confusing, expensive and painful.  

Prevention is better than cure

One of the first things any good family lawyer should discuss with you is prospects for reconciliation. 

Frankly this is the best resolution possible. No legal fees, no halving your net worth, no seeing your children according to a schedule.

It’s better for society as well. Children grow up to be better adults in homes free from conflict with two parents, the social security system is less likely to be called upon and people typically live longer in happy marriages. That’s not to say that anyone ought to put up with a toxic relationship either.

There are many very talented Marriage Counsellors available to help reconcile a marriage or relationship and typically their services are more emotionally rewarding and (significantly less expensive) than the services of a family law solicitor.

The Family Law Act 1975 also mandates that lawyers have a responsibility to help people resolve their issues before moving to what the lawyers do, which is sorting out the separation. Section 12C and 12E Family Law Act 1975 require lawyers to provide information regarding reconciliation services.

The often cited and well-known quote from Abraham Lincoln applies here as it does in every area of legal practice:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Getting a Divorce

Since 1975 there is only one ground for Divorce in Australia which is the irretrievable breakdown of the marriage evidenced by a period of 12 months separation. 

Before this there were various grounds such as “adultery” etc that made this difficult area even more emotionally charged when it was required to establish fault by one party. On the other hand, some people may argue the current system makes it much easier to obtain a Divorce or encourages Divorce. However, the Family Law Act 1975 also provides that the principles to be applied by the Courts in exercising their jurisdictions must have regard to, inter alia (Latin for “among other things”):

  1. The need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life.
  2. The need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children. (see section 43(1)(a) and (b)).

Section 50 provides some practical encouragement for people to be able to separate and get back together for a period of time. This section says that if a separation occurs, and the parties get back together (maybe to try and work things out), they can be back together for up to 3 months without having to “start over” on the 12 months continuous period of separation. 

For example, Romeo and Juliette decide to separate. They separate for 6 months then decide to get back together. They get back together for 2 months until Juliette realises Romeo just isn’t the same as he was 20 years ago, and they separate again. Juliette would still be able to apply for a Divorce after another 6 months and the 12-month period would not reset.

In terms of separation, this is a more complicated area of law than you might imagine. Section 49 of the Family Law Act specifies it only takes one party to the marriage make the decision to separate and that separation can involve people being 

Getting a Divorce is typically the final step usually the easiest and less complicated step speaking strictly in terms of the process. Emotionally it may be the most difficult.

A Divorce is simply “the termination of a marriage otherwise than by the death of a party to the marriage”. 

So, while many people may use that term to describe issues such as property settlement, parenting arrangements, spousal support, child support etc, the Divorce process only terminates the marriage.

All those big words

One of the interesting things about family law in Australia (and dare I say in other countries as well) is the different terminology different people use to describe aspects of the family law system.

Reason for this include the legislation changing the terminology over time. For example, in litigation involving children originally the terms were “custody and access”. In 1996 these terms were reformed to “residence and contact” and then in 2006 the terms changed again to the current “lives with and spends time with”. Nevertheless, in my experience very many people still talk about getting custody. Another reason for this (in my opinion) is that family law seems to be an area where people offer each other “barbeque advice”. This is the situation where someone knows someone who “went through a Divorce” and at a social function will provide information based on their experience as to how the system works.

The reason why all of this is relevant to the topic in the heading is because people often seek information regarding a Divorce when in actual fact a Divorce is just one aspect of a multifaceted system. 

If separation is inevitable you probably need information first and foremost. Family Law is incredibly complex and nuanced, and no lawyer can tell you what the outcome will be (ever). The more information we have in terms of the evidence the closer we get though.

Ultimately though our role is to help you to get you out of this situation with as much of your wallet, dignity and relationships intact as possible. 

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.

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.

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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