Introduction
The Family Law Amendment
(Shared Parental Responsibility) Act 2006 heralded substantial changes to
the way in which parenting disputes were to be determined in Australia. In the
Explanatory Memorandum to the amending Act it was noted the changes hope to:
“support and promote shared parenting
and encourage people to reach agreement about parenting of children after
separation…”[i]
Although concepts of
parental responsibility and shared parental responsibility were not new to the
legislation or the Courts in 2006, the amendments introduced a rebuttable
presumption that in all parenting matters, equal shared parental responsibility
applied – unless it was established to be not in the best interests of a child
(i.e. rebutted); or there was reasonable grounds to for the Court to believe
that a parent of the child had engaged in family violence.[ii]
What is Parental
Responsibility?
Parental responsibility in
relation to a child means all of the duties, powers, responsibilities and
authority which by law parents have in relation to children.[iii]
This definition hasn’t been
significantly expanded upon by the Courts and remains a somewhat abstract
concept. In a judgement by Carmody J, His Honour said:
“…apart
from the primary duty to maintain and the authority to make decisions relating
to the care, welfare and development of the child, the precise scope of
parental responsibility is undefined.”[iv]
Essentially,
parental responsibility is the responsibility to provide love and emotional
support, teach children right from wrong, and ensuring their needs (including
educational needs) are met. It includes, but is not limited to, making
decisions for children with respect to where a child lives, medical treatment,
education, religious upbringing, a child’s name or change of a child’s name,
social interactions, protection from harm, travel and children’s passports and
marriage of children under 18 years.[v]
When
does the Family Court become involved in Parental Decisions?
The Family
Law Act 1975 provides that each of a child’s parents under 18 years have
parental responsibility.[vi] Thus the starting
position is that parents each have and share parental responsibility.
The need
for a court to allocate parental responsibility occurs when parents have a
dispute over some aspect of making decisions for their children, and parental
responsibility is only diminished to the extent that an Order of the Court
specifies. The Full Court of the Family Court has made it clear that limiting
parental responsibility should only occur where the circumstances warrant it:
“Where no contrary Order has been made,
parents may exercise this responsibility independently or jointly. This would
be so whether the parties were married, living together, never married, never
lived together or separated so long as there was no contrary Order in force…”[vii]
So
…what is equal shared parental responsibility?
In the
case of Goode and Goode (2006) FLC 93-286 the court examined whether
there was any difference between the parental responsibility parents
automatically have (discussed above)[viii], and an Order for equal
shared parental responsibility i.e. the above “rebuttable presumption”
introduced in 2006.[ix]
The Court
determined there was a distinction.
The
distinction is that when parental responsibility is not allocated by an Order
(such as an Order for equal shared parental responsibility via the
presumption), parents may still exercise their responsibilities independently.
When an
Order for equal shared parental responsibility is made it requires that certain
decision for children must be made jointly.[x]
What
are the parenting decisions that must be made jointly?
Decisions
that must be made jointly with respect to children are those that concern
“major long-term issues”.[xi] This requires parents to:
- Consult
with respect to the decision to be made;
- Make
a genuine effort to come to a joint decision;
- Make
the decision jointly.
Major
long-term issues are defined as issues about the care, welfare and development
of the child of a long-term nature and includes (but is not limited
to) issues of that nature about the child’s education,
religious and cultural upbringing, health, a child’s name; and changes to
the child’s living arrangements that make it significantly more difficult
for the child to spend time with a parent.[xii]
In terms
of the day to day decisions for children such as what a child eats, what time
they go to bed, what they can watch on TV, or the video games they play etc,
these decisions don’t need to be made jointly, and can be made by the parent
with whom the child is with at the time, without consultation.[xiii]
Equal
time
Another
effect of the rebuttable presumption of equal shared parental responsibility is
that when the section[xiv] applies, and is not
rebutted, it creates a mandatory pathway for the judge to consider “equal time”
first, then “substantial and significant time” second and lastly “other time”,
if the first two are determined to be not in the best interests of a child or
not reasonably practicable.[xv]
For more
information on “equal time” arrangements I have examined this in my Equal
time blog click to
access.
Conclusion
and significance of equal shared parental responsibility
Apart from
the significant of equal shared parental responsibility requiring a Judge to
consider equal time first, it also requires that parents readily embrace the
involvement of the other parents in a child’s life.
This is
consistent with the rights of children set out in the legislation which
includes ensuring that children have the benefit of both of
their parents having a meaningful involvement in their lives
(consistent with their best interests); and having the right to know and be
cared for by both of their parents.
It is
also consistent with advancing the obligations on parents towards their
children, including, ensuing parents jointly share duties and
responsibilities concerning the care, welfare and development of
their children; and that parents should agree about the
future parenting of their children.[xvi]
Peter
Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law
specialists, providing Expert Family Law advice and representation.
