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.

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

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

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

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

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

What to do when you have just recently separated?

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

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

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

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

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

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

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

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

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

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

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

Some general tips to assist post separation 

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

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

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

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

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

Family law advice

If you have any queries in relation to family violence or parenting orders, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

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

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

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

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

What is the difference between Domestic Violence and Parenting Orders?

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

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

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

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

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

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

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

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

Resolving conflict between Domestic Violence Order and Parenting Orders

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

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

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

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

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

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

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

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

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

Queensland Domestic Violence Law

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

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

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

Tips for Domestic Violence matters involving children

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

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

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

Family law advice

If you have any queries in relation to family violence or parenting orders, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

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

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

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

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

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

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

What does it mean to go to Court?

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

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

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

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

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

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

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

The types of Court days are:

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

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

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

What should you do when you’re in Court?

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

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

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

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

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

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

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

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Mill Family Lawyers can assist you with practical advice. 

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

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