Family Law is a minefield of urban myths, bush lawyers and unfounded fears. This Blog series is intended to be an introductory mix of practical family law information and comment, derived from over 25 years experience as a hands on family lawyer, who still loves working in this fascinating field of law!
I will cover issues that most frequently confront people when their relationship breaks down; from points to consider when making arrangements about your children, to what is fair in a property settlement, when can you move with the children, how to get a divorce, legal fees and lots more!
If you have family law problem, or thinking of separating and wondering what your options are, this blog series will provide you with a general picture of what to expect, the questions you need to ask, information that your lawyer or the court will need, or types of solutions that you might consider.
Of course, I will not be giving specific legal advice – if that’s what you need, consult a family lawyer. It’s important to find out your legal rights and responsibilities early during the separation.
So check in every two or three weeks for the latest update. If there are family law topics you’d like to hear about, let me know and I’ll add them to the list.
If you are living in Victoria, so much of your life will have changed during the COVID-19 pandemic. These changes might include the breakdown of your relationship. Or perhaps the arrangements with your ex about the children no longer work because of other changes caused by COVID-19, such as children schooling at home. Or perhaps supervision arrangements can no longer be implemented. Perhaps you have concerns about going back to the old arrangements, as lockdown is relaxed.
The first step is to try to reach some agreement with your former partner about the children. If you feel uneasy speaking face to face or by phone, send a text message or email. Always keep your side of communications polite and businesslike, if you can’t be friendly. Sarcasm and bullying might help you feel better in the short term but are unlikely to help you to reach agreement or foster an amicable relationship in the long term.
Even if you are more than usually stressed, try to keep conflict and negativity away from your children, because it can cause emotional and psychological stress to them. (The Family Court has a useful brochure about the impact of conflict on children here.)
Remember, the law expects you to put the best interests of the children above any other considerations. It doesn’t matter whether you think your ex “doesn’t deserve” the children – what’s best for the children? Try to see things from their perspective. (More generally, see my blogs from April and May 2015: It's all about the kids - myths legends and the first principle and They're my kids - what are the best interests for your children.)
If you can reach agreement – well done! – but document the agreement. This can be done either by way of Parenting Agreement (which must be in writing, dated and signed by both parties) or by Consent Orders, if you want it to be legally binding and enforceable.
When it comes to the Family Law system, some things are the same but there are also some big differences in the way we do things. The Chief Justice of the Family Court has issued a statement about the Court’s expectations and operations here.
If you and your former partner can't reach agreement about the children, then, excepting limited circumstances, you are still expected to try Family Dispute Resolution before going to Court. Some of the Family Dispute Resolution services have also been impacted by COVID-19 and may also have changed their practices; the most usual one is that they now conduct mediations via telephone instead of face to face.
You need to make a genuine effort to reach agreement in Family Dispute Resolution but if you can't, then you need to ask the Family Dispute Resolution practitioner for a certificate under section 60I of the Family Law Act, so that you can then issue court proceedings.
None of this happens quickly, so the more diligent you are about pursuing Family Dispute Resolution, the more likely you are to resolve the dispute early or issue court proceedings because the dispute can't be resolved via mediation.
There are some circumstances where Family Dispute Resolution is not appropriate: these include cases where there is an imminent risk to the safety of the child or some other person, where urgent action is required or where there is evidence of family violence, such as to make the matter unsuitable for Family Dispute Resolution. They are also cases where the Family Dispute Resolution provider might themselves make a judgement that the matter is not suitable for Family Dispute Resolution and so provide the certificate under section 60I.
If you have been separated for some time and already have a Court Order, you should try to comply with the Court Order as far as is practicable. If you are unable to comply with the orders because of COVID-19, then you should try to make arrangements that ensure that the children still stay in communication with the other parent as far as possible, for example by using Skype, FaceTime, Zoom or one of the other video conferencing services. Remember, children have a much more immediate sense of time than adults do so they will be really hurting if they can't see the other parent at the usual times. Children don't “get” delays in time because of the pandemic the way adults do.
If the dispute has arisen directly because of COVID-19 and it is urgent, the Family Law Courts have established a special COVID-19 list. This list enables you to take court action without going through Family Dispute Resolution and with some simplified procedures, provided your matter is urgent. The COVID-19 list is run by the Court Registrars. They will look at your application and decide whether it fits the criteria. If it does not, then they will transfer it to the normal court lists. This may mean that you have to try Family Dispute Resolution but, if your matter is borderline, then it might be worth your while in trying to get into that list.
Like any matter involving the courts, try to consult an experienced Family Lawyer early, even if just to get advice about your options, the processes and how best to present your case.
Just remember that, with any case, going to court is stressful, the Court's rules and procedures have to be navigated and followed and you might not get the outcome that you want.
So, if you can reach agreement with the other parent, even if that means making some compromises, it's well worth trying.
In a Family Law dispute about children, one of the most important items of evidence is the Family Report. So how the lawyers and parties handle the family report may change the outcome of the case.
It has recently been reported that a Perth psychologist appointed by the Family Court had been found guilty of professional misconduct for writing an official report labelling the father’s personality style as “psychopathic” without a clinical diagnosis.(1) According to the article, the family report was prepared somewhere around 2012, the psychologist stepped down as a Family Court expert in 2017 and has been has been dealt with by his professional body in 2019. The article states that the father has only recently been reunited with his son.
Family Reports are ordered by the courts in disputes over children. If the matter is urgent and the Judge feels that he or she needs guidance before making short term orders, a report will be ordered under S11F of the Family Law Act. The more usual report is an in-depth report prepared pursuant to S62G of the Family Law Act.
The Court can ask a family consultant (the family report writer) to prepare “a report on such matters relevant to the proceedings as the Court thinks desirable”. So if a party considers something important, they or their legal team must consider what submissions to put to the court in relation to the order for a Family Report.