[i]
Repeated in 5th Ed Master Family Law Guide 4-000
[ii]
Section 61DA Family Law Act 1975
[iii]
Section 61B Family Law Act 1975
[iv] W
v G [No1] (2005) FLC 93-247 at 80,049
[v] 5th
Ed Master Family Law Guide 4-020
[vi]
Section 61C(1) Family Law Act 1975
[vii] Goode
and Goode (2006) FLC 93-286 and Section 61D(2) Family Law Act 1975
[viii]
Sections 61B, 61C and 61D Family Law Act 1975
[ix]
Section 61DA(1) Family Law Act 1975
[x] Goode
and Goode (2006) FLC 93-286 at
[xi]
Section 65DAC(1)(b) and (2) Family Law Act 1975
[xii]
Section 4 Family Law Act 1975
[xiii]
Section 65DAE Family Law Act 1975
[xiv]
Section 61DA Family Law Act 1975
[xv]
Section 65DAA Family Law Act 1975
[xvi]
Section 60B Family Law Act 1975
Congratulations Shaun Mill
In the last 12 months Shaun Mill of our office has completed two very significant milestones in his career as a Brisbane family lawyer.
First, Shaun graduated from his Masters degree in Applied Family Law in 2018; and second, Shaun has successfully completed Accredited Specialisation – Family Law in November 2019.
Most, if not all, Australian lawyers would be familiar with the Specialist Accreditation program overseen by the various State Law Societies.
The purpose of the program is to signal to the public utilising legal services that a practitioner has a higher level of experience and knowledge within the area of specialisation. On the Queensland Law Society website, the Society says of the program:
“The program provides practitioners with an opportunity to be formally recognised for their high level of competence and knowledge in their particular area of expertise… [and provides] … the public, and the legal profession, with a link to practitioners who are leaders in their field. Accredited specialists have successfully completed an advanced, peer reviewed assessment program specific to their area of expertise. The Specialist Accreditation Logo and post nominals, are a nationally recognised “mark of excellence”.”
In completing his assessment Shaun has undergone rigorous practical and written examinations, been required to provide peer references, and he has met the minimum 5 years of practice predominately within the field (in Shaun’s case almost 7 years exclusively in Family Law at the time of writing this).
Shaun grew up in the Redlands and started his career at Hooper Mill Family Lawyers doing some work experience and accompanying me to Court in his 4rd year at uni of his 5 year double degree. Just prior to completing his degree in 5th year he came to work for us full time and completed his PLT graduate diploma (practical legal training) while working with us.
In the years following Shaun has gone from strength to strength and has established himself as an excellent practitioner with a very bright career ahead of him. I am very proud to have had the opportunity to mentor Shaun and to have him as part of my firm.
During all of this hard work Shaun has also managed to travel to Europe, the USA and Maldives on separate occasions, get married to his lovely wife and become a father to his beautiful daughter… congratulations Shaun.
Your first appointment with a family lawyer
Why a family lawyer is necessary?
Once the dust settles from the immediate emotional aspects of a separation, for many people thoughts will turn towards how and what is the best course of action to facilitate a swift, clean and lest costly relationship breakup.
From a myriad of concerns, things such as financial support and obligations, entitlement to a property settlement, child custody and child support often feature prominently in terms of the information people require.
What can also be complicating for people is misinformation. Misinformation can come from well-intentioned family and friends reciting “back yard barbeque advice” and anecdotes about a guy they know who had a divorce, through to the large quantity of information available on the internet, often lacking context, explanation and/or completeness.
The reality is the family law in Australia is incredibly complex and nuanced. Nuanced in that remedies are often discretionary and subject to legislative requirements that have only been defined by a significant body of case law. Judges for the most part have their own style of conducting their Court and hearings.
All of this means that it is incredibly important for people experiencing a separation to obtain advice from a lawyer that is both experienced and knowledgeable in the family law system.
Bad advice and bad decisions early on can go a long way towards making separation more painful, drawn out and expensive.
First family law appointment
The first appointment or initial attendance is very important for most clients. Typically, clients will have many questions, they will be anxious about their financial future or parenting after separation; and they may be struggling with emotional aspects of the separation. If they haven’t dealt with lawyers before this may also be a source of stress.
While information and guidance is important, it is also important for the client to get a feel for their lawyer as a person, and determine whether they have confidence in the lawyer and can develop a rapport.
An essential skill for a good family lawyer is the ability to listen to a client. Listening is more than just recording the client’s story. It is about picking up on the subtext and non-verbal cues that allow the lawyer to understand their client and their client’s case. Asking the right questions of a client is also important for the lawyer in gathering information. If the lawyer doesn’t understand your case, they cannot properly advise you or advocate for it in Court.
