The family law handbook [4th edition.] 9780455236094, 0455236097

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The Family Law Handbook

ii

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The Family Law Handbook Maree Livermore

FOURTH EDITION

LAWBOOK CO. 2016

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 9780 455 23609 4 346.94015 © 2016 Thomson Reuters (Professional) Australia Limited Note to readers: Readers are advised to seek expert advice with specific problems in family law. This book is intended as a guide to the law and should not be used as a substitute for legal or accounting advice. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http:// www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Product Developer: Karen Knowles Editor: Nick Jewlachow Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

Foreword to the first edition Family law is intensely emotive. Separation and the breakdown of a relationship is one of the most significant of life events. How we see ourselves as people and as parents, and our ability to sustain and re-form relationships, is fundamental to our core being. All of these things are challenged when a relationship breaks down. It can be such a life-changing experience that otherwise rational and balanced parents can lose perspective for varying periods of time. Sadly, it can lead people to becoming polarised in their positions. Often in the Family Court we discern that the positions people take have been affirmed by others. The immediate families – grandparents, uncles, aunts – generally (but not always) side with their family member, and a broader network of friends and acquaintances who are told the story offer support, advice and the words they believe their friend wants to hear. Often this advice can be misinformed. It can contribute to the polarisation, and ultimately to disbelief and even bitterness when the person experiences a court decision that does not give them all, or even part, of what they believed was their right. The federal government is trying to address these issues by establishing the Family Relationship Centres which will provide early intervention. In this context The Family Law Handbook is a most welcome addition to the plain language material available to people at this difficult time. It has been developed in a thorough and thoughtful way by author Maree Livermore and Redfern Legal Centre Publishing – publisher of the well regarded Law Handbook in New South Wales. I am hopeful that it will help people to be better informed about their circumstances and the law as it applies to family breakdown. This is vitally important in view of the amendments to the Family Law Act, which have not always been correctly reported in the press. Thus I can see the Handbook being of value to a very wide range of people, those who are self-represented and those with lawyers. Not only do I hope that it will help people to understand the need to focus on their children’s best interests, but I also hope it will contribute to more people being better informed about the family law system and the outcomes they might expect, whether resolving differences through communitybased services or through court services. I commend it as a publication. Diana Byrant Chief Justice, Family Court of Australia

Preface to the fourth edition This fourth edition of The Family Law Handbook responds to the renewed focus on family violence in the Australian community since the death of Luke Batty in 2014, and the extraordinary contribution of his mother, Rosie Batty, as Australian of the Year in 2015. In this time, it has become clear to more of us how widespread and desperate a problem is family violence in contemporary Australia.This, in itself, is progress. It was only in the last decade that surveys in some communities were returning results that up to 30% agreed that a level of violence against women was acceptable in certain circumstances. As more Australians stake a stand against this position in their everyday lives – changing the form of expression of their negative feelings, modelling respectful language and behaviour between the genders, inculcating children with the principle of non-violence – the necessary cultural change for the significant reduction of family violence can really take root. In the meantime, the separation of couples and families continues to provide a most provoking context for the expression of family violence. In the wake of family breakdown, there may be unrequited love, hurt, jealousy, anger, guilt, loneliness, confusion and exhaustion. Children are separated from their parents. There may be money stress, depression, substance abuse, and geographic dislocation. This is a toxic cocktail of possibilities and one that requires the law to take the strongest possible stand. Family law is not able to solve the problem of family violence but we must ensure that it does not, in its practice and effect, facilitate it. We must continue to examine and strengthen provisions to ensure the parties and their children have the highest possible level of protection while they are involved in the system. Towards this, the Federal Circuit Court has recently introduced mandatory filing of Notices of Risk with all new applications for parenting orders, whether or not family violence or child abuse has been alleged. The range of harms considered, too, has been expanded. There are various other procedural protections in family law designed to promote disclosure, and to protect victims of family violence and child abuse. These commence in the dispute resolution stage and continue all the way to the final hearing in a family law case. In previous editions of this book, those mechanisms were referred to throughout the text, as the relevant legal context came to the fore. In this fourth edition, all of the measures related to family violence and child abuse have been brought together in a single chapter. It is hoped that this will assist parties and their advisors to more easily find and use the protections that the family law, and its system, provides. Other significant changes to the law since the third edition include case law clarifying the Goode principles for assessing interim applications for parenting orders, and the landmark High Court case of Stanford, which has introduced new threshold requirements for the making of property orders. These developments are digested in the Parenting and Property chapters respectively. Maree Livermore May 2016

About the Author Maree Livermore is a family lawyer, mediator, writer and researcher with a background of involvement in social policy and access to justice projects. She has recently completed a PhD in mental health law and access to service at the Australian National University. She is founding principal at AEQUITAS Collaborative, consulting to government and community agencies in social policy analysis, stakeholder consultation and community engagement. Maree’s past professional associations include legal aid and domestic violence agencies, labour law firms, organisations providing family dispute resolution services and the Law and Justice Foundation of NSW. She has written regularly for the State Library of NSW and the Law Society of NSW.

Table of contents Foreword to the first edition .................................................................................................................................................. v Preface to the fourth edition ............................................................................................................................................... vii About the author ......................................................................................................................................................................... ix Detailed table of contents ...................................................................................................................................................... xi 1. The family law system........................................................................................................................................................ 1 2. Marriage, de facto relationships, separation and divorce........................................................................... 27 3. Family violence and abuse ............................................................................................................................................ 57 4. Negotiation and agreement.......................................................................................................................................... 77 5. Court process...................................................................................................................................................................... 167 6. Evidence ................................................................................................................................................................................ 203 7. Parenting .............................................................................................................................................................................. 241 8. Property................................................................................................................................................................................. 331 9. Hearings................................................................................................................................................................................ 395 Contacts and resources ...................................................................................................................................................... 437 Cases ............................................................................................................................................................................................. 447 Index .............................................................................................................................................................................................. 451

Detailed table of contents 1. THE FAMILY LAW SYSTEM [1.10]

The big picture ................................................................................................................... 2

[1.110]

Community-based support services..................................................................................... 6

[1.190]

Finding the relevant law ..................................................................................................... 8

[1.300]

Getting legal advice........................................................................................................... 11

[1.400]

Dispute resolution ............................................................................................................ 13

[2.20]

The law of marriage ......................................................................................................... 28

[2.90]

The legal status of de facto relationships .......................................................................... 30

2. MARRIAGE, DE FACTO RELATIONSHIPS, SEPARATION AND DIVORCE [2.230]

Defining separation for married couples ........................................................................... 34

[2.690]

Divorce............................................................................................................................. 47

3. FAMILY VIOLENCE AND ABUSE [3.30]

Definitions........................................................................................................................ 58

[3.70]

Family violence, abuse and family dispute resolution........................................................ 62

[3.90]

Protection orders .............................................................................................................. 62

[3.200]

Notifications..................................................................................................................... 66

[3.320]

Risk of harm and parenting orders ................................................................................... 70

[3.390]

The system’s response to family violence and child abuse ................................................. 73

4. NEGOTIATION AND AGREEMENT [4.20]

Family dispute resolution and other settling modes .......................................................... 78

[4.300]

Negotiating with your partner .......................................................................................... 89

[4.660]

Mandatory family dispute resolution procedures before going to court .......................... 102

xiv The Family Law Handbook [4.760]

Family dispute resolution before a case commences ........................................................ 106

[4.790]

Family dispute resolution after a case commences .......................................................... 108

[4.900]

Obligations on advisers to inform................................................................................... 110

[4.910]

Confidentiality, disclosure and the admissibility of statements ........................................ 111

[4.930]

Offers to settle ................................................................................................................ 112

[4.980]

Forms of agreement ........................................................................................................ 113

[4.1500]

Documents for consent orders ........................................................................................ 132

5. THE COURT PROCESS [5.20]

Choosing the court ......................................................................................................... 168

[5.170]

The process of litigation ................................................................................................. 171

[5.370]

Common aspects of court procedure .............................................................................. 175

[5.700]

Filing and forms ............................................................................................................. 180

[5.850]

Serving documents.......................................................................................................... 186

[5.960]

Disclosure and discovery ................................................................................................ 189

[5.1080]

Obtaining information and documents ........................................................................... 192

[5.1210]

Contempt of court .......................................................................................................... 197

[5.1270]

Frivolous and vexatious litigation................................................................................... 198

[5.1320]

Court fees and legal costs ............................................................................................... 199

6. EVIDENCE [6.20]

The basic task for evidence ............................................................................................. 204

[6.160]

The law of evidence ........................................................................................................ 209

[6.240]

Admissibility................................................................................................................... 211

[6.510]

Claiming privilege........................................................................................................... 220

[6.680]

Affidavits ........................................................................................................................ 225

[6.780]

Reports........................................................................................................................... 231

[6.900]

Witnesses ........................................................................................................................ 236

Detailed table of contents

7. PARENTING [7.20]

A child-centred approach to the separation journey ........................................................ 242

[7.80]

The parenting principles ................................................................................................. 245

[7.120]

The philosophy of shared parenting................................................................................ 246

[7.260]

The best interests of the child ......................................................................................... 251

[7.650]

Summary of parenting order law .................................................................................... 264

[7.660]

Post-separation parenting arrangements ......................................................................... 265

[7.920]

Parenting plans ............................................................................................................... 275

[7.1000]

Parenting orders ............................................................................................................. 277

[7.1480]

Evidence in parenting cases............................................................................................. 290

[7.1600]

Relocation ...................................................................................................................... 295

[7.1680]

Travel with a child.......................................................................................................... 300

[7.1730]

Abduction of a child ....................................................................................................... 301

[7.1860]

Step-parents, functional parents and non-traditional families ......................................... 305

[7.2010]

Contravention of parenting orders.................................................................................. 310

8. PROPERTY [8.20]

Bargaining in the shadow of the law ............................................................................... 332

[8.40]

Settling privately............................................................................................................. 332

[8.60]

The court’s process in deciding a property order ............................................................ 334

[8.130]

Step 1: Identify and value assets and liabilities................................................................ 338

[8.420]

Step 2: Assessing the parties’ contributions ..................................................................... 345

[8.660]

Step 3: Needs and resources factors – sections 75(2) and 90SF(3)................................... 352

[8.880]

Step 4: Testing for justice and equity overall ................................................................... 358

[8.890]

Pre-settlement property issues ......................................................................................... 358

[8.1050]

Final property distribution.............................................................................................. 363

[8.1310]

Specialised family law property issues............................................................................. 372

[8.1590]

Maintenance................................................................................................................... 381

xv

xvi The Family Law Handbook [8.1780]

Order drafting and sample orders................................................................................... 386

9. HEARINGS [9.20]

Two litigation tracks....................................................................................................... 396

[9.60]

Hearings and trials ......................................................................................................... 397

[9.140]

Preparation for the final trial or hearing ......................................................................... 399

[9.230]

Going to court ................................................................................................................ 401

[9.350]

The first day before the judge ......................................................................................... 405

[9.430]

Interim hearings and other interlocutory proceedings ..................................................... 406

[9.480]

Gathering documentation ............................................................................................... 408

[9.580]

Analysing your case ........................................................................................................ 410

[9.630]

More preparation strategies............................................................................................ 415

[9.730]

Stages of a final trial or hearing ...................................................................................... 420

[9.780]

Strategies for the trial ..................................................................................................... 423

[9.1110]

Judgment, costs, appeals................................................................................................. 435

CONTACTS AND RESOURCES ....................................................................................................... 437 CASES ................................................................................................................................................ 449 INDEX ................................................................................................................................................ 451

1 The family law system [1.10]

The big picture .................................................................................................... 2

[1.110]

Community-based support services...................................................................... 6

[1.190]

Finding the relevant law ...................................................................................... 8

[1.300]

Getting legal advice ........................................................................................... 11

[1.400]

Dispute resolution ............................................................................................. 13

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[1.10]

The big picture [1.10] The end of a relationship is a process, not a moment. There are stages of separation, and different aspects of wellbeing to monitor and manage along the way. There may be steps forwards and backwards, and different routes to choose between at certain junctures. Sooner or later, though, most people reach a point where they can see that their own life has disengaged from their former partner’s, and that new financial and parenting arrangements are effectively in place. It is only at this point that the process of separation is complete. The most important thing at the start is to understand the landscape in which this journey to separateness takes place. Read the first few chapters of this book. Get some initial legal advice. Then take some time to think. The decisions you make at the outset may greatly affect the difficulty and duration of your separation experience. You need to plan the most effective and least costly way through.

If you have not yet decided about separation … [1.20] If you have not yet firmly decided to separate from your partner, then this is your only task for the moment. Don’t sit down to calculate possible property settlement results if your relationship still hangs in the balance. You owe it to yourself (and to your children) to take whatever time and energy are required to work out the value of the entire relationship to you in personal terms – without the confusion of financial ramifications. This personal decision is tough enough in any case. So don’t put the cart before the horse. If you are not yet settled in your own mind about whether to continue in a personal relationship, do sort this out first. Talk with your partner. See a counsellor, together or separately. (For details about how to find a counsellor, see [3.110].)

Decisions at separation [1.30] If you really have decided to separate, you have three main groups of decisions before you. Practical arrangements You need to decide who is going to move, where to, and when; how to finance the move; and what interim income, expense and debt management arrangements you can make, including Centrelink payments. These matters are discussed in detail in chapter 2. Parenting arrangements For couples with children, perhaps the most important task is the design of workable, cooperative post-separation parenting arrangements that meet the needs of the children in the new circumstances of the family. See chapter 7 for detailed information about this. Property settlement Initially, all you need to do is set the wheels in motion. It is often better not to push to settle on property issues too soon after separation. But it is useful to get some idea of what the law would

[1.40]

chapter 1 The family law system

decide was a fair distribution of assets in your circumstances, and to plan the process for the smartest possible resolution of the issue at the right time. See chapter 8 for a description of the property settlement process; and seek legal advice.

For couples separating amicably… [1.35] Despite the stories people tell, the end of relationship does not have to be a nightmare, or even a really complex undertaking. Lots of Australian couples separate, make the necessary practical, parenting and property arrangements, and divorce without the need for external intervention, or for much legal formality at all. Despite this, much of Australian family law and the family law system – and indeed, much of this book – is not for or about couples separating amicably. There are risks in making entirely private arrangements in both the property and parenting spheres that each amicable party should be aware of. These are made clear at various points in this book. But many couples are able to manage a friendly, non-disputative, private and yet informed set of processes at the end of their relationship. If you currently foresee continuation of good relations and agreement with your former partner, do not dwell on or worry about the possibility of dispute. You can always drop back in to this book for more detail at a later stage if the agreeableness depreciates. There are a few up-front issues however that even amicably separating parties need to address and understand: for married couples, what defines separation and, importantly, the date of separation. See “Defining separation for married couples” at [2.230] in chapter 2; for de facto couples, whether an “eligible” de facto relationship exists (giving rise to property rights under the law). See “The Legal status of de facto relationships” at [2.90] in chapter 2; despite the friendly relations now, you really should get some initial legal advice (not with your former partner) about appropriate arrangements for property and children in your particular circumstances. Remember, proceeding agreeably at this stage without understanding your entitlements or making appropriate arrangements for children is not likely to result in the continuation of good relations and could result in considerable loss, harm or unfairness. See [1.300] later in this chapter; how to, and when you can, get divorced. See “Divorce” at [2.690] in chapter 2; marshalling and rearranging finances and property. See “Financial and property matters” later in this chapter and then relevant sections of chapter 8 “Property”; setting up new parenting arrangements. (It is important for all parties to understand the value of the parenting principles implicit in the law and the importance of a “child-centred” approach to post-separation parenting.) See chapter 7 “Parenting”; tips for negotiating agreement. See chapter 4 “Negotiation and agreement”.

Developing a dispute resolution strategy [1.40] If there is, or if you can foresee, conflict, it is important to formulate a strategy for working through this at a very early stage of the separation. For, despite the relationship

3

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[1.50]

breakdown, and the conflict, you still have to make many joint decisions to achieve final separateness, preferably with the minimum possible damage to yourself, to the children and to the other party. How are you going to manage this? You know yourself, your partner and your conflict activation and resolution styles well. See chapter 4 for a detailed discussion of various dispute resolution strategies.

Keeping sane [1.50] The process of resolving parenting, property and financial issues at the end of a relationship can be a very stressful experience – whether you achieve the resolution by private negotiation, family dispute resolution or litigation. There is, firstly, the discomfort of a (perhaps non-private) discussion of highly sensitive personal issues, and the stress of trying to address those issues unemotionally. Second, parties on both sides are often still trying to come to terms with major and grievously unhappy changes in their life circumstances. They may not be in the best possible frame of mind for dealing with a dispute. If you become over-stressed you are in danger, at the very least, of making poor decisions in settlement negotiations. So it’s important to plan seriously to take care of yourself. You will need a regular exercise regime, and someone outside the process – a professional or a friend – to talk to about what’s happening. You need to try to maintain a life outside your family law issues. Eating, talking and constantly thinking about them will lead to poor decisions and poor outcomes.

The trend away from litigation and towards dispute resolution [1.60] There are many different strategies available to separating couples seeking settlement of their property, parenting and finance issues. These include private negotiation (face-to-face, by telephone, or by correspondence); a specialised form of mediation known as family dispute resolution (face-to-face, by telephone, in shuttle mode); joint counselling; negotiation assisted by lawyers; arbitration; and legal action (with self-representation, or legally-aided or privately funded representation). All of these options are open to some people. The more expensive ones are not open to many. But decades of experience in the family law system have convinced community service workers, counsellors, the courts themselves and many lawyers that court action is not the most effective way – for anyone – to resolve a dispute about property, money or, especially, about parenting. Australian society is changing. More people are agreeing to work privately together to resolve their disputes than ever before, and the trend is confirmed and encouraged by government policy. The Australian family law system requires parties to make a genuine attempt to resolve their disputes without a court decision, and provided for the processes and structures within the system to help them achieve this.

[1.90]

chapter 1 The family law system

Behaviour check [1.70] The stress of relationship breakdown and conflict over important matters leads many of us into exhibitions of our least appealing character traits. Despite reforms to the system, the process of separation continues to be a fertile breeding-ground for abuse, hysteria, violence, irresponsible behaviour and substance abuse. Unfortunately, this is a time when you can ill-afford to lose control. You must ensure that your language and behaviour towards your children and former partner remain moderate and proper at all times – in private and public situations. Take particular care not to denigrate (criticise or tear down) your former partner in the presence of your children. If you fail to control your behaviour on any occasion, and you end up in court, you can expect to find the details (of what might have been a momentary lapse) most unflatteringly detailed in the other party’s documentation. If your lapse occurs in court, your case before a particular judicial officer might be irretrievably damaged. At the very least, losing your cool with your partner is likely to result in the waste of your efforts to date towards finalisation of the issues, and to poison the landscape for early future resolution. If you feel yourself becoming angry during communication or negotiation with the other party, terminate – or take a break from – the contact as soon as possible, and resume only when you feel back in control.

Children are not property [1.80] Public policy officially discourages an approach to settling parenting arrangements by “fairly dividing” the child between parents, like an asset to be distributed. By various reforms to family law, parliament has worked hard in recent years to change parents’ attitudes about what they might consider are their rights to their children, encouraging instead the idea that it is the children who have rights (such as to be safe, and to be able to be with, and be cared for by, both their parents). It is difficult for many parents to see their child’s interests as separate and perhaps different from their own, especially when the pain of even a short-term separation from the child seems unbearable. But this is exactly the task for a separating parent. And although parents themselves are not legally bound to prefer their children’s best interests to their own, many mediation organisations require parents to consider the children’s best interests as a condition in their family dispute resolution agreements. Furthermore, if the dispute does reach a court, the court will determine an objective picture of what is in the child’s best interests, and may retrospectively assess whether the behaviour of parents indicates a similar orientation. See chapter 7 for a full discussion of the best interests principle.

Winning and losing [1.90] It is easy for participants in a family law dispute to be drawn into a false idea of winning and losing. Many people find that winning, in the end, is not the same thing as achieving the

5

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[1.100]

outcome they originally set out to obtain. They discover that winning is more about moving forward into the future with a sustainable lifestyle, good relationships, good health and a positive self-image. If you have won in a court process at the expense of your health, your conscience, the good opinion of your children, or the ability to make cooperative decisions with the other parent, you may find, in the longer term, that you have lost – possibly a great deal. On the other hand, if you settle your dispute early (or even, by your own estimation, you lose or give in in family dispute resolution or at court) you may well be able to re-establish workable relationships to return fairly soon to a state of personal equilibrium, and retain the potential, in parenting matters at least, to negotiate more satisfactory arrangements later on. It’s important to get a realistic idea of your prospects on the legal issues from a lawyer at an early stage. Pursuing small differences over months of haggling may be a waste of legal fees, and of emotional and relationship resources. Settling early – and making some concessions – could be your most productive way out of a process that doesn’t in itself produce too many true winners.

Is it worth it? [1.100] Damage to your, and your children’s, emotional states and recovery prospects continues to accrue in every week that a family law dispute goes on and on, as the destructive communications that seem to characterise the process are perpertuated. Some people spend literally years of their lives in dispute about property settlements and parenting arrangements. They lose much of their settlement in legal fees. They suffer from depression, ill-health and loss of career impetus. Their children are sad, tired and disturbed. Remember that it is open to you, at any point, to choose not to be one of them. You can close the deal on the best terms available to you right now – and then get on productively with your new and real life.

Community-based support services [1.110] Feeling lost and confused – about how to sort everything out, what to do first, how to cope – is absolutely normal. Many people find that it can be worthwhile to connect at an early stage with people other than lawyers who are familiar with the landscape of family breakdown and who can provide much-needed specialised information, support and encouragement. The services available are many and varied. For contact details of services in your area, of any of the types listed below, see Family Relationships Online at http:// www.familyrelationships.gov.au or call the Family Relationship Advice Line on 1800 050 321 for a referral.

[1.160]

chapter 1 The family law system

Counselling [1.120] After separation, you may experience the extremes of anger, sadness and worry. You may feel dislocated, or lacking in control. Many people involved in the separation process have found that visiting regularly with a professional counsellor around the time of separation can be enormously helpful in coming to terms with the emotional issues, even if they have never considered counselling in the past. Counselling is conducted by community-based, governmentfunded and private practitioners. Some are psychologists. See [4.110] for more about counsellors.