Usually, once the Judge has ordered a report, the Court Registry will appoint the psychologist or social worker to prepare the report. The report writer then contacts each of the parties and their lawyers requesting copies of that party’s court documents. It’s really important to ensure that the report writer receives those documents before the interviews so they can familiarise themselves with each party’s version of events and objectives before the interviews take place.
The report writer then arranges for the parties and the children to meet for interviews. Generally the parent with whom the children live is the first interviewed followed by the non-resident parent. These interviews take place on one day. Both parents are observed with the children and, if the children are old enough, the report writer will also interview them to try to ascertain the children’s wishes and views on the case.
The report generally sets out what the family report writer has observed and their conclusions based on the interviews and each party’s court documents. Most report writers will also make recommendations to the Court, which should be (but are not always) based on their observations.
It is absolutely not the purpose of the Family Report to decide the case nor is it the role of the Family Report writer to make findings about disputed facts. However, the report writer may comment on inconsistencies between what they have read and what a party has said. For example, if a party says something different to what they have said on affidavit, that is likely to be noted in the Family Report and can be significant.
The Family Report is often the only opportunity that the Judge will have to hear the views of the children from an independent source or to obtain independent evidence as to the relationship between the children and each of the parties. For this reason, Judges often place a lot of reliance on the observations of the Family Report writer and will often find the report writer’s recommendations compelling.
In the vast majority of cases there is only one Family Report writer. It is therefore really important that you and your lawyer read through the Family Report very carefully. Remember, your lawyer is not present at the interviews so you must bring any factual errors in the report to your lawyer’s attention. There are sometimes apparently minor details that the report writer gets confused about or gets wrong which can be significant, so it is worthwhile spending several hours working through the report both alone and with your lawyer so that your Barrister can be properly briefed and prepared to cross-examine the report writer.
I also advise against giving into the temptation to jump to the end of the report and just read the recommendations. I find the report writer’s observations of the parties and the children far more important than their conclusions. In the past, I have had Family Reports in which the recommendations are simply not sustained by the written observations in the report and my Barrister has successfully cross-examined the report writer to the point where they have changed their recommendations in the witness box once our Barrister probed their observations and suggested alternative interpretations or explanations.
The Family Report can also be important in resolving cases by acting as a reality check against other evidence in the case. For example, I’ve had cases where my client was adamant that the children were frightened of the other party but the Family Report indicated very close verbal and non-verbal behaviours which indicated a great deal of affection and trust on the children’s part. I’ve had other cases where the report writer has alerted us to issues that my client had so far not acknowledged or been aware of. So be ready to review your own beliefs in light of the Family Report.
I don’t know what happened with the case reported by the ABC, beyond what is reported. But years of experience have taught me that it is vitally important that parties and their lawyers are thoroughly across the contents of the Family Report so that it can be the vital evidence it’s intended to be. (2)
(1) See article by Rebecca Turner ABC News here.
(2) For general information about Family Reports, see the Family Court and Federal Circuit Court Publication “Family Reports” available here.
So, you’ve decided you want to resolve your family law problem by agreement. (To find out the pros and cons, see my post, “Reaching Agreement”.)
How do you get there?
Some separating / separated couples are able to sit down over a series of meetings and work things out themselves. The most successful of these will negotiate themselves, each get their independent legal advice and then come back and negotiate the detail. In these cases, there is little for lawyers to do, other than to ensure that the agreement is property documented.
Mediation is another common method of reaching agreement. In mediation, you have a third person, the independent mediator, who
attempts to facilitate communication between you. Usually a mediator will first of all find points of agreement and then will work with you on the points of disagreement.
Mediation is often very effective, either to reach agreement, or if agreement can’t be reached, to work out what the real points of difference are, so they can be worked on, often without escalating the dispute. Mediation is also usually ordered by the Family Law courts in cases where there is a financial dispute.
If your case is at all complex or difficult, it can be useful to have lawyers representing you at mediation. This means that you can access legal advice on any proposals that are put forward at the time and that a final document can be organised or planned at that mediation and signed off by both parties. Having lawyers present can also redress any power imbalances in the relationship.
If your Family Law dispute is about children, then the Family Law Act mandates a form of mediation known as ‘Family Dispute Resolution’. This is generally a mixture of counselling and education through an interview process followed by mediation. Typically, in Family Dispute Resolution, the mediator will have a more active role, particularly in trying to keep parties ‘child focussed’ during the mediation. Generally, lawyers do not attend Family Dispute Resolution.
Another form of reaching agreement, which is the one least discussed but most practised, is negotiation via lawyers. Lawyers are trained and educated not only in the area of law in which they practice but also to ‘advocate’ or speak for their client. If you are in the midst of a distressing relationship breakdown or if there are painful feelings associated with the breakdown of the relationship, it makes sense to have a trained advocate speak on your behalf.
Whatever method you want to use to reach agreement, it can make good sense to have a lawyer represent you. A good lawyer will have a clearer view of what the issues are and what is legally relevant. A lawyer is also able to advise you, throughout negotiations, as to the benchmark of what a court would be likely to do, if you can’t reach agreement and what your legal options might be.
The really important aspect of reaching agreement is communication. During times of relationship breakdown, often the last thing people are able to do is communicate with each other. However, if you look at reaching agreement as a process for moving forward rather than for re-hashing the past, that might make it easier.
There are huge advantages in reaching agreement about Family Law issues rather than going to court.
By reaching agreement you:
• are also able to control the process, timing and scope of your parenting or financial arrangements
• have the flexibility to make arrangements that a Judge might not make
• tend to avoid the entrenched bitterness and inevitable nastiness that goes with the court process
• focus on the future (to solve a problem) whereas going to court often means that parties are dwelling on the past and what went wrong in the relationship
• save money on legal fees. Even having a barrister involved in helping to negotiate and draft a final agreement, in more complex property matters, is only a fraction of the cost of the case being prepared for court and going through myriad court events and proceedings.