Once a client has explained their situation and needs, the lawyer can provide information and guidance. As well as information regarding the relevant law and procedure from a theoretical and practical perspective, information also covers:
I consider the initial attendance sufficiently important that Hooper Mill Family Lawyers does two things that many other family lawyers don’t do.
Firstly, we don’t put a limit on the time we spend with a person at the initial attendance. We consider that the above is sufficiently important to warrant spending as much time as is necessary to ensure the lawyer has a complete understanding of the client’s needs; and the client has their questions answered; and understands the lawyer’s advice and recommendations.
Secondly, we don’t time cost for an initial attendance. We charge fixed fee ensuring people do not feel rushed by time costing.
One of the most rewarding moments for me as a family lawyer is the feedback I get at the conclusion of an initial attendance. The most common response is “I feel so much better now”. It’s not just the words, but the change in demeanour and expression from when a person walks into the office, to when they are walking out with clear short- and long-term guidance.
What do I need to do or bring if I want to see a family lawyer?
A phone call or email and a booking is the first step.
If you can bring information regarding relevant dates such as birthdays, de facto cohabitation or marriage dates, separation dates etc this is helpful. In property matters it is also helpful if you can provide a list of what you and your partner or ex-partner own and owe (including superannuation or other interests).
At the end of the day though if you don’t have this information, we can still help you, and for us family law problems have solutions.
If you would like to meet with us contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Mill Family Lawyers Coolangatta on (07) 5599 3026.
What is Equal Shared Parental Responsibility?
Introduction
The Family Law Amendment (Shared Parental Responsibility) Act 2006 heralded substantial changes to the way in which parenting disputes were to be determined in Australia. In the Explanatory Memorandum to the amending Act it was noted the changes hope to:
“support and promote shared parenting and encourage people to reach agreement about parenting of children after separation…”[i]
Although concepts of parental responsibility and shared parental responsibility were not new to the legislation or the Courts in 2006, the amendments introduced a rebuttable presumption that in all parenting matters, equal shared parental responsibility applied – unless it was established to be not in the best interests of a child (i.e. rebutted); or there was reasonable grounds to for the Court to believe that a parent of the child had engaged in family violence.[ii]
What is Parental Responsibility?
Parental responsibility in relation to a child means all of the duties, powers, responsibilities and authority which by law parents have in relation to children.[iii]
This definition hasn’t been significantly expanded upon by the Courts and remains a somewhat abstract concept. In a judgement by Carmody J, His Honour said:
“…apart from the primary duty to maintain and the authority to make decisions relating to the care, welfare and development of the child, the precise scope of parental responsibility is undefined.”[iv]
Essentially, parental responsibility is the responsibility to provide love and emotional support, teach children right from wrong, and ensuring their needs (including educational needs) are met. It includes, but is not limited to, making decisions for children with respect to where a child lives, medical treatment, education, religious upbringing, a child’s name or change of a child’s name, social interactions, protection from harm, travel and children’s passports and marriage of children under 18 years.[v]
When does the Family Court become involved in Parental Decisions?
The Family Law Act 1975 provides that each of a child’s parents under 18 years have parental responsibility.[vi] Thus the starting position is that parents each have and share parental responsibility.
The need for a court to allocate parental responsibility occurs when parents have a dispute over some aspect of making decisions for their children, and parental responsibility is only diminished to the extent that an Order of the Court specifies. The Full Court of the Family Court has made it clear that limiting parental responsibility should only occur where the circumstances warrant it:
“Where no contrary Order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never married, never lived together or separated so long as there was no contrary Order in force…”[vii]
So …what is equal shared parental responsibility?
In the case of Goode and Goode (2006) FLC 93-286 the court examined whether there was any difference between the parental responsibility parents automatically have (discussed above)[viii], and an Order for equal shared parental responsibility i.e. the above “rebuttable presumption” introduced in 2006.[ix]
The Court determined there was a distinction.
The distinction is that when parental responsibility is not allocated by an Order (such as an Order for equal shared parental responsibility via the presumption), parents may still exercise their responsibilities independently.
When an Order for equal shared parental responsibility is made it requires that certain decision for children must be made jointly.[x]
What are the parenting decisions that must be made jointly?
Decisions that must be made jointly with respect to children are those that concern “major long-term issues”.[xi] This requires parents to:
Major long-term issues are defined as issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about the child’s education, religious and cultural upbringing, health, a child’s name; and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[xii]
In terms of the day to day decisions for children such as what a child eats, what time they go to bed, what they can watch on TV, or the video games they play etc, these decisions don’t need to be made jointly, and can be made by the parent with whom the child is with at the time, without consultation.[xiii]
Equal time
Another effect of the rebuttable presumption of equal shared parental responsibility is that when the section[xiv] applies, and is not rebutted, it creates a mandatory pathway for the judge to consider “equal time” first, then “substantial and significant time” second and lastly “other time”, if the first two are determined to be not in the best interests of a child or not reasonably practicable.[xv]
For more information on “equal time” arrangements I have examined this in my Equal time blog click to access.
