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Family Law - Step-by-Step Guide

Author: By Lawyers For Lawyers

Analyse the contributions and 75(2) factors, complete the necessary pre- action procedures, write the letters, prepare the consent orders or binding financial agreements, understand the four step process. Attend the conciliation conferences with confidence in your understanding of the likely outcomes. This is a must for family law practitioners.

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Children



Table of Contents:

Overview

Parenting plans and consent orders - A suggested approach

Parenting plans

Consent orders

Child support

Names and locations

Taking a child overseas and applying for a passport

Pre action procedures

Giving a notice of proposed parenting orders by way of letter

Parenting order - Who can apply

Applicants must attend counselling

Matters covered in parenting orders

Duration of parenting orders

The powers of the court

Independent childrens lawyer

The appropriate court and other court matters

eFiling

Service

Reduction of court fees on the basis of financial hardship

Hearing

Ceasing to act

Procedure at the trial

Orders in favour of a non relative

Variation discharge of parenting orders

Changing existing parenting orders by consent

Interim applications

Urgent applications

Necessity for prompt applications in cases of abduction of children

Recovery orders

Allegations of abuse of a child or family violence

Family violence amendments

Relocation

Enforcement



Overview

Parenting arrangements

Changes to the Family Law Act which took effect on 1 July 2006 were based on the following principles:

  • All children have a right to know both parents and to have both parents having a meaningful involvement in their lives.
  • All children have a right to be protected from harm (from physical, psychological abuse harm and being subjected to family violence).
  • Parenting is a responsibility that should be shared equally provided this doesn’t put children at risk.
  • Parents should be able to work out together what is best for children rather than fighting in a courtroom.
  • The best interests of the child are the paramount consideration when making a parenting order.

Parenting time – the option for shared care

The presumption of equal shared parental responsibility in s 61DA of the Family Law Act and the legislative pathway provided in s 65DAA that the court must consider a child spending equal time or substantial and significant time with each parent in certain circumstances resulted in a misunderstanding on the part of many parents that upon separation a shared - commonly referred to as 50/50 time - arrangement ought to immediately be implemented and that that is the most likely outcome from court proceedings.

That is not the case and it is important for practitioners who are engaged by a non-resident parent, or a parent who has not been the primary caregiver during the relationship, to explain to their clients that despite the legislative changes a shared care arrangement is not a guaranteed outcome. This may largely involve reality testing clients on what arrangement is not only best for their children, but reasonably practicable given the day to day life of the family, work commitments and the like.
Section 61DA provides for the presumption of equal shared parental responsibility, except in cases of abuse or family violence or where such an arrangement would not be in the best interests of the child. The application of this principle continues to be the norm in family law cases, regardless of the time allocation.

To practitioners practising in family law on a regular basis, the difference between equal shared parental responsibility and equal time is clear. The distinction is not always so clear for parents. Parents need to be made aware that equal shared parental responsibility is very different to equal time. Equal shared parental responsibility requires parents to jointly make decisions on major long term issues relating to a child – that is, decisions in relation to the child’s education, religious and cultural upbringing, health, name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. This requires consultation between the parents and a genuine effort to reach a joint agreement on such issues: s 65DAC.

When determining whether an equal time parenting arrangement is appropriate, s 60CC factors need to be considered.

In addition to the considerations set out in the legislation, practitioners ought to guide their clients to consider the practicalities of an equal care arrangement, a consideration which is often lost on parents who, in the midst of family law property and parenting proceedings and issues of child support, s 75(2) factors and the emotional aspects of the breakdown of the relationship, often lose track of what is actually best for their children. When considering whether an equal arrangement is a viable option, practitioners should also raise issues such as the following with their clients:

1. Level of parental conflict. Shared parenting in acrimonious parenting relationships may have detrimental impacts on children. This means parents must focus on:

(a) reducing actual conflict between parents;

(b) reducing indirect tension between parents;

(c) ensuring they do not involve their children in the parental disputes.

2. Developmental needs of younger children in comparison to older children. Research shows that the attachment of young children of divorce can be poorly affected ‘when the infant does not have a continuous experience of reliable care with either parent’. (McIntosh and Chisholm, Shared Care and Children’s Best Interests in Conflicted Separation, Australia Family Lawyer, Vol 20 No 1, 1 - 11).

3. The frequency of transitions and interaction between parents at transitions. Other viable options such as changeover at school, however when considering that option parents need to consider change of uniforms and other clothes, the burden on the child of taking additional clothes and other items to school. Consider if changeover at the other parent’s home is an option rather than school.

4. Proximity of residences to one another.

5. Proximity of each residence to the child’s school/kindergarten/childcare.

6. Availability of the parent to the child, both physically and emotionally. Employment commitments and availability of each parent for the child, before and after school care options. The flexibility of employment on a short-term basis may mean that equal time is viable, but parents need to consider if that flexibility is going to be available long term to enable that arrangement to continue.

7. Future changes and how they will impact on the parenting arrangement – for example, commencing primary or secondary school, parents re-partnering, likelihood of either parent having other children and the impacts that may have on their availability.

It is important to focus the client’s attention on the best interests of the child as opposed to the perception that time should be shared equally to be fair for the parents or that anything less than an equal arrangement is going to be detrimental to the parent/child relationship.

If an assessment of the section 60CC factors and the above considerations lead to the conclusion that equal time is not in the child’s best interests or reasonably practicable, the option for substantial and significant care can be considered: s 65DAA(2). This can include days that do and do not fall on weekends and holidays and time that allows both parents to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and to the parent: s 65DAA(3).  Notwithstanding the 2006 changes, the substantial and significant time arrangement continues to be a more common arrangement than an equal time arrangement – for instance, week about.

SETTLING IT EARLY

Parenting plans and consent orders - a suggested approach

Adopt the reasoning set out in the legislation to formulate arrangements that are in the best interests of the children and consider the following:

  • whether the children spending equal time with each parent is in their best interests;
  • proximity of the parents homes;
  • working arrangements of the parents;
  • relationship shared by the children and each parent;
  • children’s ability to cope with changes to routine; and
  • children’s relationship with other siblings.

If it is not in the best interests of the children to spend equal time with each parent, should they spend significant and substantial time with the other parent? This should include weekday and weekend time as well as holiday time to enable the other parent to be involved in all aspects of the child’s life, if possible.

If due to the age of the children equal time is not now in their best interests, give consideration to staging an increase in time with regular review of the arrangements.

Practitioners should refer to the principles set out in s 60CC to assist in giving guidance as to what parenting arrangements are in a child’s best interest.

Subsection 60CC(2) provides that the primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Subsection 60CC(3) provides that additional considerations are:

(a) any views expressed by the child and any factors (such as the child’s  maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s  right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j) any family violence involving the child or a member of the child’s family;

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m) any other fact or circumstance that the court thinks is relevant.

These considerations ought to be individually addressed in the Affidavit on parenting matters to be filed with the Initiating Application/Response to Initiating Application.

Refer to the precedent Parenting Plan or see list of precedent consent orders.

    Parenting plans

    Parenting plans are a written, signed and dated, but not legally enforceable, agreement as to who the children live and spend time with made free from any threat, duress or coercion (as opposed to parenting orders, which contain the same parenting arrangements in a parenting plan but are made by consent in the court).

    The court will have regard to the most recent parenting plan in making an order.

    A parenting plan may be formalised as consent orders but the clients must also file an application, thereby providing the court with extensive information about the arrangements for the children and may be made by parents at any time after separation. For married couples, a parenting plan may be made before or after divorce.

    A parenting plan may be varied by further written agreement. More importantly parenting orders can be varied at a later time by a parenting plan.

    Parenting plans are encouraged between parents to give effect to the principles of parents taking responsibility for parenting arrangements for their children and the court being the last resort.

    Legal advisors are obligated under s 63DA of the Family Law Act to advise their clients seeking advice about parenting arrangements:

    • that they have the option of entering into a parenting plan; and
    • where they can get assistance in formulating a parenting plan (i.e. Family Relationship Centres).

    A registered parenting plan is a parenting plan that was registered in a court under s 63E as in force at any time before the commencement of the Family Law Amendment Act 2003; and that continued to be registered immediately before the commencement of the Family Law Amendment Act 2003.

    Registered parenting plans cannot be varied but may be revoked and the revocation registered.

    Consent orders

    A court can only make a parenting order if the Judicial Officer is satisfied that the order is in the best interests of the children the subject of the order. This includes consent orders. To determine whether an order is in the best interests of the subject children, the court is to have regard to all relevant matters set out in section 60CC(2) or (3).

    Consent orders must be filed in the Family Court of Australia. To ensure that they are accepted by the court:

    • The Application for Consent Orders and Minutes of Consent Orders are to be signed on the same day (i.e. each party does not have to sign on the same day, but each party has to sign each document on the same day); and
    • Three certified copies of the Minutes of Consent Orders are to be provided with the Application for Consent Orders to the court for filing.

    When filing a consent order the form Annexure to Draft Consent Parenting Order must be attached.

    Child support

    Matters relating to child support are dealt with through the Department of Human Services process. For information about administrative requirements see the Department of Human Services Child Support page.

    There are times though when the child support assessment does not reflect a child’s unusual and additional needs. In these circumstances the first step is to make an application to the Child Support branch of the Department of Human Services for an administrative assessment. This must be done regardless of which of the options below are employed.