But what actually constitutes ‘agreement’?
Have you actually discussed a proposal with the other party, or are you just assuming that your proposal is what they would want?
Have you thought about the details?
You know the old saying “the devil is in the detail”?
It often applies to Family Law cases where people say that they have reached agreement. I often have clients come to see me for their initial interview and confidently tell me that they have reached agreement with their former spouse or partner and all they want is to have that agreement ‘written up’. Frequently they expect that I will be able to prepare a document and speak to both parties and advise them the best way of achieving what they want; a little like selling a house or car.
For example, a common agreement will be “Jess gets the house and takes over the mortgage; we each keep our own car and superannuation”. Sometimes, Jess might have to pay out Joe or sometimes not.
Then, like any good lawyer, I start to ask questions.
• What if
• The bank won’t agree?
• The bank values the house for re-finance and its worth a lot more or less?
• Who’s going to pay what debts?
• Joe changes his mind?
• Jess loses her job before the deal is done?
• Joe loses his job and can’t pay child support at the same rate?
• One of them re-partners and the relationship sours?
• How do you make sure each party does what they say they will do?
• What would you get for the house if you sold it?
• How much is the mortgage? In other words, how much equity do you have?
• What about the timing?
• How much superannuation do each of you have?
• Who gets to stay in the house until the transfer?
• Is the proposal objectively fair (fairness is in the eye of the beholder!) – does it take account of the different circumstances of each of you?
If you want the Agreement to be legally binding, you need to comply with the procedures laid down under the Family Law Act . The reason for this is to make sure that only agreements where parties have either had the opportunity to make an informed decision and give informed consent or where the agreement largely or broadly reflects their legal entitlements, are enforced by the law.
One of the Family Law rules is that each party must have independent legal advice. This means that each party must see a lawyer of their own, and not two lawyers in the same firm!
Times of stress are not good times for making rational decisions, particularly if those decisions are going to have lasting consequences.
So it pays, in more ways than one, to get some competent Family Law advice before you go too far down the track of trying to reach agreement.
My next offering will be about your options for documenting agreements, once they are made.
Relationship breakdown hurts. We naturally want to blame someone. Sometimes we want that blame to have legal consequences.
I’m an Australian lawyer. Therefore, I grew up professionally learning that, in Australia, we have had a “no-fault” divorce system since 1975. If you want a divorce, it doesn’t matter whether the relationship broke down because of infidelity, cruelty, violence or simply because partners no longer love each other. Unlike the U.K. and Ireland, all the law requires is that the relationship has broken down irretrievably. The evidence of this is that the parties have been separated for 12 months.
This doesn’t mean that conduct or behaviour is not relevant to other matters, such as decisions about children and the distribution of property.
While the family law doesn’t talk about “fault” or that one person is good and the other bad, relevant conduct might have a bearing on outcomes. Sometimes, one party’s conduct will have consequences for a particular aspect and the other party’s conduct will have consequences for something else. Often clients (or their families) find it hard to see the difference between relevant and irrelevant conduct. They often want the other side “punished” because they are, or are not, something; unfaithful, aggressive, lazy, not a good provider, gay, straight, a different race or religion, suffering from an illness or addiction. These things are not, of themselves, relevant.
The Family Law is only interested in the consequences of behaviour for the purposes of the decision being made. So, all because someone is any one of the things above, might not mean that they are a poor parent. However, someone being aggressive around the children might have consequences in terms of how the children regard them and whether there is a risk of physical or psychological harm to the children. This, in turn, will influence the time and conditions on which that person will be able to spend time with the children.
In property settlements, there has been a lot of discussion and change through the cases in relation to the deliberate dissipation of assets during the case; what is regarded as wasteful behaviour and what should be the consequences. There has also been a lot of discussion in the courts about whether family violence should somehow be reflected in a property settlement.
Sometimes doing nothing or not taking action early can also have consequences that will be legally relevant when the matter comes to being resolved.
So, like so many matters in Family Law, it’s important to get advice from an experienced family lawyer, sooner rather than later.
What do you think should happen to your assets when you split up? Everyone agrees that it should be fair, but fairness, like beauty, is in the eye of the beholder.
In Australia, if you were either married or in an eligiblei de facto relationship (including a same sex relationship), “who gets what” is governed by the Family Law Act. You can agree on a settlement, but if you want it to be legally binding, it must be within the rules set down by the law.
There are basically five steps that the law requires we follow in looking at a property settlement.
1. The threshold step – is it just and equitable to make an order?
The law provides that an adjustment of property between the parties should only be made if it is “just and equitable” to do so. Most cases do meet the “just and equitable” threshold. Occasionally, the family law courts will decline to make an order at all, for example where each party has property registered in their own name and the court doesn’t consider it would be “just and equitable’ to make changes. There might be other circumstances where a court would also decide it’s not “just and equitable’ to make an order. In most cases, even to make this decision requires an examination of the other four steps!
2. Which property –what is there to be divided?
This should be easy – but often it’s the bit that causes most problems. Very often people talk of "my car", "her jewellery" or "his tools in the garage". The Family Law Act however takes into account, for possible re-distribution, all of the possessions and property that either party owns or to which either of them is entitled. Debts or liabilities are treated the same way.
We work out what the assets (another word for "property") and liabilities of the relationship are and how much they total.
In looking at property in terms of a Family Law settlement, we look at its market value; that is, what would the property fetch if it were sold at the time the decision is being made. The price you paid for it or the insurance value are generally not adequate.
If you can’t agree on the value of an asset, expert valuation evidence may be required.