Family dispute resolution [1.130] Family dispute resolution is a form of mediation adapted specifically to the Australian family law system. It is conducted by an independent family dispute resolution practitioner who aims to help parties to resolve disputes by agreement instead of by going to court. See [4.160] – [4.180] for more about family dispute resolution and about finding a registered practitioner, see [4.220].

Children's Contact Services [1.140] Children’s Contact Services are community-based services assisting the children of separated parents to establish and maintain a relationship with the parent with whom they don’t reside. The services provide a safe, neutral place for the management of the changeover of children between parents. They also provide “supervised contact” services. Eligibility requirements and waiting lists may apply.

Parenting Orders Program [1.150] The community services operating under the Parenting Orders Program (PoP) assist separating families in high conflict with their parenting arrangements. Case workers engage intensively with parents in raising awareness about the effect of their conflict on their children. As part of a PoP service, family members, including children, may have access to a range of services such as counselling, family dispute resolution and group work education.

Early intervention services [1.155] Legal aid offices in some states provide services to assist separating parties in the very earliest stages of separation to identify and resolve property and parenting arrangements before dispute becomes an entrenched feature of relations between them.

Post Separation Cooperative Parenting [1.160] Post Separation Cooperative Parenting (PSCP) services help high-conflict separated parents learn to refocus on the needs of their children.

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[1.170]

A PSCP program addresses parents individually. It may involve education, counselling or individual support as appropriate in each case. PSCP services are located regionally.

Supporting Children After Separation Program [1.170] The Supporting Children After Separation Program (SCASP) assists children to deal with issues arising from family breakdown, recover and maintain family relationships, and to participate in decisions that affect them.

Other family services [1.180] There is a great range of funded community services addressing specific needs in the family relationship area, including the needs of men, indigenous people, teenagers, people of non-English speaking background, and victims of family violence.

Finding the relevant law [1.190] Even if you decide to try to come to agreement with your former partner on property, parenting and financial matters privately, it is important for both parties to understand the range of results they might expect in court if their dispute resolution efforts fail. If both parties understand and accept their legal rights and responsibilities there is likely to be a quicker settlement, and a more sustainable long-term agreement. You need to understand both the overall legal framework, and the legal factors relevant to your particular circumstances. A brief description of the overall legislative framework follows. Don’t try to read and absorb great quantities of legislation. It is more important to know where to look for points of law and procedure when you need to. All the legislation referred to is available online. Some relevant web addresses are listed in the “Contacts and resources” section of this book.

The Family Law Act (Commonwealth) [1.200] The Family Law Act 1975 is the cornerstone of the Australian family law system. It is a Commonwealth Act, and it establishes an area of federal law that is exercised by a number of different courts. It applies in all Australian States and Territories. In Western Australia, however, it is applied in relation to married or previously married parties only.

The Federal Circuit Court Act [1.210] The Federal Magistrates Court Act 1999 created the Federal Magistrates Court. This court was established, originally, to fast-track some of the more routine matters covered under the Family Law Act as well as other areas of federal law, such as bankruptcy.

[1.230]

chapter 1 The family law system

In 2013, the name of this court changed to the Federal Circuit Court of Australia. The name of the Act was changed to the Federal Circuit Court of Australia Act 1999. It is important to recognise that there are significant differences in the way a family law matter is handled in the Family Court and in the Federal Circuit Court. You need to understand these differences before you begin a case. They are discussed in detail in chapter 5.

The Family Court Act 1997 (Western Australia) [1.220] Western Australia has for many years maintained its own family law system, integrating both the federal and non-federal areas of concern around legal issues related to the family. Unlike the Family Court of Australia and the Federal Circuit Court and the various other State and Territory courts around Australia, the Family Court of Western Australia has power to deal with, say, adoption and surrogacy issues (areas of State-based law), as well as with divorce and parenting orders (areas of federal law). The combined functioning, however, does involve some complexity in the Western Australian legislation. As it is essentially a State-based law, the detail of the differences between the Family Court Act 1997 (WA) and the Commonwealth Family Law Act, as well as all of the differences in practice, cannot be comprehensively explored in this book, although some important areas of difference will be highlighted. Go to http://www.familycourt.wa.gov.au for direction to more information about the operation of the Western Australian family law system. As a general rule, the Family Court of Western Australia applies the Commonwealth Family Law Act in matters related to currently or formerly married parties (parenting and property cases) and Western Australia’s own Family Court Act 1997 in relation to parenting and property issues for de facto or unmarried parties. In relation to parenting matters for de facto couples, the provisions of the Western Australian Act are substantially similar to the Commonwealth Act. The law in relation to distribution of property cases for former de facto couples, covered by the Western Australian Act in Western Australia, differs significantly from the Commonwealth scheme, particularly in relation to eligibility. Go to the Western Australian Act itself or see http://www.familycourt.wa.gov.au for details.

Legislation about court rules and procedure [1.230] The Family Law Rules 2004 provide the detail of the main aspects of practice, procedure and evidence in a case before the Family Court of Australia. The Family Law Regulations 1984 set out details for a range of matters including fees, parentage testing, and overseas orders. The Federal Circuit Court of Australia Rules 2001 set out the rules of procedure and forms that apply in the Federal Circuit Court. The Federal Court and Federal Circuit Court Regulations 2012 deal with fees in the Federal Circuit Court.

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The Family Court Rules 1998 (WA) largely mirror the Commonwealth’s Family Law Rules 2004 with some important exceptions. The Family Court Regulations 1998 (WA) deal with fees in the Western Australian Court and matters related to parentage testing (in Western Australia).

Child support legislation [1.240] The Child Support (Assessment) Act 1989 sets out the law about eligibility to receive, and liability to pay, child support. It also establishes the authority of the Child Support Agency. The Child Support (Registration and Collection) Act 1988 sets out the law about registration requirements for paying maintenance of various types, including child support, and the means by which the Department of Human Services can enforce payment.

Legislation about family violence [1.250] See [3.90] in chapter 3 “Family violence and abuse”.

De facto property legislation [1.260] See [2.120] in chapter 2 and also chapter 8 “Property” for more information.

Where to find the legislation [1.270] For easy access to the full text for all family law legislation, see the Australasian Legal Information Institute’s website at http://www.austlii.edu.au. You can also find copies in most major public libraries.

Case law [1.280] Law is made by parliaments in the form of legislation, but it is also made by judges in the courts. This judge-made law is referred to as case law or the common law. The common law system applies in the United Kingdom, in the countries of the Commonwealth (including Australia), and in the United States. Common law principles grow and develop on a case-by-case basis. Much less of our everyday law is decided solely on the basis of the common law than was once the case. The main role for the common law now is to expand our understanding of legislation, and to apply it to fit the many different fact situations that arrive for decision in the courts. A court hearing a case is generally bound to apply the existing case law (that is, the judge-made law from previous similar cases), unless there are special difficulties in applying it to the new facts. If this occurs, the case may become a major or landmark case. The court reinterprets the relevant legislation, and then updates or clarifies the existing case law to explain its decision in the new case. This is how the common law changes.

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The common law is actually written down only in the reported judgments in major cases. If more than one judge hears a case, the case law that arises from it consists of the principles expressed by the majority (as opposed to the dissenting judges, if any – those who came to a different conclusion). Summaries of common law are published in looseleaf publications, online and in legal textbooks. But be careful when researching case law in textbooks. Case law tends to change much faster than textbooks are updated.

Cases in family law [1.290] There are many important cases in family law. Some are cited in this book. But the common law grows and changes all the time, and it can be enlightening to check how the courts are applying the law in the latest cases, especially those similar to your own. Particularly if your dispute goes to court and you are self-represented, you should spend some time before your hearing or trial reviewing the major cases dealing with the issues in dispute in your case. A librarian should be able to help you with this. Alternatively, if you know that your case turns on the court’s interpretation of a particular section of the legislation, or on how the section might be applied to your circumstances, you can find the text of recent cases that have referred to that legislative section using the “Noteup” function, once you have opened the law (and the relevant section) on the AusLlII website at http://www.austlii.edu.au.

Getting legal advice [1.300] Even if you have agreed to try to resolve your parenting and property issues privately, it is important that each party has a realistic understanding of their position at law. This is not gained by extrapolating from the results achieved by helpful friends and relatives, or from gossip at the coffee machine or pub. Every person’s circumstances are unique. A unique result can be expected when the law is applied to them. As helpful as the legislation itself and other written resources (including this book) might be, it is almost impossible for a lay person to be confident about their legal position without the advice, initially at least, of a legal professional. Rather than feeling threatened, then, by your former partner making an appointment to see a solicitor, you should positively encourage it, and do the same yourself. Seeing a solicitor in the early stages is about getting information and understanding how the law would regard your individual circumstances. It does not mean that legal action is imminent. See chapter 3 for information on strategies for dealing with solicitors and obtaining their assistance, not only for representation in court but for help in the early stages of separation.

Sources of free legal advice [1.310] Even if you are not going to have an ongoing representative, there are a number of sources of free legal advice available to you. You can access many of them more than once.

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Legal aid Advisory services [1.320] Even if you are not likely to be eligible for ongoing legal aid (see [1.620]), you may still be able to receive free family law advice service, particularly in the early stages of separaiton, in the various Legal Aid agencies in metropolitan and major regional centres. Legal aid services have been subjected to significant budgetary restriction in recent years however, so it may best to telephone first to discover how your type of query is handled. See the Contacts and Resources chapter at the end of this book for Legal Aid contact details. Legal Aid agencies usually provide additional forms of family law assistance, such as telephone helplines, fact sheets, divorce classes and other self-help workshops.

Duty lawyers [1.330] Legal Aid duty lawyers are “lawyers-on-the-spot” at court who can assist unrepresented people, help with preparation of court documents and provide information and referrals. They can be found at most courts, including local (magistrates) courts. The service is available to everyone, provided there is no conflict of interest (that is, provided that Legal Aid has not previously seen or is not seeing the other party in the same or a related matter), and provided the duty lawyer has time to see everyone who wishes to see them. As you can normally see a duty lawyer only on the day you are due to appear in court, there is often little time to explain a complex family law situation. There may also be a queue. So try to be efficient and concise in your description of the dispute. Keep in mind also that a duty lawyer is unlikely to be able to retain contact with your case on an ongoing basis.

Community legal centres [1.340] Some community legal centres will advise and assist people who are not eligible for legal aid in a family law dispute, up to the point where a case starts in court. Other centres simply provide advice sessions. They are listed on the National Association for Community Legal Centres website at http://www.naclc.org.au.

The Family Relationships Advice Line [1.350] The Family Relationships Advice Line (1800 050 321) run by the Commonwealth Attorney-General’s Department, provides free information about family law issues and advice on parenting arrangements after separation.

Family Relationships Online [1.360] The Family Relationships Online website contains a vast amount of information about separation and parenting after separation. It will also provide Australia-wide referral details for local services able to provide legal and other assistance in relation to dispute resolution, counselling, family violence and other family services. See http://www.familyrelationships.gov.au.

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Free first consultation with a solicitor [1.370] Many private law firms practising in family law have a free first consultation policy. Even if you ultimately decide not to engage a lawyer, you can learn a lot about your case and your options for dispute resolution in a first consultation. Don’t be embarrassed to ask, when you initially contact the firm, about whether it charges for its first consultations. (This is a real “frequently asked question”.)

Advice booklets [1.380] Useful booklets and factsheets to help separating families are published and available from the Child Support Agency (at http://www.csa.gov.au), Family Relationships Online (at http://www.familyrelationships.gov.au) and the Department of Families, Housing, Community Services and Indigenous Affairs at http://www.fahcsia.gov.au/our-responsibilities/families-andchildren/publications-articles, at the various Legal Aid offices and websites and at public libraries.

Choosing a lawyer to advise and assist [1.390] Although the Law Society or Law Council in each State or Territory can help you find a lawyer near you who does family law work, it should be the quality of the lawyer’s experience in family law rather than their physical location that determines your final choice. Good family law expertise is worth a lot of extra inconvenience in travel time. A family law only firm may provide the most cost-effective range of services. These firms often employ less senior (therefore, usually, cheaper) solicitors who nevertheless have very good experience and skills in family law. They also retain the accredited family law specialists and the reputed big hitters, who are said to be worth their higher hourly rates. It is important that you feel personally comfortable with your legal representative. If you are planning to engage a lawyer on an ongoing basis, you might wish to consult two or three before making a choice. You may find, for example, that you feel more comfortable with a lawyer of your own sex. To get a relatively unbiased view about who’s who in family law in your area, try asking another type of professional – a doctor or an accountant, the coordinator of a local community services organisation, or, perhaps, a publicly funded lawyer at either the local Legal Aid office or a community legal centre.

Dispute resolution Policy change shifts emphasis out of court [1.400] Australian family law changed significantly in 2006 with a Commonwealth Government policy initiative encouraging more cooperative parenting after relationship breakdown, and a

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shift away from litigation (taking a case to court), towards private decision-making and dispute resolution with regard to parenting and property matters. The new policies included: establishment of Family Relationship Centres around Australia, which provide: – access to free family dispute resolution and counselling services; – referrals to other family services agencies to assist and support people with specific needs; and – information and education about the family law system and the benefits of dispute resolution processes; tougher rules about engaging in family dispute resolution processes before court action commences; provisions in the Family Law Act encouraging or requiring parents to establish cooperative, shared post-separation parenting arrangements; a prominent role for family consultants in court cases; and increased funding for community-based family services agencies to assist in family dispute resolution.

Coming to agreement without going to court [1.410] There can be no doubt about the benefits of early resolution of disputes between separating couples without final orders from a court – both for our community as a whole, and for the adults and children involved. These include advantages of cost, time, health, certainty, self-determination and many additional benefits for children. As mentioned earlier in this chapter, a separating person faces a set of decisions. One of the most important is planning a dispute resolution strategy appropriate to the people concerned and the circumstances of the case. Your strategy may contain only a few elements. It is unlikely, however, that court action should be the first, or even the main, strategy, though it is certainly true that there are a number of special circumstances – such as serious concerns about safety, or the recovery of a child who has been removed – that require early and firm intervention through the courts. In most cases, however, a genuine effort directed towards the containment and finalisation of disputes and then for agreement with the other party, at least in the first instance and as difficult as this might sometimes seem, should produce the optimum outcomes overall. The 2006 reforms to the Australian family law system set out to establish and encourage the use of a range of processes designed to help people reach their own agreements about post-separation property and parenting arrangements. It is now the case that, if one option (say, private negotiation) fails, it is possible to move to another (say, family dispute resolution or assisted negotiation). See chapter 4 for more detail and discussion about different types of non-litigious dispute resolution processes. If all relatively private efforts of dispute resolution fail, however, the option of court action remains (though the focus on encouraging agreement does not stop at the door of the court).

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Moving to court action [1.420] Notwithstanding these options, however, many people still find they need the help of the courts to resolve their family law dispute. Commencing family law litigation is a big decision to make. Before you start a family law case, you need to clearly understand the possible cost and time involved. You also need a broad understanding of the role of the several Australian courts and registries involved in family law matters.

The Family Court of Australia [1.430] The Family Court of Australia is the court of principal authority in Australian family law. It is a federal court with a national support office in Canberra, but also with permanent locations in each of the Australian capital cities except Perth (as to why this is the case, see The Family Court of Western Australia at [1.470]). The Family Court has delegated many of its powers to the Federal Circuit Court which can undertake a range of family law matters. At the time of publishing, all cases for final family law orders should be filed, initially at least, in the Federal Circuit Court unless the case involves: international child abduction; international relocation; disputes as to whether a case should be heard in Australia; special medical procedures (of the type such as gender reassignment and sterilisation); contravention of parenting orders made by the Family Court (some cases only); serious allegations of sexual abuse of a child; serious allegations of physical abuse of a child; serious controlling family violence; complex questions of jurisdiction or law; likelihood of a lengthy hearing; adoption; validity of a marriage; validity of a divorce. These arrangements may be varied on a case-to-case basis and depending on resources of the courts from time to time. In any case, the two courts work closely together and it is not uncommon for cases commenced in one court to be transferred to the other. The Family Court hears an application for divorce only in exceptional cases. The Family Court also has authority as a court of appeal against decisions of the Federal Circuit Court.

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The Federal Circuit Court [1.440] The Federal Circuit Court is located in all the capital cities, and in some regional centres as well. It was established to provide more efficient access to all types of federal law – regionally and in the urban areas – so it also hears cases in areas such as administrative law, consumer law, anti-discrimination and bankruptcy as well as in the areas of family law delegated to it by the Family Court. It is important to understand that, although they work in similar areas of family law, the Family Court and the Federal Circuit Court often use different forms and have different rules for proceedings. See chapter 5 for details of the differences.

Family law courts in regional Australia [1.450] The Family Court has a number of permanent registries in major regional centres around Australia. The Federal Circuit Court operates visiting circuits, taking in many regional centres throughout Australia. Call your capital city Federal Circuit Court registry for details of the nearest circuit program, or check the Federal Circuit Court website for dates and locations. Circuit sittings of the Federal Circuit Court often take place in the local courthouse on a day when the regular court is not sitting.

Family law registries and advice line [1.460] The court registry is the centre of administration, management and client enquiry for all family law cases at both the Family Court and the Federal Circuit Court. Where the two courts hear family law cases in the same city, they share a registry. Registries in different cities may have different programs and services, different workloads, and a few special practices of their own. Generally speaking, however, they run in the same way – implementing the provisions of the Family Law Act and managing cases in accordance with the Rules and Regulations of the two courts. The Family Law Courts National Enquiry Centre is available on 1300 352 000 and by email at [email protected] to answer queries about family law court processes, forms, fees and to provide referrals to other useful services. (Queries in Western Australia should be directed to the Family Court of Western Australia.)

The Family Court of Western Australia [1.470] Western Australia has separate arrangements for dealing with family law. Unlike the Federal Circuit Court and the federal Family Court, it can deal with matters under both State and federal jurisdiction. If you live in Western Australia, the Family Court of Western Australia is a one-stop shop for all family law matters, for both married and de facto relationships, including: divorce; property;

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parenting matters; maintenance; surrogacy; and adoptions. As a general rule, the Family Court of Western Australia applies the federal Family Law Act in matters related to currently or formerly married parties (parenting and property cases) and Western Australia’s own Family Court Act 1997 in relation to parenting and property issues for de facto or unmarried parties.

The District and Supreme Courts [1.480] Except in Western Australia, if the circumstances of a de facto couple don’t satisfy the eligibility requirements for their property case to be dealt with under the Commonwealth’s Family Law Act, they may still have recourse to legal remedies under State legislation which applies more generally to property disputes between people who are not married to each other, including de facto couples. The detail in this legislation varies considerably between the States and Territories (see the list of relevant legislation at [2.120]). All property disputes between de facto couples heard under State or Territory legislation are heard in either the District Court or the Supreme Court (depending on the dollar value of the claim) in the relevant State or Territory.

Local and Magistrates Courts [1.490] The Local or Magistrates Courts or Courts of Petty Sessions (the name depends on which State you live in) in each State or Territory operate as sub-registries for the Family Court and the Federal Circuit Court. This means that you can obtain or lodge forms locally for family law matters. The local courts also have limited powers to hear and determine certain matters under the family law legislation. These matters are mostly interim applications – applications for a type of stop-gap order for matters requiring immediate decision. This type of order is called an interim order. But the local courts do also have authority under the Family Law Act to make final orders (if the court is willing and able to hear and make them): for property cases where the total value of the property is less than a certain amount (or more, if both parties agree) – check with your local court for the current dollar-value upper limit; about parenting issues, if both parties agree; that revive, vary, discharge or suspend certain existing parenting orders to resolve inconsistency with a family violence order; or if the case is about formalising an agreement already reached by the parties (called “consent orders”). The power of local courts to hear and make final orders in family law matters is an important one for Australian conditions. In a remote location, this might be the only practical way of resolving a dispute.

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How long will it take? [1.500] The time it takes for even a simple family law matter to be resolved once a case is commenced in court varies greatly. A lot depends on how willing the parties are to compromise and to reach a negotiated solution. But there are, potentially, years between some of the milestones in the full, formal process.

Divorce [1.510] If there have been no conditions imposed or other complications, a divorce application filed in the Federal Circuit Court may be finalised – that is, the divorce certificate issued – about four months (see [2.690] – [2.840] for discussion on divorce).

Temporary (interim) orders: child and property applications [1.520] The most urgent applications in relation to both child and marital property matters can be heard in both the Family Court and the Federal Circuit Court at very short notice: perhaps in one or two days, or even in the middle of the night in the most extreme circumstances (such as if a child is about to be taken out of the country). Most applications for interim (temporary) orders in relation to children or property, however, are listed for hearing two to six weeks from the date the papers are filed. You should make known any concerns or constraints you have about the timing when you file your documents.

Final orders [1.530] A family law court is likely to be able to resolve a dispute final hearing somewhere around two years after the date of the initial application. However, the vast majority of applications will settle (that is, the parties will reach agreement) privately before the date for a final hearing.

How much will it cost? [1.540] The costs of participation in the family law system can be divided into three categories: court fees; legal fees; and disbursements (expenses).

Court fees [1.550] Quite apart from fees you pay to your lawyer, you must pay a fee for each application you make to the court unless your circumstances meet the (quite generous) criteria for exemption or waiver of the fee (see either the relevant court website or registry to obtain exemption or waiver application forms).

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The fees are not exorbitant. A divorce currently costs $845 in the Federal Circuit Court (December 2015). Be ready to pay the whole amount yourself if you file for divorce independently of your spouse. (Alternatively, you could file jointly with your spouse and agree to pay half each.) New applications for final orders in relation to children or property in the Family Court, and in the Federal Circuit Court, currently cost $340 in an application for final orders only, or $430 for an application for final and interim (short-term, temporary) orders. You may be eligible for reduced or exemption from court fees. Speak to your local family court registry about how to apply.