Conclusion and significance of equal shared parental responsibility
Apart from the significant of equal shared parental responsibility requiring a Judge to consider equal time first, it also requires that parents readily embrace the involvement of the other parents in a child’s life.
This is consistent with the rights of children set out in the legislation which includes ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives (consistent with their best interests); and having the right to know and be cared for by both of their parents.
It is also consistent with advancing the obligations on parents towards their children, including, ensuing parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and that parents should agree about the future parenting of their children.[xvi]
Peter Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law specialists, providing Expert Family Law advice and representation.
[i] Repeated in 5th Ed Master Family Law Guide 4-000
[ii] Section 61DA Family Law Act 1975
[iii] Section 61B Family Law Act 1975
[iv] W v G [No1] (2005) FLC 93-247 at 80,049
[v] 5th Ed Master Family Law Guide 4-020
[vi] Section 61C(1) Family Law Act 1975
[vii] Goode and Goode (2006) FLC 93-286 and Section 61D(2) Family Law Act 1975
[viii] Sections 61B, 61C and 61D Family Law Act 1975
[ix] Section 61DA(1) Family Law Act 1975
[x] Goode and Goode (2006) FLC 93-286 at
[xi] Section 65DAC(1)(b) and (2) Family Law Act 1975
[xii] Section 4 Family Law Act 1975
[xiii] Section 65DAE Family Law Act 1975
[xiv] Section 61DA Family Law Act 1975
[xv] Section 65DAA Family Law Act 1975
[xvi] Section 60B Family Law Act 1975
Looking for a Brisbane or Gold Coast based Family Lawyer?
Separation and divorce are unfortunate and significant life events that many people go through.
For people separating while there is the obvious grief, anger and pain over the loss of a relationship, these feelings are often compounded by fear of an uncertain future, financial concerns and child custody issues.
Read moreChanges to promote domestic violence protection coming on 10 September 2019
The Federal government has enacted changes to the Family Law Act 1975 (FLA) that will prohibit the cross examination by self-represented parties in proceedings where there are family violence issues.
Family violence in the FLA means violent, threatening or other behaviours that coerces or controls a family member or causes them to be fearful.
The changes will apply when family violence is alleged in child custody, property settlement or spousal maintenance proceedings, and any one of the following situations also occur:
Therefore, in family violence matters as set out above, the parties will need their own family law advice and divorce lawyer to conduct the cross examination for them.
We specialise in family law matters and can assist parties from Lismore to the Sunshine Coast, throughout Greater Brisbane, Northern NSW, Tweed and the Gold Coast with court representation and advice. Get in contact today and in an initial consultation we can give you guidance as to your options, likely outcomes and costs.
What if a party can’t afford legal advice or legal representation?
In these circumstances a party may apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme, to have a family lawyer and barrister appointed for them to conduct the cross examination.
Applying for a lawyer will be done via the state Legal Aid offices, is not merit or means tested and the application must be made at least 12 weeks before the final hearing.
This means that regardless of your financial circumstances you will be able to have the lawyer represent you for the cross examination.
We are Legal Aid Queensland panel solicitors and can assist you with applying for Legal Aid as well as Legally Aided court representation.
When is cross examination necessary?
Cross examination of a witness in family law cases usually only occurs at a final hearing.
Therefore, if you have reached an agreement via mediation or through consent orders or parenting plan, then cross examination won’t be necessary.
If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Mill Family Lawyers Coolangatta on (07) 5599 3026.
Family Law Property Settlement without having to go to Court
Most people following marriage breakdown and separation wish to avoid having to go to court and want to resolve property settlement as quickly and as cost effectively as possible.
Separation is an emotional time and it is not uncommon for family law solicitors to encounter situations where poor communication and troubled relationships impede the party’s ability to resolve the dispute.
While people usually think of lawyers and Court, they think of court hearing and family law litigation, however when emotions are high, family lawyers and the Court Rules and procedures can assist in resolving the property settlement.
Family Court and Federal Circuit Court pre-action procedures
In the Family Court of Australia, there are strict pre-action procedures that have to be followed prior to commencing property settlement proceedings.
There are no such strict requirements in the Federal Circuit Court, however parties are encouraged to make a genuine effort to resolve the matter by Family Dispute Resolution prior to commencing proceedings.
Most Family Law matters would be filed in the Federal Circuit Court; however, it is helpful if the pre-action procedures are followed in all matters.