At family law, superannuation is treated as property, even though generally it can’t be accessed until retirement. The method of valuing superannuation depends on the type of superannuation policy, however many policies are simple accrual policies and so the value of the superannuation can often be readily determined.
The court has a number of choices as to how to deal with superannuation. One option is to leave the superannuation in the hands of the party in whose name it has accrued and compensate the other party with alternative assets. Alternatively, the court may make a decision to “split” the superannuation in proportions that the court considers appropriate so that both parties receive a portion of the fund upon their retirement. Another option for the court is to simply “flag” the superannuation fund so that it cannot be accessed or dealt with until the court has made a further decision as to what should happen with it.
3. Looking back –contributions
The third step is to work out who's contributed what – how did the parties get to the current financial position. Contribution may be financial or non financial, direct or indirect, it may be to the welfare of the family or it may be a contribution made on behalf of one of the parties of the marriage.
If one spouse has been the "homemaker and parent", instead of going to work outside the home, that contribution is usually regarded as equal to the income earning contribution of the other spouse. (However it's almost unheard of for working spouses who do most of the housework to be credited for more than 50% on contribution!)
Another example is where family or friends of one spouse have given that spouse money or other property (e.g. as an inheritance). This would usually be regarded as a contribution on behalf of the spouse whose family or friends made the gift.
In the majority of cases where parties have been together for a number of years, unless one party had substantially more assets at the time of marriage or there has been such a gift, parties' contributions are likely to have been equal. If the law stopped here, many property settlements would be 50/50.
4. Looking forward – future needs
Fairness at law also means looking to the future. Perhaps one party has the responsibility of young children and therefore can't work full time or not without paid help, or that party will have more expensive housing needs to accommodate the children, or a disability. One party might always have a much higher earning capacity than the other or will receive substantial superannuation benefits in the future. The ages of the parties and their capacity to support themselves will also be taken into account. The payment of child support and its amount (or the nonpayment of child support) will also be relevant.
Depending on the circumstances, a court is likely to make a further adjustment to take account of those factors.
5. Is it just and equitable – any other adjustments?
So back again – the first step is repeated. The law requires the court to make an order that is “just and equitable" in all of the circumstances. There may be other matters that need to be taken into account to reach this end, where the strict application of the factors above produces an “unjust” or unfair result. This means the court will make a further adjustment.
How to make it stick
If you are able to negotiate a settlement, you have some flexibility as to how to arrange your finances and assets. However, any agreement you make will not be legally binding unless it is formalized in accordance with the Family Law Act. This can be done either with consent orders, in which case a court will review the proposals in accordance with the legal principles above. The other alternative is a compliant Binding Financial Agreement – in which case both parties must have legal advice.
This article is a simple, introductory explanation of what can be a complicated process. The best advice is to speak to an experienced Family Lawyer!
But can you afford not to have one?
A good family lawyer resolves your case faster and more effectively than you can do as an unrepresented litigant.
I often come across people who have decided that they can’t afford a lawyer and represent themselves. Then they consult me when things go really wrong (like a judge telling them in court they’d better get a lawyer) or their Family Law case has not gone the way they had hoped or expected.
Often they are heartbreaking cases where the outcomes could and should have been different if they’d just had an understanding of the legal system or a lawyer representing or advising them or drafting their documents, so that relevant information is considered by the Judge and they don’t lose out to “a technicality”.
It costs a lot to consult a lawyer, accountant, physiotherapist or any other professional. (Not to mention tradies). How much depends on the issues, complexity and level of dispute in your particular case. Your fees can range anywhere from just over $1,000.00 to tens (and in some cases hundreds) of thousands of dollars. It all depends on what’s involved in your case, how it progresses and what your expectations are.
I find people who represent themselves in their Family Law cases often blunder through the process, not understanding the logic or the significance of particular steps, each time turning up at court expecting one thing to happen but finding something else happens, often because they have not prepared properly for that type of court event.
Should your case be in one of the country circuits (Warrnambool or Ballarat in particular) where it is likely to be finalised more quickly or should it be in the Melbourne Registry? Are there crucial issues that need to be dealt with urgently or can it all wait for final hearing? Are you and your former partner able to negotiate effectively?
An experienced family lawyer will be able advise you about the likely consequences of your options.
Another important area is the preparation of court documents. In the Family Law system all of your evidence has to be presented by way of Affidavit. What you include in your Affidavit must be relevant to the issues being decided by the court. This is an area where self-represented litigants really struggle, because they want to put down the whole of their story and how they feel. This often obscures the real issues and results in the Judge not getting a clear picture.
If you can’t afford a lawyer for the whole case, consider paying a lawyer at strategic points such as just before or just after separation, after each court hearing (so that the lawyer can advise you what to do next in light of the orders that have just been made) and when you are preparing your paperwork.
It’s not ideal because a lawyer can often negotiate on your behalf, give you an idea of what likely outcomes are to be and advise you as to your overall strategy.
What is essential is that you find the right lawyer for you because you have to discuss intimate matters about your relationship, your hopes, your fears and your finances and you are paying that lawyer for their services. Talk to them about what and how you can manage your fees. Can you pay a monthly retainer? Instalment payments? Are you waiting for a property to be sold or refinanced- to release funds for your fees? Or a mixture of methods? Can somebody else pay your legal fees or can you borrow and if so what is the cost benefit to you in doing so?
It is difficult to afford a lawyer, the real question is can you afford not to have one?
We have all heard the friends and family of people who’ve been involved in Family Law disputes commentating on what they believe should have been the decision about the children, how unfair the law has been to one parent or how difficult the law has made life for one parent. These comments invariably reflect the cultural views of the person making them in relation to what should be the way children are brought up and what is important for children.
