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
Parenting Orders and Covid-19
I have noticed that as the Covid-19 crisis has continued, many parents have sought advice as to whether the lock down and restriction of movement means parenting orders no longer need to be complied with.
In some case I have seen parents use Covid 19 as an excuse to breach orders in circumstances that in my view represents a clear breach. I currently have instructions to file proceedings on one such matter.
Unfortunately, there is never an easy answer to whether a decision to breach an order amounts to a “reasonable excuse” and Covid 19 is not something we have seen before.
Helpfully the Family Court and Federal Circuit Court of Australia have released a statement from the Honourable Will Alstergren, Chief Justice and Chief Judge of those courts, to assist the public and provide guidance.
Are the courts closed during Covid-19?
No. The courts are open and hearing cases. Most courts have however modified their procedures to decrease the necessity for personal contact. This means more court appearances being heard by electronic means (telephone or video).
There are also procedures to increase the use of electronic documents (discussed in my previous blog on this topic) and since then a move away from requiring signatures on Affidavits (see Joint Practice Direction 2:JPD 2 of 2020 – Special measures in response to Covid-19).
The Attorney General Department has also classified legal services as “essential” and thus family lawyers and courts are available to assist people in need for the duration of the crisis.
General guidance for parents during Covid-19
Every family is different, every situation involving children is different so no written statement can ever substitute for advice from a Brisbane Family Lawyer or Gold Coast Family Lawyer.
His Honour however has penned 14 points which I will paraphrase here, that are very helpful in guiding people to make the best choices at this difficult time.
His Honour went on to clarify that the community can be assured the court will continue to perform their duties during the Covid-19 crisis.
Family Dispute Resolution (such as mediation) during Covid-19
It remains the case that Section 60I Family Law Act 1975 must be complied with requiring that before commencing court proceedings (unless one of the matters in Section 60I(9) applies) parents must attend mediation before filing proceedings in a court for a parenting order.
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.
Family Law Services and Covid-19 Coronavirus
We are certainly approaching unprecedented and concerning times. While most people would agree that the health of the community and limiting the spread of the virus is paramount, it is also critically important that regular life carries on despite this pandemic.
There is no doubt that over the next few months we will need to adapt in different ways, and within the legal profession this has started to occur with respect to the way lawyers and the Courts will carry on delivering our services.
Parenting Orders during the Covid 19 Pandemic
There is no doubt heightened anxiety, and fear for children transitioning out of a parent’s home in the current climate. However, the crisis doesn’t mean that Parenting Orders don’t need to be followed.
There are penalties for noncompliance with Orders without a “reasonable excuse” and increased cost and conflict inevitably results from a Contravention of Parenting Orders.
I don’t intend to examine the law surrounding Contravention Applications here, but I would recommend that if you think you have a reasonable excuse to contravene a Parenting Order, that you obtain advice from an Accredited Specialist Family Lawyer before you take any such action. Similarly, if you believe there has been a contravention without reasonable excuse, obtaining timely advice is important.
What is invariably best for your children (and your wallet) however is some common sense, flexibility and good communication. You can always negotiate outside of the Orders and come to an agreement in unusual situations.
The Family Law Section of the Law Council of Australia has put out a 10-point Guide to help separated parents during Covid 19. These are:
What if I need Family Law advice during the Pandemic?
Hooper Mill Family Lawyers will be fully operational during the Covid 19 crisis.
Our practice management (and client file management) has been electronic for 10 years and our system is cloud based. We can view your complete file from a mobile phone or other computer or device.
During this time we can take our instructions, including initial instructions, over the phone.
We regularly represent people in mediations electronically and appear in Court electronically.
Many businesses will need to adapt to the crisis, but we are fortunate in that our practice has embraced remote technology for many years. This means minimal disruption to us delivering our services to you.
Will the Courts be shut down? Should I bother with this now?
The Courts (Commonwealth and State) have issued a number of Practice Directions with respect to the way the crisis will be managed. I only intend to focus on Courts relevant to my clients here.
Southport Magistrates Court – Guideline 1 of 2020 (Made under Practice Direction 2 of 2020):
In Domestic Violence Matters appearances by legally represented parties are excused and all parties may appear by phone.
For the filing of Protection Order Applications, this can be done by post of it is not urgent. In urgent matters the Police can be contacted to obtain an urgent Temporary Order. Similar process for appearance in the Southport Magistrates Court sitting as the Children’s Court.