Legal fees [1.560] There are many variables that will affect the size of the bill from a family law solicitor, including: the length of the case (including the negotiation period); the complexity of the case; the jurisdiction of the case; the attitudes of the parties to resolving the dispute; the seniority of the lawyer; the size (and other characteristics) of the law firm you engage; and your location. Most family law solicitors charge between $300 and $600 for each hour, with pro rata fees for shorter periods. Lower fees may apply in regional areas. Any part of an hour spent by the lawyer working on your case – including reading an incoming letter (perusing) or talking to you on the telephone – will be recorded and added to the total time for which you will be billed.

But doesn't the loser always pay legal costs? [1.570] Parties usually pay their own costs in the Family Court, in contrast to the practice in other civil courts. But a costs order (which means that one party has to pay the other’s legal costs) will be made against a party in a family law matter if the court thinks it appropriate on the basis of such considerations as: the parties’ financial circumstances; their behaviour in the course of the proceedings; and the legal merit of the application in the first place.

Disbursements [1.580] Disbursements are all the costs of running your case apart from the professional time of your lawyer. Besides such expenses as photocopying, if your case proceeds to litigation you will begin to incur third-party expenses in relation to the collection and presentation of evidence. Medical, psychological and other expert reports to support your case are likely to cost upwards from about $1,000 each. Valuation reports on various matrimonial assets – you may

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need several – will cost more than $700 each. Expert witnesses will probably charge appearance fees at an hourly rate, and include waiting and travelling times. Finally, you may require a barrister to present your case in the final hearing, who will charge between $3,000 and $8,000 per day over, perhaps, two days.

No really, how much will it cost …? [1.590] The range of hourly legal fees is so wide, and there are so many variables between cases, that it is impossible to make accurate generalisations about what you should expect to pay. On the other hand, this is exactly what you should ask your lawyer to do in relation to your particular case and circumstances. You should insist that your lawyer explain in detail the likely range of legal fees and disbursements before you commence litigation. Don’t be fobbed off with generalities. Emphasise that you would like to be kept informed of changes to the cost regime advised. Don’t give instructions for the solicitor to commence any work on your behalf until you have made the costs agreement, which should include a Statement of the scope of work you wish the solicitor to undertake. Realistically you should expect that, if you engage a solicitor, you are unlikely to get any result at all – either by negotiation or by order – for under $5,000 unless the matter resolves quickly after an exchange of letters, and the agreement reached does not need to be prepared for filing in court. Matters that proceed to or near to a final hearing routinely cost between $40,000 and $100,000 per party.

Getting an estimate and agreeing on costs [1.600] Legal costs sound dramatic, and they are. Most people simply cannot afford to litigate in family law. If you have a property settlement coming up you may be able to negotiate payment to the solicitor on a deferred payment basis – that is, to pay when money from the sale of the property becomes available under the settlement. This arrangement is unlikely to include disbursements, however, and you need to be ready to pay these along the way.

The difference between divorce and other types of family law application [1.610] Many people, if not most, now handle their divorce without a lawyer. There is little scope for legal argument and evidence-gathering in a modern divorce, which now is really more about filling in forms correctly (see [2.700] – [2.720]). During divorce proceedings, however, the court will not make any rulings about maintenance, child support, property or parenting arrangements. If these issues are in dispute and not resolved, they must be pursued under separate applications to the court.

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Getting legal aid [1.620] Legal aid is financial assistance or direct legal help provided through Legal Aid commissions or offices funded by the States and Territories. Grants are subject to stringent eligibility tests. The policies applying to grants of legal aid differ between States and Territories. Generally speaking, however, aid is not available for the litigation of property matters, or divorce, although aid may be provided for family dispute resolution in property settlement matters. Aid for child support issues may also be limited. There are many excellent family lawyers in Legal Aid offices around Australia. Private lawyers may also act for clients on a legally-aided basis, although fewer private family lawyers are still prepared to work in this way. Unfortunately, legal aid is very difficult to obtain if you are not receiving an income-tested Centrelink benefit.

Legal aid eligibility tests [1.630] The provision of legal aid is subject to the satisfaction of both a means test and a merit test. The means test is divided into separate sub-tests for income and assets, and both must be passed. The means test Your net income after the deduction of certain living expenses (not all of them) must be very low to pass the legal aid income test. Only rarely will a person earning more than a Centrelink benefit qualify (and a benefit recipient can miss out because their expenses are too low!). A common difficulty in relation to the assets test is ownership of investments – investment property, term deposit accounts and shares. The merit test The merit test requires you to demonstrate that: there are reasonable prospects for success in your application to the court; and a “prudent self-litigant” would risk their money on such proceedings; and your claim is not trivial or otherwise unworthy of public expenditure. Rejections on merit are frequently overturned when more information is given to Legal Aid in a letter appealing against a negative assessment.

How to apply for legal aid [1.640] You can get a Legal Aid application form from your local courthouse or download an application from the website of your local commission. You can call in at, ring or email a Legal Aid office, or consult a lawyer who does family law work on a legally-aided basis (check by phone first) for help with your application. Bring a Centrelink statement of benefit, and a copy of your bank account statements for the last three months, to the interview.

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Representing yourself in court Reasons for self-representation [1.650] You will not be alone if, after investigating your eligibility for legal aid or your ability to pay a lawyer, you decide to represent yourself in court action. Around 30 per cent of cases commenced each year involve parties who represent themselves. Most people who choose to represent themselves do so because they are not eligible for legal aid and cannot afford to pay a lawyer.

Should I try to avoid self-representation? [1.660] Although changes to the Family Law Act in 2006 make self-representation in parenting cases a little easier, in most cases a party would be unwise to choose self-representation in a family law case (apart from a divorce) for any reason other than lack of funds. This is mainly because self-represented litigants are likely to face a lawyer on the other side. The disadvantages of being up against a lawyer are considerable. A self-represented person with a lawyer on the other side is, in many respects, out-gunned from the outset. Little things go the way of the represented party simply because the lawyer knows how to use the system to their client’s advantage. Though it is not true to say that parties who represent themselves always lose their cases, it is the case that the legal knowledge and experience on the other side is likely to be reflected, to a greater or lesser extent, in the final result. There is also a personal toll in terms of the stress of the unfamiliar process of managing litigation (filing all the relevant forms in good order and time, for instance), and of feeling constantly on the back foot and suspicious of the strategic moves and overtures of the other party. These particular disadvantages disappear if the parties agree that neither will be represented. But there is no guarantee that the agreement will be honoured throughout the process. Even if it is, differences in the parties’ capacities – to manage the litigation, cope under stress and present an effective case – are likely to have a significant impact on outcomes. Anyone who knows they might need to represent themselves if the case goes to court should make the greatest possible effort in dispute resolution processes before commencing formal litigation. On the positive side, if you find that you must venture into the family law system without a lawyer, you will learn a great deal – about the law, certainly, but also about yourself. Many people have felt empowered to make more of their lives as a result of the greater confidence, self-control and skills gained through managing the conduct of their own legal case.

Options for partial representation [1.670] The “unbundled” provision of legal services is a slowly developing phenomenon. Under unbundled arrangements with your lawyer, you do most of the work yourself, using the lawyer’s services only occasionally.

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Your lawyer might, for example, set out for you in stages what you should do. Then you might need to consult the lawyer from time to time, to check and finalise a document for filing, for instance, or to advise you on what to do next. You might engage a lawyer just to prepare your initial application for filing, or to stand up for you in court on important occasions. You might take the matter as far forward as you can yourself and then hand it over to a lawyer in good time for preparation for the hearing. But it can be difficult to find a solicitor willing to act on an irregular basis. There are complex questions of professional liability involved in moving into and out of a case not wholly controlled by the solicitor. On the other hand, it should be possible to engage a lawyer to perform certain discrete tasks (such as commencing or concluding your action). Your local Legal Aid office or community legal centre may be able to steer you towards any lawyers in your area with this type of flexibility.

The tenor of family law litigation [1.680] Despite continuing efforts in family law reform, our court system still sets one adversary against another. Lawyers are an integral part of the adversarial system. They are engaged to assist their client through the maze of procedures, forms and events involved in family law litigation. It is their task to attempt to ensure that the case is won – that the best possible deal is extracted – for their client. The quality of the rest of their client’s life and future relationships – and certainly of the other party’s life and relationships – are not necessarily relevant to the solicitor’s sense of his or her responsibilities, even though these may be strongly affected by the solicitor’s actions, and by the litigation culture itself. Lawyers almost always adopt an oppositional tone in dealing with the other side. They may sound aggressive, critical, sarcastic, cynical or personal. Many people are highly offended by this when they first come into contact with it. But though the statements made by the other party’s lawyer (say, in correspondence) may seem designed to upset, the lawyer does not necessarily believe them. Unpleasantness, sometimes, is strategy. It could be viewed as part of the lawyer’s job, as distasteful as this might seem. Recent reforms use the threat of costs orders to encourage solicitors and parties to use moderate language in settlement negotiations and in court. But it is still the case that many people find themselves badly hurt in family law litigation. Lawyers play hard, and clients do lie, recording the worst possible allegations about each other in writing and publicly. If you think you might be vulnerable to behaviour of this sort, think again about settling the matter sooner rather than later – even if this means accepting less than what you regard as ideal.

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What help can I expect? [1.690] Self-represented litigation has been recognised as a feature of our family law system that is here to stay. There is some public funding to support self-represented litigants with programs and materials. The various family law court websites have been revised to form a valuable plain-English resource full of information and materials, including downloadable court forms. The courts have also worked to reform their internal culture to be more supportive of self-represented litigants, who should now find that registry staff are accustomed to providing information about what forms to fill out and how, and about questions of procedure. Court staff may provide information and assistance only. They cannot provide legal advice. See [1.310] – [1.380] for sources of free legal advice, and ask at the registry about the availability of local pro bono (free) legal services. The resources you can assemble yourself are discussed below.

A self-represented litigant's toolkit [1.700] Hunt down access to, set up or collect as many of the following as you can. A computer, printer and internet connection It is almost impossible to manage a family law case if you do not have access to or cannot use a computer and the internet. If you don’t have your own, you should become familiar with the public facilities at the court itself, at a public library, or at an internet café. A brochure collection The Family Court, the Federal Circuit Court and Family Relationships Centres maintain an extensive collection of very useful brochures about various aspects of family law and procedure, and also about helping yourself and your children through relationship breakdown. Collect these documents from your local family law registry or Family Relationships Centre, download them from the family law courts website or Family Relationships Online, or ring the court and have them sent out. Then make sure you read them! Some homemade letterhead You will write many letters in the course of your legal case. Create a letterhead template in Word containing your contact details. It doesn’t have to be fancy – just your name with address, phone, fax and email details will be fine. You might also want to gather and electronically store the contact details of regular addressees for your correspondence to save constant rekeying. Family law websites Bookmark the websites of the Family Law Court at http://www.familycourt.gov.au and Family Relationships Online at http://www.familyrelationships.gov.au – you will find them indispensable. The stages of the court process are simply described, and all court forms can be downloaded along with instructions for their use. You can

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also identify referral sources for personal assistance, download do-it-yourself kits for the preparation of some of the more common sets of documents, and check daily court lists in each capital city. A desktop legislation collection Collect the legislation relevant to your case as shortcuts on your computer desktop for easy access.

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2 Marriage, de facto relationships, separation and divorce [2.20]

The law of marriage .......................................................................................... 28

[2.90]

The legal status of de facto relationships ........................................................... 30

[2.230]

Defining separation for married couples ............................................................ 34

[2.690]

Divorce.............................................................................................................. 47

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[2.10] People have very different ideas about what constitutes a proper marriage, a de facto relationship, or separation in a relationship. For the sake of certainty and consistency, the law lays down its own definitions. This chapter examines the legal concepts of marriage, de facto relationship, separation, and divorce, and investigates how these definitions influence outcomes for people involved in family law processes. It also examines some of the practicalities of separation and divorce, being issues of major concern to people involved in relationship breakdown.

The law of marriage What is marriage? [2.20] A marriage in Australia is legal if it is in accordance with the Marriage Act 1961. This Act contains details about how a marriage may be solemnised, marriageable age and the marriage of minors, the formalities of making a legal marriage, who can marry people, void marriages, and marriages made overseas. In 2004, the Marriage Act was amended to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. The amendment was inserted by the government of the day to end speculation that the Act allowed for marriage between same-sex partners. Since that time, support within the Australian community for same-sex marriage has strengthened. It seems likely that the Commonwealth will move to amend the definition within the Marriage Act to legalise same-sex marriage in the not-too-distant future, as many other Western nations have done. In a High Court case, Commonwealth v The Australian Capital Territory (2013), the notion of “marriage” as dealt with in the Constitution of Australia was held not to be limited to a union between a man and a woman. This finding was widely interpreted as smoothing the way towards future same-sex marriage by eliminating a potential roadblock argued on Constitutional grounds.

The obligation to support your spouse [2.30] The obligation on spouses to support each other financially comes into the Family Law Act (section 72) from the common law. The basic responsibility for maintaining a spouse differs from the old law in that it applies: to both spouses, not just the husband; and only when the supported spouse is experiencing some kind of inability to support him or herself. This obligation exists for all spouses. In practice, however, it usually only becomes relevant on marriage breakdown.

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Ownership of property [2.40] The law long ago established that men and women can own property separately after marriage. They can also hold it together if they wish, either as joint tenants or tenants in common, but co-ownership never arises from the simple fact of marriage, as it once did. This is in contrast to the concept of community property which applies in Europe and some US States. Nevertheless, in proceedings relating to property, the Family Court may “make such orders as it considers just and equitable” in respect of all the property of the parties, whether owned jointly or separately: Family Law Act section 79. See chapter 7 for a detailed discussion of property issues. Marriage also remains relevant to property distribution on the holder’s death. For example, a marriage automatically revokes a person’s will; and if someone dies without a valid will, their property passes under the laws of intestacy to their spouse.

Advantages of marriage at relationship breakdown [2.50] Leaving aside questions of personal preference and religion, considerable legal advantages flowed from the status of marriage until the landmark changes in relation to the status of de facto relationships under the Commonwealth’s family law legislation that came into effect in 2009. These changes are described in detail at [2.100] – [2.220]. Notwithstanding these changes, it remains the case that under many insurance policies and workers compensation schemes only a “surviving spouse” – that is, a (necessarily heterosexual) marriage partner – can recover death benefits or compensation for wrongful death.

Marriages made overseas [2.60] Most marriages validly made in another country are recognised in Australia – although not same-sex marriages. You can also obtain a divorce for an overseas marriage, as long as: at least one of the parties lives in Australia, and the validity of the marriage can be formally proved by a marriage certificate or other document (with a translation if it is not in English).

Marriage under Aboriginal customary law [2.70] A marriage in accordance with traditional Aboriginal law is not recognised as valid under Australian general law.

The legitimacy of children [2.80] The concept of illegitimate children has been dead in Australia since 1987. The parents’ relationship is irrelevant to the legal status of the children.

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The legal status of de facto relationships [2.90] The following section addresses only the legal status and eligibility requirements for de facto couples under the law in Australia. For the content of de facto property law provisions – that is, for the entitlements, obligations and processes now available to de facto couples for property matters under the Family Law Act – see chapter 8.

Developing legal status [2.100] Unlike some jurisdictions throughout the world, Australian law does not recognise common law marriage (otherwise known as de facto relationships) as a form of legal union that gives rise to fundamental legal rights and obligations at common law upon its formation. For many years in Australia, there was no legal recognition at all of even long-term de facto relationships. In recent decades, however, all Australian States, Territories and the Commonwealth have enacted legislation that gives the parties to a de facto relationship certain rights and duties. The Commonwealth’s Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008, which came into effect in 2009, gave people in de facto relationships access to Commonwealth family law on property and maintenance matters, being access equivalent to that enjoyed by people in marriage relationships (such as distribution of superannuation entitlements). Importantly, also, the 2009 changes recognised same-sex de facto relationships on the same basis as heterosexual de facto relationships. The 2009 changes don’t refer to parenting issues because Australian family law on parenting matters already covered unmarried parents. All the child-related provisions in the Family Law Act, and everything in this book about parenting responsibilities, arrangements, and issues, as well as the rights, welfare and development of children, applies equally to children from both de facto and marriage relationships (although not necessarily with equal treatment to same-sex and heterosexual parents).

Different family property laws for de factos depending on geography [2.110] The de facto family property provisions apply to any relationship with the requisite geographical connection with a “participating jurisdiction” (State or Territory involved in the scheme). Since South Australia came on board in 2010, the participating jurisdictions now include all of the States and Territories of Australia, except Western Australia. In Western Australia, de facto relationships have been covered by that State’s special State-based Family Court Act since 2002. Unless it decides to join the Commonwealth scheme, court-based dispute resolution on property and financial matters for people separating from a de facto relationship in Western Australia will continue to be based on that State law. Notwithstanding this, under the provisions of section 90SD, a person now living anywhere in Australia can make an application to the court under the new Commonwealth de facto property law if they can show either that:

[2.125]

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when the de facto relationship broke down, they were “ordinarily resident” in one of the participating jurisdictions; or that at least one of the parties is currently “ordinarily resident” in a participating jurisdiction, and either: – that the couple were ordinarily resident in a participating jurisdiction during at least one-third of their de facto relationship, or – that the party applying for the order made substantial financial or non-financial contributions to property or as a homemaker or parent in one or more of those States or Territories.

Different de facto property laws depending on the time of separation [2.120] If separation in your de facto relationship occurred before 1 March 2009 (or 1 July 2010 in South Australia), the principal laws that guide the distribution of the property of the relationship by the courts are laws made by a State or Territory. The relevant State and Territory statutes are: Australian Capital Territory – the Domestic Relationships Act 1994; New South Wales — the Property (Relationships) Act 1984; Northern Territory – the De facto Relationships Act 1991; Queensland – Part 19 of the Property Law Act 1974; South Australia – the Domestic Partners Property Act 1996; Tasmania – the Relationships Act 2003; Victoria – the Relationships Act 2008; Western Australia – Part 5A of the Family Court Act 1997. If separation has occurred since 1 March 2009, former de facto parties with the requisite geographical connections in NSW, Queensland, the ACT, the NT, and Victoria will be able to rely on the new de facto property provisions in the Commonwealth’s Family Law Act (provided the other eligibility requirements are met: see [2.125] and [2.130]). The relevant date for separation in South Australia for access to the Commonwealth provisions is 1 July 2010. In Western Australia, de facto couples do not have access to the Commonwealth de facto property law provisions. De facto property law in that State continues to be wholly covered by Western Australia’s Family Court Act 1997. If separation has occurred earlier than the relevant separation date and if special permission to apply after expiry of the usual two-year separation period is granted, parties may still be able to “opt in” to the Commonwealth scheme, subject to certain conditions.

Maximum two-year separation before applying [2.125] Ordinarily, an application to the court by a de facto party for a property or maintenance order must occur within two years of the date of separation: sub-section 44(5).

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This requirement may be waived however if a party can show that hardship would result if the time limit was enforced, or, in the case of an application for maintenance, that a party would need to rely on a Commonwealth benefit payment for financial support: sub-section 44(6).

What is an eligible de facto relationship? Gateway requirements [2.130] A de facto relationship is defined at section 4AA of the 2008 de facto property law amendments as a relationship where the parties: are not legally married to each other; are not related by family; and have a relationship as a couple, living together on a “genuine domestic basis”. Additionally, section 90SB requires that: the de facto relationship lasted at least two years; or that there is a child of the relationship; or that the party applying to the court made substantial contributions to the relationship and serious injustice would result if the court did not make the financial order or declaration that the party has applied for; or that the relationship has been registered under State or Territory law.

What is a genuine de facto couple? [2.140] The Act sets out some of the factors that a court will consider in deciding whether two people have a couple relationship exists at sub-section 4AA(2). These include: the length of the relationship; the nature and extent of their living together; whether there was a sexual relationship; financial arrangements between the parties; property arrangements between the parties; the degree of mutual commitment to a shared life; whether the relationship has been registered under a State or Territory law; the care and support of children; and the reputation and public aspects of the relationship. It is not necessary to prove any one of these factors to establish that the de facto relationship actually exists: sub-section 4AA(3). They will be considered by the court, all together, and along with other circumstances of the individual case: sub-section 4AA(4). It’s notable that neither arrangements for housework nor having children together forms part of the list. As the list is not closed, however, such factors could be and have been taken into account in deciding whether a de facto relationship exists. As noted in Keaton v Aldridge (2009), the task of the court is to identify:

[2.170]

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the point at which relationships cross an invisible line to become one recognised by law …Without the “solemnities and formalities” by which some heterosexual couples declare that relationship in marriage, same-sex relationships are fluid in the sense that it is difficult for them to discern what, if any, circumstances will carry them across an invisible threshold to be a relationship recognised by law. Importantly, in Keaton, it was held that the fact of separate households is no particular bar to the existence of a de facto relationship under the law. In Jonah & White (2011), the court was asked to make a declaration of de facto status about a relationship of 17 years, which existed outside the marriage of one of the parties to the relationship. The parties met secretly for only a couple of days every two or three weeks, had separate households and the children of the married party had no established relations with the other party. Though the relationship was long and stable and there had been some financial dependence, the court decided against declaring de facto status because of the absence of an essential coupledom – being the “merger of two lives into one” on a “genuine domestic basis”. The requisite coupledom, however, need not be well known. It was recognised in Baker & Landon (2010) that a same-sex de facto couple may not be public about their relationship because of concerns about discrimination.

Separation for de facto couples [2.150] It will be clear that the actual date of separation can be an important fact in deciding property and financial entitlements for de facto couples. Nonetheless, the de facto relationship provisions in the Family Law Act do not explicitly describe how the court should decide whether and when separation has actually taken place. Unlike a marriage, which exists as a separate union under common law, a de facto relationship does not exist at law outside the particular pieces of legislation that define it for different purposes. This means that, for de facto property law purposes, a de facto couple will be separated when the de facto relationship, as defined in the Act, no longer exists. Therefore, the time of separation will be determined by a reverse of the process described for deciding the existence of the couple relationship above. Using the same factors, the time at which a couple became “not a couple” may be identified. It may be noted that the checklist of factors indicating de facto status (see [2.140]) is similar in many (but not all) respects to characteristics the cessation of which have been held to indicate separation in a married relationship. But the courts have warned against the application of the marriage-based separation case law to decisions about whether a de facto relationship exists or not. The legal contexts are really not comparable. As noted in S & B (2009), in a separation situation, a party has the onus of proving that a (married) relationship is no longer on foot by demonstrating the absence of certain factors. In de facto relationship cases, the onus is on the party attempting to prove the existence of those characteristics.