    Option 1 - After the administrative assessment, if either parent objects to the assessment, they then need to use the administrative departure process. See Part 6A of the Child Support (Assessment) Act 1989. The form to be used for the administrative departure process is the Application to Change Your Assessment - Special Circumstances form. Once the Department of Human Services makes a decision on that application, either party may then seek a review of that decision from the Social Security Appeals Tribunal (SSAT). Appeals from the SSAT decision are then directed to the court on a question of law.

    Option 2 - If the parties already have proceedings on foot in the Family Court or Federal Circuit Court for property, parenting or spousal maintenance, then the party may be able to apply under s 116 for the court to make a departure order. The court needs to be satisfied that it would be in the interests of the payer and payee to consider the matters together. Refer also to sections 117 and 118 of the Act. This would therefore bypass the change of assessment application through the Child Support branch of the Department of Human Services. This option may only be used if there are proceedings before a court with jurisdiction to hear a departure application (this includes Family Court and Federal Circuit Court): s 116(1)(b).

    Location orders – including Commonwealth information orders

    A person in whose favour a parenting order has been made, or any other person concerned with the care, welfare and development of a child, is entitled to make an application to the court for a location order where the child has been removed from their care and the whereabouts of the child is unknown: s 67K.

    Such an application may be made seeking a person provide the requisite information, s 67J(1)(a), or a Commonwealth Department if that information is contained in or comes to the records of that Department: s 67J(1)(b).

    The latter is known as a Commonwealth information order, the former a location order.

    Legislative provisions

    • The child’s best interests are the paramount consideration when the court is determining whether it ought to make such an order: s 67L.
    • Location orders stay in force for 12 months or such longer period as the court considers appropriate: s 67M(4).
    • The court needs to be satisfied that the person to whom the order applies is likely to have information about the child’s location, s 67M(2) or in the case of Commonwealth Information Orders, if the court is satisfied that information about the child’s location is likely to be contained in, or come into the records of the Department or Commonwealth instrumentality concerned: s 67N(2).
    • If the order sought is a Commonwealth Information Order, a copy of the Application for the order must have been served on the Secretary of the Department concerned or an appropriate authority of the Commonwealth instrumentality concerned s 67N(3)(a) in accordance with the Rules of Court.
    • The court will not make a Commonwealth Information Order until the period of 7 days after service of the copy of the application has expired, or because of special circumstances: s 67N(3)(b).
    • Generally a Commonwealth Information Order is made to only one Department unless there are exceptional circumstances: s 67N(4).
    • Information provided under a location order must not be disclosed by the Registry Manager of the court except in the circumstances set out in section 67P.
    • Information about allegations of or actual family violence must also be disclosed: s 67N(8).
    • A registrar has the power to make location and Commonwealth information orders (Family Law Rules 18.05).

    Change of name orders

    Section 4 of the Act defines 'major long-term issues', in relation to a child, as meaning issues about the care, welfare and development of the child of a long-term nature – this includes the name of a child. Therefore, the decision to change a child’s name needs to be made jointly by the parents if there is equal shared parental responsibility or any other person with parental responsibility. If agreement cannot be reached, then it may be necessary to make an application to the court.

    Legislative provisions

    • The pre-action procedures must be complied with and the applicant must comply with the requirement for dispute resolution or there must be an exception to the requirement: s 60I.
    • Section 68B – Court has the power to grant such injunction as it considers appropriate for the welfare of the child.
    • Section 114(3) – Court has a wide power to make injunctions.
    • Section 67ZC – General power of the Court to make Orders in relation to children. When making such orders, the best interests of the child are the paramount consideration.

    Important case law

    Taking a child overseas for a holiday or to live

    There is no need for an order that a parent has to get permission from the other parent to take the children overseas for a holiday or to live. Such a requirement is legislated. Sections 65Y and 65Z of the Act provide, in summary, that if there is a parenting order in force or sought in a live application, then a person who is party to the proceedings in which the order was made, or a person acting on behalf of that person must not take or send the child concerned from Australia to a place outside Australia except if there is written, and authenticated consent of the person/people in whose favour the order was made (i.e. other parent or person concerned with the care welfare and development of the child). The penalty is imprisonment of 3 years.

    Sections 65ZA and 65ZB also should be read in relation to this issue.

    However if there is no airport watch list order in place, the above might not necessarily stop the wrongful removal of a child from Australia. Once the child is out of Australia then, if the country is a Hague Convention country, there is recourse for the return of the child. However if the country is not a Hague Convention Country, then it can be very difficult to have the child returned because that particular country’s laws in relation to parenting matters can be very different to Australian laws. If there is a genuine concern about the child being removed without consent and/or not returned, then an application should be made to the Court for the child to be placed on the Airport Watch List, or for the handing up of the passports (see library of orders for precedents).

    Applying for passport for a child

    An application for an Australian passport for a child has required the consent of both parents. However, for a variety of reasons, sometimes it is not possible to obtain the consent of both parents. The court in Re Childs Passport Application [2008] FMCAfam 1031 (18 September 2008) dealt with an application by a mother for a passport for the child. The consent of the father had not been obtained and the father had not been served with the application for a passport. The mother’s explanation for the failure to notify the father was that he lived in a foreign jurisdiction and had not shown any interest in the child.

    The Australian Passports Act prevents the Minister from issuing a passport for a child unless there is parental consent or there is a court order requiring the issuing of a passport. However, the Australian Passports Act also provides for a specific administrative process whereby the Minister can, in certain circumstances, issue a passport when there has not been consent from both parties. It was this process that the mother in the current case had failed to employ.

    The court therefore dismissed the mother’s application for an order requiring the issuing of a passport, and Federal Magistrate Reithmuller set out in a concise form the steps that need to be undertaken for a party to obtain a passport for a child:

    1. If there is not consent by both parties, then the parent requesting the passport is to make an application to the minister and request an administrative decision be made on the application by also completing an additional form provided by the Department of Foreign Affairs and Trade titled Child without full parental consent or Australian court order permitting international travel. There are, however, certain circumstances where such an application may not be made:

    a. when the other person is objecting to the issue of a passport;

    b. if there are court orders restraining the child’s travel, such as an airport watch-list order; or

    c. there is another good reason why the administrative process would not provide an appropriate remedy; or

    d. the administrative process has resulted in a refusal to issue a passport.

    2. When the minister is considering the application, various factors may be looked at, including but not limited to:

    a. whether the non consenting parent has been located or what attempts have been made to locate the parent;

    b. if the non consenting parent is missing and presumed dead;

    c. if the non consenting parent is medically incapable of providing consent;

    d. if there has been no contact (telephone, in person, mail, electronic), between the child and the non consenting parent for a substantial period;

    e. if the non consenting parent is not an Australian citizen, separated from the other parent prior to the parent arriving in Australia and hasn’t had contact with the child since the child’s arrival in Australia;

    f. if there is a family violence order against the non consenting parent.

    3. If the administrative process of the application to the minister has been unsuccessful, then the applicant has recourse to make an application to the court. In his judgement, FM Reithmuller emphasised that efforts need to be made to locate and notify the other parent of the application, or evidence must be provided as to why an order for substituted service or dispensation of service is required.

    This decision is important for two reasons.

    1. The first is that it makes it abundantly clear that the court will not, absent extraordinary circumstances, make an order for a passport to be issued unless the administrative process of ministerial review has been followed.

    2. The second is that, in the event an application to the court is required, not only must the party making the application explain to the court why the administrative process was not appropriate; they must also ensure they have attempted to bring the application to the attention of the other party or adequately explain to the court why this has not been done.

    It is important that a party who is requesting the issuing of a passport where the consent of one party has not been obtained seeks legal advice as to the steps that may need to be taken to locate and inform the other party of the impending application. This advice needs to be obtained well prior to the proposed dates of travel. Without such advice, a party could be faced with the need to make an urgent application to the court and their travel plans in disarray.

    Pre-action procedures - family dispute resolution

    Requirements before going to court for parenting orders

    We are now in the final phase - that is, phase three - and have been since 30 June 2008.

    Except when filing consent orders, the parties must, before filing any other application for parenting orders, file a s 60I family dispute resolution certificate with their application.

    A family dispute resolution certificate is not required when you can establish (by way of an affidavit filed at the time of filing the initiating application):

    • there has been abuse of the child by one of the parties to the proceedings (or risk of abuse);
    • there has been family violence by one of the parties (or risk of family violence);
    • a contravention application only if all of the following is satisfied:
      • it relates to a particular issue;
      • the order which has been contravened is not more than 12 months old; and 
      • the contravener has shown a serious disregard for their obligations under the order;
    • it is an urgent application; or
    • one of the parties cannot effectively participate in family dispute resolution.

    Mandatory pre-action steps

    The parties must comply with their duty of full and frank disclosure which may include but is not limited to, providing copies of all information relevant to the issues in dispute which may include medical reports, school reports, letters, drawings and photographs. See Duty of disclosure.

    Documents may not be used for any purpose other than to resolve or determine the dispute for which it was disclosed. There is an implied undertaking by all parties to that effect.

    Give a copy of Before you file - pre-action procedure for parenting orders (prescribed brochure) to the other prospective parties to the case.

    Participation in dispute resolution

    Invite the other parties to participate in dispute resolution. Further information is available at the Family Relationships web site.

    The parties must agree on a dispute resolution service and make a genuine effort to resolve the dispute by participating in dispute resolution. A consent orders kit is available at the Family Court web site or by calling 1300 352 000, or the nearest family law registry.