This year, there have been a number of cases that highlight the difficulties of reconciling or balancing different cultural expectations and norms with the legal boundaries. One of these was the sad case of Sally Faulkiner and her attempts to get her children back from Lebanon with the ‘assistance’ of 60 Minutes. Another was the case of Lokare and Baum, reported in the Family Law cases.
In Australian law, any decision relating to where children live, who they see or other special orders (‘parenting orders’) must ‘regard the best interests of the child as the paramount consideration’ (Family Law Act S 60CA). The values that form the context of the Family Law Act relating to children are reflected in Section 60B of the Family Law Act. That section sets out the objects of the parts of the Family Law Act that relate to children. Those objects in turn talk about the benefit of children having a meaningful relationship with both parents, protection of children, enabling children to reach their full potential, ensuring parents fulfil their responsibilities towards the children etc. (1).
These principles form the foundation of the law relating to children and are binding on Australian courts, Judges and anyone seeking the assistance of the law in Australia. (See my blog post “It’s all about the kids! – myths, legends and the first principle” and “They’re my kids! – what are the best interests of your children?” further down this page where we look at the legal framework for deciding what is in a child’s best interests.)
These objects also reflect general Australian culture as distilled through our parliament.
However, not every culture and tradition within the Australian community automatically accepts or espouses these values or gives them the same priority. In the Sally Faulkiner case, we could see the values being espoused or reflected in the Lebanese religious court system, which apparently give a much greater emphasis to the role of the father and the perceived ‘fault’ of the mother in seeking to remove the children from Lebanon. One can only wonder how Sally Faulkiner’s children are managing having been removed from their primary attachment and being unable to spend time with her. Time will tell.
Last year, in the case of Lokare and Baum (2), the Family Court had to deal with an appeal relating to a perceived conflict between the obligations of an Aboriginal father and his extended family in introducing and welcoming a young child into their particular community with the needs of that young child to feel secure and not to be removed from her primary psychological attachment (her mother) for an extended period of time.
This case was particularly interesting because it also looked at the interplay between a part of Section 60B of the Family Law Act which has, as one of the objects of the law, to ensure that a child of Aboriginal or Torres Strait Islander descent also has the right, the support, opportunity and encouragement to maintain and explore a positive appreciation of that culture. This is again reflected in Section 60CC(3)(h) in setting out how a court decides what is in a child’s best interests.
In deciding cases relating to children with parents from different backgrounds, the family law courts often have a really difficult balancing act in satisfying the cultural norms and expectations of one parent’s community as against the cultural norms and expectations of the other parent’s community or the more general community standards as expressed in Section 60B of the Family Law Act.
Very often, those expectations can be reconciled and practical outcomes achieved, provided both sides are prepared to make compromises and to act with a degree of good will.
1. Section 60B of the Family Law Act - http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60b.html
2. In the case of Lokare and Baum, the Aboriginal father of the 4½ year old child wanted to fulfil his cultural obligations by taking the child to a smoking ceremony in his country. The child had lived with her non-Aboriginal mother in Sydney since the parties separated when she was 8 months old. At first, a compromise was reached, with the first Judge who heard the case making orders that provided for the child to attend the ceremony but to travel and stay there with her mother. Orders were made that the father would pay for the mother’s travel and accommodation. Unfortunately, the father overheard and took offence at comments made by one of the mother’s lawyers and the family rivalries reignited and escalated so the father’s relatives decided that the mother was no longer welcome at the ceremony. For the child to travel to the smoking ceremony, it was expected to take 2 days’ travel by car and the ceremony itself would have extended over a number of days, so the father was proposing that a 4½ year old child, who had lived with her mother and only had limited contact with him, not stayed overnight with him since separation, would then be removed from her mother for 11 days to travel to and from and attend an important cultural event with him and his family. The case went to the full court which had to balance compliance with the objects set out in Section 60B of the Family Law Act with the paramountcy principle set out in Section 60CA of the Family Law Act. The court decided that this was not in the child’s best interests, because of the time the child would be away from her mother, to whom she had a strong primary attachment. Implicit in this decision is the knowledge that we have from social sciences as to the often long term psychological harm that can be done to a person by removing them from their primary attachment when they are very young. Therefore, it was held not to be in the child’s best interests for this to happen.
August 14, 2015
Oh dear! You want to move away and take the children with you BUT… you don’t think the other parent will agree!
You might or might not already have court orders that set out parenting arrangements. Whether you’re leaving an abusive relationship or struggling with the kids and want to move “back home” to where your family lives or you’ve re-partnered and now you are ready to be a new family – you, your kids and your new love, or you just want a fresh start in a new place are some general rules or “do’s and don’ts”.
Do’s and Don’ts
Firstly, whatever you do – don’t just “take off” with the kids (unless your or their safety is really at risk – in which case, contact the police). If you do:
If you are fleeing and abusive relationship and have good reason to believe that you or the children are in serious danger from your ex partner, then it is a case of, “safety first”. Contact your local police who will be able to put you in contact with Domestic Violence services. Obviously, if there is a danger of violence from your former partner, (and you can prove this, or at least that your fear was genuine) this would outweigh the negatives – but you would still have to persuade the court that your actions were justified.
If you just take off, you will make it much harder to persuade a court that you can be relied upon to foster the children’s relationships with the other parent and other significant people in their lives, or that you really understand the children’s needs and best interests, therefore making it less likely that you will be permitted to permanently move with the children. ( see posts They’re My Kids! and What Are The Best Interests Of Your Children?)
So, what are some do’s?
A really good place to start is to look at the alternatives to relocation:
Canvass the alternatives and have a good reason to rebut each one.
Then work on the positives:
Where will the children live? Give as full a description of their new home as possible; the house itself; the neighbourhood; who will be living there; the employment opportunities for you (and why they’re better than now!); the children’s relationship with your new partner; financial support for the children.