Explore Mediation and Family Law Dispute Resolution
Once you see your lawyer and get some advice as to where you stand it can be helpful to make contact with the other party and provide a copy of the pre-action procedures brochure produced by the Family Court and invite the other party to participate in a dispute resolution process. This can include a mediation, arbitration and/or negotiation through solicitors.
If the other party refuses to engage in negotiation, attend dispute resolution or attends but it is unsuccessful, then a written notice of intention to commence proceedings can be forwarded to the other party.
Family Law Rules 2004 r1.05.
Federal Circuit Court Rules 2001 r1.03
Family Law Rules 2004 Schedule 1 Part 1 (1)(a).
Family Law Rules 2004 Schedule 1 Part 3 (4).
This notice sets out the issues in dispute, the orders being sought and a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).
The other party should respond with his or her position. If no response is received proceedings could be commence if the party desires. The advantages of this are:
Other steps to assist in resolving family law property settlement faster with less expense
Each party has a duty to make full and frank disclosure of all information and documents relevant to the dispute. This should occur when the negotiations are taking place and should include a schedule of assets and liabilities and supporting documents. It should also include income (i.e. tax returns) and details of any property disposed of or purchased since separation.
The best way forward is to produce a list of the documents you have for disclosure and provide the list to the other party. The other party should disclose documents relevant to the dispute that are within his/her possession or if he has the power to obtain them. However until a Judge Orders disclosure, there is no way to enforce the obligation. By providing your disclosure contemporaneously with a request the other party is more likely to comply and be less suspicious of the process. We generally recommend to self-represented people who are unsure about obligations to make disclosure to seek independent legal advice.
If a party refuses to make disclosure, Court action can become necessary to compel compliance. Thus, making timely disclosure makes commencing proceedings less likely to be necessary.
If no disclosure is ongoing there can be substantial consequences for non-disclosure, including that a party may not be able to rely on the document as evidence, client may face a costs order or be guilty of contempt or the court.
When pre-action procedures may not be appropriate
There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute. If the matter does not fall under one of the exceptions parties and lawyers should follow the procedures.
Family Law Rules 2004 Schedule 1 Part 3 (6).
Family Law Rules 2004 Schedule 1 Part 3 (5).
Family Law Rules 2004 r 13.01; Family Law Rules 2004 Schedule 1 Part 4 (1).
Family Law Rules 2004 r 13.01 (2); Family Law Rules 2004 Schedule 1 Part 4 (2)
Family Law Rules 2004 Schedule 1 Part 4 (2)(a).
Family Law Rules 2004 r 13.04.
Family Law Rules 2004 Schedule 1 Part 5 (b).
Family Law Rules 2004 r 13.07.
Federal Circuit and Family Court
Update on Family Court and Federal Circuit Court reform
In May 2018 Peter Hooper’s blog referred to the Federal Government’s announcement of a significant shake up of the Australian Family Law Courts system.
The changes were due to occur on 1 January 2019 however delays have been encountered and at the current date the changes haven’t come into effect.
This article outlines the current structure and difference between the courts exercising jurisdiction pursuant to the Family Law Act 1975.
The current Family Law Courts structure
The Federal Circuit Court and Family Court are two separate divisions of the same court that operate under the Family Law Act. For example, applications for Parenting Orders can be made to both courts,[1] however there are guidelines as what type of parenting matters are filed in which court.
Family Court
A Protocol for the division of work between the two courts was released in April 2013. This protocol is not binding but it offers guidance to solicitors and judicial officers.[2]Using the example for parenting matters, this protocol advised that parenting matters involving the following issues should be filed in the Family Court of Australia or transferred to the Family Court of Australia (where the matter had already been filed).[3]
[1]Family Law Act 1975 (Cth) s 69H.
[2]Morris &Rosetti [2017] FamCA 249.
[3]Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court – 12 April 2013.
In addition to the above, the Family Court of Australia has exclusive jurisdiction in relation to adoption.[4]
Further, if there are allegations of sexual abuse or physical abuse, the matter may be placed in the Magellan List. This is a list that is designed to fast-track proceedings that involve these allegations in accordance with the requirements of the Family Law Act.[5]
Transfer of Proceedings
If the matter has been filed in the Federal Circuit Court, the court has the power to transfer the proceedings to the Family Court.[6] In deciding whether to transfer the proceedings the court has regard to the following:
The court can transfer the proceedings of its own initiative or by the request of one of the parties (made by application and supporting affidavit).[10]
The Federal Circuit Court is responsible for the bulk of cases while the Family Court hears more complex cases and is responsible for Appeals.
[4]Family Law Act 1975 (Cth) s 69H (4).
[5]Family Law Act 1975 (Cth) s 67ZBB.
[6]Federal Circuit Court of Australia Act 1999 (Cth) s 39 (1); Morris & Rosetti [2017] FamCA 249.
[7] Federal Circuit Court Rules 2001 r 8.02 (4) (a).