    If the matter settles as a result of the dispute resolution process consent orders can be made. See Library of orders - children.

    PARENTING ORDERS

    Giving a notice of proposed parenting orders by way of letter

    If:

    (a) no dispute resolution service is available;

    (b) a party refuses or fails to participate; or

    (c) no agreement is reached through dispute resolution; and

    (d) if the other party wishes to apply for orders, they must give written notice by way of letter of their intention to start a case setting out:

    (i) the issues in dispute;

    (ii) the orders sought;

    (iii) a genuine offer of settlement; and

    (iv) a nominated time, at least 14 days after the date of the letter within which the other party must reply.

    A copy of the prescribed brochure must be attached to the notice of claim. See Letter to Other Side – Parenting Orders Sought.

    This requirement can be satisfied by submitting a parenting plan for the other side’s consideration and suggesting that the parties engage in negotiations on any reasonable suggestion for amendment of the plan.

    A letter to other side's solicitor in reply to the notice of claim must be made within the time nominated by the claimant and include a statement as to whether the offer of settlement is accepted. See Letter to Other Side's Solicitor in Response to Parenting Proposal.

    If there is agreement, a parenting plan can be prepared and/or consent orders made. See the matter plan for a precedent Parenting Plan, Minutes of Consent Orders and libraries of orders.

    If there is no agreement, the reply must set out:

    (a) the issues in dispute;

    (b) the orders sought if a case is started;

    (c) a genuine counter-offer; and

    (d) a nominated time (at least 14 days after the date of the letter) within which the claimant must reply.

    If there is no reply the claimant’s obligation to follow the pre-action procedure ends.

    Where no agreement is reached by way of correspondence, a claimant may file an Initiating Application for parenting orders in either the Family Court or the Federal Circuit Court.

    Parenting order - Who can apply

    Either or both of the child’s parents, a child, a grandparent or any other person concerned with the care, welfare or development of the child may apply for parenting orders.

    Applicants must attend counselling

    Unless the parties consent to the making of an order or the application is for an interim order, the court cannot make a parenting order unless the parties have attended family counselling. A certificate of attendance must be provided to the court.

    This requirement is met in the Family Court by the child responsive program, which involves the attendance of the parties upon a family consultant.

    Exceptions

    Where it is impracticable for parties to attend family counselling or where the court is satisfied there is urgency or there are special circumstances such as family violence, the court may make an order although the parties have not attended family counselling.

    Matters covered in parenting orders

    Matters covered in parenting orders include:

    (a) living arrangements for a child;

    (b) time spent and communication with the child;

    (c) the allocation of parental responsibility;

    (d) where parental responsibility is shared, the form of consultation those persons are to have with one another about exercise of the responsibility;

    (e) maintenance (only if child support legislation does not apply);

    (f) welfare or development such as religion, education, medical, travel and other issues;

    (g) responsibility for making decisions about major long-term issues in relation to the child; and

    (h) any other aspect of the case.

    The court must include (and will do so by way of a printed document) particulars of the obligations the order creates and the consequences of contravention. Those matters are set out under Enforcement.

    The court may require a party’s legal practitioner to explain to the client the existence of available programs to help them understand their responsibilities under parenting orders.

    Best interests of the child paramount

    The court’s paramount concern in making parenting orders is the best interests of the child.

    In determining what is in the best interests of the child, the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    (a) has taken, or failed to take, the opportunity:

    (i) to participate in making decisions about major long-term issues in relation to the child; and

    (ii) to spend time with the child;

        (iii) to communicate with the child; and

    (b) has facilitated, or failed to facilitate, the other parent:

    (i) participating in making decisions about major long-term issues in relation to the child; and

    (ii) spending time with the child; and

    (iii) communicating with the child; and

    (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

    Where the child’s parents have separated, the court must, in applying subsection 60CC(3), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

    Duration of parenting orders

    A parenting order:

    (a) Is not to be made in relation to a child who has turned 18, is married or in a de facto relationship and in any event a parenting order ceases to have effect when a child turns 18.

    (b) Is in force until a new parenting order or parenting plan changes it.

    (c) Ceases to have effect upon adoption of the child.

    If the order provides a child is to live with one parent and the parent dies, the surviving parent may apply to the court for an order as to whom the child is to live with and any person who has parental responsibility for the child is entitled to be a party to the proceedings.

    A parenting plan can be changed by entering into a new parenting plan or consent orders.

    If one party resists a change to a parenting order, community-based family dispute resolution can be used before applying to a court.

    GOING TO COURT

    The powers of the court

    Part VII provides the court with a wide discretion as to the manner in which the proceedings are to be conducted and power to conduct the proceedings as an inquiry.

    Section 69ZN of the Family Law Act sets out 5 principles for conducting child-related proceedings:

    (a) The needs of the child and the impact of the proceedings on the child must be considered.

    (b) The court is to actively direct, control and manage the conduct of the proceedings.

    (c) The proceedings are to be conducted in a way that will safeguard the child from family violence, child abuse and child neglect; and the parties from family violence.

    (d) As far as possible the proceedings are to be conducted in a way that will promote co-operative and child-focussed parenting by the parties.

    (e) The proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

    The principles underpin the court’s wide discretion to conduct the proceedings as it sees fit to bring about a result that is in the child’s best interests.

    Independent Children’s Lawyer

    Section 68L of the Family Law Act 1975 provides for the separate representation of children. Specifically, section 68L(2) provides:

    (2) If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:

    (a) may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

    (b) may make such other orders as it considers necessary to secure that independent representation of the child’s interests.

    The court can make such an order on its own initiative, or on the application of either the child, an organisation concerned with the welfare of children or any other person: section 68L(3).

    Procedure for applying for an independent children’s lawyer

    If a party is seeking the appointment of an independent children’s lawyer:

    1. Rule 8.02(1) of the Family Law Rules 2004 ('the rules') provides that a party seeking the appointment must file an Application in a Case.

    2. Rule 2.02 of the rules sets out what documents must be filed with application.

    3. Parties need to file an Affidavit in support of the order sought. If there are already proceedings on foot it may be that the considerations for the appointment of an independent children’s lawyer have already been addressed in previous affidavit material. The Affidavit in support ought to address:

    • background of parties;
    • arrangements for the children since separation;
    • background of litigation;
    • the section 60CC factors; and
    • the factors set out in Re K which apply to that particular case. 

    Guidelines for the appointment of an independent children's lawyer

    The guidelines for the appointment of an independent children’s lawyer are set out In the Matter of: Re K Appeal [1994] FamCA 21 - otherwise known as Re K.

    Re K is the authority on the appointment of independent children’s lawyer’s. In that case, the full court set out the guidelines for cases which may warrant an appointment:

    (i) Cases that involve allegations of child abuse, whether physical, sexual or psychological;

    (ii) Cases where there is an apparently intractable conflict between the parents;

    (iii) Cases where the child is apparently alienated from one or both parents;

    (iv) Where there are real issues of cultural or religious difference affecting the child;

    (v) Where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child's welfare;

    (vi) Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare;

    (vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children;

    (viii) Any case in which, on the material filed by the parents, neither seems a suitable custodian;

    (ix) Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent;

    (x) Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practicable purposes exclude the other party from the possibility of access to the child;

    (xi) Cases where it is proposed to separate siblings;

    (xii) Custody cases where none of the parties are legally represented; or

    (xiii) Applications in the court's welfare jurisdiction relating in particular to the medical treatment of children where the child's interests are not adequately represented by one of the parties.

    Note that, in addition to judges, deputy registrars have the authority to make orders for the appointment of an independent children’s lawyer.

    Funding for the independent children’s lawyer

    Rule 8.02(2) provides that the court may make an order that either the parties pay for the independent children’s lawyer, or that the representation be arranged by a legal aid body.

    Note also that under section 117(2) of the Act the court may make a costs order against the independent children’s lawyer.

    Exemption from court fees for subpoenas and interim orders

    From 1 July 2013 an independent children’s lawyer appointed to represent a child’s interests in family law proceedings is exempt from paying court fees relating to issuing subpoenas and applying for interim orders: r 2.05A Family Law (Fees) Regulation 2012 (inserted by Family Law Amendment (Fees) Regulation 2013).

    Wording for the orders appointing an independent children’s lawyer

    If acting for the party seeking an independent children’s lawyer, the order one would be seeking is:

    That the child, Samantha Smith, born 26 January 2000, be independently represented in these proceedings.

    If the court makes the order for an appointment the order will read:

    It is requested that the Legal Aid Commission arrange such representation, and that the solicitors for the parties provide the independent children’s lawyer with copies of all documents filed in these proceedings within 48 hours of such request by the independent children’s lawyer.

    Conduct of the independent children’s lawyer in the case

    Section 68LA specifically sets out the role of the independent children’s lawyer:

    Role of independent children’s lawyer

    When section applies

    (1) This section applies if an independent children’s lawyer is appointed for a child in relation to proceedings under this Act.

    General nature of role of independent children’s lawyer

    (2) The independent children’s lawyer must:

    (a) form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

    (b) act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

    (3) The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

    (4) The independent children’s lawyer:

    (a) is not the child’s legal representative; and

    (b) is not obliged to act on the child’s instructions in relation to the proceedings.