Multiple relationships [2.170] The new Act specifically notes that a de facto relationship can exist despite the fact that one or both of the persons is legally married to someone else, or is in another de facto relationship at the same time: sub-section 4AA(5).

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[2.180]

Same-sex relationships [2.180] The Act expressly states that it covers both heterosexual and same-sex relationships: para (a) of sub-section 4AA(5).

Close personal relationships (that are not de facto) [2.190] People in certain close personal relationships, such as carer relationships, that have elements of domestic support and personal care, and yet are not de facto relationships, have rights under law in some States and Territories. The new Commonwealth de facto property law does not apply to close personal relationships that are not covered by the definition of de facto relationship at section 4AA of the Family Law Act.

Court declaration about de facto status [2.210] The law provides for early resolution of the many possible legal issues that could arise around these complex eligibility requirements. Under section 90RD, at the same time as, or after, a party applies to the court for other financial orders, they can also apply for a declaration of the court that decides such matters as: the period of the de facto relationship; when it ended; where the parties “ordinarily resided”; whether there is a “child of the de facto relationship”; and whether a party has made “substantial contributions”. After a declaration is made, it takes effect as an order of the court. This means that the “facts” it refers to are decided, and no longer form part of the dispute between the parties (subject to appeals).

If you are not eligible … [2.220] If your relationship does not meet the timing, geographical or other “gateway requirements” for coverage under the Family Law Act or you cannot, or do not wish to, opt in to the Commonwealth scheme, it is quite possible that the relevant State or Territory property laws may still apply. See [2.120] for a list of these.

Defining separation for married couples “Irretrievable breakdown of the marriage” [2.230] Since 1975, the only ground for a divorce in Australia is “irretrievable breakdown of a marriage”. The only way to prove “irretrievable breakdown” is by separation for at least 12 months: section 48. This separation must be proved by evidence that the marital relationship

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has been severed. A court will not consider a marriage to be over by reason of temporary or trial separation, or even of physical separation, without evidence of the severance of the relationship.

Why the date of separation matters [2.240] The date of the formal, legal separation affects many important matters, including: when a person can file for divorce; when child support becomes payable; when new Centrelink benefits become payable; and how the court will calculate the property settlement.

Constant fighting, extramarital sex and loss of love do not prove the end of a marriage … [2.250] Peaceful coexistence and monogamous sexual relations are not part of the legal profile of a marriage. Many people have workable marriages that do not include these characteristics. Thus, the date that “he started his affair” or from which “we never stopped fighting” is not in itself very useful. As many poets have more than adequately described, love is neither observable nor classifiable. The contrary applies, however, for the legal indicators of a marital relationship – they are generally observable, and about practical matters. The death of love itself is not provable in court and thus is not an indicator of the end of a marital relationship.

The natural indicators of a marital relationship [2.260] Because people live their married lives together in so many different ways, the law does not try to define, in practical terms, what final separation must look like. Instead, the severance of the marital relationship is proved by evidence of change in the overall character of the relationship. If there is a dispute about the date, or about whether there has been a final separation at all, the court will look at the total circumstances of the relationship both before and after the alleged separation. It will look at whether the parties live together, have sexual relations, cook or clean for each other, go about together as a couple, jointly care for children, spend time together, or support and protect each other. These are some of the natural indicators of a marital relationship. But the absence of one or another of them won’t, in itself, be conclusive – there is no magic about deciding not to cook for someone that will prove final separation. It is in a significant change in the pattern of the natural indicators of a marital relationship – from before the alleged separation to after it – that the court will find evidence of final separation.

Must both parties want to separate? [2.270] If the marital relationship has been severed (according to the law), separation is established even if only one party wants it.

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[2.280]

On the other hand, it is not possible to finally separate – that is, to sever a marital relationship – either accidentally, or without telling your spouse. One party at least must form an intention to sever the relationship and then communicate that intention to the other. The intention does not have to be made explicit if your words and actions clearly point to only one conclusion – that the marriage is over.

Separation under one roof [2.280] If the marital relationship is effectively severed and you have either communicated your intention to finally separate, or agreed with your spouse that the marriage is over, there is no requirement that one party must move out of the marital home. After all, “separation really means a departure from the state of things rather than from a particular place”: In the Marriage of Falk (1977). Continuing to live under one roof could, in fact, be the most sensible decision in the short term. If, however, you later wish to count the period of separation under one roof towards the 12-month separation period demonstrating irretrievable breakdown of the marriage, you will have to prove that you actually separated on a specific day some time before you finally lived apart. You should try to collect observable evidence of the change in the status of your relationship from the date you want to establish as the date of separation. It is easier to do this at the time rather than retrospectively. This evidence can be included in or attached to an affidavit (a sworn statement – see [2.290]) when you apply for divorce.

Evidence of separation under one roof [2.290] Items to be used in evidence of separation under one roof might include: moving into another bedroom and telling someone outside the marriage that you have done so; telling friends that you and your partner have separated; recording the fact of the separation and/or future arrangements in writing (preferably signed and dated by both of you); a diary entry; a revised will; social media relationship status changes; or letters informing other parties about the separation, such as the school, bank or insurance company.

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Case study: separation under one roof [2.300] After the wife discovered her husband’s affair, the parties slept and ate in separate rooms, rarely communicated directly with each other, and led separate social lives. At one point the wife applied for and obtained an order for maintenance against her husband. On the other hand, she continued to do his washing and cleaning, and occasionally prepared his food. The original decision of the trial judge that the parties were not properly separated for the required period was overruled on appeal. The Full Court stated that the “evidence must examine and contrast the state of the marital relationship before and after the alleged separation”, and show that there has been a “change in the relationship” constituting the separation: In the Marriage of Pavey (1976).

Getting back together (briefly) [2.310] Section 50 of the Act allows that the necessary period of 12 months’ separation will not require re-starting if the parties resume a marital relationship but then split up again within three months. The three months’ cohabitation won’t count towards the 12 months’ separation, however, and this allowance can only be made once.

Should I stay or should I go? [2.320] It can be difficult to stay mentally clear during this stressful time. It is important, however, to try to think and plan first, and then to take the necessary and appropriate action that minimises negative fall-out in subsequent interactions with the other party

Weighing up the pros and cons [2.330] It is not necessary for one party to physically leave the home once separation is established. Both parties are entitled to continue to live there for as long as they choose. But most people, once they decide to separate, feel an enormous pressure to put physical distance between their own and their former partner’s lives. There are a number of other considerations to bear in mind about whether, or when, to leave the family home. Safety issues – Leaving may be the best option for you if you are feeling unsafe or your partner refuses to leave. Stability for children – Leaving might be in the best interests of your children if it means that they can stay in their own home. Exposure of children to conflict – Leaving, either with or without your children, may be in their best interests if it would mean removing them from exposure to continual parental conflict (the most damaging aspect of relationship breakdown for children). Setting up a status quo for parenting arrangements – If you leave your children behind,

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you may endanger your prospects for achieving equal or substantial time with them in the future. A court may not be prepared to order a change to settled arrangements for their care. The cost of two households – Do your sums carefully before rushing out to rent a flat. Community services such as refuges and support groups may be able to connect you with some cheaper, temporary accommodation. You might also consider sharing for a time. Property issues – The partner remaining in possession of the home may have little motivation to facilitate its sale to finalise a settlement.

If you do decide to leave [2.340] The small details of personal possessions, documents, furniture and household effects tend to get lost in the big picture approach – percentages and dollar values and the like – that characterises property negotiations. You should try to take everything personal to you, and a fair share of joint household gear, when you first leave.

But my partner owns the house … [2.350] The decision about who goes or stays should not turn on who has built or bought the house or whose name is, or is not, on the title. It is a question of: what is financially feasible; what is fair; most particularly, any needs of children; the parties’ needs; and the personal safety of one or both of the parties.

Exclusive sole occupancy orders [2.360] Sometimes one party becomes fixed in their determination to remain in the home. It may be necessary for the other party, in the interests of fairness and safety, to obtain a court order for exclusive sole occupancy, particularly if there is violence or the threat of violence, or if the interests of children are at stake. All the courts exercising jurisdiction under the Family Law Act can make an interim exclusive sole occupancy order for the home on the application of one of the parties (for more details see [8.920] – [8.930]). This now applies both to married and de facto couples. An exclusive occupation order has the effect of forcing one partner to leave their own home to the sole occupation of the other, and will not ordinarily be made unless there is family violence. State or Territory domestic/family violence legislation provides another possible avenue of obtaining sole occupancy of a residence.

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Can I come back if I wish? [2.370] Even though you have the right to continue living in the home after separation, once you move your possessions, and apparently agree to the other party’s sole occupancy, it will be hard to move back in without your partner’s consent. It may even be difficult to enter the property. If you move out, your partner acquires a form of tenancy. Generally speaking, a tenant has the right to decide who may enter the property, and when, and the right to privacy. It does not matter if your name is on the title jointly with your partner’s – or even if it is the only name on the title. On the other hand, your partner should give you a reasonable opportunity to remove your possessions from the house around the date of separation. You may be able to obtain an interim order if your partner will not allow you access to obtain things you need. It is best to be sure about your decision to leave before you go, and when you do go, take with you everything you ever plan to take.

A right to change the locks? [2.380] The legal basis of the right of the partner in possession to change the locks at the former joint residence is not very clear. Usually, lock changes will be considered justifiable once: the separation is clearly accepted by both parties; another residence for the departing partner is fully established; and all the possessions of the departing partner have been removed from the joint residence. On the other hand, the action of changing locks may inflame feelings in a most unhelpful manner. It need not occur at all unless there is a reasonable fear that the other partner will enter uninvited or cause trouble by removing disputed items, damaging property or abusing or harassing occupants. Be aware that a locksmith will usually agree to help a person to get into an unoccupied house where the person doesn’t have a key, if they can show ownership rights and also some evidence of recent occupation.

Assistance with the costs of relocating [2.390] If physical separation is desired and a sole occupancy order is not appropriate, but an earning partner refuses to leave the house, a court can require that partner to assist with the costs of relocating the dependent party – for example, by paying the rental bond and the initial set-up costs. See [8.1680] for details about applying for urgent maintenance.

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[2.400]

Financial and property matters Assessing your situation [2.400] To make sensible decisions now and to prepare for future negotiation, you need a reasonably accurate understanding of the full extent of your assets, liabilities, expenses and income. You will need to make some lists. Do not try to use these preliminary lists and figures to negotiate a final settlement. The most pressing task at separation is to understand the scope of what has to be done to disentangle your joint lives and begin to create two sustainable, separate lives. There are usually major emotional issues to deal with too. Apart from the fact that you are unlikely to have all the information you need, this is not a time when most people are capable of finely-tuned negotiations about a fair and final property distribution. Do try to use the lists to work out: what you can both afford to pay for a second household; what you can agree to sell if necessary to finance the separation; what you should take from the house when you leave; and what records you need to take or copy before you leave. Each party needs to do this for their own sake. The task for the person who is leaving is to find out as much as possible while there is still an opportunity for informal, and possibly cooperative, information gathering. The task for both is to begin to grapple with the business of taking separate responsibility for personal affairs and finances.

Assets list [2.410] A court will eventually make final orders in relation to all the parties’ property, whether it is recorded as being in one or both names, or whether it came into the relationship from one side or the other. It’s all up for distribution, though different considerations apply to different assets and liabilities. Make an inventory (a list) of all the assets you consider yours personally, and yours jointly with your partner, including real estate, shares and other investments, bank accounts, superannuation, collections, art and antiques, tools, boats, cars, business assets and interests, and so on. Make a separate list for furniture and household effects. Try to put a value on each item. Get some up-to-date account statements at least. For personal possessions, the relevant value is the garage sale value, or the price you could get from a dealer – not the best price (for more about asset valuations, see chapter 8). Note carefully what you don’t know about the existence or value of assets that form part of the property of the marriage, including your partner’s business assets. You need to understand everything you can about your partner’s true financial position.

Liabilities list [2.420] You will soon be taking action to minimise the number of joint liabilities (debts) you share with your former partner. Until this happens, however, you will continue to be responsible for regular payments on all liabilities that are in both names, including loans, accounts, joint

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credit cards and the mortgage. Make a list of them all, noting both the amount of the total liability to date and the amount of regular payments.

Expenses list [2.430] Your properly prepared household expenses list should provide valuable information on the true cost of your present lifestyle. It will help both of you work out where savings might be made, and understand the full cost of establishing the second household. Ensure you include food, services, education, clothing, gifts, holidays and running a car.

Income list [2.440] If your partner kept separate savings and investment accounts during your marriage, ask to be given, or otherwise try to obtain, details or copies of statements that show income from any source. Find out details of the source, if possible – particularly if the income was kept secret from you, or was unknown to you for another reason. If your own income is low or non-existent, and you will have the children living with you most of the time, you will probably be entitled to new Centrelink benefits from the date of separation. If possible, you should attend Centrelink for an interview before separation. If you will not have the children living with you most of the time, you will probably be making child support payments at some level from the date of separation.

Financial and other records [2.450] If you are leaving, take with you: all your personal documentation – diaries, letters, tax returns and other records of your own financial affairs; copies of all records pertaining to joint financial or property dealings; either the original or several certified copies of your marriage certificate and the children’s birth certificates (if relevant); and your children’s passports, if there is a risk that the children will be taken overseas without your consent. Furthermore, and particularly if your partner is self-employed, you should ask to be provided with, or otherwise try to obtain, records of all of their assets and liabilities, including tax returns and computer-based accounts. Once you leave the house you may lose the opportunity to obtain an accurate profile of your former partner’s financial interests. You should also ensure you have the contact details of your partner’s business partners and financial advisers.

Unfairness at separation “Freeze and starve” [2.460] Sometimes, either out of spite or as a tactic (to force the other person to settle, for example), one party will refuse the other access to important assets (such as the car, or tools of trade) or sources of income.

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The courts will not allow the major earning partner to cut off their partner from income support or from vital assets provided in the course of the relationship. There will be an especially strong case if the quality of the parties’ lifestyles after separation is manifestly unequal. Financial deprivation may also qualify under the definitions of family violence or child abuse. See chapter 3.

How to respond to deliberate deprivation at separation [2.480] If your partner is denying you access to important assets, don’t suffer quietly! Instead: Immediately open negotiations, either by writing a letter or by a face-to-face approach, in which you: – explain your perception of the unfairness in relation to particular assets or income, stating what you need specifically; – inform your partner of their maintenance obligations (see Maintenance at [8.1590]); and – tell your partner that you may pursue an interim court order to get a fair result if you can’t agree on one together. Make an appointment for family dispute resolution to: – discuss your short-term financial arrangements; and – seek an agreement about the disputed asset or income, recorded in writing and signed by both parties. This may be filed at court as consent orders for the interim period (the period until your property settlement) if both parties agree and want the authority of the court behind their temporary agreement (see chapter 4). If these other methods fail, apply to the court for an interim order in relation to property or maintenance. If you have clearly communicated to your partner your right to make this application and the likelihood that you will be successful, you may never need to go this far.

Urgent court orders [2.490] The relevant legal principles for obtaining an urgent court order about property or financial arrangements at separation are: that a party may be liable to support the other party to the extent that they are able (Family Law Act section 72 for married couples and section 90SF for de facto couples); and that a court may order short-term arrangements if a party is “in immediate need of financial assistance” (section 77 for married couples and section 90SG for de facto couples). Depending on the problem, the actual legal remedy for unfairness at separation might be a property injunction or an urgent maintenance order. These are discussed in detail in chapter 8.

Disposal of property by one party [2.500] Some partners start disposing of the assets of a relationship at, or even before, separation, to avoid sharing the benefits of the sale with their former partner. (To make matters worse, a new partner of one of the parties may sometimes be the beneficiary of these arrangements.)

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On other occasions, the disposal (sale or transfer) is arranged so that the benefit or ownership of the asset can revert to the disposing partner at a later date.

Property injunctions [2.510] You can apply for an injunction under section 114 or 90SS(1) of the Family Law Act to prevent your partner from disposing of property and spending the proceeds prior to the property settlement or final orders. See “Injunctions preventing dealings with property” at [8.990] for information about this.

If the asset is already gone [2.520] Don’t panic if the asset is already gone and it’s too late to get an injunction – or if the value of the asset is such that it doesn’t warrant the cost and trouble. Do collect as much information about the asset and the circumstances of its disposal as you can. If you can produce enough evidence that it was the property of the relationship, as well as evidence of the terms of its disposal, the proceeds of its sale may be accounted for as property (or value) already in the possession of the disposing partner, and deducted from their entitlement in the final settlement.

Dividing household goods [2.530] It is a painful process to divide a joint life – perhaps harder for every year that the parties were together. Many people say that walking around and gathering up possessions – dividing the photos, removing odd pieces of furniture from rooms and so forth – is the absolute low point of the separation experience. It is usually a good idea to do the physical removal at one go and just get past it – without argument if at all possible. Try to avoid treating lampshades and mattress protectors as symbols of your time together, of the extent of your financial contribution to the household, or of your rights as against your partner. Remember that even photographs can be replicated. Don’t forget to list the pictures on the wall, important photographs, collections of various sorts, pot plants and the items in the garage, the shed and the laundry. Share your list with your partner. If you can, work through it together. Alternatively, indicate in writing on the list the items you would like either to keep in the house or take with you, and ask your partner to consider it and get back to you. It may be difficult to agree on the value of items. If this happens you might agree to have the item valued professionally, or use the average between your value and your partner’s value. You could also try the two-list or the silent auction methods (see below). If one party appears to be taking more value in the goods than the other, an additional cash payment (to even up the deal) may be agreed. Try to be fair. Consult your children about the fate of their possessions. Remember that the cost of setting up two workable households will be regarded by a court as a legitimate expenditure of any joint funds.

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Two ways of dividing household goods The two-list method [2.540] One party divides the full list of household goods and furniture into two separate lists, then gives both lists to the other and invites that person to choose which one they want. Under this simple system, the list-maker is forced by self-interest to be fair in constructing the lists – they may end up with either of them. The process is aided if the values of various major items are agreed before the two lists are made. The silent auction method Each party lists a value for each disputed item. The person listing the highest value for an item gets it. The value of all items taken by each party is totalled. The person with the highest overall value makes a cash payment to the other to even up the deal.

Money in joint accounts [2.550] Sometimes an angry separating partner withdraws all the funds in a joint account. There is no need to consider that these funds are lost forever (although their absence in the short term can be very inconvenient). If the matter goes to court (or is settled with a view to the likely result in court), and the amount taken is significant, that partner’s possession of the cash may be factored against them in the final settlement. There is no doubt, however, that denial of access to financial resources can hurt one partner enormously in the short term. If the situation is clearly unfair and has created hardship, the disadvantaged party can apply to the court for an urgent maintenance order requiring the return of needed funds. As soon as you know you are separating, and after considering both partners’ needs for, and rights to, any available cash, and unless you agree otherwise with your partner, you should withdraw up to, say, half the balance of any joint accounts (unless you can seriously justify taking more) and deposit it into an account in your sole name. Money in a joint account can be legitimately used by a party after separation for living expenses such as rent, bills and food (not going on a cruise, buying a yacht or presents for a new partner) without affecting the share of the property settlement that might eventually be ordered by the court.

What about the car? [2.560] Each party usually keeps the car they drive regardless of whose name is on the registration papers. If incomes allow, responsibility for any payments should go with the car. If there is only one car, the person with whom the children are living, or who has the greatest need, would normally keep it in the first instance. Alternatively, you could perhaps agree to sell it and split the proceeds.

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If the car you plan to drive after separation is not in your name or in your joint names, you could negotiate with your partner to sign the car over to you. Ask the registration authority about a waiver of the usual stamp duty where the transfer occurs as part of a property settlement on relationship breakdown.

Electricity, telephone and other services [2.570] Practices among utility providers differ but, generally, if your service accounts are in joint names, you will need to apply for disconnection and reconnection of the service to get the account into your name alone. Unfortunately there may be fees associated with this process, so you may wish to leave it until your cash flow improves. On the other hand, if your partner is angry and potentially vindictive, it may be wise to have the provision of essential services to your home under your exclusive control.

Credit cards [2.580] If you are the principal cardholder, you may not be happy for your partner to continue to have access to your credit account. If you decide that you wish the secondary access to cease, you will need to: make arrangements with the card issuer to cancel the secondary card; and inform your partner that you have done so.

Who pays the mortgage? [2.590] If the home or any other property is mortgaged in both names, you will remain jointly liable with your partner to make payments until either: the mortgage can be discharged; or ownership of the property is transferred (with the approval of the mortgage institution) from one party to the other at settlement. In practice, however, separating partners frequently agree that one of them will be responsible for paying the mortgage, or that they will each pay a certain proportion, until settlement is reached or the home is sold. When one party leaves, the other is effectively renting the property from the joint estate of the marriage. Though the state of the property market, the size of the mortgage and the capacity of the parties to pay may have a considerable bearing on the deal you make in your particular situation, it is common for the mortgage payment to be deemed a fair rent in the circumstances. The mortgage often becomes the responsibility of the partner remaining in possession. It may be useful for the person who leaves to continue to contribute to the mortgage so as to be able to argue for a higher percentage of the capital gain on the property between the date of separation and the date of settlement or hearing. Some lending institutions will approve a short suspension of repayments (say three months) in certain circumstances of hardship, including relationship breakdown.

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[2.600]

Banks now have detailed procedures for dealing with requests for amendments to loan arrangements. Before you agree with your former partner on any long-term change to ownership of the security or responsibility for repayment of the loan, you should discover what these are.

Other joint loans [2.600] You will remain legally liable for any other debt in joint names, such as an overdraft, a personal loan, or a lease arrangement, until the liability is either discharged or transferred into one name – which may or may not be possible under the agreement establishing the debt, but should be possible by court order in the property settlement (see [8.1580]). You should discover the relevant policies of your lending institution before making any agreement about loan repayments with your partner. Again, the parties can agree between themselves on payment arrangements. You will need to discuss the matter to decide what percentage each should contribute. Often loans relate to business, or to an asset in the possession of one partner. Unless there are maintenance obligations, possession and use of an asset related to the loan by one party would tend to suggest that responsibility for payment rests mainly with that person.