[8] Federal Circuit Court Rules 2001 r 8.02 (4) (b) and (c).
[9] Federal Circuit Court Rules 2001 r 8.02 (4) (e).
[10] Federal Circuit Court Rules 2001 r 8.02 (1) and (3).
The reform
It is envisaged the new Federal Circuit and Family Court of Australia will be one Court with two Divisions, and the shared registry will continue for both divisions. Basically, division one will be what was the Federal Circuit Court and Division two will be made up of the Family Court Judges. Appeals will be sent to an appeal division of the Federal Court of Australia.
One set of Court Rules will apply obviating the necessity for situation currently with theFederal Circuit Court Rules 2001 and the Family Court Rules 2004 both operating.
Current progress of the reform
The third reading of the Federal Circuit Court and Family Court of Australia Bill 2018 in the House of Representatives was agreed to on 27 November 2018 with the second reading moved in the Senate on 3 December 2018.
How the new structure will operate in practice is still “wait and see” however it is hoped the reform will assist Families navigating their way through parenting matters and family law property settlement matters to obtain faster and more cost effective family law outcomes.
Shaun Mill
If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Mill Family Lawyers on the Gold Coast on (07) 5599 3026.
Parenting Process
How is a child custody dispute resolved in Queensland without going to Court?
Firstly, parenting disputes in Queensland are dealt with in the same way as for the majority of the Country.
This is because since most States referred their power over children’s matters back to the Commonwealth. Thus, the law concerning parenting after separation, parental responsibility, child support and custody come under Federal Legislation and Courts i.e. the Family Law Act 1975, Child Support Assessment Act 1989 and the Family Court and Federal Circuit Court of Australia.
Under the Family Law Act 1975 the focus is very much towards assisting parents to resolve parenting cases themselves, with the necessity of a Judge determining who children will live with and spend time with being a last resort.
The first step in Parenting Matters – Family Dispute Resolution and the Section 60I Certificate
Prior to commencing parenting proceedings,it is necessary to attend Family Dispute Resolution or FDR. This is in effect a Mediation where an independent mediator trained as a Family Dispute Resolution Practitioner (FDRP) assists the parties to make a parenting agreement, usually recorded in a Parenting Plan.
After the parties attend this mediation, the Registered Family Dispute Resolution Practitioner is required to produce a “mediation certificate” if requested by a party.[1]These certificates are commonly referred to as section 60I certificates and can be issued on any of the following grounds:
[1]Family Law Act 1975 (Cth) s60I (7).
[2]Family Law Act 1975 (Cth) s60I (8) (a).
[3]Family Law Act 1975 (Cth) s60I (8) (aa) and (d).
[4]Family Law Act 1975 (Cth) s60I (8) (b).
Exceptions to needing a Section 60I Certificate
The following exceptions allow a party to commence proceedings without a certificate:
What happens if you don’t have a section 60I Certificate?
The court will refuse to accept an Application for filing that does not have a certificate attached or an affidavit of non-filing of dispute resolution certificate with the appropriate exception addressed.
If a party attends FDR but does not make a genuine effort, the court may make an order requiring the parties to go to FDR again and the court might make a costs order against that party.[12]
Other issues before going to the Family Law Court
There are also strict pre-action procedures that have to be followed in the Family Court.[13] These do not exist in the Federal Circuit Court;however, it is good practice to follow them.[14]
Here a party must provide the pre-action brochure to the other party and engage in settlement discussions.[15]Also, forward a notice of intention to commence proceedings.[16] This notice must set out the issues in dispute, the orders being sought, a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).[17]
[5]Family Law Act 1975 (Cth) s60I (8) (c).
[6]Family Law Act 1975 (Cth) s60I (9) (b) (i).
[7]Family Law Act 1975 (Cth) s60I (9) (b) (ii).
[8]Family Law Act 1975 (Cth) s60I (9) (b) (iii) and(iv).
[9]Family Law Act 1975 (Cth) s60I (9) (b) (i).
[10]Family Law Act 1975 (Cth) s60I (9) (e).
[11]Family Law Act 1975 (Cth) s60I (9) (c).
[12]Family Law Act 1975 (Cth) s117.
[13] Family Law Rules 2004 r1.05.
[14] Federal Circuit Court Rules 2001 r1.03.
The party receiving the Notice is required to respond to this with their position[18]and hopefully this is a further incentive for the party to resolve their dispute without the Court making a decision.
There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute.[19]
The pre-action procedures specifically state the parties must have regard to the following matters in relation to children:
The outcomes in custody disputes –without having to go to Court?
If an agreement can be reached between the parties in dispute there are several options for record the agreement:
A Parenting Plan is simply a written record of the agreement and only requires that the agreement be in writing, signed and dated.[24] A Parenting Plan is not enforceable, however if there is a further dispute requiring Court action the Judge will have regard to the most recent Parenting Plan when making a Parenting Order.[25]
[15] Family Law Rules 2004 Schedule 1 Part 3 (1).