    Specific duties of independent children’s lawyer

    (5) The independent children’s lawyer must:

    (a) act impartially in dealings with the parties to the proceedings; and

    (b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

    (c) if a report or other document that relates to the child is to be used in the proceedings:

    (i) analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

    (ii) ensure that those matters are properly drawn to the court’s attention; and

    (d) endeavour to minimise the trauma to the child associated with the proceedings; and

    (e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

    Disclosure of information

    (6) Subject to subsection (7), the independent children’s lawyer:

    (a) is not under an obligation to disclose to the court;

    (b) cannot be required to disclose to the court;

    any information that the child communicates to the independent children’s lawyer.

    (7) The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.

    (8) Subsection (7) applies even if the disclosure is made against the wishes of the child.

    Guidelines for the conduct of an independent children’s lawyer are set out in the case of In the Matter Of: P Appellant and P Respondent and Legal Aid Commission of New South Wales Separate Representative and Human Rights and Equal Opportunity Commission Intervener [1995] FamCA 44, which provides that such lawyers should:

    1. Act in an independent and unfettered way in the best interests of the child.

    2. Act impartially but, if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.

    3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.

    4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.

    5. Test by cross-examination where appropriate the evidence of the parties and their witnesses.

    6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.

    7. Minimise the trauma to the child associated with the proceedings.

    8. Facilitate an agreed resolution to the proceedings.

    The independent children’s lawyer does not act on the instruction of the children. See Demetriou and Demetriou (1976) FLC 90-102. Rather, it is the best interests of the children under section 60CC and the guidelines that govern the independent children’s lawyer.  However, they may meet with the children if they deem that to be appropriate.

    Conduct of the case when there is an independent children’s lawyer involved

    • Any document filed in the case must also be served on the independent children’s lawyer (rule 7.04(4)).
    • In a hearing, the independent children’s lawyer may give an opening address to the court after the applicant and the respondent give theirs (rule 8.01).
    • The independent children’s lawyer must give their closing address before the applicant and respondent give theirs (rule 16.07).

    When does the involvement of an independent children’s lawyer cease?

    Rule 8.02(5) states that the appointment ceases:

    (a) when the Initiating Application ... is determined or withdrawn; or

    (b) if there is an appeal — when the appeal is determined or withdrawn.

    At the conclusion of a matter, the independent children’s lawyer will explain the orders to the children but after the orders are made does not remain involved in ensuring the compliance with the orders.

    Parties can make an application for the independent children’s lawyer to be discharged and the appointment of a replacement independent children’s lawyer: Lloyd and Lloyd and Child Representative (2000) FLC 93-045.

    Practical realities of independent children’s lawyers

    Independent children’s lawyers can be funded by the parties privately or via legal aid. The majority are funded by legal aid.

    Unfortunately, the budgetary constraints on state-based legal aid bodies mean that there are insufficient funds to meet the costs of the number of independent children’s lawyers appointed by the court. For example, in Victoria, in 2008-2009 there was a 30 per cent decrease in the number of grants of legal assistance available in commonwealth family law matters.  Unfortunately, this drastically reduced the funding for independent children’s lawyers in Victoria.

    Victoria Legal Aid provided 736 fewer grants in 2008-2009 than they did in 2007-2008. This is a reduction of 51%. The reality of underfunding of legal aid means that parties who apply for and obtain an order for an independent children’s lawyer may face further hurdles with the actual appointment of the independent children’s lawyer due to funding.

    Despite this, if practitioners are of the view that their case warrants the appointment of an independent children’s lawyer for the reasons set out above, then it is important to make the application despite the uncertainty of funding via legal aid and it is important that the clients are aware that neither the application nor the ordering of an independent children’s lawyer means that the appointment is guaranteed.

    The appropriate court and other court matters

    The time has come to institute proceedings either in the Federal Circuit Court or the Family Court of Australia.

    There are no determinative guidelines to assist in making a decision about what court is appropriate. The Family Court has discretion to transfer non-complex matters to the Federal Circuit Court. Previously there was a rule that, if a matter would take longer than 2 days to determine at trial, then it should be determined in the Family Court. However this practice is now repealed.

    Generally you should consider the following:

    • Any matter involving an allegation of child abuse should be filed in the Family Court, so that it can be dealt with in accordance with Magellan case management guidelines.
    • Where a dispute involves older children, you might consider filing in the Family Court to take advantage of their child responsive program, which involves a family consultant speaking to the family and the children and providing feedback at the first court event by way of oral report.

    Federal Circuit Court of Australia

    Federal Circuit Court

    The Initiating Application and original children's birth certificates are to be accompanied by an Affidavit. The requirement for an early affidavit is procedurally different to the Family Court.

    The Initiating Application and Affidavit should be accompanied by the certificate from a family dispute resolution practitioner that the parties have been unable to reach agreement unless a certificate is not required because the matter falls within one of the exceptions provided for under the Act. In that case you will have to file a further affidavit setting out the evidence to prove that the matter falls within one of the exceptions.

    Affidavits

    Affidavits must be in admissible form and should only deal with relevant matters.

    The court needs your assistance in putting before it in as succinct and concise a manner as possible the material it needs to make its determination. See the matter plan for precedent affidavits and Library of Affidavit Clauses.

    Response

    Before the first return date:

    (a) Response and Affidavit must be filed.

    (b) Parties must attempt to agree on directions sought.

    The court's role in settlement

    The Federal Circuit Court Rules require the parties to make a genuine effort to settle the dispute.

    The court is interventionist and proactive in settlement.

    If there is a possibility of settlement at a directions hearing, the court may send the parties to a Registrar to pursue discussions. Indicate whether there is a possibility to settle parts of the matter.

    Use the court to try and settle matters. Tell the court what you want and why. If what you propose is in the range, the bench will say so and direct immediate talks in an attempt to settle.

    Discovery

    Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the court declares that it is appropriate.

    A declaration that discovery is appropriate may be sought pursuant to s 45 Federal Circuit Court of Australia Act.

    If disclosure is sought, set up the application with a detailed letter to the other side. On the application hand the letter up and the court will make orders in conformity with the terms of the letter to disclose within 14 days.

    There are costs penalties for non-compliance.

    The court makes a lot of costs orders to stimulate compliance and progress the matter (in marked contrast to the Family Court).

    First return date

    The court runs a docket system. The matter will be allocated to a judge before the first return date. As in the Federal Court, the judge will case manage the matter to determination. However, practice suggests that matters are being moved between dockets and it is common to encounter more than one judge in preparing the matter for hearing.

    By utilizing the court portal system you will be able to see which judge's docket you have been assigned to.

    On the first return date the court wants to know:

    (a) basic facts;

    (b) what is in issue; and

    (c) what directions are required.

    Consent orders should be prepared.

    If an adjournment is sought the court will want to know how an adjournment will assist in the progress of the matter.

    You will have to determine whether to seek a hearing date or whether further steps are required such as the preparation of a family report or appointment of an independent children's lawyer. Currently there are long delays of 6 to 12 months in obtaining hearing dates in the Federal Circuit Court.

    There may be instances where a party cannot attend a court event for genuine reasons such as being interstate or overseas, ill or caring responsibilities for young children and no childcare. The court has facilities to allow a party to attend by electronic communication, either telephone or by video. Pursuant to rule 16.05 orders can be made for attendance or at a court event or the taking of evidence or making submissions by electronic communication. Also see rules 3.08, 5.06, 12.12, and 22.39. Note this is an application and approval may be refused.

    Any application to attend by electronic communication must be made at least 7 days before the court event. The form is Request to Attend by Electronic Communication. Please note the form requires you to state that you have notified the other side of the application and asks whether you have had a response. You will therefore have to consider any application well before a court event and ensure you have written to the other side and received a response.

    In making an application a party undertakes to pay the costs of the telephone or video hook-up, which may be an issue.

    Preparation for hearing

    Once the matter is listed for hearing the court’s directions will require the parties to:

    (a) identify what affidavits are relied upon;

    (b) identify what orders are sought; and

    (c) not less than 28 days prior to the hearing date, file and serve a Parenting Questionnaire: rule 15.77.

    Family Court

    Commencing proceedings is as for the Federal Circuit Court, with the exception that no affidavit is required to be filed with the application unless interim orders are sought.

    eFiling

    Certain family law documents can be electronically filed through the Commonwealth Courts Portal. This service is available 24 hours a day.

    The portal also provides registered users with access to information about cases that are before the courts including documents that have been filed, future court dates, outcomes and any orders that have been made.

    Currently documents that can be filed electronically are limited to:

    • divorce applications and supplementary documents;
    • initiating applications for final and interim orders in all matters; and
    • responses to initiating applications.

    To file or gain access to specific family and federal law files, you need to register for a username and password through the Commonwealth Courts Portal. For more information see the Guide to using the Commonwealth Courts Portal.

    Service

    Types of service

    Service in family law matters is addressed in Chapter 7 of the Family Law Rules 2004 (FLR). There are 3 types of service, which are set out in Table 7.1 of the FLR:

    Special service

    The person served must personally receive the documents (r 7.05).

    1. Documents which must be served by way of special service are:

    (a) Initiating Application (Family Law);

    (b) Application in a Case fixing an enforcement hearing;

    (c) Application for Divorce; and

    (d) Order made on application without notice. (Note: Rule 5.12 FLR must also be complied with.)

    2. The ways in which special service can be effected are:

    (a) Post or electronic communication (r 7.07)

    (i) This can be done by sending a copy of the document to the last known address by post or electronic communication; and

    (ii) An acknowledgement of service must be provided when the document is served and a stamped self-addressed envelope for the return of the acknowledgement of service.