Family Court and Federal Circuit Court Listing Arrangements:
Each registry may adopt their own operational requirements however the following are generally being implemented:
For first Court dates, mentions, interim hearings and directions, telephone procedure will be:
In some ways the above may be a blessing in disguise. I have long believed that telephone duty lists before Registrars for Directions and Consent Orders would be a good idea. Primarily because this would save litigants a lot of money in legal costs.
When your lawyer can sit in the office, do other work, and then take a call to appear and represent you, you are saving money because your lawyer is not out of office for half a day travelling and waiting to appear.
For Hearings (i.e. Final Hearing or Trial) the process will be:
Face to Face in Court Protocol
There are several protocols for Court Hearings designed to limit the risk of infection to the public, Court Staff and Judges. These are:
Practice Direction PD2 of 2020 – Electronic filing annexures to Affidavits and viewing of subpoenas
All documents are now permitted to be filed electronically. If the documents can’t be filed on the Commcourts Portal, they can be emailed to the Registry to be filed. Hard copies should not be posted or delivered to the Registry except in limited circumstances (such as where a party is self-represented and has no email).
Unless total annexures are more than 2 centimetres, they should be attached to the Affidavit when it is filed electronically. If the documents is more than 2 centimetres an Application should be made to the Registry Case Coordinator who may liaise with the Duty Registrar and Docket Judge.
If the Application is successful, the documents can be emailed to the Court for filing.
Practice Direction PD3 of 2020 – Electronic filing and viewing of subpoenas:
Subpoena viewing appointments should only be made if there is a Hearing within the next 4 weeks or the matter is urgent.
Do I need a lawyer now or should I wait for the Covid 19 crisis to end?
If you are in a Family Law dispute it is always a good idea to get advice. In most situations a good Family Lawyer can assist you to find a fast and amicable solution.
If the fast and amicable solution cannot be found, there are options for FDR such as mediation or arbitration that can be utilised at this time when Court availability is restricted.
If you need a Court option, there will be delays. But bear in mind the Court system was experiencing delays (largely due to lack of funding) before Covid 19 reared its ugly head. This means when Covid 19 goes away it will be busy, and it is a fair assumption that non urgent matters will be prioritised “first in time”.
Financial uncertainty is another factor in preventing people seeking help. At Hooper Mill Family Lawyers we can explore options such as deferred fees, Legal Aid and fixed fees to assist with the financial burden.
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.
Can a step-parent adopt their partner’s child in Queensland?
It is permissible to adopt your partner’s child in Queensland, provided the process prescribed by law is followed.
In Queensland the governing legislation is the state Adoption Act 2009 (Qld) (“AA”) and the Commonwealth Family Law Act 1975 (Cth) (“FLA”). The adoption process is conducted in the Family Court of Australia, a Queensland Magistrates Court (“Children’s Court”) and via the government department, Adoption Service Queensland – Department of Communities, Child Safety and Disability Services (“DOCS”).
The effect of step-parent adoption is a person assumes parental responsibility and becomes a parent for the child of their married or de facto partner, while the biological parent ceases being a parent and ceases to have parental responsibility under the FLA. Any parenting orders that previously existed cease to be in force.
What is the adoption process?
The adoption process starts with an application filed in the Family Court for leave (i.e. permission) to enter your name in the expression of interest registrar with DOCS to adopt the subject child, and then make an application to the State Magistrates Court.
Section 60G FLA provides:
Family Court may grant leave for adoption proceedings by prescribed adopting parent:
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.
The requirements of this section were examined by Murphy J in Lowe and Anor & Clayton [2011] FamCA 1024. In this case the application was heard ex parte as the subject child’s biological father couldn’t be located. His Honour noted of the process, “It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter’s ordinary jurisdiction. Nevertheless, that is the consequence of the provisions of the Family Law Act 1975.
1. FLA section 60HA(3)(a) and 60F(4)(a)
2. FLA section 61E
3. FLA section 65J
4. Lowe and Anor & Clayton [2011] FamCA 1024 at 3
In dealing with the ex parte application His Honour considered evidence from the mother as to the biological father’s whereabouts, her efforts to contact him, past history of significant family violence, his history of psychiatric illness and made an Order dispensing with the requirement for service.
What are the requirements for leave to adopt a step child?