[16] Family Law Rules 2004 Schedule 1 Part 3 (4).
[17] Family Law Rules 2004 Schedule 1 Part 3 (5).
[18] Family Law Rules 2004 Schedule 1 Part 3 (6).
[19] Family Law Rules 2004 Schedule 1 Part 1 (4).
[20] Family Law Rules 2004 Schedule 1 Part 1 (6) (a).
[21] Family Law Rules 2004 Schedule 1 Part 1 (6) (b).
[22] Family Law Rules 2004 Schedule 1 Part 1 (6) (c).
[23] Family Law Rules 2004 Schedule 1 Part 1 (6) (d).
[24] Family Law Act 1975 Section 63C.
A Consent Order is made with a higher degree of formality and is enforceable. Even though the Consent Order is the party’s agreement the Court can only make the Order if legislative requirements for Parenting Orders are followed, for example, the Court would only make the Order if the best interests of the subject children were the paramount consideration.[26]
For a Consent Order an appearance in court is not necessary and the Orders can be made “in chambers” with the documents being sent to the Court by post.
Hooper Mill Family Lawyers at Victoria Point and Hooper Mill Family Lawyers on the Gold Coast can assist parents in mediation and to resolve parenting matters before you have to go to court. Peter Hooper of our office is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner able to provide FDR to people wanting to reach their own agreements.
[25] Family Law Act 1975 Section 65DAB.
[26] Family Law Act 1975 Section 60CA.
Trusts and Separation
Working with accountants – Family trusts and separation
“Family trusts” are a common structure through which people may operate a business or hold assets.
There are various reasons why people may choose to place assets within a trust structure, but how are these structures (and other trust structures) regarded in the event of separation, divorce and family law proceedings? Do they offer any protection from a claim by an ex-spouse with respect to assets held by the trust? And what issues arise in the family law context?
What is a family trust?
A family trust is typically a discretionary trust generally set up by a family member with other family members being the beneficiaries of the trust.
Primarily family trusts are established to achieve tax minimisation in the manner by which trust income and capital is distributed to the beneficiaries; and to provide protection to the assets of the trust. Protection of assets occurs because the legal interest in the assets is held by the trustee for the benefit of the beneficiaries.
Thus, trust asset protection can be achieved as assets are kept separate from the claims of the creditors of any individual beneficiary.
But do trusts protect trust property from a spouse of a person who may be a beneficiary or trustee of a trust?
What is property in the family law context?
For the purposes of the Family Law Act 1975 the term “property” has a very broad definition. The Full Court has said:
“The word “property” is the most comprehensive of all the terms which can be used, in as much as it is indicative and descriptive of every possible interest a party can have.”[i]
Property can be real or personal and has been held to encompass interests including shares in Pty Ltd companies, partnership interests, contractual rights, rights under trade licences, beneficial interests in administered estates and rights with respect to property held in trusts.
Therefore, in being called upon to determine whether trust assets ought to be regarded as property for family law purposes, Judges will take a broad approach to answering that question.
In determining whether the assets of a trust ought to be included as property of the parties available for distribution between them, Courts exercising jurisdiction pursuant to the Family Law Act 1975 will examine what “influence and control” a party may exert over the trust.
The types of factors that the Court will look for include:
The High Court has held that in a situation where neither the husband or wife is a beneficiary of the Trust, the assets of the trust can be available for the “matrimonial property pool” based on factors such as the assets having been built up by the contributions of the parties over a long period.[ii]
In Kelly and Kelly (No2) the husband had no interest in the trust however the Court determined control based on his relationship with those who had an interest and that he received indirect financial advances. In this case the directors of the corporate trustee were the husband’s accountant, brother and wife. The husband was not a settlor, appointer or beneficiary.
Where the Court does not consider that the assets of the trust ought to be treated as property of the parties (such as where a party has a beneficial interest in a discretionary trust), it may be still be relevant to consider whether the interest is a mere expectancy (and irrelevant) or a financial resource of a party leading to an adjustment of the percentages of the overall matrimonial property pool each party receives.[iii] This is a situation where the history of distributions will be important evidence in firstly determining whether there is a financial resource, and secondly the weight to be applied (i.e. the level of percentage adjustment).
Other issues for Gold Coast family law solicitors and accountants?
There are a number of practical issues that arise in terms of proving a party’s case with respect to the trust and its assets, and with respect to how property may be distributed from a trust to a party to the marriage.
Family Law Disclosure
To determine the question of control, determine what interests the parties hold, and/or gain an understanding of what assets the trust holds, documents and information will be required. Often these documents will be held by a party’s accountant, and it is not uncommon for a spouse to lack access to documents, information or an understanding as to how the family financial affairs are structured.