    (b) Through a lawyer (r 7.08)

    (i) If a lawyer representing the person agrees in writing to accept service;

    (ii) A copy of the document is sent to the lawyer by post or electronic communication; and

    (iii) An acknowledgement of service is provided when the document is served and a stamped self-addressed envelope supplied for the return of the acknowledgement of service.

    (c) On a person with a disability (r 7.09)

    (i) If a person has a disability and special service is required, then the person’s case guardian, guardian appointed under state law, or, if neither guardian exists, an adult who has care of the person will satisfy service.

    (d) On a prisoner (r 7.10)

    (i) A prisoner is served by the person in charge of the prison being served.

    (e) On a corporation (r 7.11)

    (i) Section 109X of the Corporations Act 2001 sets out the requirements for special service on a corporation. In summary, this requires the document to be:

    (1) Left at, or posted to the company’s registered office; or

    (2) Delivered personally to a director of the company who resides in Australia or in an external Territory.

    (ii) Note that the Corporations Act provides for specific service in the event the corporation is in administration or other circumstances.

    (iii) Note - a subpoena must be served on the proper officer or another person entitled to accept service of a subpoena on a corporation. Generally with most corporations such as banks, you can call and ask their legal department for the details of the person upon whom a subpoena ought to be served.

    Special service by hand

    Documents need to be physically given to the person who is to be served. If the person who is to be served refuses to take them, then service can still be effected by the documents being placed in the presence of the person and advising that person what they are (r 7.06). It is not sufficient to serve documents on a lawyer if service of the documents is required to be effected by special service by hand, even if the lawyer is on record or has indicated they will accept service of other documents.

    1. Documents that must be served by way of special service by hand are:

    (a) Subpoena;

    (b) Application — Contravention; and

    (c) Application — Contempt.

    Ordinary service

    1. Documents that must be served by way of ordinary service are documents that are not required to be served by special service, including:

    (a) an Application in a Case (other than an Application in a Case mentioned above) and any document filed with it;

    (b) a document filed after a case is started; or

    (c) a notice required to be given under the FLR.

    2. Ordinary service may be effected by:

    (a) If a person has given a Notice of Address for Service, then the documents can be delivered or posted there; or, if email or fax details are provided, then the documents can be served by email or fax.

    (b) Note that the requirements of r 7.16(1) need to be met if a document is going to be served by fax. If the documents are to be served via electronic communication, r 7.16(2) must be complied with.

    Evidence of service

    Rule 7.13 provides that service of an application is effected:

    (a) by filing an Affidavit of Service;

    (b) by the respondent filing a Notice of Address for Service or a Response; or

    (c) if service was carried out by giving the document to a lawyer — by filing an Acknowledgement of Service that has been signed by the lawyer.

    Service of any other document is proved by filing an Affidavit of Service.

    If special service is required, r 7.14 addresses how evidence of special service is provided.

    Dispensing with service

    In the event that service has been unable to be effected, rule 7.18 addresses circumstances in which the service may be effected in another way or dispensed with. Rule 7.18(2) sets out the factors the court must look at when determining whether an order is appropriate:

    (a) the proposed method of bringing the document to the attention of the person to be served;

    (b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;

    (c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;

    (d) the likely cost of service; and

    (e) the nature of the case.

    Additional important points about service

    1. Documents are to be served as soon as possible after filing and no later than 12 months after the filing date: r 7.04(2).

    2. Certain documents need to be served within particular times such as subpoenas and applications for which a shortening of time has been granted. Generally when these documents are filed, the Registry will indicate on the document the last day upon which the document may be filed.

    3. Some documents do not need to be served. These include:

    (a) joint applications;

    (b) affidavits of service;

    (c) applications without notice;

    (d) documents signed by all parties;

    (e) an affidavit seeking the issue, without notice, of an Enforcement Warrant or a Third Party Debt Notice.

    4. A party to the proceeding must not serve the other person with the documents when special service by hand is required. However they may be present when service is effected.

    5. Rules 7.19 and 7.20 address service in a non-convention country.

    6. Despite the specific provisions in the FLR regarding service, r 7.02(1) provides that the court has discretion to find that a document has been served, or the date upon which a document was served even though the FLRs may not have been complied with.

    Reduction of court fees on the basis of financial hardship

    The Family Law (Fees) Regulation 2012 governs the fees for family law matters. In certain circumstances parties may apply for a reduction of court fees or an exemption from paying court fees.

    Cheques for filing fees should be made payable to 'Collector of Public Monies'.

    A person may be eligible for a reduced fee if they:

    (a) have been granted legal aid for that proceeding from a state or territory Legal Aid office or an approved legal aid scheme or service (including an approved community legal centre);

    (b) hold a health care card, a pensioner concession card, a Commonwealth seniors health card or any other card certifying entitlement to Commonwealth health concessions;

    (c) are an inmate of a prison or otherwise detained in a public institution;

    (d) are a child under 18;

    (e) are in receipt of a Youth Allowance, Austudy or Abstudy benefits.

    If eligible under one of the above circumstances, the Application for Exemption from Fees - General must be filed with the application.

    The court also publishes guidelines for such applications: Guidelines for exemption of court fees.

    If a person does not fit within one of the above categories, they may still be eligible for an exemption if the court is satisfied that payment of the fee at that time would cause the party financial hardship. Note that a party seeking an exemption on the basis of financial hardship must seek that exemption each time a court fee is to be paid, whereas a general exemption, once granted, applies until the proceedings have finished. The Application for Exemption from Fees - Financial Hardship is the form which needs to be filed when the application is being made.

    In certain circumstances, parties may seek a deferral of the paying of the filing fee. To do that, the Request for Deferral of Court Fees form must be completed.

    Where parties have paid fees when they were entitled to an exemption or a reduction, they may apply for a refund using the form, Request for Refund of Court Fees.

    Hearing

    The Family Court has adopted a child responsive model in determining parenting order disputes, involving:

    • parties and the children attending upon a family consultant prior to the first court date;
    • completing a Parenting Questionnaire (see matter plan);
    • parties addressing the judge directly on the first return date in an informal way;
    • requiring leave to file any affidavits or subpoenas.

    The court process is designed to facilitate a compromise and allow parties to reach agreement. However, as in any court determination, if the parties do not reach agreement at hearing the court will impose a solution which may or may not be acceptable to them.

    Ceasing to act/withdrawal as practitioner

    Family Law Rule 8.04 and the Federal Circuit Court Rules 9.01, 9.02 and 9.03 differ as to what is required to be done both prior to (and after) a solicitor ceases to act for a party to proceedings. The Family Court has advised that from 20 June 2011, only the approved forms unique to each court may be used.

    In the Family Court the form used is the Notice of Ceasing to Act. Practitioners use this form to inform the client that the lawyer intends to cease to act in 7 days. When the form is provided to the client (by ordinary service) a blank Notice of Address for Service also needs to be provided to the client.  Seven days after providing the form to the client, the form is then used to inform the Court that the lawyer has ceased to act for the client and provide the court with the last known residential address of the client. The original form needs to be filed at the Court. There is no filing fee. Each party to the proceedings also needs to be served with the form once filed.

    In the Federal Circuit Court, the form used is the Notice of Withdrawal as Lawyer. Practitioners use this form to inform the court that the lawyer ceases to act for the client and of the last known residential address of the client. Seven days prior to filing the Notice of Withdrawal as Lawyer, the lawyer must provide to the client (by ordinary service) a Notice of Intention to Withdraw as Lawyer and a blank Notice of Address for Service.

    Procedure at the trial

    On the first day the family consultant will give general expert advice and information to assist in identifying relevant disputed issues.

    The parties are sworn in and everything said from that point on becomes evidence in the case.

    A party’s position can be put to the judge by the parties or by their legal representatives.

    The judge will make determinations as to:

    • issues;
    • evidence;
    • witnesses;
    • the need for a family report to be provided by the family consultant;
    • whether the parties should attend a community-based counselling service; and
    • parenting education program.

    Parts of the trial may be conducted by telephone conference.

    Parties have their normal rights of appeal.

    Orders in favour of a non relative

    The court may make an order that a child live with a person who is not a relative of the child, or that that person have parental responsibility for the child with the consent of all parties to the proceedings.

    The parties must, unless the court considers that it is appropriate not to, attend a conference with a family consultant prior to making the order.

    Variation and discharge of parenting orders

    The court has power to vary, discharge, revive or otherwise make such parenting order as it sees fit.

    The court may include orders that parties must follow certain steps, including that the parties must consult with a family dispute resolution practitioner before applying to vary an order or a process for resolving disputes that may arise from the order.

    The court may, in exceptional circumstances, include a provision that the order can only be varied by a further order of the court.

    Changing existing parenting orders by consent

    As circumstances change, the needs of children often change and previous parenting orders are no longer relevant or need to be varied to take into account the changes in circumstances. Parents can vary parenting orders by consent in either of two ways:

    Parenting plan

    Section 64D(1) of the Family Law Act provides that parenting orders are taken to include a provision that the orders are subject to a parenting plan which is:

    (a) entered into subsequently by the child’s parents; and

    (b) agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.

    Therefore, pursuant to section 64D of the Act, parents can enter into a parenting plan to vary current parenting orders. However, when making a parenting order, a court may include a provision that the parenting order, or part of the parenting order, may not be varied by a parenting plan, and may only be varied by a subsequent order of the court. The court can only include such a provision in 'exceptional circumstances': s 64D(2).

    Section 64D(3) specifies what may constitute 'exceptional circumstances':

    (a) circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; or

    (b) the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.