Life insurance [2.610] There are important legal distinctions between being the owner of a life insurance policy, the beneficiary under the policy, and the person whose life is insured under the policy. Many couples jointly own a policy which will benefit the surviving partner if the other dies. When you separate, you may not want to pay premiums for this possible future benefit to your former partner. But you may still wish to insure against that person’s death. If your former partner dies, you might, for example, lose the benefit of child support, or the services of a primary carer for your children. If you wish to insure the life of your former partner, you may be able to change the existing arrangements simply by a signed, handwritten endorsement transferring ownership on the policy. The policy document itself may provide for this. It will only be possible, of course, if your partner agrees. In any case, you should contact your insurance company to find out the options and the correct procedures. You may also wish to insure against your own death, with your children named as beneficiaries. In this case you will need to set up a policy that you own and pay for yourself, and that benefits only you and/or your children.

Your will [2.620] Depending on your State or Territory, a divorce (not a separation) may automatically revoke – make invalid – your entire will, or a part of it. Check with the Office of the Public Trustee in your State or Territory. Remarriage automatically revokes a will in all States and Territories. If, as a married person, you happen to die at any stage between separation and divorce, a valid will made during your relationship will remain valid. The property you bequeathed to your

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former partner will go to that person on your death. Similarly, if you die without making a will, your estate will pass under the laws of intestacy to your partner, even if you are separated. You may consider that you have more important things to do immediately after separation than changing your will. If the interval between separation and divorce or property settlement will be fairly long, however, it is wise to either make a new will or to amend your existing will. Be aware that under the law, your interest in any property held by you and your partner as joint tenants will pass directly to your partner on your death, whatever your will says. To avoid this you could decide with your partner to amend the title to your joint property so that you each hold your interest as a tenant in common instead of a joint tenant. You could pay a lawyer to help you do this, or contact the authority responsible for land titles in your State or Territory about doing it yourself.

Centrelink [2.630] Contact your local Centrelink office as soon as possible after you know the date of separation to: determine whether you are eligible for a Centrelink pension or benefit; apply for an assessment of your or your partner’s liability to pay child support; and obtain information about the child support system.

Arrangements for children [2.640] When mothers routinely worked at home, the question of “where the children will live” following separation was fairly routine. With changes in the work patterns of both men and women, however, and new appreciation of the value of shared parenting, a wider range of options has opened up for children to spend time or live with both, or either, of their parents. The law and issues relating to post-separation parenting arrangements for children are discussed in detail in chapter 7.

Divorce [2.690] It’s really not very difficult to get a divorce. Many people now manage the process without a lawyer. The courts provide extensive and high-quality information and assistance to divorce applicants.

Eligibility for divorce [2.700] There is now little scope for argument in the divorce proceeding itself. Any dispute about property, maintenance, child support or parenting arrangements will proceed in the family law system entirely separately from the divorce. You are eligible to divorce under Australian law if you or your spouse: is an Australian citizen; or

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ordinarily lives in Australia and has lived in Australia for the year immediately before the divorce application; or regard Australia as your home and intend to live indefinitely in Australia. Either or both of the parties can apply.

Grounds for divorce [2.710] Australia has a no-fault system for the dissolution of marriage. The only thing to be proved in divorce proceedings is “irretrievable breakdown of marriage”. The only way to prove this is to demonstrate that the parties have been legally separated for at least 12 months. If there is no doubt about the date of separation, and the arrangements for any children are clearly appropriate, the court will probably grant the divorce on the application of one party even if the other party does not want it.

Evidence of separation under one roof [2.720] If the applicant (or applicants) claim that there was “separation under one roof” for any part of the vital 12 months, the court will require evidence of this (see [2.860] for the kind of evidence required). An affidavit must be filed from: the applicant, or at least one of them for a joint application; and at least one other person (friend, relative, neighbour) with knowledge of the couple and the circumstances of the marriage breakdown. The affidavits must be sworn and filed in accordance with the rules about affidavit-making (see [6.740] for further details). They should also: identify the person making the affidavit and their relationship to, or identity as one of, the parties; and attest to the person’s knowledge of the fact that the marriage is over and the circumstances in which they obtained this knowledge. If you have documentary evidence of the date of separation – something signed by both of you at the time, or letters or documents detailing changed financial arrangements – certified copies should be numbered and attached to the affidavit. Make sure the affidavit identifies and refers directly to all the attachments. There are sample affidavits at [2.880]–[2.890]. You will also need to attach your marriage certificate, or a certified copy of it, to your divorce application. If the certificate is not in English, you will need to obtain a translation and a short affidavit by the translator. The substance of the affidavit is contained in the divorce application form itself, but is obtainable as a separate document, called an Affidavit of Translation of Marriage Certificate, and available from http://www.familycourt.gov.au or a court registry.

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Marriages of less than two years duration [2.730] If a marriage has lasted for less than two years, the parties must attend counselling to investigate the prospects of reconciliation. A document known as the “Counselling certificate for applicants married for less than two years”, signed by a family counsellor, should be attached to your application for divorce. The certificate states that the person has “considered” reconciliation with the assistance of a specified person, being a family counsellor or other nominee: sub-section 44(1B)(a). The certificate is available from http://www.familycourt.gov.au or a court registry. Joint family counselling may not be advisable or practicable for a number of reasons – for example: the other party refuses to attend; the other party cannot be found; or there has been violence in the relationship. In such cases, speak to registry staff who will advise you about alternatives.

Which court? [2.740] Applications for divorce must currently be lodged in: the Federal Circuit Court; or the Family Court of Western Australia for people living in that State.

Costs [2.750] In December 2015, the fee for lodging the divorce application in the Federal Circuit Court was $845. A significant reduction in fees may be payable in cases of financial hardship or if you are otherwise eligible as described in Regulation 8 of the Federal Circuit Court Regulations. You will need to complete and file at court an “Application for Reduction of Court Fees” form which is available from http://www.familycourt.gov.au. Speak to your nearest court registry for more details.

Applications and filing [2.760] Divorce applications are available separately or as part of a do-it-yourself kit from the court, their websites, from http://www.familycourt.gov.au or from http://www.australia.gov.au. The “Application for Divorce Kit” can be completed online and printed. You cannot, however, file your divorce application with the court, online, by this method. You must print off your completed application and file it in person at a court registry or by post. There is a new avenue for electronic filing for individuals (and for organisations, like legal firms) who want to complete and file a divorce application online. Go to http:// www.comcourts.gov.au and firstly register as an individual user. Select “Family Law e-filing”, then “Application for Divorce”, and then “Federal Circuit Court” (unless you have been

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formally advised to file in the Family Court of Australia). Using the e-filing method you can save your application and come back to it (until you lock it), as well as file it electronically. You will need access to a printer, a scanner and a valid email address. Download the “Online Application for Divorce” document at http://www.australia.gov.au for a full description of the process.

Documentation checklist: application for divorce [2.770] To file an application for divorce you need: a completed Application for Divorce form; your marriage certificate (the original or a certified copy); if you’ve been married less than two years, a signed counsellor’s certificate; and if you’ve been separated under one roof for any part of the 12-month separation period: – an affidavit from one or both of the applicants; and – an affidavit from a person associated with the couple.

Service of a divorce application [2.780] An Australian divorce application made by a single party must be properly served (that is, posted or delivered) to the other party. This is not necessary if a divorce application is jointly made. Proof of service of the documentation must be lodged with the court within a certain time after the application has been filed. The rules for proper service are quite technical – it may be a good idea to seek the services of a professional process server unless you can be sure that the other party will be doing their best to cooperate by returning to you the necessary signed forms to enable you to prove service. You might wish to start with the “Divorce Service Kit” downloadable from http://www.federalcircuitcourt.gov.au. See [5.850] for more about serving court documents.

Opposing an application [2.790] If you disagree with the details in an application filed by your partner, you can lodge a Response to Divorce form within 28 days of being served with the Application for Divorce. This form is obtainable from court registries, from court websites, or from http:// www.familycourt.gov.au. If you file a response, you will need to arrange for it to be served on the other party (see [5.850]). You will also need to appear in court.

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Advantages of joint applications It's cheaper [2.800] If you apply for a divorce by yourself, you will have to pay the full fee. If you apply jointly with your partner, the cost can be split between you.

You don't have to come to court [2.810] If you apply jointly you can ask for the application to be heard without either of you attending, even if there are children under 18 involved. If you apply on your own, and you have a child, you must attend the hearing.

There's no requirement for service [2.820] If you apply by yourself, you must comply with the rules for service (see “Serving documents” at [5.850]) to ensure that the other party has formal notice of the commencement of proceedings. This may involve paying a professional process server.

Working together towards closure [2.830] It is a genuine step towards acceptance of reality, and the peaceful resolution of issues, if the parties can move together, cooperatively, in formalising the end of the relationship. By contrast, the arrival of unexpected divorce documents in the mail, or on the doorstep at dinnertime in the hands of a process server, is an unpleasant and confronting experience that tends to aggravate disagreements. The Application for Divorce requires an outline of the arrangements made for the care of your children. Working through the application together may help you identify practical issues, and resolve uncertainties, about parenting arrangements and financial matters.

Timing [2.840] The average time between filing an Application for Divorce and receiving the certificate of divorce varies between registries, but an undisputed joint application (with no service requirement) that is not delayed because the court requires extra information, could take four months or more from filing to finish. When you lodge (file) your application, you will be allocated a hearing date – probably even within four to eight weeks. After the hearing, if the court has established that the requirement of separation has been met, it issues a decree nisi. This usually lasts for 30 days, unless: there are pressing reasons why the period should be shorter; or the court has asked for more information (about, for example, arrangements for children) which may require another court appearance and prolong the decree nisi period.

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At the end of the period, and when any conditions specified in the decree nisi are satisfied, the decree absolute (divorce certificate) is issued. For the vast majority of applications, the minimum decree nisi period applies. If this is the case, the court will send out the certificates of divorce one month and one day after the date of the decree nisi.

What about remarriage? [2.850] An early date for remarriage is not ordinarily considered a sufficient reason for early issue of the divorce certificate. To marry, you must lodge a Notice of Intended Marriage with a marriage celebrant for a minimum of 30 days. Most celebrants will not accept a notice from a previously married person without a divorce certificate. You should not arrange a new marriage until you have that document in hand.

Disputes in relation to children [2.860] The court may not grant a divorce if it is not satisfied that proper arrangements have been made for children. If at the time of the application there is a dispute about child support, or care arrangements, the court may (but will not necessarily) adjourn the application until: the issues are resolved; further action (such as counselling) is taken; or further specified information is provided. This will not, however, necessarily happen. Divorces are often granted notwithstanding outstanding parenting issues. If the court is not satisfied about arrangements for children, it may order the parties to attend an interview with a court-appointed family consultant, who will make their own investigation into the issues and make a report to the court: sub-section 55A(2).

Nullity [2.870] If you think your marriage was invalid in the first place, you can apply to the Family Court to have your marriage declared a nullity. Your application would be for a decree of nullity – that is, a declaration that your marriage was void and invalid from the outset. The grounds for a decree of nullity are listed in sections 23 and 23B of the Marriage Act, and include that: at the time of the marriage one party was already married to somebody else (bigamy); the parties are within a prohibited relationship; the requisite formalities were not followed; one or both parties did not properly consent; or one or both parties was too young to marry.

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Nullity cases can be difficult (and therefore expensive), while divorce, even early divorce, is relatively easy to achieve. Nullity applications are therefore now infrequent. The decree of nullity in the family court system should not be confused, in either process or effect, with annulment as defined under certain church laws. The two processes have nothing to do with one another. Polygamy and bigamous marriages A polygamous marriage lawfully conducted outside Australia may be recognised in Australia. An attempt to create a polygamous marriage in Australia, however, will be invalid. It may also constitute the federal crime of bigamy. “Prohibited relationships” You cannot marry an ancestor or descendant or a brother or sister, whether the sibling is your whole or half-blood relative, or even if they (or you) are adopted: Marriage Act section 23B(2). In Australia, however, you can marry your (differently gendered) first cousin, aunt or uncle, niece or nephew. Non-compliance with formalities There are circumstances in which an allegation of insufficient compliance with the formalities for a lawful marriage will be upheld, including where the celebrant was not properly authorised and both parties knew this. Arranged marriages Australian law does not require that a marriage partner be known to, or chosen by, the individual. However, the Australian courts tend to uphold the rights of a person who has been forced into a marriage against their will. Fraud and mistake A person may be able to establish fraud or mistake as a basis for the no consent ground where the supposed consent was given to something other than a marriage, or in relation to a person who was not, in the end, the person standing at the altar. It is very difficult to argue that fraud or mistake nullifies consent by reason of broken promises or the incorrectly understood attributes (such as the wealth) of one of the parties. Incapacity The person must be “mentally incapable of understanding the nature and effect of the marriage ceremony”: Marriage Act section 23B(1)(d)(iii).

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Sample “separation under one roof” affidavits Affidavit 1 [2.880] I, MARY ANN BLACK of 75 Risalt Street, Tadbugnall in the State of New South Wales, salesperson, make oath and say/affirm as follows: 1

I am the applicant for the dissolution of my marriage to Daniel John Black (“Daniel”).

2

Daniel and I were married on 29 January 1990.

3

There are two children of our relationship: Samuel Black, born 6 June 1995 and Anna May Black, born 5 May 1997.

4

Daniel and I lived together with our children at 36 Antonen Road, Tadbugnall, New South Wales (“the marital home”).

5

I am 40 years of age and am employed full-time as a jewellery salesperson at David Jones in Tadbugnall. My average weekly income is approximately $1150.00 gross. I have no other income.

6

Throughout our marriage and until our separation, my salary was deposited each fortnight into a joint account in both Daniel’s and my name at the Commonwealth Bank, Tadbugnall. The mortgage and all the housekeeping expenses were paid from this account with free access to the account available to both of us.

7

Since our marriage, Daniel has not been formally employed nor earned an independent income.

8

In the course of our marriage, Daniel cooked on weeknights for the whole family and did most of the housework and laundry.

9

After experiencing difficulties within our marriage for some months previously, Daniel and I had a heated argument on 3 March 2005. At the end of it, I screamed at him: “I’ve had enough. We’re finished.”

10

At this point on 3 March 2005, I regarded my marriage to Daniel as over. We remained separated under one roof without reconciling until 12 December 2005.

11

On 4 March 2005 I moved all of my clothes and personal possessions out of our double bedroom and into the spare bedroom. I have not slept with, nor had sexual relations with Daniel since that time.

12

Daniel and I have danced as partners in ballroom dancing title competitions throughout NSW since 1992. Ballroom dancing has been a very important part of our life together.

13

On 4 March 2005 I attended at the RSL hall where our team rehearses each week and put up a notice advising that I would no longer be dancing with Daniel and asking for potential new dance partners to contact me directly. I have not danced with Daniel, competitively or otherwise, since our separation.

14

Also on 4 March 2005, I closed the joint account, and arranged for my pay to be deposited to an account in my name only. I arranged to pay the mortgage directly from my account and gave Daniel $600 in cash each payday from 10 March 2005 until my child support assessment in January 2006 for food and housekeeping expenses for himself and the children.

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15

After our separation, we did not eat together as a family anymore. I prepared my own meals late in the evening or ate out and I looked after my own washing. Daniel continued to do most of the other housework.

16

Between 3 March and the end of November 2005, I tried unsuccessfully to find affordable, alternative accommodation near to the marital home so that I could continue to see the children easily.

17

In early December 2005, I found a unit at my current address in Risalt Street, Tadbugnall, which is only a few minutes drive from the marital home. I moved in on 12 December 2005.

SWORN/AFFIRMED by the Deponent at

........................................................................

On the ......................... day of .......... 20......

........................................................................ (Signature of Deponent)

Before me

........................................................................ (Signature and title of person before whom affidavit is sworn) ........................................................................ (Print name of person before whom affidavit is sworn)

Affidavit 2 [2.890] I, EVA LARSON of 24 Gidibal Street, Tadbugnall in the State of New South Wales, dance teacher, make oath and say/affirm as follows: 1

I am a friend of both Daniel Black (“Daniel”) and Mary Black (“Mary”). I first met them as my next-door neighbours in Antonen Street, Tadbugnall in 1991.

2

I introduced Daniel and Mary to competitive ballroom dancing. Between 1992 and March 2005, they danced as a couple with the dance team the Tea-Trees that I founded and continue to manage.

3

On Thursday 5 March 2005 I went to the RSL hall for rehearsals as usual. Mary handed me a piece of paper. Her name and signature were at the bottom of the page. The document was headed “Public Notice” and included words to the effect: “Daniel and I will no longer be dance partners. If anyone else is interested in partnering me in the Samba section at the upcoming Regional titles, please contact me directly.”

4

Neither Daniel nor Mary attended at rehearsal that night. Daniel has not attended club activities since that time. Mary found a new partner and continues to compete with the team.

5

On 15 November 2005, being the weekend after the Regional Dance Championships, I pulled up outside 36 Antonen Street to drop Mary back after a rehearsal. She hesitated before opening the car door, staring through the window at the house. The front room

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was clearly full of people. Mary said: “I’ll have to go round the back.” I said words to the effect: “Mary this is ridiculous, you can’t continue to live like this.” She replied: “I know – but I am looking for places all the time. Something has to come up soon.” 6

On 14 January 2006, at rehearsal, Mary handed around a little card with her new address in Risalt Street on it.

7

I believe that Daniel and Mary were living separated under one roof at the Antonen Street house between early March and late December 2005.

SWORN/AFFIRMED by the Deponent at

........................................................................

On the ......................... day of .......... 20......

........................................................................ (Signature of Deponent)

Before me

........................................................................ (Signature and title of person before whom affidavit is sworn) ........................................................................ (Print name of person before whom affidavit is sworn)

3 Family violence and abuse [3.30]

What is family violence and child abuse?........................................................... 58

[3.60]

Violence, abuse and family dispute resolution.................................................... 61

[3.70]

“Adviser” obligations ........................................................................................ 62

[3.90]

Protection orders ............................................................................................... 62

[3.200]

Notifications...................................................................................................... 66

[3.320]

Risk of harm and parenting orders .................................................................... 70

[3.380]

The system’s response to family violence and child abuse .................................. 73

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[3.10] It has been recognised that family violence and child abuse are often significant factors in relationship breakdown. A recent study by the NSW Law and Justice Foundation found that around 70% of family law cases commenced in court involve allegations of violence. It is important to understand that, though the Commonwealth’s family law has a significant amount to say about family violence and child abuse, State and Territory laws govern the illegality of these behaviours and provide the principal protective processes. There is some overlap however. The recent Royal Commission into Family Violence in Victoria identified that one of the principal challenges for the family law system into the future is to streamline the interaction of the Commonwealth and State-based laws dealing with family violence, and to help parties understand it. The complex interaction between the existing two systems is explained in this chapter at [3.130], in [3.170] – [3.190] and in [3.310]. The provisions in family law dealing with violence and abuse have been progressively and significantly strengthened in recent years. The changes have aimed to reduce the incidence of family violence in separating families, and to more effectively co-ordinate family law with child welfare processes. This chapter addresses the new and expanded definitions of family violence and child abuse (see [3.30] – [3.50]); how violence and abuse is dealt with in family dispute resolution processes (see [3.60]); adviser obligations (see [3.70]); protection orders (see [3.90] – [3.190]); notifications (see [3.200] – [3.310]); risk of harm and parenting orders (see [3.320] – [3.370]), and other family law system provisions for dealing with family violence and child abuse (see [3.380] – [3.430]).

There is help available [3.20] If there is a history, or a risk, of violence or abuse in your relationship, you need to find a way to let other people know. There are services available in each State or Territory to help you to find a way through. Call the National Sexual Assault, Family & Domestic Violence Counselling Line on 1800 RESPECT (1800 737 732) 24 hours-a-day; or Lifeline, also 24 hourly, on 131114, for help and reference to services in your area. In an emergency, call 000 for police or ambulance. See “Contacts and resources” at the end of this book for a more comprehensive list. It is particularly important to seek help if you are in the process of separating from a violent or abusive relationship, even if you find speaking about it hard to do. There are important protective provisions made in the family law system for couples and children in relationships where there has been family violence. Many of them are described in the pages of this chapter but personal help and support is vital. Mention the issue to your lawyer, the court, your counsellor or mediator, your doctor, or even just a friend. You will find people ready and able to help.

What is family violence and child abuse? Defining family violence [3.30] In 2012, a new definition of family violence removed the previous requirement that a person must “reasonably” fear for their safety. The new wider definition of family violence also extended the definition to encompass circumstances of control or coercion.

[3.30]

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Section 4AB(1) of the Family Law Act now defines family violence for the purposes of the Family Law Act, as: 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. For clarity, a second new sub-section, 4AB(2), provides an open list of the types of circumstances that may constitute family violence under the Act: (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.

The Act is now explicit about what exposure to family violence by a child means. Also at section 4AB: (3) (4)

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. 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.

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Defining child abuse [3.40] The definition of abuse at sub-section 4(1) was also amended in 2012. Actions that will be regarded as child abuse under the new definition is described under six separate heads: assault; where a child is used as a sexual object and there is unequal power relations between the child and the perpetrator; action causing a child “serious psychological harm” including where the harm is caused by subjection and exposure to family violence; serious neglect of a child; unreasonably denying a family member “financial autonomy”; and unreasonably denying support for the reasonable living expenses of the family member and his or her children. The combination of the definitions of family violence and child abuse has powerful potential effect. For example, the actions of depriving needed financial resources, or preventing family or cultural connections, being conditions now covered under the family violence definition, could be held to be child abuse if they cause a child serious psychological harm.