Early on, provide educational options in the new location – your preference of school and why, but make it clear that you’re prepared to consult with the other parent.
How will you ensure the children maintain a strong relationship with the other parent? Consider electronic communications such as Skype, emails, telephone. If you are moving too far away for regular weekend time with the other parent, also be prepared to concede a significant portion of the school holidays for them to spend together.
Consider proposals for the other parent to visit the children in the new location. If you get on well enough, could you truthfully say “He / She is welcome to stay with us every …” ?
How will the children maintain other important relationships – with relatives and significant friends and groups?
If you want to relocate to be with a new partner, what is the relationship between the new partner and the children? How do the children feel about moving to live with him /her. If you can have a trial period of your new partner living or at least staying with you and the children, before you move, that will help you to illustrate a positive relationship (if there isn’t one, it’s going to be very hard to convince a court that you should be allowed to move).
How has your new partner demonstrated a commitment to the relationship not just with you but also with your children? Financial assistance is a very good indicator. What are your and your new partner’s financial prospects? Don’t expect a court to allow you to take the children away from financial security to an uncertain prospect.
These are some of the main issues. However, every family is different and so it’s really important to get good quality legal advice about your particular case as early as possible. I recommend speaking to a Family Lawyer even before you start mediation (Family Dispute Resolution). I’ve seen too many cases where a client has made concessions in mediation that they later regret.
If the other parent opposes your plans to move with the children, expect a difficult, stressful and expensive legal battle. Some registries of the Federal Circuit Court have a separate “fast track” list of cases for disputes about relocation. Check with your lawyer.
Many of my comments in my early post We’re Breaking Up – First Steps – An Introduction to the Family Law System apply to this issue, so read that as well.
May 8, 2015
In my last post, I addressed some of the “Myths and Legends” that surround parenting and children during separation and divorce. I wrote about the legal expectation that parents, or if they are unable to agree, the Court will make decisions about parenting that are in the best interests of the children.
In this post, we look at the legal framework for deciding what is in a child’s best interests.
The Family Law Act (the law governing these decisions in most cases – see my post “Breaking Up – They’re my kids!”) sets out the factors a court must take into account in deciding what is in a child’s best interests.
There are two primary considerations, which are:
Since 2012, the protection of children from abuse, neglect or family violence has had precedence over the need to maintain a “meaningful relationship” with both parents. Regrettably, for some time, this was not the case.
Subject to those two considerations there are then further, secondary, considerations that include : the child’s views and maturity, the nature of the relationship between the child and each parent, the attitude of the parents towards their obligations , and the capacity of each parent to foster the child’s well-being.
Although this checklist initially appears to be very academic, the considerations do in fact encompass the practicalities of a child’s life. There is also an assumption that, if possible, a child should have as little disruption to their life as possible, particularly if they have been thriving. Obviously, if there have been problems that disadvantage a child, any decision should attempt to address those.
How does the court find out?
Of course you think you know what’s best for your child – you’re the parent, right? Problem is, both parents think this. So why don’t you agree? Because you’re biased!!! You only see and hear a part of what’s going on in your children’s lives (sorry, but it’s true!)
Given this almost universal truth, the Family Law Act sets out a process by which the court can obtain independent evidence about the children’s relationship with both parties and about the children’s wishes. This process is called the “Family Report”. Typically a family report is prepared by a psychologist or social worker who sees the parents and the children across one day.
The Family Report writer will speak to each party, will generally speak to the children and will generally speak to the children in the presence of both parties. The interviews are quite intense. An experienced Family Report writer is able to make significant observations and provide a valuable opinion that both the parties and the court can rely on or challenge, as the case may be.
The Family Report writer is also heavily dependent on the court documents prepared on behalf of each party.
Your court documents are the only backgrounding and preparation that the Family Report writer will have. It is therefore essential to make sure that your evidence is properly and professionally prepared and set out before you attend the Family Report interviews.
Other important evidence relating to the children can be obtained from school reports, school attendance schedules, counsellors and even, within limits, from extended family members or friends who have a lot to do with the children. The latter is particularly significant if children have a troubled relationship with one or both of their parents.
All of this evidence then goes towards painting the picture of the children’s lives and helps to answer the question of what is in their best interests.
If you still can’t agree
All this evidence, which is typically gathered over a period of months, will usually enable an experienced Family Lawyer to help you to formulate an appropriate settlement. The vast majority of disputes about children are resolved without the court needing to hear the evidence and make a decision.
An experienced and skilful Family Lawyer will also be able to help you to present or answer the evidence and to put your best case forward, if you do have to go into court. (For more about that, see my previous posts “Going to Court”).
And remember – it’s all about the kids!
April 9, 2015
Separation and Children
When parents break-up with each other, it is a time of huge upheaval and change for each and every member of that family, both parents and children. The arrangements that might have existed before separation might not be applicable immediately after separation and in turn, the arrangements that apply in the first few weeks after separation may not be suitable for the medium and long term.
Relationships change, adult ideas, fears and perspectives change and children grow older. What might be suitable arrangements for a three and five year old in the first weeks after a traumatic and sudden separation is unlikely to be appropriate three years later, when both children are at school and the adults have, hopefully, calmed down.
Myths and Legends
There are still many “myth conceptions” about what happens to the children when their parent’s separate. Over the last few years a distressing number of men have assumed and vehemently asserted that children are “divided 50/50”. (What with – chainsaws?)
At the other extreme, I still occasionally see cases where one parent has assumed that they can simply take the children and move interstate, without the agreement of or even notifying the other party. (Those parents are in for a very rude shock.)
Many people still have the “myth conception” that children will only spend every second weekend and half of school holidays with one parent and live the rest of the time with the other parent. Once upon a time, this was standard arrangement but it can no longer be assumed. Part of being involved with your children is to also be involved with their schooling and extra curricular activities – just as many parents are before separation.