    Application for consent orders

    Parenting orders may be changed with the consent of the parties by entering into subsequent orders, filing: 

    a. Minutes of Consent Orders; and

    b. Application for Consent Orders.

    The Minutes of Consent Orders needs to specify that the previous orders, or part of the previous orders, are to be discharged prior to setting out the new orders sought.

    For example:

    1. That the order made by the ____ Registry of the Family Court of Australia (or Federal Circuit Court) on [date] be discharged.

    THEN SET OUT THE NEW ORDERS SOUGHT.

    Or, if the parties only want certain paragraphs of the previous orders to be varied, state:

    1. That the order made by the ____ Registry of the Family Court of Australia (or Federal Circuit Court) on [date] be varied so as to delete paragraphs [insert paragraphs] and the following paragraphs be substituted in their place.

    THEN SET OUT THE NEW ORDERS SOUGHT.

    Practitioners ought to be mindful that, if parties are simply varying previous orders, the parties will then have to refer to and comply with two separate documents, which can sometimes be confusing and lead to uncertainties as to whether there are contraventions of orders. It may be more efficient to discharge the previous orders in their entirety and enter into completely fresh orders.

    INTERIM APPLICATIONS

    If the existing parenting arrangements for the children do not place them at risk of harm, serious consideration should be given to whether it is necessary to make an application for interim orders. The preferred approach may be to just seek final orders and have trial directions made as soon as possible.

    The process of interim hearings is hindered by the limitation of judicial officers to make findings of fact at that stage.

    The case of Goode & Goode [2006] FamCA 1346 should be read by practitioners to obtain guidance in how interim applications are determined.

    At hearing the parties may rely upon:

    (a) one affidavit by each party in the form approved by the registrar applicant’s/respondent’s affidavit – interim parenting orders; and

    (b) one affidavit by each witness, provided the evidence is relevant and cannot be given by a party, filed and served in accordance with the rules.

    Parties must not, without leave, issue more than 3 subpoenas.

    URGENT APPLICATIONS

    Applications without notice (urgent ex parte applications)

    Under regulation 5.12 of the Family Law Rules, an applicant seeking that an interim or procedural order be made without notice to the respondent must satisfy the court as to why:

    (i) shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and

    (ii) an order should be made without notice to the other party ...

    An applicant must also, in an affidavit or orally, with leave, make full and frank disclosure of all the facts relevant to the application, including:

    (i)  whether there is a history or allegation of child abuse or family violence between the parties;

    (ii) whether there has been a previous case between the parties and, if so, the nature of the case;

    (iii) the particulars of any orders currently in force between the parties;

    (iv) whether there has been a breach of a previous order by either party to the case;

    (v) whether the respondent or the respondent’s lawyer has been told of the intention to make the application;

    (vi) whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;

    (vii) the capacity of the applicant to give an undertaking as to damages;

    (viii) the nature of the damage or harm that may result if the order is not made;

    (ix) why the order must be urgently made; and

    (x) the last known address or address for service of the other party.

    Note that the applicant must file any existing family violence order when filing the application. See r 2.05.

    Any order made on an application without notice must be expressed to operate:

    (a) for a fixed time specified in the order; or

    (b) if the application is adjourned, until the date of the hearing.

    Under regulation 5.17 where the parties consent to the application being heard in their absence (which the court in exercise of its discretion may decline and notify the parties of a date for attendance) the parties must, at least 2 days before the hearing, file:

    (a) a list of documents to be read by the court; and

    (b) a supporting submission.

    A supporting submission must:

    (a) state the reasons why the orders sought by that party should be made;

    (b) refer to any material in a document filed with the application by the page number of the document, and should not repeat the text of that material;

    (c) not be more than 5 pages;

    (d) have all paragraphs consecutively numbered;

    (e) be signed by the party or the lawyer who prepared the submission; and

    (f) include the signatory’s name, telephone number, facsimile number (if any) and email address (if any) at which the signatory can be contacted.

    Necessity for prompt applications in cases of abduction of children

    A party who delays in making an urgent application to the court for the return of a child or children who have been removed or relocated in contravention of an order of the court (whether by consent or not) may result in the court declining to order the child or children’s return.

    An urgent application to the duty judge of the Family Court or the duty judge of the Federal Circuit Court is essential. There are obvious difficulties in country areas in gaining access to a judge and if it will be the case that the matter has to be brought to one of the larger registries.

    Regional practitioners should note that initiating applications in family law, and responses to the same, can be submitted electronically (eFiling) via the Commonwealth Courts Portal.

    Applications should be made by contacting or appearing in the registry of the court on an urgent basis and requesting an ex parte hearing before the duty judge or registrar. The evidence in support of the application should be as brief as the circumstances of the case admit in affidavit form and if possible corroborated.

    Where a parent delays by say 3 months it is likely the children will have been well settled into new schools and circumstances. Although the status quo presumption no longer arises the court may be reluctant to disturb the children again by returning them to the previous location.

    The court will consider what benefit the child will have from a meaningful relationship with the distant parent. Meaningful relationships are many and various and it is not reasonable to say that a parent who works long hours or travels in the course of their work and is therefore absent for significant periods of the child’s life, does not have a meaningful relationship with the child and the child therefore obtains a benefit from the relationship.

    Recent authority is to the effect that when the court 'considers', it does not mean just a cursory consideration of the circumstances. The court must undertake a very careful examination of the reality of the situation and if the child is benefiting from their new situation the court may not order their return.

    Recovery orders

    A recovery order is an order of the court requiring the return of a child to a parent of the child, a person with parental responsibility, or a person with whom a child is to live, spend time with or communicate with pursuant to a parenting order (section 67Q of the Family Law Act). That section also gives the court the power to authorise or direct a person (or persons) to recover a child, including searching vehicles, vessels or aircraft, using force if necessary and deliver them to the appropriate person. The Australian Federal Police implement and enforce orders to recover a child.

    The child’s best interests are the paramount consideration when the court is asked to make a recovery order (s 67V). The recovery order will remain in force for the period specified in the recovery order or 12 months, whichever is shorter (s 67W).

    Sections 67R, 67S, 67T and 67U set out the practical aspects of a recovery order, including who may seek an order and how they describe the person who is authorised to exercise the recovery order, and the identification of the vehicles or places which may be searched for the purposes of a recovery order.

    When making an application for a recovery order, an affidavit and an application in a case are filed. See precedents for a recovery order. The affidavit needs to address the details of the orders, the whereabouts of the child if known, or the last known whereabouts of the child, and the attempts which have been made to locate and/or recover the child. It is also important to address any concerns about the child’s safety in the custody of the other person/parent – for example, medical needs of the child, health of the other party. The court will usually urgently list the application.

    The Australian Federal Police have published a Recovery Order Information Sheet, which needs to be completed when a recovery order has been made by the court.

    Allegations of abuse of a child or family violence

    Where there is an allegation of abuse or family violence the evidence must be specific as to the nature of the violence, when, how often and where it occurred, what form it has taken, the likelihood of recurrence and its impact on the children. Corroborative evidence should be put on where it is available.

    It is also important to ensure that a Notice of Child Abuse, Family Violence or Risk of Family Violence is filed.

    If necessary issue subpoenas to the police, DOCS (Department of Community Service) or relevant medical professionals.

    Where a matter settles after notices of abuse of family violence have been filed or any allegation of such abuse has been made in any document filed or exhibited in the proceedings, in any report prepared for the proceedings or in any document subpoenaed in the proceedings the court will require the parties' legal representatives to inform the court how the order attempts to deal with the allegations. This is so whether the orders are made in court or in chambers. When filing a consent order the form Annexure to Draft Consent Parenting Order must be attached.

    Family violence amendments

    The Family Law Legislation Amendment (Family Violence and Other Measures) Act received Royal Assent on 7 December 2011 and commenced on 7 June 2012.  The purpose of the amendments was to better address family violence in family law.

    Set out below is a comparison of the previous sections of the Act, the new sections of the Act and comments on the applicability and other matters relating to each section.

    Family Law Act 1975

    Topic/section

    Previous sections of the Act

    New sections of the Act

    Comments

    Abuse

    Section 4(1) - abuse in relation to a child, means:

    (a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or

    (b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.

    Section 4 - abuse, in relation to a child, means:

    (a) an assault, including a sexual assault, of the child; or

    (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d) serious neglect of the child.

    The amendments provide for much broader definitions of both family violence and abuse. These amendments are consistent with the majority of the state-based family violence legislation. This includes examples of what constitutes family violence and assault.

    Family violence

    Section 4(1) - family violence means:

    conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

    Section 4AB Definition of family violence etc.

    (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

    (2) Examples of behaviour that may constitute family violence include (but are not limited to):

    (a) an assault; or

    (b) a sexual assault or other sexually abusive behaviour; or

    (c) stalking; or

    (d) repeated derogatory taunts; or

    (e) intentionally damaging or destroying property; or

    (f) intentionally causing death or injury to an animal; or

    (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

    (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

    (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

    (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

    (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

    (a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

    (b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

    (c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

    (d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

    (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

    Section 60CC(2) - Primary considerations

    (2) The primary considerations are -

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    (2) The primary considerations are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

    The amendments provide for a greater weight to be given to the importance of protecting a child from family violence than the importance of maintaining a relationship with both parents. This doesn’t mean that parents will automatically be prevented from spending time with their child if there is a risk of family violence. Rather, the court ought not make orders which would expose the child to risk of family violence on the basis of protecting the meaningful relationship.