Developing case law in the new definitions [3.50] In Mabart & Haselden (2012), there was an application for equal time by the father, with explicit statements of support made to the court’s family consultant for that arrangement by the two daughters, aged nine and seven. This was a high-conflict relationship characterised by harassment, stalking and verbal abuse of the mother by the father, witnessed by the two children. The court found positively for domestic violence and abuse, both of the mother and the children, applying the new criterion of serious psychological harm caused by exposure to family violence criterion for abuse at section 4(1). In Shivas & Darby (2014), the five-year-old son of the parties had lived with his mother all of his life and had strong attachment to his mother and two sisters. But the child had been exposed, since infancy, to family violence between his parents. More recently, the child had been exposed to very strong violence between the mother and her new partner, including his attempt to strangle her and kill himself. In applying the child’s best interests considerations (see [7.260] – [7.300] in chapter 7 “Parenting”) in line with the changes to the law in 2012, the court gave greater weight to the necessity to protect the child from physical, and further serious psychological, damage than to facilitating the relationship between the child and his mother. The court ordered that the child live with the father, and that the father have sole parental responsibility. In Vance & Carlyle (2014), both parents used illicit drugs and abused alcohol. Both had also demonstrated poor parenting skills. There was evidence of a level of violence between the mother and her new partner, but the court weighed the history of violence between the parties most strongly. Applying the definition in the Act that family violence “captures any behaviour that coerces or controls a family member or causes a family member to be fearful”, the court held that a “dynamic of ‘family violence’” between the parties would probably continue. The court made orders to protect the child against the risk of continued psychological harm that would be caused

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by continued exposure to the intimidation of the mother by the father by ordering sole parental responsibility to the mother, that the child reside with the mother, and that he spend limited supervised time with the father. In Wemble & Dautry (No 2) (2014), the final parenting orders in this long-running case gave sole parental responsibility to the father. Though the primary care giver had always been the mother, the trial judge was heavily critical of the mother’s truthfulness in testimony to the court, and of her behaviour towards the father and his partner. Soon after the hearing the mother lodged a Form 4 (Notice of Child Abuse, Family Violence or Risk of Abuse) and an affidavit in which she alleged that the father had caused the child psychological harm by “subjecting and exposing her to the family violence constituted by controlling behaviour” occurring on multiple occasions but mainly from “mostly inappropriately preventing medical care and assessment [of the child]”, “financial control”, and that the father was “using [the] current orders to intimidate service and vocational activity providers”. These were issues that had already been canvassed in detail in the course of the case. The court struck out the Form 4, referring to the High Court Case of AON Risk Services Australia Ltd v Australian National University [2009] as authority for the discretion of the court to consider “the careful and proper use” of public resources, noting that the case had already consumed very significant resources, and that the court was obliged to bring the litigation to finality. The mother has appealed the decision.

Violence, abuse and family dispute resolution [3.60] Family violence and abuse can be highly relevant to your capacity to negotiate or engage effectively in family dispute resolution. The law provides exceptions to the requirement that you must engage in dispute resolution processes where there has been, or is, a risk of child abuse or family violence. Accredited family dispute resolution practitioners are required by law to assess the appropriateness of family dispute resolution, or particular arrangements for family dispute resolution, in the particular circumstances of the parties. They will consider such factors as: any history of family violence; threats to the safety of a party; inequality of bargaining power between the parties; use of emotional duress; risk of child abuse; concerns about parties’ emotional, psychological or physical health; disadvantage caused by unequal economic resources; and language or cultural difficulties. Try to be open and honest about the inappropriateness of family dispute resolution in your situation. If you fear that you might be crushed or overwhelmed by engagement with the other party – particularly if you don’t have a lawyer – make sure the counsellor, family dispute resolution practitioner, family consultant or judicial officer is aware of your concerns ahead of any joint sessions. An accredited practitioner can provide a certificate stating that parties did not attend dispute resolution because, in the practitioner’s opinion, it was not appropriate (section 60I(8)(a)) or that

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the dispute resolution process had started but was discontinued because the practitioner decided that it was inappropriate to proceed: section 60I(8)(d). If the case has come already into court, and the court is satisfied that there are reasonable grounds to believe that there has been family violence or child abuse, or that there is a risk of family violence or child abuse, there is no requirement for a party to attempt to engage in family dispute resolution, or even to file a certificate from a family dispute resolution practitioner when making an application for parenting orders: section 60I(9). If you wish to rely on one of the exceptions in sub-section 60I(9), you will need to outline your grounds for claiming the exception in an “Affidavit – Non-filing of Family Dispute Resolution Certificate” (or in the affidavit filed with a “Notice of Child Abuse or Family Violence – Form 4” in the Family Court, or in the Federal Circuit Court the “Notice of Risk (Form 1)”. These documents should be filed with your Initiating Application. Applicants seeking exemption from the requirement to attend family dispute resolution because of child abuse or family violence must also state in writing that they have consulted with a family dispute resolution practitioner or family counsellor about services and options (including alternatives to court action) available in such circumstances. This statement may be provided on the form “Acknowledgment – Information from a Family Counsellor or Family Dispute Resolution Practitioner”. Be prepared to hand it to the judicial officer at the first court event: see sub-section 60J(1). If the court is satisfied there has been actual family violence or child abuse it must not hear the application unless written acknowledgement with this content has been provided, though requirement will be waived if a delay in hearing the case may lead to a risk of further abuse or violence: section 60J(2).

“Adviser” obligations [3.70] Under section 60D, all “advisers” (including lawyers, counsellors, family dispute resolution practitioners and family consultants) must expressly encourage their clients to act with the principal concern that children are protected from harm and exposure to abuse, neglect or family violence.

Protection orders State and Territory domestic violence orders [3.90] Every State and Territory has legislation providing for legally enforceable court orders to restrict the behaviour of a perpetrator of domestic violence for the protection of others: Australian Capital Territory – the Domestic Violence and Protection Orders Act 2008; New South Wales – the Crimes (Domestic and Personal Violence) Act 2007; Northern Territory – the Domestic and Family Violence Act 2007; Queensland – the Domestic and Family Violence Protection Act 1989;

[3.120]

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South Australia – the Intervention Orders (Prevention of Abuse) Act 2009; Tasmania – the Family Violence Act 2004 and the Justices Act 1959; Victoria – the Family Violence Protection Act 2008; Western Australia – the Restraining Orders Act 1997.

Federal injunctions for personal protection [3.100] The Family Law Act also contains a form of process, called an injunction, which restricts the behaviour of a party in relation to other people. An injunction for personal protection under the Family Law Act is like a domestic violence order in that it is intended to stop someone molesting, threatening, abusing or harassing another person, including a child. Except in Western Australia, a personal protection order may be made under the Family Law Act to protect: children and their parents or carers (section 68B); and a party to a marriage, with or without children (section 114). Injunctions for personal protection are intended to protect the persons named in the injunction from physical harm, including unwanted sexual contact, as well as to protect their wellbeing and freedom from harassment: In the Marriage of Kemsley (1984). They may also restrain a party from approaching, entering or remaining in specified premises. Section 235 of the Western Australian Family Court Act is the equivalent to section 68B. There is no equivalent in Western Australia to section 114 of the Family Law Act.

Personal protection for de factos? [3.110] There is still no explicit federal jurisdiction under the Family Law Act for making orders for the personal protection of a party to a de facto relationship. However, the property of a de facto party may be protected under section 114(2A), and an order may be made to restrict a de facto party from entering, using or occupying a residence of one or both of the de facto parties. A party to a former de facto relationship is eligible, however, for an injunction for personal protection under section 68B, if the party is a parent of a child of the relationship, a person with whom the child is to live under a parenting order, or in another of a set of relationships defined in the section in relation to the child.

How to apply for an injunction for personal protection [3.120] You can apply for an injunction for personal protection under sections 68B or 114 in the same way as you would apply for any other order of a family court. See chapter 4 for information on how to start a case and apply for orders. If the matter is urgent, you can apply for the injunction to be made on an urgent, ex parte basis – that is, without notice to the other party. See [7.1130], and Injunctions for personal protection of a parent or a child at [7.1220].

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Which order to seek? [3.130] If you have safety concerns for a child or for yourself you may seek a protection under either the federal or the State-based protection provisions, or both, provided the federal injunction for protection is obtained first. The decision about which order to seek – a federal personal protection injunction or a State domestic violence order – may ultimately be made on the basis of convenience, in terms of which court the person is already appearing in and cost considerations flowing from that. It is sometimes said that State police are more ready to enforce their own State-based orders (though they are bound to enforce federal orders as well).

Restraint provisions in parenting orders [3.140] Orders effectively restraining the behaviour of a party are often included in sets of parenting orders made in the best interests of a child, as described under section 60CC and in accordance with the parenting principles under section 60B. These may be expressed in whatever terms are necessary to address the particular issues in the case but could, for example, include restraining a party from: approaching, contacting, harassing, coming near, or criticising another; attending at certain addresses; or permitting contact between a child and another named person. For an example, see Griffin & Trueman (2014).

Orders for the exclusive occupancy of the family home [3.150] Orders for sole occupancy of a residence for personal protection can be made under both federal and State regimes and may be sought by both married and de facto couples.

State family violence orders and federal parenting orders that contradict each other When the family violence order was made first [3.170] An applicant for parenting orders in the federal family law jurisdiction must give details of any final family violence orders, made in a State or Territory court, affecting the parties to the application or any relevant children, and attach a copy to the application. The existence of a family violence order is a best interests factor under section 60CC of the Family Law Act, and must be considered by the court. The need to protect children from harm is now the primary considerations in the best interests assessment. Usually, orders under the Family Law Act will be consistent with existing family violence orders. Occasionally, however, the Family Court or Federal Circuit Court may consider it necessary to make a parenting order that contradicts the provisions of an existing family violence order. These two federal courts have more power and authority than the State and Territory

[3.190]

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courts that make family violence orders. So if a parenting order has provisions that are contrary to provisions in a family violence order, the parenting order will prevail, and the family violence order will no longer be enforceable to the extent that it differs from the orders made by the superior court: section 68Q. Such conflicts arise most frequently in the context of the child spending time with a particular parent. If the court makes an order it knows to be inconsistent with an existing family violence order, it must explain to the parties why the order has been made and exactly how it is to work: section 68P.

When the parenting order was made first [3.180] A magistrate making a final family violence order in a State or Territory court may at the same time “revive, vary, suspend or discharge” an earlier parenting order made under the Family Law Act: section 68R. This power can be exercised to change a final parenting order so that there is no conflict. If the magistrate is making an interim family violence order only, the family law order cannot be discharged altogether: sub-section 68R(4). It may, however, be revived, varied or suspended for the duration of the interim order, or for 21 days, whichever is less: section 68T. After this period, the earlier parenting order returns to full effect. Many magistrates in State and Territory courts don’t often exercise their powers under section 68R to “revive, vary, suspend or discharge” a parenting order. This is partly because they are rarely asked to do so by parties and their lawyers. But many regional courts do not have capacity to hear an application for change to family law orders. The default course is to refer a party wishing to change a parenting order back to one of the federal family law courts. A parent concerned about the risk of harm to themselves or their children may specifically apply to a magistrate to vary conflicting parenting orders under section 68R, at least on an interim basis, when they apply for a family violence order. Remember, if you don’t have the parenting order changed, the family violence order won’t be valid to the extent that the terms of the two sets of orders conflict.

How to apply for an order under section 68R [3.190] You can apply to a magistrate to make an order under section 68R on an Initiating Application. Change the top left hand corner of the form to show the State or Territory court that will hear your application (for example, “IN the Local Court, AT Bega, New South Wales”). In the application you will be asking for an earlier parenting order to be varied, revived, suspended or discharged “in accordance with section 68R of the Family Law Act”. To file the Initiating Application (with the accompanying affidavit if you also want interim orders) at the same time as your application for a new family violence order, attach a copy of the original parenting order, any existing family violence orders, and a family dispute resolution certificate, if applicable. When you file them, tell the registry staff that you would like the family law applications and the family violence application heard at the same time.

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Magistrates can also make section 68R orders on their own initiative (that is, without a written application). If you are self-represented you may wish to simply ask the magistrate to make an order under section 68R when you are speaking in court about your family violence order.

Notifications New machinery for informing the court about child welfare matters [3.200] New sections 60CH and 60CI improve processes for provision of information to family law courts about welfare care arrangements, and about notifications to, and investigations by, a State or Territory agency. Parties to a case who are aware of such matters must, and any other person who is not a party may, inform the court of the care arrangement, notification or investigation.

Mandatory notification of family violence [3.220] Under the 2012 changes to the Family Law Act, if an “interested person” in a case alleges actual, or the risk of, family violence by one of the parties to the case, then that interested person must file a “Notice of Child Abuse, Family Violence, or Risk of Family Violence” (Form 4) in the Family Court, or in the Federal Circuit Court, a “Notice of Risk” (Form 1): section 67ZBA. A copy of the Notice must be served on the party the subject of the allegations (as well as on each party and the independent children’s lawyer). If the Notice contains any allegations, a sworn affidavit must also be filed detailing the evidence of the violence, risk or abuse. An “interested person” includes any party to the proceedings, or an independent children’s lawyer in the proceedings: section 67ZBA(4). Additionally, since January 2015, each party filing applying for or responding to an application for parenting orders after commencing a case in the Federal Circuit Court must also complete and file a Form 1 Notice of Risk, whether or not the filing party has any allegations to make, or thinks there is any risk involved. The Form 1 addresses a number of possible sources of risk of harm to a child including drug and alcohol abuse and serious parental incapacity. In relation to applications for parenting consent orders, see [3.280] for notification requirements.

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Mandatory notification of child abuse Under State/Territory law [3.230] Teachers, doctors, other medical and mental health professionals, community service workers and many others are required under State and Territory laws to report reasonable grounds for concern about child abuse to the relevant child welfare authority, regardless of other laws or practices requiring confidentiality.

Under family law Mandatory notification to child welfare authorities [3.240] Certain professional workers must notify a prescribed child welfare authority if they have reasonable grounds for suspecting that a child has been abused or is at risk of abuse: sub-section 67ZA(2). The professional workers to whom section 67ZA apply include registrars, deputy registrars, family consultants, family counsellors, family dispute resolution practitioners, arbitrators, and lawyers representing a child (but not the parties): sub-section 67ZA(1).

Mandatory notification of child abuse by parties in a family law case [3.250] Other mandatory notifications about child abuse apply to “interested persons” (the parties in a case including the independent children’s lawyer if there is one). There are two sets of provisions about mandatory notifications by “interested persons”, about child abuse. Section 67Z requires “interested persons” who allege that there has been behaviour, or the risk of behaviour, that is within the definition of child abuse at sub-section 4(1), to file formal notification of those allegations. If the child abuse occurs, or would occur, by way of exposure to family violence, the notification can be made, alternatively, under subsection 67ZB(3). In both cases, notification occurs, in the Family Court, by filing a “Notice of Child Abuse, Family Violence, or Risk of Family Violence” (Form 4), and in the Federal Circuit Court, by filing a “Notice of Risk” (Form 1). A filed Form 4 or Form 1 must be served on an alleged perpetrator, whether or not that person is a party in the case, along with both the parties and the independent children’s lawyer (if any). If the Form 4 or Form 1 contain any allegations, a sworn affidavit must also be filed detailing the evidence of the alleged violence, risk or abuse.

Voluntary notification [3.260] Certain professional persons are expressly provided with an option, under the Family Law Act, to notify child welfare authorities if they suspect that a child has been or is at risk of being ill-treated, or exposed or at risk of exposure to psychologically harmful behaviour: sub-section 67ZA(3). As the new definition of child abuse – about which notification is mandatory – now includes exposure to psychologically harmful behaviour, the scope for application of this provision about optional notification is now significantly reduced. It would be wise for the relevant professional workers to ensure notification in any case if sub-section 67ZA(3) circumstances apply.

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The professional workers to whom section 67ZA apply include registrars, deputy registrars, family consultants, family counsellors, family dispute resolution practitioners, arbitrators, and lawyers representing a child (but not the parties): sub-section 67ZA(1). In practical terms, however, any person with reasonable grounds for concern can make a notification of suspected child abuse. Report directly to police and/or the relevant State or Territory child welfare authority. See Contacts and resources at [CR.1] for contact numbers.

What to put in the Affidavit to a Form 4 (or Form 1) [3.270] The affidavit(s) filed with a Form 4 or a Form 1 Notice should give a detailed account of: the facts and circumstances surrounding the alleged abuse; any family dispute resolution processes attempted, and, if none, why; advice received on community “services and options” available to the victim (if any); the risk associated with any delay in the hearing of an application (if any). It is possible also, if circumstances require a Form 4 or Form 1 to be filed, that a party may also need to file an “Application in a Case” applying for interim – even for urgent, interim – parenting or protection orders. If this is the case, the accompanying affidavits should provide evidence that would support the making of these orders. For further discussion about interim parenting orders, see [7.650], [7.1090], [7.1490], and for protection orders, [2.650], [7.1020], and about filing forms more generally, [7.1110].

Notifications and parenting consent orders [3.280] Changes to the Family Law Rules in 2012 require that, when applying for consent orders about parenting issues, each party must advise the court whether or not they consider that they, or the child: have in the past been; or are currently at risk of subjection or exposure to child abuse or family violence. If allegations of family violence or child abuse have been made the consent orders must indicate how these have been taken into account: Family Law Rule 10.15A. This can be done orally in the course of a hearing, or by written certification. Written applications for parenting orders by consent, in both the Family Court and the Federal Circuit Court, require completion and inclusion of the form Annexure to Proposed Consent Parenting Order which requires certification of the presence or absence of risk or harm, pursuant to Family Law Rule 10.15A(3).

Obligations of the court in responding to notifications [3.290] Under section 67ZBB, if a Form 4 or a Form 1 Notice has been filed in relation to allegations of family violence, risk of family violence, or risk of child abuse, the court must: consider making interim or procedural orders;

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act “expeditiously” in relation to the matters raised in the notice (preferably within eight weeks); consider the appropriateness of making personal protection orders (see [3.100]) or orders to obtain relevant documents from welfare or law enforcement agencies. The Federal Circuit Court has stated that all positive allegations of risk advised to the Court on a Form 1 will be forwarded directly to the relevant child welfare authority. The Form 4 or Form 1 is often filed along with an urgent application for orders to change living and care arrangements for the child to restrict or remove time spent or communication with the suspected abuser. An order for personal protection of the child may also be sought. Furthermore, the provisions require proactive action on the part of a court involved in all child-related proceedings to enquire as to the existence of any “concerns” of the parties in relation to family violence or child abuse: sub-paragraph (aa) of section 69ZQ(1)(a).

Applying for information in relation to notifications [3.300] You can apply for a court order requiring a State or Territory government agency to provide the court with documents or information about: notifications of suspected abuse of a child; notifications of suspected family violence affecting a child; and any assessments, reports, findings or information about investigations into such notifications. Documents supplied in response must be admitted into evidence. The agency is not required to provide anything that identifies the notifier. If it does, the court must not disclose this information to the parties unless not doing so would prejudice the fairness of proceedings. See Family Law Act section 69ZW.

Notifications when a child is the subject to a child welfare order or investigation [3.310] Each State and Territory has laws for the making of welfare orders for the care and protection of children at risk of harm. Under section 69ZK of the Family Law Act, where a child is under the supervision of a child welfare authority, the Family Court cannot make parenting orders about the child, unless: the written consent of the welfare authority is obtained; or the orders are to take effect at the conclusion of its supervision of the care of the child. Legal Aid offices are sometimes unwilling to assist in a family law case where a welfare authority has shown interest and activity, as their investment in the case may amount to nothing if the State or Territory child welfare authority makes orders that effectively bar the jurisdiction of family law courts.

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The 2011 amendments to the Family Law Act attempted to improve co-ordination between State/Territory welfare agencies and the family law courts in relation to care arrangements for children. From June 2012, a party must advise, and any other person may advise, a family law court that a child involved in a case (or another child in the same family) is subject to an order under a State/Territory child welfare law: section 60CH. Furthermore, from June 2012, a party must advise, and any other person may advise, a family law court if such a child has been subject to a notification, report, investigation, inquiry or assessment in relation to allegations or suspicions of child abuse: section 60CI.

Risk of harm and parenting orders Protection against harm is the prime consideration [3.320] Overall, in making a parenting order, the best interests of the child must be the court’s paramount consideration: section 60CA. But how is the court to decide what is in a child’s best interests? The Act is explicit about what the court must consider in making this assessment. The 2006 amendments divided the Act’s children’s best interests considerations into two levels: primary and secondary (sub-section 60CC(2)). The only two primary considerations – the so-called “twin pillars” – were the benefit to a child of having a relationship with both parents, and the need to protect a child from harm. But then changes effective in 2012 (subsection 60CC(2A)) raised the status of the requirement to protect a child from harm, requiring that it carry more weight than the relationship factor in the court’s considerations – that is, it must effectively trump the relationship factor in circumstances where the court is forced to weigh one consideration against the other. See Mabart & Haselden (2012) where the two considerations were explicitly weighed against each other in the context of this new provision. For further detailed discussion about the twin pillars and considerations about best interests, see chapter 7 “Parenting” from [7.260].

Family violence as a best interests consideration [3.330] Apart from the overall importance of protecting the child from harm, the Family Law Act refers specifically to family violence in the list of additional considerations that a court must have when deciding what is in child’s best interests. Sub-section 60CC states: In determining what is in the child’s best interests the court must consider … : (3) ... (j)

any family violence involving the child or a member of the child’s family.

Under this head, the court must consider whether family violence, as defined in the Act (and which specifically encompasses physical and sexual abuse), has, in fact, occurred. The definition of family violence now covers “exposure” to family violence by a child. In any case, in assessing a child’s best interests, the court will be concerned with the effect of family

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violence on the child, rather than the simple fact of its existence in a legal, abstract or moral way. Family violence may cause a child to suffer from “insecurity, fear, unhappiness, anxiety and hyper-vigilance”: Blanch v Blanch and Crawford (1999). Arguably, one of the worst dangers of family violence between the parties may be its role-modelling effect on a child. This additional consideration complements one of the twin pillars, being the primary consideration of the safety of the child: sub-section 60CC(2)(b).

Positive and negative findings of violence and abuse [3.340] The Family Court can make a positive finding, as part of the best interests assessment, that abuse, neglect or family violence has, in fact, taken place. As a civil rather than criminal court, however, it cannot punish an offender if a positive finding is made. But such a finding is likely to have a significant impact on a parent’s prospects in a parenting case, and separate mandatory notification provisions with the potential to generate direct punitive or protective consequences may apply. The Family Court may also dismiss allegations of abuse, neglect or family violence as fanciful or malicious (though the absence of abuse may be difficult to prove conclusively). See Wemble & Dautry (No 2) (2014) in which the judge struck out a Notice of Child Abuse, Family Violence or Risk of Abuse (Form 4).