Section 60G requires that the court consider granting leave only if it is in the best interests of the child to do so, and having regard to:
In the decision referred to above Murphy J went on to hold that as an application pursuant to section 60G was “a child related proceeding”, Division 12A FLA also applied, which allows the judge to determine whether strict rules of evidence apply in conducting the hearing. Further, His Honour observed that also these applications are child related proceedings that section 96ZN ought to apply, which requires the court to consider the impact of the conduct of the proceeding on the child, and that the court actively direct and manage the proceeding to avoid undue delay, technicality and form.
While the Family Court is not required to consider the matters to be determined by the Sate Magistrates Court these matters do bear upon whether the decision to grant leave is in the best interests of the child.
Her Honour Hogan J said in Hurst and Anor & Chapman [2014] FamCA 506 that in considering section 208 AA the Family Court should not grant leave if appeared proceedings in a State court were doomed to fail because of non-compliance with mandatory prerequisites.
Another requirement of the AA section 16 and 175 is that the biological parent consents to the adoption. In the two cases referred to consent was not available because in one the biological parent was deceased, and in the other couldn’t be located.
After leave to adopt has been granted
Once leave has been granted the process commences with the adopting parent’s name being entered in the expression of interest registrar with DOCS – Adoption Services Queensland.
This commences a process which culminates in a “suitability report” being produced which is put before the Children’s Court in ultimately determining the final adoption application. An approved form, known as a Form 7 commences this process.
5. Lowe and Anor & Clayton [2011] FamCA 1024 at 32
6. FLA section 60F(4)(a)
7. However, section 65C(c) may allow a person with an interest in the care, welfare or development of a child standing to bring an application.
8. FLA section 60HA(3)(a)
9. FLA section 61E
10. FLA section65J
11. Lowe and Anor & Clayton [2011] FamCA 1024 at 15
12. Lowe and Anor & Clayton [2011] FamCA 1024 at 16
13. AA section 208
14. Lowe and Anor & Clayton [2011] FamCA 1024 at 20 to 22
15. Hurst and Anor & Chapman [2014] FamCA 506 at 8
16. AA sections 138 and 203
17. AA sections 92 and 93
To be eligible to adopt the following must be established:
Consent of the biological parent
The general position is that the child’s parents must consent before the adoption can take place in Queensland. The AA provides for counselling to take place as part of this process.
In some circumstances the requirements for consent can be dispensed with, such as:
The term “exceptional circumstances” is referred to in section 208(f) (requirements for making a final Order) and the example given is “a parent of the child has died or cannot be located after making all reasonable enquiries.”
18. 18. AA section 92
19. AA section 16 and 175
20. AA section 36(4)
Children’s Court
After the permission from the Family Court is granted to commence the adoption and all of the assessments have been made, an Application is filed in the Queensland Magistrates Court (sitting as the Children’s Court) for a final Order.
The final Order is made pursuant to section 208 AA and the requirements are:
If you are considering adopting a step-child Hooper Mill Family Lawyers can guide you through the process and requirements.
Peter Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law specialists, providing Expert Family Law advice and representation.
Family Law – Property Pools Under $500,000
The Federal Circuit Court has issued Practice Direction No2 of 2020 which sets out more streamlined procedures for dealing with matrimonial property settlement matters.
The new procedures apply to cases with a total net value of property less than $500,000 (called PPP500 cases i.e. Priority Property Pool cases) and apply to family law property settlements in Brisbane filed after 1 March 2020.
The purpose of the Practice Direction is expressed to achieve “just, efficient and timely resolution” of cases with less than $500,000 net property for distribution. In order to achieve this the [practice direction requires:
The process is being trialled in the Brisbane Family Court Registry (and in Paramatta, Adelaide and Melbourne), and is available if an initiating application has been filed for a matrimonial property or de facto property settlement after 1 March 2020.
To be eligible a matter, as stated above, must have total assets and super less than $500,000 and there must be no entities such as companies, SMSF or trusts requiring valuation or other expert evidence to determine issues such as control. If the criteria are met the Court may declare the matter is a PPP500 case.
There are specific exclusions to the pilot program for any matters involving parenting applications (including where parenting and property issues are relevant), contravention applications, child support or child maintenance issues or spousal maintenance issues.
Bringing a PPP 500 Application
Pursuant to Rule 2.04 Federal Circuit Court Rules 2001 (“the Rules”) a new for called the Financial Summary form has been approved.
Where litigants consider that the PPP500 ought to apply, they may commence proceedings by filing the Initiating Application along with the Financial Summary form.
In situations where proceedings have been commenced in the regular manner (with an Initiating Application, Affidavit in support and Financial Statement), the court may subsequently designate the matter as being a PPP500 matter and direct the filing of a Financial Summary form.