    Section 60CC(3)(c) - The 'friendly parent' criterion

    (3) Additional considerations are:

    ...
    (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (3) Additional considerations are:

    ...
    (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (i) to participate in making decisions about major long-term issues in relation to the child; and

    (ii) to spend time with the child; and

    (iii) to communicate with the child;

    (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

    Research indicated that there were concerns that section 60CC(3)(c) - described as the 'friendly parent' provision discouraged parents from making allegations of family violence against the other parent because such allegations may be seen as the reporting parent being unwilling to facilitate and encourage a relationship with the other parent.

    Section 60CC(4) - The 'friendly parent' criterion

    (4) Without limiting subsection (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    (a) has taken, or failed to take, the opportunity:

    (i) to participate in making decisions about major long-term issues in relation to the child; and

    (ii) to spend time with the child; and

    (iii) to communicate with the child; and

    (b) has facilitated, or failed to facilitate, the other parent:

    (i) participating in making decisions about major long-term issues in relation to the child; and

    (ii) spending time with the child; and

    (iii) communicating with the child; and

    (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

    (4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed since the separation occurred.

    Sections (4) and (4A) repealed.

    Section 60CC(3)(k) - Family violence

    (3) Additional considerations are:

    ...

    (k) any family violence order that applies to the child or a member of the child’s family, if:

    (i) the order is a final order; or

    (ii) the making of the order was contested by a person;

    (3) Additional considerations are:

    ...

    (k) if a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order, taking into account the following:

    (i) the nature of the order;

    (ii) the circumstances in which the order was made;

    (iii) any evidence admitted in proceedings for the order;

    (iv) any findings made by the court in, or in proceedings for, the order;

    (v) any other relevant matter;

    The amendments to section 60CC(3)(k) remove the requirement that a family violence order must be final or contested before the court can consider it. The court can now have regard to any family violence order made.

    Removal of section 117AB - Mandatory costs orders

    (1) This section applies if:

    (a) proceedings under this Act are brought before a court; and

    (b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.

    (2) The court must order that party to pay some or all of the costs of another party, or parties, to the proceedings.

    Section 117AB is removed.

    Research indicated that this provision was a disincentive for parties to disclosing family violence where the allegations could not be proven. The provision for the court to make a costs order under s 117 still remains, but it is now discretionary.

    Topic/section

    New provisions which did not have an equivalent provision in the previous version of the Act

    Comments

    Section 60CH

    Section 60CH Informing court of care arrangements under child welfare laws

    (1) If a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that party must inform the court of the matter.

    (2) If a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is under the care (however described) of a person under a child welfare law, that person may inform the court of the matter.

    (3) Failure to inform the court of the matter does not affect the validity of any order made by the court. However, this subsection does not limit the operation of section 69ZK (child welfare laws not affected).

    Parties to the proceedings must, and persons who are not parties to the proceedings may inform the court if a child welfare agency is involved.

    Section 60CI

    Section 60CI Informing court of notifications to, and investigations by, prescribed State or Territory agencies

    (1) If:

    (a) a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

    (i) a notification or report (however described) to a prescribed State or Territory agency; or

    (ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

    (b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;

    that party must inform the court of the matter.

    (2) If:

    (a) a person who is not a party to the proceedings is aware that the child, or another child who is a member of the child’s family, is or has been the subject of:

    (i) a notification or report (however described) to a prescribed State or Territory agency; or

    (ii) an investigation, inquiry or assessment (however described) by a prescribed State or Territory agency; and

    (b) the notification, report, investigation, inquiry or assessment relates to abuse, or an allegation, suspicion or risk of abuse;

    that person may inform the court of the matter.

    (3) Failure to inform the court of the matter does not affect the validity of any order made by the court.

    (4) In this section:

    "prescribed State or Territory agency" means an agency that is a prescribed State or Territory agency for the purpose of section 69ZW.

    s 60D - Adviser’s obligations

    Subdivision BB - Best interests of the child: adviser’s obligations
    Section 60D Adviser’s obligations in relation to best interests of the child

    (1) If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:

    (a) inform the person that the person should regard the best interests of the child as the paramount consideration; and

    (b) encourage the person to act on the basis that the child’s best interests are best met:

    (i) by the child having a meaningful relationship with both of the child’s parents; and

    (ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (iii) in applying the considerations set out in subparagraphs (i) and (ii) - by giving greater weight to the consideration set out in subparagraph (ii).

    (2) In this section:

    "adviser" means a person who is:

    (a) a legal practitioner; or

    (b) a family counsellor; or

    (c) a family dispute resolution practitioner; or

    (d) a family consultant.

    Advisers are required to provide parties with certain information, as well as being authorised to notify a prescribed welfare authority of suspicions of abuse or risk of abuse.

    ss 67ZBA and 67ZBB - Allegations of child abuse and family violence

    Section 67ZBA Where interested person makes allegation of family violence

    (1) This section applies if an interested person in proceedings for an order under this Part in relation to a child alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:

    (a) there has been family violence by one of the parties to the proceedings; or

    (b) there is a risk of family violence by one of the parties to the proceedings.

    (2) The interested person must file a notice in the prescribed form in the court hearing the proceedings, and serve a true copy of the notice upon the party referred to in paragraph (1)(a) or (b).

    (3) If the alleged family violence (or risk of family violence) is abuse of a child (or a risk of abuse of a child):

    (a) the interested person making the allegation must either file and serve a notice under subsection (2) of this section or under subsection 67Z(2) (but does not have to file and serve a notice under both those subsections); and

    (b) if the notice is filed under subsection (2) of this section, the Registry Manager must deal with the notice as if it had been filed under subsection 67Z(2).

    Note: If an allegation of abuse of a child (or a risk of abuse of a child) relates to a person who is not a party to the proceedings, the notice must be filed in the court and served on the person in accordance with subsection 67Z(2).

    (4) In this section:

    "interested person" in proceedings for an order under this Part in relation to a child, means:

    (a) a party to the proceedings; or

    (b) an independent children’s lawyer who represents the interests of the child in the proceedings; or

    (c) any other person prescribed by the regulations for the purposes of this paragraph.

    "prescribed form" means the form prescribed by the applicable Rules of Court.

    "Registry Manager" has the same meaning as in section 67Z.

    Section 67ZBB Court to take prompt action in relation to allegations of child abuse or family violence

    (1) This section applies if:

    (a) a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and

    (b) the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:

    (i) there has been abuse of the child by one of the parties to the proceedings; or

    (ii) there would be a risk of abuse of the child if there were to be a delay in the proceedings; or

    (iii) there has been family violence by one of the parties to the proceedings; or

    (iv) there is a risk of family violence by one of the parties to the proceedings.

    (2) The court must:

    (a) consider what interim or procedural orders (if any) should be made:

    (i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and

    (ii) to protect the child or any of the parties to the proceedings; and

    (b) make such orders of that kind as the court considers appropriate; and

    (c) deal with the issues raised by the allegation as expeditiously as possible.

    (3) The court must take the action required by paragraphs (2)(a) and (b):

    (a) as soon as practicable after the notice is filed; and

    (b) if it is appropriate having regard to the circumstances of the case - within 8 weeks after the notice is filed.

    (4) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain documents or information from State and Territory agencies in relation to the allegation.

    (5) Without limiting subparagraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.

    (6) A failure to comply with a provision of this section does not affect the validity of any order made in the proceedings for the order.

    Section 60K is repealed.

    Relocation

    The comments made above in relation to cases of child abduction have relevance here.

    Whether a parent will be permitted to relocate a child's residence depends upon the evidence. If all that is at issue is that the parent seeking the order is 'unhappy' the nature and consequences of the unhappiness will have to be substantiated. The parent will also have to establish what the impact of their unhappiness is on the best interests of the child.

    In the absence of child abuse or family violence the presumption of equal shared parenting responsibility is not displaced so the court will have to proceed to apply the s 60CC legislative pathway by considering all of the relevant factors in the section. Remember that the best interests of the children remain the paramount consideration.

    The court will consider the 'benefit' the child (or children) obtains from a meaningful relationship with the parent to be placed at a distance: s 60B. If the evidence suggests there is a strong meaningful relationship, it may be very difficult for a relocating parent to move.

    Parties will require evidence on the factors and if possible corroboration on disputed issues.

    Acting for parent seeking to relocate

    The parent who is seeking to relocate should ensure the following matters are addressed in Affidavit material (the following list is not conclusive):

    1. The proposed living arrangements if relocation is granted - Details of the accommodation, whether it is a leased or purchased property, number of bedrooms, proximity to school, sports and extracurricular activities.

    2. Job prospects - If a parent is relocating because of alleged improved job prospects elsewhere the parent should provide evidence of job offers in the new location as well as attempts to obtain employment in the current location and the difference between the income, career prospects and employment conditions.

    3. Support system in the proposed new location, including friends, family, work colleagues - If a party is seeking to relocate because of a new relationship they need to address the strength of the relationship and the employment opportunities and support network for the partner.

    4. Education opportunities for the children - School and class sizes, school subjects, specialty schools, sporting, musical and other opportunities depending on what activities the children are involved in. Also address proximity between the proposed school and the proposed new home.

    5. Proposal for time to be spent with the other parent and communication - Including Skype and other internet means of communication, telephone, travel times and costs, who will pay for the travel expenses incurred to facilitate time.  Consider extra time on school holidays and long weekends and time if the parent travels to the new location to visit the child. If flights are necessary to facilitate time then will the children travel as unaccompanied minors or will a parent accompany the children.