When abuse can be neither proven nor excluded [3.350] Often, the court will not be able to conclusively determine that abuse has or has not occurred. Instead, it must grapple with the task of evaluating the likelihood of abuse. Sub-section 60CG(1) requires the court to ensure that its orders do not expose a person to “unacceptable risk” of family violence (which includes physical and sexual abuse). In Partington & Cade (No 2) (2009), the court affirmed that even the possibility (as opposed to probability) of sexual abuse can be considered in assessing “unacceptable risk”. If there is an “unacceptable risk” of abuse by a parent, the court will not grant an order that the child live with that parent, or spend unsupervised time with that parent (M v M (1988) and Partington & Cade (No 2) (2009)). The existence of “unacceptable risk” will be determined by whether the evidence in the case meets the standard of the “balance of probabilities”. In deciding this, a court will take into account the seriousness of the allegation, the unlikelihood of the allegation and the gravity of possible outcomes of a particular finding: Briginshaw v Briginshaw (1938). In B and B (1993), the court considered whether even supervised contact between the alleged abuser and the child should be allowed. It was decided that supervised contact should not be permitted if there is an “unacceptable risk” of physical, emotional or psychological trauma to the child arising from contact with the alleged abuser. It has been suggested that once there are reasonable grounds for the suspicion of child abuse, an onus falls on the alleged abuser to prove to the court’s “reasonable satisfaction” that it did not take place: K v K (1989). There are clearly difficulties in issues of evidence here, but it should be remembered that the court is attempting to determine the level of risk to the child rather than the guilt of a party.

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[3.360]

Family violence orders as a best interests consideration [3.360] As a factor separate to the one requiring the court to consider whether violence has or has not taken place, the law requires consideration of family violence orders, if they exist. Sub-section 60CC(3) provides: 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; ...

Under this head, the court must consider the existence and terms of any family violence order. This provision received significant amendments in both 2006 and 2012. The 2006 amendments specifically excluded consideration of family violence orders made without a contested hearing, and also, of interim (temporary) family violence orders. This was to address concern about the prejudicial effect, in family law proceedings, of allegations of violence that have not been fully tested and finally decided by a court. But the 2012 changes reversed these exclusions because they removed too many family violence contexts relevant to decision-making about parenting orders. The new provision now frames a significant field for the exercise of discretion by the judge or federal magistrate. It may be that a parenting order may, if it is to be in the best interests of a child as assessed under the Act, actually cut across or contradict the terms of an existing family violence order. In this case, the parenting order takes precedence: sub-section 68Q(1). This is discussed in more detail at [7.1450].

Risk of harm and interim parenting orders [3.370] The difficulties of assessing and weighing complex bodies of disputed evidence in the context of the limited time available at an interim hearing for parenting orders has continued to receive considerable attention in the courts: see [9.460]. But the court in Deiter v Deiter (2011) made clear that the likelihood, and severity, of risk of harm to a child was an issue that must be addressed in an interim hearing, notwithstanding the limited time available. Similarly, in Eaby & Speelman (2015), the court held that a court hearing an application for interim orders should not set aside disputed issues and make a judgement on only non-disputed matters if the welfare of a child is at stake. As recent cases indicate, however, the results at an interim hearing might turn on the court’s perception on how well risks are, or might be, managed. In West & West (2015), the two parties both had a history of amphetamine use, and there was significant untested evidence from the mother of many acts of domestic violence perpetrated against her and her property. Notwithstanding the likely loss of relationship between the father and the five-year old child, and

[3.390]

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likely difficulties in reclaiming it, the care of the child was remitted to the mother on an interim basis because a suitable, safe supervisory arrangement could not be identified. By contrast, in Whitby & Zeller (No 2) [2014], the mother’s appeal against interim orders that the six-year-old child spend supervised time with the father was rejected. The child and the father had not spent time together for four years, largely because of the efforts of the mother, and the child was not aware that he, and not the mother’s current husband, was his biological father. There was evidence of family violence, including as against the child by the father, and the father had been convicted of offences in connection to this. The court rejected the (unrepresented) mother’s argument that the court should act more cautiously to protect the child from significant, long-term psychological harm in reintroducing his father to the child, claiming that conditions as ordered (the provision of therapeutic services for the reintroduction and supervision at a contact centre) would prevent such harm occurring.

The system’s response to family violence and child abuse Parenting proceedings are designed to reduce conflict [3.380] Parenting proceedings in family courts are not conducted like other forms of civil litigation in Australia. Division 12A of the Family Law Act modifies the usual legal protocols in an effort to reduce the level of conflict between the parties and to increase the focus on getting the best outcomes for a child. One of the principal strategies is that the judge hearing the case has more control about what and how the evidence in the case is heard (but see chapter 9 for more details of how a Division 12A Less Adversarial Trial works). One of the principles of this form of proceeding is that: the proceedings are to be conducted in a way that will safeguard: (a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and (b)

the parties to the proceedings against family violence: section 69ZN(5).

The use of family consultants [3.390] A family consultant is an experienced psychologist who advises the court directly after interviewing the parties, the children and making other investigations (such as the administration of tests and questionnaires). In a parenting case that is close to its final hearing, the court is likely to order the preparation of a report by a “family consultant”. But family consultants may also be involved in pre-trial processes, in family violence screening and providing short-form advices to the court. See section 11C of the Act. All statements made to the family consultant by children and the parties are admissible to the court as evidence.

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Evidence of family violence and abuse may first come to light in the family consultant’s discussions with the parties and their children.

Magellan Program – case management for child abuse [3.400] The Family Court’s Magellan Program for case management was developed to deal with cases involving serious allegations of physical and sexual child abuse. It involves a relatively fast-track approach to resolution, early attention to protection for the child, and the expertise of a specialised team of judges, registrars and family consultants. There are now Magellan teams working in all the principal registries of the Family Court. The Magellan approach involves strict time-frames for all court procedure, aiming for cases to conclude within six months of commencement. In Magellan cases, there is early appointment of an independent children’s lawyer, funded by Legal Aid, for all children in the program, and early collection of information from relevant welfare authorities. Interim orders may be expedited to protect the child until the matter comes to trial. There is a focus also on evidence-gathering, and a trial process that ensure the best outcomes for children and families. The Magellan team allocated to a case ideally works with the case from start to finish, and actively manages liaison with external information and service providers, ordering expert investigations and assessments as required. A case may be allocated by the court to the Magellan program at any time after an Initiating Application for parenting orders has been filed. This may require transfer of the case from the Federal Circuit Court.

Family Violence Best Practice Principles [3.410] In 2009, the Family Court introduced revised Family Violence Best Practice Principles for use in parenting disputes when family violence or abuse is alleged. The Principles are intended to guide decision-makers, lawyers and parties in the family law system and complement the procedures established in the Magellan program. The Family Violence Best Practice Principles are available from http:// www.familylawcourts.gov.au. It is a handy reference document for court decision-makers and staff, lawyers and also for parties, about all of the provisions and procedures relating to family violence and abuse that now exist throughout the Family Law Act, Family Law Rules and registry practice. The Principles specifically address matters that may be considered when family violence or abuse, or the risk thereof, has been alleged, and cover issues that may arise: in directing the preparation of a family report or other expert report; in making interim orders; at the final hearing; in making consent orders; when the court makes positive findings of family violence or abuse or of unacceptable risk;

[3.430]

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when there is an order that a child spend time with a parent who is subject to a finding in relation to family violence or abuse; in making consent orders; about time standards; about information about local services; and about giving reasons for orders and judgments.

Examination of children for evidence of abuse [3.420] Without the court’s permission for additional examinations, a child may be subjected to only one medical, psychiatric or psychological examination for signs of abuse so as to enable a person to decide whether to commence proceedings or make an allegation of sexual abuse in current proceedings: section 102A(2). If another examination is conducted without court permission, any evidence of sexual abuse resulting from it will not be admissible in proceedings under the Act: section 102A(1).

Safety at court [3.430] Client service officers at the family courts are trained to routinely check with the parties with whom they have contact whether or not they have concerns about their safety. If such concerns exist, arrangements can be made for separate waiting areas and safe rooms, escorts to and from court rooms and conference rooms, staggered arrival and departure times, teleconferencing, videoconferencing, shuttle conferencing, and the presence of support persons. Security officers can be present in the courtroom if this is necessary.

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Family dispute resolution and other settling modes ........................................... 78

[4.300]

Negotiating with your partner ........................................................................... 89

[4.660]

Mandatory dispute resolution procedures before going to court...................... 102

[4.790]

Dispute resolution after a case commences ...................................................... 108

[4.900]

Obligations on advisers to inform.................................................................... 110

[4.910]

Confidentiality, disclosure and the admissibility of statements ......................... 111

[4.930]

Offers to settle ................................................................................................. 112

[4.980]

Forms of agreement ......................................................................................... 113

[4.1150]

Consent orders ................................................................................................ 120

[4.1500]

Documents for consent orders ......................................................................... 132

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[4.10] A viable relationship of any sort involves reasonable communication, some common values, and preparedness for give-and-take. Unless or until separating parties are able to develop an effective post-separation relationship – and many people can and do – the scope for joint decision-making about children and property may be fairly narrow, and based around fields of self-interest. In some cases these fields may be shown to intersect, so that settlement (completing an agreement on legal issues without a court decision) can take place notwithstanding the remoteness of the parties in relationship terms. In other cases, the prospect of agreement and early settlement recedes towards the realms of impossibility as former partners seek to hurt, damage or punish each other. One way or another, however, many if not most couples realise the value in reaching agreement, at an early stage, on a fair property settlement and a cooperative parenting relationship for the benefit of their children.

Family dispute resolution and other settling modes [4.20] The vast majority of separating couples manage to resolve their property and parenting arrangements privately, without court action, and the percentage is increasing every year. Of the cases that do go to court, and these would now only represent the most complex and intractable disputes, more than half resolve by agreement before any court decision is made. In a recent study, only 2.8 per cent of couples with successful post-separation parenting arrangements identified “court” as the main pathway used to achieve resolution. So even if you feel, right now, that agreement with your former partner is barely imaginable, you need to accept the reality that you will probably come to an agreement in the end rather than have a court decide the outcome. Do you want this sooner or later? Are you prepared to pay $5,000, $10,000, $30,000, or $100,000 in legal fees – with the same sort of money deducted from the property settlement for the other parties’ fees – for the difference between what you can achieve sooner and what you can achieve later?

Options for settling sooner [4.30] You can always choose to be part of the minority and wait for the court to decide – or you may feel you have no real choice. But if you wish to move ahead to finalise your arrangements more quickly and privately, there are a number of settling techniques from which to choose. These are: private negotiation; counselling; family dispute resolution; and arbitration.

[4.50]

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Advantages of early, private settlement Cost [4.40] Settling privately means far less financial cost – in legal fees certainly, but sometimes also in lost income-earning productivity. Benefits for children Children benefit enormously from the early return to a low-conflict, cooperative parenting relationship. See chapter 7 in relation to the damaging psychological effects of extended parental disputes on children. Getting your own solution An agreement you make is likely to be more satisfactory and appropriate for your circumstances over time than one imposed on you by a court. Going to court Going to the Family Court is a bit of a gamble. Since the major restructuring of the law that occurred in 2006, it is more difficult than ever to predict the outcome of a particular case. If you retain control of the decision-making process, you need not be caught out in the uncertainty. Quick resolution Final court orders routinely take more than three years to obtain. Unresolved personal and financial affairs can become very difficult over that time. Parties choosing private settlement can move on to develop and settle into their new lives. Lower emotional toll Family law litigation is not for the faint-hearted. Parties exchange bitter and hurtful allegations. Lawyers can be offensive. The court process is stressful, time-consuming and sometimes very disappointing. Parties who settle privately are able to use the vast amount of energy required for a pursuing a court case on making a new life instead, and are more likely to make an early return to emotional stability.

Private negotiation Private negotiation with legal assistance [4.50] A lawyer will always be happy to conduct pre-court negotiations with the other party on your behalf. If the other party has a lawyer, you may be better placed if you also have a lawyer for negotiations (provided you can afford one). Lawyers, however, often do not conduct negotiation with a view to minimising the adversarial experience of either party. And when you get a lawyer to negotiate for you, you lose a degree of control over the progress, the style and, ultimately, the result of the negotiation.

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If you feel that your lawyer-assisted negotiations are not going well, tell the lawyer you’d like to try to manage yourself, pay the bill and collect the file. It is your right to do this, if you wish, at any time.

“Collaborative law” [4.60] Collaborative law is a relatively new model of dispute resolution used by some lawyers and their clients. Like other methods of dispute resolution, the idea is to reach a fair agreement and avoid the emotional and financial cost, and delay, of litigation. It is becoming more popular as an alternative form of dispute resolution now in Australia – and particularly in the family law field. The parties in collaborative negotiation agree with their lawyers at the outset that they will not go to court while the collaborative process is in train. It is agreed that if the collaborative process breaks down, the lawyers involved will be excluded from representing the parties in any ensuing court action. So it is in the interests of the lawyers involved in a collaborative negotiation to make it work. The majority of lawyers offering to work collaboratively (and not all do) are genuinely interested in assisting their clients to achieve an early, non-litigious means of resolving their family law matters. It is true, however, that there are a few legal practitioners with something less than a genuine orientation to settlement rather than litigation, who involve themselves in collaborative law. If you are interested in embarking on a collaborative negotiation, you should have an honest chat with any lawyer purporting to practise collaborative law to determine their commitment to the process. Find a lawyer listed as a member of the collaborative law associations in each State and Territory (which are easily identifiable on the internet). Collaborative law differs from family dispute resolution in that there is no neutral third party present in round-table discussions. Instead, the discussions are four-way, involving the two parties and the two lawyers.

Negotiating for yourself, by yourself [4.70] You will definitely save some fees, and it is possible you may settle sooner and on a more secure basis, if you do your own negotiating. You may choose to do this whether or not the other party is represented by a lawyer. Either way, it is a very good idea to have legal advice about your standing in relation to the issues beforehand. If you have any concerns about your capacity to handle private negotiation without assistance then family dispute resolution methods offer a cost-effective, and still relatively private, alternative. See [4.300] – [4.650] for some hints on negotiating successfully.

Counselling Relationship counselling [4.80] Many couples find that a counsellor can help them towards resolving both the personal and the practical issues involved in separation.

[4.110]

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The counsellor may see the parties together or separately (or sometimes a bit of both). They may also see children. Counselling is a more personal experience than family dispute resolution. It can take place over several sessions, and is independent of any other dispute resolution or litigation process. You have more freedom to discuss emotional and behavioural issues in counselling. This may be particularly important if the prospect of reconciliation or adjustment to new life circumstances is a major issue for at least one party. Joint counselling is not likely to be particularly successful after a dispute becomes entrenched. See if you can get it started as soon as the prospect of ongoing difficulties in the relationship arises. Often, one party is initially unwilling to engage in counselling (or any other form of dispute resolution). If your partner is unwilling but you wish to try it, you may need to explain to your partner that court action may be the inevitable consequence if you unable to resolve matters privately together, and that the first requirement of the court will be for the parties to attend family dispute resolution proceedings together in any case. You could then perhaps make an appointment with the counsellor and advise your partner of the time, place and date. Attend the appointment yourself. If your partner doesn’t show up you will at least have an opportunity for a good talk.

Personal counselling [4.90] Sadness, anger and other personal issues can seem unmanageable around the time of separation. Many people now see private counselling as an opportunity to be supported through this difficult time. Sometimes, also, family dispute resolution practitioners recommend counselling to help people to stabilise their feelings in preparation for effective negotiation and family dispute resolution (see “Negotiation idea 3: Are you ready?” at [4.380]).

Counselling under the Family Law Act [4.100] The Family Law Act refers to “family counselling” and “family counsellors”, and provides for an accreditation scheme. The clients of accredited family counsellors receive the benefit of important confidentiality protections (see [4.910] and [6.610]).

Finding a counsellor [4.110] Relationship and personal counselling is available with fees on a sliding scale based on income, or may even be free, from many private or community service organisations, charities and churches. Psychologists also provide relationship and personal counselling services. It is a good idea to look for a counsellor who is an accredited family counsellor under the Act. The public provision of court-based counselling services has been wound back. A court may, however, designate court staff to act as an accredited family counsellor: section 38BD.

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[4.120]

Check with your local Family Court registry, Family Relationship Centre, a Legal Aid office, the Yellow Pages or Family Relationships Online to find an accredited counsellor.

Heads up and counselling! [4.120] Counselling can be painful, but vastly less so (and less expensive) than hashing through private issues in a public court case. If you feel unable to start with counselling jointly with your partner, try talking one-to-one with your own counsellor first. Schools, unions and workplaces often provide sympathetic and cost-effective counselling services for members of their communities.

Mediation, conciliation and family dispute resolution [4.130] The practices of mediation and conciliation have been around for many years and have been used across legal fields, including family law, to resolve disputes between parties and organisations. With the formulation of a definition of a process termed family dispute resolution in the 2006 amendments to the Act, which incorporates elements of both practices, the terms mediation and conciliation have much less relevance, day-to-day, in family law. The two practices are distinct, however, and a particular process of family dispute resolution taking place in family law is likely to follow one or the other.

What is mediation? [4.140] Mediation is a structured (but non-legalistic), facilitated process that has proved to be highly successful in resolving disputes of all types. It is, essentially, private negotiation assisted by a neutral third party, the mediator. Results in mediation arise from the parties themselves reaching agreement. In strict practice, a mediator is facilitative only and does not advise the parties or attempt to influence the outcome of the negotiation. A mediator does not make any rulings or decisions on the issues and does not intervene, direct or advise the parties in relation to the content of the negotiations.

What is conciliation? [4.150] Conciliation is similar to mediation but a conciliator will usually take a more active role in advising on the content and outcome of the agreement. A conciliator’s style of intervention overall is likely to be more active. The conciliator will use their professional experience about likely outcomes according to the law to advise the parties, encourage settlement and, possibly, influence the direction of the agreement reached. The term conciliation is expressly used in Australian family law in the description of the types of possible dispute resolution processes available to satisfy the mandatory pre-action requirements in property cases in the Family Court. See clause 1(1)(a) of Part 1, Schedule 1 to the Family Law Rules. It also applies to the dispute resolution approach of court officers trying to steer parties towards settlement once a case has been commenced in court (but prior to a decision in a final hearing) Registrars, judges and magistrates may be very clear in their suggestions to parties about the range of likely outcomes (“the writing on the wall”) if the parties persist with the dispute all the way to a final hearing.

[4.180]

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What is family dispute resolution? [4.160] Family dispute resolution is an umbrella term designed specifically for the Australian family law system. It encompasses almost all types and styles of independent third-party intervention that assists parties to reach agreement on their family law issues. Engaging in family dispute resolution is now a pre-requisite for making most applications for family law orders in court – though exceptions do apply. See “Mandatory Dispute Resolution Procedures before Going to Court” at [4.660] – [4.750] for more details. The definition of family dispute resolution at section 10F of the Family Law Act covers both the conciliation and mediation processes. The practice of family dispute resolution undertaken by community agencies, or at a Family Relationship Centre, is likely to follow the mediation tradition, however, whereas family dispute resolution processes undertaken in the course of court proceedings may have a more directive, conciliation character. The professionals involved in a family dispute resolution process are referred to as family dispute resolution practitioners. Family dispute resolution practitioners must have suitable qualifications, training and experience, and pursue certain practices, in order to be accredited as such under the Act and Regulations. Practitioners who breach the Regulations may be subject to penalties: section 10K. A family dispute resolution practitioner must be registered with the Attorney-General’s Department to be accredited under the Act. It is strongly advised that you seek out a registered practitioner to provide your family law dispute resolution services, even if you don’t intend to go to court. Apart from having more confidence about the relevance of the practitioner’s experience and the quality of service, clients of registered practitioners have significant confidentiality protection provided by the Act. See [4.220] with regard to finding a registered family dispute resolution practitioner.

What happens at family dispute resolution? The preliminary interview [4.170] It is common practice for a family dispute resolution practitioner to speak to each party separately at some stage before the joint session. During this confidential preliminary session, the practitioner explains the dispute resolution process to the client, and gets an idea of the nature and history of the dispute and of the style of each party in a conflict-resolution context. Any concerns the party has about the conduct of the family dispute resolution are fully discussed. Depending on the needs and circumstances of the parties, it can then be arranged for joint sessions to be conducted by telephone, videolink or in shuttle mode (where the parties remain in separate rooms and the family dispute resolution practitioner moves between them).

Joint sessions of family dispute resolution [4.180] A joint family dispute resolution session may involve one or two practitioners, the parties and perhaps, if everyone agrees, their solicitors. A support person for a party can also attend, if the other party agrees.

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Joint sessions normally take place over two to three hours (though they can be much longer if the parties make arrangements for this). Three or more joint sessions are likely to be necessary to complete the process over the multiple issues often involved in family disputes. At the start of a joint session, each party is asked to describe the outstanding issues between them, and the outcomes they would like from the process. An agenda is then formed for the rest of the session. Addressing one issue at a time, each party is given time to speak without interruption. The practitioner often summarises and restates the party’s position in neutral terms before allowing the other party to respond. The slow pace, and the interposition of the practitioner between statements made by the parties, make it easier for the parties to develop considered points of view, and to keep their feelings under control. The practitioner helps the parties identify and investigate possible solutions for each issue. Areas of agreement may be reached and will be recorded. At the end of the session, parties are usually given an opportunity to take away or later receive a written record of these points of agreement. Issues dealt with in family dispute resolution are usually those with practical, parenting, legal or financial implications, although techniques for more effective communication – particularly between separated parents – often feature in discussion. Parties can express their feelings in a controlled manner, but therapy is not the aim of family law family dispute resolution. See also “Managing power imbalance” at [4.290].