When the matter is commenced by way of the streamlined process, aspects of the Rules such as the filing of Affidavits or Financial Statement are suspended until directions provide otherwise. For example, if mediation is unsuccessful and the matter requires a decision by a Judge, direction for Affidavit and Financial Statement will likely be made.
The Financial Summary form
The Financial Summary form requires information similar to that which would be included in an Affidavit in a property settlement matter. However, with the information being provided in question and answer style, it is likely to make the form easier for self-represented litigant to complete and directs attention to what is relevant.
The form has 11 parts covering information about the parties, any alternative dispute resolution they have attended, information about any existing agreements (parenting or property), a series of questions towards financial factual matters, personal circumstances, income, debts and expenses, children and parenting arrangements, changes to property and a balance sheet of the relationship (i.e. a list of assets, liabilities and superannuation).
The Process in a nutshell
The process can be summarised as comprising 6 steps in the PPP500 procedure. These are:
It is envisaged that at any time during the process if the parties are able to reach a final agreement, Orders could be made in chambers by a Registrar.
This would occur with a signed and dated agreement being emailed to the Registrar, a clean Word copy of the Minute of Order, evidence of procedural fairness for a superannuation split and a letter addressing matters of “justice and equity”.
It is hoped that these measures will lead to timelier and less expensive resolution of smaller property matters, with the Registrar led part of the process being envisaged as being completed inside 90 days.
Peter Hooper – Hooper Mill Family Lawyers Gold Coast and Brisbane – We are Family Law Specialists, providing Expert Family Law advice and representation.
Finding a Brisbane or Gold Coast family lawyer at Christmas time
While Christmas is a time for bringing families together, unfortunately it is also a time when family disputes can occur.
As a family lawyer of some 18 years experience I have long noted the seasonal nature of family law work, and in particular that there is an increase in family law enquiries over, or just after, the Christmas season. I imagine it has something to do with people having increased time together, the high expectation to make the holiday “special”, financial concerns and an abundance of alcohol, creating issues for some families.
Given it is also the end of the new year perhaps it is a time for “new beginnings” and moving on with a new chapter of people’s lives and deciding to make a change.
For people who are already in dispute, Christmas can be a source of loneliness, anxiety and conflict over children’s arrangements. Christmas holiday time and uncertainty in terms of the future can make this time of year very difficult for some people when it seems as though the rest of the world is celebrating.
What can you do to make the best out of separated parenting at Christmas?
The best answer is come to an agreement, and if you’re already in a dispute in the lead up to Christmas make sure you leave plenty of time to negotiate. Court dates can be hard to obtain in the lead up to Christmas.
In negotiating arrangements, it is important to think in a way that promotes what is best for the children. To use a lawyer phrase, maintain “child focus”.
This means that both parents should consider what the holiday means from the children’s perspective, when they might like to see the other parent, what are their practical needs around the holiday, and are there any safety considerations.
Christmas is about creating memories for children, so in my view it is important in making these arrangements to think about how the children may remember the particular Christmas.
It is also likely that the separation is something the children are coming to terms with, and thus an amicable agreement at Christmas time is going to allow them to be a bit more relaxed, reassured and enjoy their Christmas holiday time.
If you are in a situation where your ex-partner is difficult or unreasonable, early planning, good legal advice, child focus and staying calm will assist you to negotiate your way through the difficult time.
Planning and good legal advice assists you to stay calm, knowing that there is “light at the end of the tunnel” in terms of an outcome being worked towards.
Conversely, staying calm and child focused facilitates outcomes being achieved that are favourable for you and your children.
What about separating during the Christmas break?
Even more stressful is relationship breakdown during the holiday period. Most lawyers take time off over this period and Court dates can be difficult to obtain in all but the most urgent of matters.
Again, the recommendation is to stay as calm as possible, stay child focused and get some advice as soon as you can. As said above, advice provides you with direction and reassurance which can help you stay calm. Also, be careful what you say, text or email if there is alcohol around.
During the Christmas and New Year period in 2019 we are closed from 24 December 2019 until Monday, 6 January 2020. But …while we are closed we are never too far away and if you desperately need some assistance for family law on the Gold Coast or in Brisbane we can be contacted via email to assist at peter.hooper@hooperandmillfamilylawyers.com.au
Stay safe and have a happy Christmas.
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.
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
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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.
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Changes 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.