The Family Court and Federal Circuit Court Rules require parties make “full and frank” disclosure.[iv]
The types of documents family law solicitors will typically request from a party or their accountant are:
The above is not exhaustive, and disclosure will be required depending on the circumstances and relevance.
If a party refuses to disclose, it can impact negatively upon their case and cause the Court to draw adverse inferences in some situations.
Further, trustees have obligations under State and Territory legislation to maintain certain records which beneficiary have a right to inspect. Subpoenas are also an available remedy to compel a recalcitrant party (or a third party such as an accountant) to provide documents or give evidence.
Issues for family law settlements involving trusts and transfer of property from trusts to a spouse or former spouse
There are a number of issues that can arise in relation to transfer of trust assets and income at separation.
These types of issues include:
It is important for family lawyers drafting orders to consider all the potential issues arising from the proposed transfers, and where applicable, ensure that clients obtain accounting advice before finalising property settlement orders.
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.
[i] In the Marriage of Duff (1977) 29 FLR 46 – approving the statement by Lord Langdale MR in Jones v Skinner 5 LJ Ch. 87.
[ii] Kennon v Spry (2008) FLC 93-388 – in this case the trust was set up by an expert on the law of trusts likely for the purposes of placing assets beyond the reach of the wife.
[iii] Kelly and Kelly (No2) FLC 91-108.
[iv] Family Court Rules 2004 R13.04 and Federal Circuit Court Rules 2001 R20.04.
[v] S 126-5 Income Tax Assessment Act 1997.
Common Family Law Questions and tips part 1
I have set out some common concerns and questions I’ve heard from people repeatedly over the years, and I plan on doing this in a number of separate articles.
It is impossible in an article such as this to provide definitive answers to every question, and everyone’s situation is different. However, I hope what follows might be a useful guide for obtaining preliminary information.
Affordable Family Lawyers
Legal services can be expensive and often people are afraid to get advice or approach a lawyer due to fear of costs.
Sometimes however poor advice or no advice can cost you more. Here are my best tips to minimise Family Law costs:
Of course, one of the absolutely best ways to save costs is to settle early, and minimise conflict, by taking a business-like approach to your separation, and following expert legal advice.
What if I have no available cash for legal fees?
This is not an uncommon scenario where one party may control the marital finances or be a primary income earner. The other party may have much less access to resources.
I have written a detailed article on what lawyers call a “Hogan” or “Barrow” Order on my site, situated at the following link:
https://hooperandmillfamilylawyers.com.au/applications-for-litigation-expenses-aka-hogan-orders/
These Orders allow for legal costs to be met by the other spouse.
Other options include the following:
Like each aspect of your matter you need advice. When booking in for an initial attendance with your family lawyer costs should form an important part of the discussion and advice.
Who pays the mortgage after separation?
This is often an issue when one party moves out and suddenly has to meet their own rental costs. The reality is the home loan secured by mortgage is between the parties and the bank or lender.
The bank or lender won’t consider the separation should affect their rights, and if the bank/lender doesn’t get paid they can exercise their right of foreclosure and sell the property (usually at a lesser price).
The Family Law Act 1975 does allow for Orders to be made directing a party to continue to meet mortgage expenses, and this can occur in a number of ways such as Spousal Maintenance or as on Interim Property Order, however, you need to file an Application in Court before this can occur. Also, the evidence would need to establish why the Court should make the Order you are seeking.
Some simple tips for addressing this issue are:
How the Court regards a party’s post separation payments to the mortgage is by way of “post separation contributions”. What this means is that these payments can be recognised by the Judge in determining how much of the property pool each party gets.
Similarly, if a party causes loss by negligently, recklessly or wantonly refusing to pay the mortgage (and for example a foreclosure occurs), the Court may penalise that party in the final settlement.
Should I move out of the family home, or be separated under one roof?
Usually family lawyers will say don’t move out.
The reasons why include some of the issues referred to above in relation to mortgage costs and incurring additional rental costs.
Also, you can lose control of maintaining the asset in a saleable condition, if a sale is necessary.
If there is a situation where the other party is difficult, sitting in the home comfortably having the mortgage paid, Court application may become more likely. In my experience these situations can stifle settlement and lead to Family Court or Federal Circuit Court proceedings.
Separation under one roof is usually less than ideal, and uncomfortable for both parties, which can be a good motivator for a speedy settlement.
The big caveat on the above is domestic violence and personal safety. These always come first and if you, children or pets are in danger you should immediately leave to a place of safety.
Hopefully the above answers some question but it is no substitute for proper advice tailored to your situation.
Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Brisbane office on 3207 7663 or our Coolangatta office on 5599 3026 for an appointment.
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