Another “myth conception” is that it is up to the children themselves to decide which parent they live with and how often they see a parent. Some people believe that there is a law that says that parents can make those decisions once they turn 12. This puts awful psychological pressure on children, who feel they have to choose between their parents.
Others think that a parent’s contact with their children depends on them paying Child support or maintenance – as though children are some sort of product or service to be purchased and sold.
Each of these “myth conceptions” fails to recognize or consider the importance to the children of their relationship with both parents.
If you are asking a court to make an order relating to where children live, who they see or other special orders relating them, this is referred to, throughout the Family Law Act as a “parenting order”. If you are able to negotiate agreement without going to court, you also have the option of setting out the terms in a Parenting Agreement – which doesn’t need to be as formal as a court order.
The basic principal in the Australian Family Law system is that any parenting order made by a court must be “in the best interests of the child”. When you are negotiating arrangements for your children, you should also have their best interests as your guiding principle.
Once you have separated from the other parent, you are expected to put the children’s needs ahead of your own. Decisions about children should not be based on what is “fair” to the other party, if that does not accord with what is best for the children. Neither should decisions be based on any concepts of fault or desert for some perceived wrongdoing in the marriage.
Decisions about the children are about the children. They are the central focus.
So how do you or how does a court, decide what’s in the best interests of your children?
That’s the topic for my next post!
September 29, 2014
In my last post, I talked about the formalities of “going to court” – how you actually get there. As I discussed , going to court is not the dramatic solution to all your problems that is sometimes portrayed in popular culture. In our legal system, going to court involves protracted and formal steps.
This time, I thought I’d take you back a few steps, to see whether you really should go to court, or whether there might be better alternatives.
The Down Side of going to Court
A Judge must decide a case not according to his or her sympathy, or concept of “fairness” or even moral considerations, but on the basis of the law that relates to that case. What’s more, that decision will be based on what facts are proved by the evidence before the court. There are strict rules about what evidence can be considered by the court and what weight it should be given. (For example, you might “know” or it might be “common knowledge” that the other party has been cheating the tax office. How do you know this? Do you simply believe that the other party is earning more money than they disclose? or has one of their mates told you their working for “cash” or do you have a detailed knowledge of their financial affairs, including access to their business and accounting records?)
Unless you can prove the truth of what you’re saying, the Judge can’t take it into account. Obtaining the necessary evidence to prove each and every part of your case that is opposed by the other party can be time consuming and expensive. Can you afford or do you want to spend the money on lawyers? (While I believe spending your money on lawyers to be money well spent, you might have other ideas!)
All the while you are stressed because you have a court case hanging over you and you can’t move on with your life until the case is over. No-one can guarantee what decision the Judge will make (if they could, you wouldn’t be waiting for the decision, would you?) And then, the Judge might make a decision that neither you or the other party wanted!!!
So, what are the alternatives?
Provided you are safe, talking and listening to the other party is often the best place to start.
This does not include lecturing, recriminations, blaming, telling them what they have to do, yelling, sarcasm, threatening or other impolite conduct. It means polite, honest and respectful dialogue; you really listen to the other party and consciously try to understand where they are coming from. Then try to address their concerns, then explain your point of view to them. As you are breaking up, this will probably feel strange and unfamiliar. To avoid going back into the bad old habits, I often recommend to clients that they meet over coffee at a neutral place.
Having a polite and reasonable conversation with the other party can be incredibly difficult. It takes guts and good will, but it can be done and it can be very rewarding. You might be afraid or embarrassed because of what has been said during arguments, you may think it won’t work so why try? These feelings are often just a habit you’ve got into. It is natural to want to tell them just how hurt you feel and where you think they went wrong! However, having the polite and reasonable discussion about future actions, might be really worthwhile! I often find that clients come back from these discussions with new insights and either agreement or some positive proposals that can be negotiated further, to reach a settlement. I’ve prepared the formal paperwork for many cases where people have worked through very painful and difficult decisions with their former partner. They’ve saved themselves huge legal fees and come up with arrangements that are really tailored to the best interests of the whole family.
If you don’t feel comfortable talking to the other party face to face, consider a telephone call. Try to avoid text messages and emails – too often they just become a way of parties trying to score points against each other.
If you can’t talk reasonably with each other, another option is mediation, using a neutral third party to assist with negotiations. In some cultures, people prefer to use another family member or respected member of the community as a mediator. I think it is best to use the services of a trained mediator, to ensure the process is fair to both parties and that the mediator is not running his or her own agenda. It will also give you the best chance of reaching a workable agreement. In the Family Law system, if you disagree about arrangements for your children. you generally have to attempt to resolve your differences via mediation (called “Family Dispute Resolution”) before you can go to court.
In financial or property matters, you may want to have your lawyer or accountant either with you or available to give advice by telephone, as part of the mediation.
Family or Relationship Counselling
If you are unable to reach agreement, typically about parenting arrangements, because of poor communication or ongoing problems with one or more family members, family counselling may be useful. This addresses the ongoing dynamics that may be causing the problems and looks at how family members can change their behaviours in order to reduce conflict.
Round Table (“Without Prejudice”) Discussions / Conferences
This is often used if parties are contemplating going to court, or where court proceedings have been issued. Therefore, such conferences are best conducted with the parties and their lawyers all present. It might be useful to have other experts involved with the case (for example accountants, valuers or counsellors) available at short notice. Usually these conferences involve both sides disclosing their evidence and negotiating to see whether there is a compromise position that they can reach. They are usually “without prejudice” which means that parties can make suggestions and explore options in the conference which, if they still can’t reach agreement, cannot then be disclosed in Court.