    6. The strength of the existing relationship between the non-resident parent and the children and why that relationship is not going to be damaged due to the relocation.

    7. Why the relocating parent would be able to be a better parent if the relocation was allowed - It may be necessary to obtain a psychological assessment of the resident parent to provide independent evidence of why their parenting would be enhanced if they were permitted to relocate (or why it would not be optimal if they were not allowed to relocate).

    8. Any other reasons why the children would be enhanced if the relocation was allowed.

    Acting for parent opposing the relocation

    The parent who is opposing the relocation needs to ensure that their Affidavit addresses the following (the following list is not conclusive):

    1. The positives of the current living arrangements.

    2. The strength of the relationship between the non-resident parent and the children and why that relationship would be damaged if relocation is allowed.

    3. The financial impact of the relocation and the non-resident parent’s ability (or inability) to meet the costs of spending time and communicating with the children.

    4. If the relocation is due to the resident parent re-partnering, the strength of the new relationship or otherwise.

    5. The stability of the children’s current circumstances – school, extracurricular activities, friends, extended family support.

    6. Why the non-resident parent cannot also relocate (or if they can). This may not need to be addressed in the Affidavit; however, the client needs to consider this as it may be something brought up in court or a family report.

    7. The expected effect of the reduction in time with the non-resident parent and a comparison between the amount of time the parent is spending with the children now and the time which they will spend if the relocation is allowed.

    8. Any other problems with the proposed relocation.

    It is highly likely that a family report will be ordered prior to the final hearing to address the competing proposals and to make a recommendation as to whether relocation is in the best interests of the children.

    Relocation is determined on a case-by-case basis and there is not an established preference in the court that the majority of relocations are or are not permitted. The court has a broad discretion and ultimately needs to make their decision based on what is in the children’s best interests. Regardless of who you are acting for, it is important to ensure that evidence - preferably substantiated by primary source documents, a third party or expert evidence - is adduced to support the client’s case.

    Attention to the legislative requirements in compiling concise affidavit evidence is essential. Your client’s case is not assisted by longwinded affidavits dealing with irrelevant matters.

    ENFORCEMENT

    General requirements not to interfere or hinder

    Sections 65M-65Q FLA place requirements upon persons not to interfere with or hinder a person in carrying out their obligations under parenting orders.

    Contravention

    A non-complying party can be the subject of a contravention application. After considering the facts of the case and applying the law, a court may decide:

    1. the contravention was not established (Part VII Division 13A Subdivision C);
    2. the contravention was established but there was a reasonable excuse for contravention (Part VII Division 13A Subdivision D);
    3. there was a less serious contravention without reasonable excuse (Part VII Division 13A Subdivision E); or
    4. there was a more serious contravention without reasonable excuse (Part VII Division 13A Subdivision F).

    A non-complying party can be the subject of a contravention application. If a contravention is established on the balance of probabilities a court may consider the following penalties, dependent on the finding as to which category of contravention it is.

    1. If the court finds the contravention was not established the court may:

    (a) vary the primary order (s 70NBA);

    (b) order costs against the applicant (s 70NCB) in certain circumstances.

    2. If the court finds the contravention was established but there was a reasonable excuse for contravention the court may:

    (a) vary the primary order (s 70NBA);

    (b) order make up time (s 70NDB);

    (c) order costs against the applicant (s 70NDC) in certain circumstances.

    3. If the court finds that there was a less serious contravention without reasonable excuse the court may (s 70NEB):

    (a) order make up time;

    (b) require attendance at a post separation parenting program;

    (c) adjourn the proceedings pending the application to discharge, vary or suspend the primary order;

    (d) require the contravening party to enter into a bond (including the requirement to attend appointment with a family consultant, to attend family counselling, to attend dispute resolution or to be of good behaviour);

    (e) if the person fails to enter into a bond, to impose a fine not exceeding 10 penalty units;

    (f) compensate the person who didn’t get to spend time with the child for expenses incurred as a result of the contravention;

    (g) order costs against the contravening party;

    (h) order costs against the applicant in certain circumstances.

    4. If the court finds that there was a more serious contravention without reasonable excuse, the court may (s 70NFA(1)):

    (a) make a community service order;

    (b) require the contravening party to enter into a bond (including the requirement to attend appointment with a family consultant, to attend family counselling, to attend dispute resolution or to be of good behaviour);

    (c) if the person fails to enter into a bond, to impose a fine not exceeding 10 penalty units;

    (d) order make up time;

    (e) fine the contravening person not more than 60 penalty units;

    (f) impose a sentence of imprisonment if the court is satisfied the contravention was intentional or fraudulent;

    (g) compensate the person who didn’t get to spend time with the child for expenses incurred as a result of the contravention;

    (h) order costs against the contravening party;

    (i) order costs against the applicant in certain circumstances;

    (j) vary the primary order.

    Note: The court may also vary the primary order under Subdivision B.

    Court process - contravention applications

    Practical considerations prior to commencing contravention

    What are you trying to achieve?

    • A contravention application is a distinct, technical application, where the court considers whether a party has contravened an order, and if so, what penalty if any is appropriate to impose on that parent.
    • A contravention application arguably runs counter to the best interests principle espoused in section 60CA.
    • The purpose of a contravention application is to determine whether a party is guilty of not abiding by a court order.

    How serious is the contravention?

    • Beware of implications of court applying subdivision E of division 13A, part VII. Even if a court finds that a person has contravened an order, without a reasonable excuse a court has the discretion to not make any order in relation to the contravention.  If this approach is adopted by the court, then s 70NEB(1)(g) gives the court power to make an order that the applicant pay some or all of the costs of the person who committed the offence. Section 70NEB(7) compels the court to consider a costs order in the above situation where applicant previously brought proceedings and either:
      • the respondent was found not to have committed contravention; or
      • the respondent was found to have committed a contravention but no other order (by way of penalty) was made.

    What stage of proceedings are you at?

    • Are the allegations of contravention of an order better aired at a final hearing, where they can be considered pursuant to the considerations set out in s 60CC?

    Is there a more appropriate application?

    • Need to avoid the possibility of attending on first day of hearing only to have the court exercise its power under s 70NEB(1)(c) to adjourn the application to allow either party to file an application to vary existing orders.

    Certificates and obligations to try conciliatory approach

    • Section 60I(7) provides that a certificate from a family dispute resolution practitioner must be filed prior to commencing proceedings for a part VII order.  Orders sought as remedy for a contravention order, fall in part VII and therefore a certificate is required except in circumstances outlined in s 60I(9)(c).
    • However s 60I(9)(c) allows a person to make an application (including a contravention application or an application to vary a parenting order) without the necessity of a certificate if all of the following conditions are met:
      • The application is made in relation to a particular issue;
      • A parenting order (alleged to have been contravened) was made in last 12 months;
      • The application is made in relation to a contravention of the order; and
      • The court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order.
    • You would have difficulty in relying on s 60I(9)(d) and establishing urgency for a contravention application. In that case it is better to file application to vary existing order.
    • The object of part VII, division 1, subdivision E (s 60I(1)) is to ensure that all persons who have a dispute which may be dealt with by an order under part VII make a genuine effort to resolve that dispute by family dispute resolution before the part VII order is applied for.
    • It is not unlikely that the court could refuse to deal with a contravention application until parties have attempted family dispute resolution.

    How to run an application in the court?

    On the first day you should be ready to proceed with the application.

    There is no requirement for a respondent to file an affidavit in response to the contravention as they are entitled to put the applicant to proof prior to disclosing their case to the court.

    The process involves the following steps:

    • respondent is asked to indicate their position;
    • admit contravention has occurred (i.e. technically order has not been complied with);
    • then applicant does not have to prove contravention;
    • respondent indicates that they either wish to pursue 'reasonable excuse' defence or not;
    • if pursued they then run their case to establish the reasonable excuse;
    • respondent gives evidence first and then applicant can give further evidence about reasonable excuse defence;
    • if not pursued, then the respondent can lead evidence relevant to the court in determining what sanction (if any) is appropriate (strongly recommend this be on affidavit);
    • submissions are then made
      • deny contravention has occurred;
    • applicant then must adduce their evidence and be subject to cross-examination
      • evidence commences, either by the applicant or the respondent, depending on what options selected above
      • if no contravention admitted, then after the applicant’s evidence closes in relation to the contravention a preliminary application can be made, to dismiss the application for contravention, if the applicant’s evidence does not support finding that contravention occurred.

    The court's arrest power

    The court has the power to issue warrants (in force for 6 months) for the arrest of offenders who contravene s 65M, s 65N or s 65NA.

    Sections 65R-65W set out the procedure for dealing with arrested persons.

    Removal of child from Australia

    Where proceedings for a parenting order are pending a child the subject of the proposed order cannot be removed from Australia.

    A child the subject of a parenting order cannot be removed from Australia without the consent of all parties to the order or by order of the court. Contravention carries a penalty of 3 years imprisonment.

    Sections 65ZA – 65ZC impose obligations on the owners and operators of aircraft and other vessels where a parenting order has been made and a statutory declaration made not more than 7 days previously is served on them not to allow the child the subject of the order to travel on the aircraft or vessel to a destination outside Australia.

    Further information



    © Copyright By Lawyers For Lawyers, 2007, Sydney. All rights reserved.Last Updated: 30/09/2014


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