Negotiations throughout Litigation
In most cases, even where court proceedings have been issued, there will be on-going negotiations to see whether the case can be settled. The most notorious / famous type of such negotiations (at least for lawyers) is what’s called “at the door of the court”. This is when, in Family Law, all of the evidence is available to both parties and they are literally ready to go into court to have their case heard. It’s amazing to me, after over 25 years experience as a lawyer, how people will decide to settle at the last minute, rather than have to go into the witness box and be cross examined! Often when the same settlement could have been reached months and thousands of dollars before!
Making it stick
Once you’ve reached agreement, it is still important to have that agreement set out in writing and in a legally binding form. In Family Law, we commonly do this via a mechanism called “consent orders”. I explain this as the papers going to court but you don’t. The lawyers draft up the agreement in the format of a court order, (called “minutes of consent”). Both parties sign the document, then it is presented to the court, either “in chambers” with written reasons to the Judge as to why the orders should be made or in open court where one or both of the lawyers will explain the orders to the Judge. Provided the Judge doesn’t require any significant changes, the MInutes then become Orders of the court and are legally binding on the parties.
Of course every family law case is different, so you should discuss your options with your lawyer.
These last two posts have been about processes – the “how” you deal with the decisions that can arise when your relationship breaks up. Next time, I’ll talk a bit about the law itself – the “what”.
August 27, 2014
I find that clients and their supporters often have “myth-conceptions” about “going to Court”. How often have you heard words “I’ll take you to court” said as a threat? Perhaps your lawyer has discussed “issuing court proceedings” with you.
People often have the idea, gleaned no doubt from film and television, that they and their lawyer just turn up at court. The judge is ready to hear their case immediately. They and the other party go into the witness box and get cross examined by a lawyer pacing the floor in front of them. Then the judge makes a decision and the most deserving person “wins”. It’s all very fast and dramatic! This is not how it works! Courts are all about “due process” – making sure that any decision is made in the right way, after balancing the competing claims.
What does it mean, to “go to court” in a Family Law case?
It means that one of the parties in the case believes that there needs to be a legally binding and enforceable decision or directive about one or more of the issues in dispute. To achieve this, they must take formal steps to ask a court to make that decision. In Family Law, this is done by one party issuing an application – a formal document that sets out, as precisely as possible, the orders that party wants the court to make. The application has to be in writing and is processed by the court’s administrative staff, (“filed”). The court staff will note the first hearing date on the front of the application. There is a court fee that has to be paid at the time the application is filed, unless you qualify for an exemption due to financial hardship.
In most cases, the application has to be formally given or sent to the other party (“served”) before the first hearing date. The other party must be given enough time to answer (“respond” to) the application, possibly with their own set of orders that they want the court to make. In Victoria, it tales between four to eight weeks from the date of filing the application to the first return date.
Occasionally the court is persuaded that an order has to be made with extreme urgency (for example if the other party is believed to be on the verge of removing children from the country, or the safety of children is at imminent risk or someone is on the verge of disposing of property in such a way that the other party would suffer irreparable loss). Sometimes, if the matter is urgent, but not so urgent that the other party shouldn’t have some opportunity to put their case to the court, they may only be given a few days before the first hearing. This is called “abridging” time.
Where a party is asking for either urgent orders or for short term or “interim” orders to be made, they will also have to file an affidavit (a written and sworn statement of facts) with the court, setting out the facts that they belive show the reasons for the orders they are seeking to be made.
There will then be one or more court hearings, and / or conferences and attempts at mediation, many letters and numerous court documents prepared (including affidavits for all the evidence) before the case will reach the final hearing, (also called “the trial”) before a Judge. It usually takes somewhere between six months and a couple of years (depending on the type of case) to get to this point. Over 90% of Family Law cases in Australia settle before reaching this stage. If your case does go to trial, then each party and their witnesses give evidence and are cross-examined – but never by anyone pacing up and down in front of them! After hearing all the evidence and after each side has presented their arguments to the Judge, he or she will make a decision.
For more information, see the Family Law Courts “About going to court”
Wondering whether you should go to court?
Well that’s a whole new topic!
August 6, 2014
Breaking up a relationship is usually stressful – even if you’re the one who’s initiating it. It’s an emotional and often confusing time. The path you were on is no longer there. You have to make fresh decisions about almost every aspect of your life; where will you live, what about the kids, who gets the home, cars, mortgage, credit cards, whatever. You might also be frightened of your former partner – what will they do? Perhaps you or they have already applied for an Intervention Order. What do you do, who do you talk to?
If you are concerned that your former partner may harm you, your children, pets, themselves or damage your property or possessions, contact the police in your area and take whatever practical steps you need to ensure the safety of those at risk.
Talk to a Family Lawyer!
Even if you don’t want to go to court or it’s an amicable separation, the breakdown of a relationship always creates new rights and obligations. It’s therefore good insurance (and often reassuring) to get legal advice early and from a qualified and experienced family lawyer. By doing this, you can often save yourself and your family unnecessary conflict and financial loss down the track.
Often, in an amicable separation, my advice will include an outline of where you stand legally but to then talk to the other side to reach agreement. Once you have some idea of your legal rights and obligations, you might decide that you’d like to try mediation or dispute resolution. You can then return to lawyers to have the agreement made legally binding. Easy!
Work out what it is you’re most worried about (And then think about the other things too!) There are so many issues that can arise when you separate:
Talk to your ex!
(Preferably after talking to a lawyer) Very often, when people are breaking up, they fight or argue or give each other “the silent treatment”. Once you’ve decided to make the break, try talking to each other – not about what has gone wrong and whose fault it is, but about the practical ways of managing the children, finances, the home, relocation, now that you’re apart. Talk on neutral territory such as a coffee shop over coffee (it’s harder to fight in public).
What if we can’t agree?
Sometimes you just have to go to court to have a judge or magistrate decide between what you want and what the other party wants. I’ll talk about that in my next installment.