Family Relationship Centres [4.190] Family Relationship Centres (FRCs) were established by the Commonwealth Government in 65 locations around Australia as a part of the package of dispute resolution reforms to the family law system rolled out in 2006. FRCs are intended as a one-stop shop to provide information and support for all types of family relationships for people of all ages at any stage of a particular relationship. They hold public information sessions covering family relationship issues, and provide referral services. They run group programs on parenting after separation and early intervention services that may help to prevent relationships from breaking down. FRCs provide individual interviews for separating parents to help them identify issues and options and focus on the needs of their children. Importantly, FRCs have registered practitioners to undertake family dispute resolution for both parties in relation to parenting arrangements. It is not compulsory for couples to attend an FRC when they separate. FRCs provide individual advice free of charge. Three hours of joint dispute resolution sessions are provided free of charge. If more joint sessions are needed, parties can continue at the FRC, or be referred to another service, on a fee-paying basis (though fees may be waived in certain circumstances).

[4.210]

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Agreements reached in family dispute resolution [4.200] Parties may opt to make a parenting plan, a family dispute resolution agreement, or a signed memorandum of understanding as a written expression of agreement reached in family dispute resolution. These types of agreements are not legally enforceable, but they can, if the parties wish, be filed later in court in the form of consent orders, which are enforceable – usually with the assistance of a solicitor (see “Consent orders” at [4.1150] – [4.1540]). Parenting plans, too, have particular legal significance and formal requirements (see [7.920] – [7.990]).

The difficulties of private dispute resolution [4.210] Genuine effort in private dispute resolution processes, such as family dispute resolution or joint counselling, can yield great results for the parties. There can be difficulties, however, that diminish their capacity to produce a fair outcome. Parties should be aware of the risks outlined below. If you find that any apply to you, take action. Seek advice from an external source, change your strategy for reaching early settlement, make a complaint, or arrange to change the professional you are working with. Engaging can be painful A party in face-to-face negotiation may, initially at least, feel so overwhelmed by their personal feelings that they may be unable to work effectively in the process. Some people find direct engagement with their former partner unbearably stressful or uncomfortable immediately after the time of separation. Family dispute resolution practitioners and counsellors are human Most family dispute resolution practitioners and counsellors are able to put their own personalities and value systems aside, but a bad practitioner may be overcontrolling, biased or judgmental. Be aware also that family dispute resolution practitioners as a group have been accused of a bias in favour of middle-class, mainstream solutions that may not take account of an individual’s particular personal needs and future development. It is unfortunately also true that some may not know all that they should know about family law. Pressure to agree Some family dispute resolution practitioners will congratulate parties on coming to any form of agreement, even if one party has clearly succumbed to pressure or the result is otherwise unjust. Away from the court system, some unscrupulous parties use oppressive techniques, threats or emotional duress to force the other party into agreement. Imbalance in negotiation Direct negotiation, either generally or just with your former spouse, may be extremely difficult for you because of a power imbalance intrinsic to your

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relationship. If you usually gave way to your partner in your relationship, it is likely that your unsupported negotiations with that person will continue to reflect the pattern. See [4.280] for more on this. Going through the motions … A party forced to engage in dispute resolution by legislation or by order of a court may not use their best efforts to come to agreement. Chaos may reign in a vacuum of legal advice When parties understand their legal position in relation to the issues, family dispute resolution is more likely to produce a workable, fair, long-term agreement in a reasonable time. Before commencing the process each party should ideally have advice about their position at law should the family dispute resolution fail. Dispute resolution takes time and commitment Genuine agreement on a set of family law issues would ordinarily require at least three meetings or exchanges of position over time. Though the rewards at completion make the effort worthwhile, it can be difficult to keep coming back together and toughing your way through the issues.

Finding a family dispute resolution practitioner [4.220] There are many community agencies – including Relationships Australia, Unifam and Centacare – that provide the services of registered family dispute resolution practitioners for fees on a sliding scale based on income, and sometimes for no fee. There are also private mediation agencies and firms of solicitors that provide accredited family dispute resolution services, and more firms are planning to provide them. Some public agencies (such as Legal Aid agencies and Community Justice Centres in New South Wales) provide family dispute resolution services at no charge. Although government policy is for family dispute resolution to be undertaken by non-courtbased family services, court staff may also be appointed to act as family dispute resolution practitioners: section 38BD. A court-appointed family consultant will often conduct family dispute resolution. To find a registered family dispute resolution practitioner, check with your local Family Court registry, Family Relationship Centre, a Legal Aid office, the Yellow Pages, the Family Relationships website at http://www.familyrelationships.gov.au or call the Family Relationship Advice Line on 1800 050 321. You should choose the registered family dispute resolution provider who you think will best meet your needs. Some practitioners, for example, will not have the background to assist effectively in dispute resolution in relation to a property settlement. Dispute resolution in relation to property settlements is not undertaken at all by some organisations (eg, Family Relationship Centres).

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“Child-centred practice” [4.230] It is sometimes very difficult for a parent to keep a clear head about their own needs and wants, about the best interests of their children, while trying also to be reasonable about the needs and wants of another adult party. It can be useful to have expert assistance on remaining objective about the children’s issues at least. Some agencies offering family dispute resolution services specifically feature a child-centred approach or child-centred practice. If your negotiation involves parenting issues, it is worth asking about whether an agency offers this, or a particular practitioner has been trained in child-centred practice, before settling on a family dispute resolution service provider. In assisting a couple to come to agreement in a particular parental dispute a child-centred practitioner will focus on recognising critical timeframes for children, considering their particular developmental needs, facilitating the contribution of their views as appropriate, and more generally, promoting the collaboration of the parents with the best interests of the children to the fore. Although it is not always the case and will depend on the age and wishes of the child, a child-centred practitioner in a family dispute resolution matter may seek permission to speak in private with the children before or in the course of a series of joint sessions with the parents.

The Family Relationship Advice Line [4.240] The Family Relationship Advice Line (1800 050 321) is a nationwide telephone service that assists people affected by family breakdown with information on relationship issues, parenting arrangements, parenting advice and local services that can give assistance, including local family dispute resolution services.

Family Relationships Online [4.250] Family Relationships Online (http://www.familyrelationships.gov.au) has a search engine for family dispute resolution services Australia-wide.

Legal Aid Family Conferences [4.260] Successful applicants for grants of legal aid in family law matters will generally be directed to undertake family dispute resolution in the form of Legal Aid’s unique dispute resolution conference model as a first step towards resolution of parenting disputes.

Arbitration [4.270] In arbitration, the parties present arguments and evidence to an independent third party, the arbitrator, who then makes a determination on the issues, much like a judge. An arbitrator must apply the law as the Family Law Act prescribes, and the determination is binding on the parties. Arbitration is a developing phenomenon in Australian family law. So arbitration is yet another form of dispute resolution that is alternative to litigation. It is a particularly useful process to assist with the resolution of property and maintenance cases. It is not available for parenting and child support disputes. Arbitration is much cheaper, quicker and less formal than going to court, although less so than family dispute resolution. The parties control the timing of an arbitration and can have input on

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the rules of evidence, treatment of the issues and other procedural rules that will apply. The parties can choose their arbitrator and the proceedings will be private. The arbitrator will usually try to facilitate settlement in the course of the process before handing down a determination. Unlike the product of family dispute resolution (unless consent orders are subsequently made), a determination, in an arbitration, is legally binding on the parties. Parties must agree to use arbitration as a means of resolving their dispute, either before commencing court action or after (called “section 13E arbitration”). It is never a compulsory process. Arbitration is a service provided by experienced lawyers engaged by the parties. The fees can be significant. Because of this, arbitration in family law has tended, in the past, to have been applied only in high-end financial and property disputes. Government is keen to encourage the use of arbitration, however, so more affordable schemes may be in the offing. Contact your local court registry, Law Society or Law Council in your State or Territory for information about lawyers who offer family law arbitration in your area. See also sections 10L–10P and section 13E of the Act.

Power imbalance in private dispute resolution [4.280] If there is a history of violence or abuse, or a significant imbalance of power between the parties, face-to-face family dispute resolution, negotiation or counselling is often not recommended. If you feel certain you are likely to lose in any negotiation with your former partner, do not agree to negotiate or mediate without a strong support person (possibly a lawyer). Or it may be better if a lawyer manages all negotiation on your behalf. If there is a history of violence or abuse, you need to find a way to let your lawyer (or the court, or the family dispute resolution practitioner) know about this – even if you find it hard to say. Family violence and abuse is highly relevant to your capacity to negotiate or engage effectively in family dispute resolution. The law provides exceptions to the requirement that you must engage in dispute resolution processes where there has been or is a risk of child abuse or family violence (see “When compliance with Family Law Rules is necessary and not necessary” at [4.680] “Violence, abuse and family dispute resolution” at [3.60]).

Managing power imbalance [4.290] Family dispute resolution practitioners are bound to act impartially. They cannot openly stand up for a less assertive party in a joint session. A practitioner may, however, be able to assist the person with their negotiation skills in a private session before the joint session or during a break. There are also some changes that can be made to the family dispute resolution mode to help parties to feel more comfortable. These include: shuttle mediation; telephone mediation;

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the presence of a support person; the use of a videolink; and frequent time-outs. A family dispute resolution practitioner can issue a certificate stating that family dispute resolution is inappropriate in the particular circumstances of the parties. This may be for reasons connected with family violence, abuse, inequality of bargaining power or for other reasons. For more detail, see section 60I(8) of the Act and [3.60] in chapter 3.

Negotiating with your partner Negotiation through a lawyer [4.300] Research shows that one of the best predictors of a satisfactory future for a post-separation agreement – payments made on time, good relationships maintained, capacity to change agreements amicably and so on – is the degree to which the parties themselves retain control over negotiation on the issues during their dispute resolution efforts. It is an unfortunate truth that though most lawyers would prefer a settled result for their clients, their adversarial style sometimes discourages agreement. Then there is the simple fact that the lawyers stand between the parties. The presence of lawyers tends to reduce the potential for the necessary communication needed to facilitate genuine give-and-take. Furthermore, the compromise solution that a lawyer proposes is likely to be, to some extent, standard. Lawyers rely on the approaches they used in previous cases almost as much as courts do. To the extent that you are not a standard person, the deal proposed by a lawyer may be unsuitable. A deal you strike directly with your former partner is more likely to reflect who the two of you really are. So quite apart from issues of cost, you have a choice to make about the simple efficacy of engaging a lawyer to manage negotiations in your particular circumstances. A middle ground might be to see a lawyer for advice, and then to at least try to negotiate yourself in the first instance.

Negotiating your own settlement [4.310] Despite the increasing prevalence of and focus on family dispute resolution, most family law settlements still result from unmediated negotiations. Family dispute resolution really just means facilitated negotiation in any case. Whether you decide to negotiate alone or use family dispute resolution, there are some basic negotiation concepts that might help you along.

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Facing the task of engagement [4.320] People in the throes of a fully-fledged family law dispute look back sometimes and realise that they never did properly sit down with their former partner to try to work things out. The dispute simply blossomed in the communication void between them, like a giant weed. Many separating couples prefer to avoid engagement of any sort with each other, let alone a confrontation on a sensitive issue. In the emotional landscape that generally exists, this is understandable, as is a consequent willingness to let lawyers look after everything. But failure to meet this one challenge – to make an effort to work out, together, a compromise on financial and parenting matters – can lead to many years of bitterness and fighting. The court process itself then continues to feed negativity around the original issues.

Negotiation idea 1: Everyone can – and does – negotiate [4.330] Negotiation is fundamental to our system of family law. It’s also an ordinary phenomenon. We negotiate with our children, with shopkeepers, with friends and colleagues, every day of our lives. In fact, everyone has their own way of sticking up for themselves, of making their way forward, of getting what they need and want. It might not be the way that our mother might act, or the man next door, but we usually know what works for each of us. Engaging this capacity is what negotiation is all about. You should also keep in mind that, in family law, you won’t get anything you don’t ask for, and mostly you get will less than that. No great cosmic principle of fairness is going to move into the situation and make everything just and equitable. You (or your lawyer) will be forced to negotiate if you want the result to turn in your direction. So don’t say unhelpful things to yourself like “I’m hopeless at negotiating”. Think instead of your own personal style in getting your way, of making things happen for yourself. These are the strengths you can harness to be an effective negotiator with your former partner.

Negotiation idea 2: Identify issues – and get initial legal advice [4.340] You need to define the issues precisely, and clearly understand your position in relation to the law. Even if you plan to negotiate yourself or move into family dispute resolution, you really do need legal advice to start with. It’s sometimes hard to work out exactly what two people are fighting about. Even if they once knew, down the track, oddly enough, they can forget! You need to work hard at the beginning of a dispute to separate out the personal issues, and to find and describe your concerns, preferably in writing. Take yourself and your financial information, if this is relevant, to a lawyer – a free service or otherwise – and find out about the law relating to your dispute. Most importantly, get specific

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advice on what findings of fact and orders a court would probably make in your circumstances, and the strengths and weaknesses of your position.

Financial cases [4.350] If your case has property or maintenance components, prepare all the lists of assets, liabilities, income and expenses referred to at [2.400] – [2.450], and gather the necessary documentation. You may wish to consider the issues contained in the Financial Statement available from the Family Court website. Bring all of this along with you when you see the solicitor. The more detailed the financial information you give the lawyer, the more accurate will be their estimate of the court’s view of the facts.

But don't engage the lawyer yet! [4.360] Expect a lawyer to offer to start writing letters for you, and to talk about cost agreements. Be cautious about going in this direction immediately (even though it may be tempting to simply hand the matter over). Engaging a lawyer is a bit like digging a trench in a battle – the no-man’s land of dispute between the parties’ positions immediately becomes fixed and difficult to change. Your dispute becomes formalised, depersonalised, and public. Consider the lawyer’s advice, but consider also whether unassisted negotiation, or another assisted dispute resolution option, might be a more productive way to start.

What is the relevant law? [4.370] See “Satisfying yourself and the court” at [4.1200] – [4.1220] for a summary of the provisions you should bear in mind in negotiating an agreement on parenting, property and maintenance issues.

Negotiation idea 3: Are you ready? [4.380] It’s a waste of time and, in a sense, dangerous, to start serious discussions if the emotions of either party are still too hot or if you don’t have enough information to formulate a sensible position.

Not negotiating, arguing [4.390] From the beginning, strive to achieve, and then maintain, the separation of personal and business issues. Unfortunately, many couples fail to do this. They feel such hurt (or anger) that they can’t concede any winnable point to each other, and the disputing goes on and on. The results are particularly sad when children are involved. Separation is a time when feelings and personal issues with the other party are at their most sensitive. It might be impossible to meet at this stage without accusing, shouting, or crying … which is not likely to lead to a fair or sensible result on the business issues of parenting arrangements and property distribution.

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Until the personal situation cools, and both parties are able to talk rationally, it is unwise to try for any permanent agreement. Interim arrangements might be made and then the parties might need to leave each other alone for a time – several months even – to deal with feelings of grief and anger, and the challenges of independent life.

Do you know the size of your pie? [4.400] You can’t fairly divide a pie if you don’t know how big it is, or indeed how big, and genuinely hungry, the various diners are! Your visit to the solicitor will probably have revealed holes in your information – in an estimation of value, income or expenses, for example, or whether a creditor will allow the transfer of a debt. You should fill these before proceeding further. You need to be able to put together a reasonably accurate picture of the net worth of the property the parties hold both jointly and separately, and income and expense details for each party. Some of the information can only be gained by commencing a dialogue, either written or verbal, with the other side. Don’t be shy. You have a right now to ask about your partner’s personal financial situation even if you never involved yourself in the relationship’s finances before. Your partner is, in fact, bound to reveal these details to you if you commence a case, and is specifically “encouraged” under clause 4 of the pre-action procedures (see [4.660]) to reveal them during negotiations. You may need to ask, for example, for copies of business records, income tax returns, superannuation statements or other investment statements. Don’t agree to a property settlement until you know all there is to know.

Negotiation idea 4: Meeting arrangements [4.410] If both parties have sufficient emotional control, a face-to-face meeting to hammer-out solutions to the various issues is probably the best course.

Put it in writing [4.420] In keeping with the business tone (and to prove your actions during the pre-action period, if necessary) you should write to the other party and confirm the date, time and place of the proposed meeting. In your letter you might put forward a definition of the issues to be resolved – this could become an agenda for your discussion. You may also want to set out some rules (see [4.460]). Finally, ask the other party to bring along any required documentation.

Where to meet [4.430] It’s a good idea to meet on neutral ground. Your homes are likely to contain memories, objects and people that stir up emotion and detract from your ability to think clearly about the business issues. Arrange to meet at a friend’s house, an empty office, a park, café or restaurant. A public space will also help with behaviour control to some extent.

Consider bringing a support person [4.440] The most difficult aspect of direct negotiation in family law is the emotional landscape in which it has to take place. All aspects of the arrangements should be directed at keeping feelings – and consequently behaviour, language and subject matter – in check. One of the best

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ways to achieve this is for one party, if not both, to bring along a support person (with the prior approval of the other party). Ideally, this person should simply listen and say nothing during the negotiations. The support person can confer with the person they are supporting out of the meeting room from time to time. It is generally not a good idea to bring along a new partner as a support person.

Prepare to succeed [4.450] Make sure you can attend your meetings on time, without children, and dressed reasonably well. Yes, you are only going to meet your old partner, but the occasion is extremely important for your future and you need to look and feel up to the task.

Meeting rules [4.460] Before you engage in person-to-person negotiations with your former partner it may be useful to record an agreement on ground rules to control the quality and scope of your interaction. These rules might usefully be about: politeness and language; arriving and starting on time; the length of the meeting; the issues to be discussed – business only; making a written record of the meeting (particularly on points of agreement reached); and the presence of support people.

Negotiation idea 5: Prepare a pre-negotiation summary [4.470] As a private exercise (this is not for filing at court or showing to the other party) you may wish to prepare a pre-negotiation summary of your and your partner’s positions. Give each area of the dispute a heading (such as parenting arrangements, maintenance, household goods, dealing with the house, property division and so on). Put each heading at the top of a separate page. Then, for each, write down the parties’ interest ranges, your legal advice, and the strengths and weaknesses of your position. My interest range You need to identify your interest range for each issue. What is it that you want to achieve? The top end of your interest range is “everything that I really want”. The bottom end of your interest range is “what I’d be prepared to put up with” or “what I’d be prepared to agree to before going to court”. It’s important to factor in the likely cost of litigation when choosing the bottom of your interest range, particularly in a property matter. Remember that it is likely to cost each party upwards of $30,000 to litigate a property settlement. Sums like this can quickly close a gap in pre-litigation negotiations.

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My partner's interest range Estimate the same for your partner. You may not know exactly, but your guesses are likely to be reasonable. Legal advice Summarise what you have been advised or otherwise discovered that a court would be likely to decide in your case. Insert a range, if a range of possible results has been suggested. If you have nothing to put in this section, find a way to obtain the information. Strengths and weaknesses Make dot-points showing your current understanding of the legal strengths and weaknesses of your argument and of your partner’s argument. Again, if you have no idea what to put, you will need to do some more research before commencing negotiations. Keep it to yourself! Properly prepared, a pre-negotiation summary will help you better understand the dispute and the parties’ positions in it. It is, however, for your eyes only! Do not exchange it, show it to the other party or file it in court.

Negotiation idea 6: Understanding interest ranges The relation between the parties' interest ranges [4.480] Sample sets of exchanges of position in negotiation on a simplified property settlement are given below. Situation A: Overlapping interest ranges Jan will be the primary carer of three children aged under eight after separation. The parties have been married for 12 years. The interest ranges are typical, generally appropriate and show the range of legal advice that the parties might expect to receive in the circumstances. Both parties negotiate effectively and a fair result is achieved. A Bill Jan

Interest range

Position 1

Position 2

Position 3

Jan gets 65–75% Bill gets 25–35% Jan gets 68–78% Bill gets 22–32%

Jan 50% Bill 50% Jan 87% Bill 13%

Jan 60% Bill 40% Jan 85% Bill 15%

Jan 65% Bill 35% Jan 80% Bill 20%

Position 4, and agreed Jan 73% Bill 27%

Situation B: Divergent interest ranges Jill has two children and will need to retrain after separation. As the only party to seek legal advice, her range is the more realistic, but she loses confidence and drops quickly towards Bob, reaching the bottom of her interest range at position 3. Bob, on the other hand, commits the error of opening and holding at his one and only position. He has nowhere to go but down. The result is a disappointment for both.

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Interest range

Position 1

Position 2

Position 3

Jill gets 50% Bob gets 50% Jill gets 65–75% Bob gets 25–35%

Jill 50% Bob 50% Jill 85% Bob 15%

Jill 55% Bob 45% Jill 75% Bob 25%

Jill 55% Bob 45% Jill 65% Bob 35%

Position 4, and agreed Jill 60% Bob 40%

Situation C: One party reveals pressure to settle The parties are not so far apart in this scenario, and a result at about 70–30 might have been expected; but Ben reveals his desperation for a quick settlement, and this affects the progress of the negotiation. Ben makes the first bid, starting within his own interest range, trying to appear amenable. Jen realises she is strongly placed and resolves to start high and keep there. The final position vindicates Jen’s strategy. Ben has collapsed 15 percentage points and finished below his interest range. Jen lost only 10 points from her original position, and finished at the top of her interest range. C Ben Jen

Interest range

Position 1

Position 2

Position 3

Jen gets 65–75% Ben gets 25–35% Jen gets 70–80% Ben gets 20–30%

Jen 65% Ben 35% Jen 85% Ben 15%

Jen 70% Ben 30% Jen 85% Ben 15%

Jen 75% Ben 25% Jen 85% Ben 15%

Position 4, and agreed Jen 80% Ben 20%

The samples show that if the interest ranges of the parties are properly established – that is, with good legal advice as a foundation and a sensible attitude – there is likely to be considerable overlap between the ranges, and a high possibility of a fair settlement. Long disputes arise when parties’ interest ranges are far apart – when at least one party continues to harbour unrealistic expectations. There is a likely result for your case, for your circumstances, if the matter goes to court. You need to find out what this is and use it. Remember that you are statistically likely to settle – either sooner or later. With more accurate information about your prospects, you should be able to make it sooner.

Refining your interest range [4.490] Looking at your pre-negotiation summary (negotiation idea 5: see [4.470]), carefully consider the reason for any difference between your stated interest range and your legal advice. This gap could be a major problem for you. If you apparently want more than your advice tells you is likely to be achieved, you should either: have a very good reason to maintain your interest range where it is (see “The effect of circumstance and psychology” at [4.510] for possible reasons); or find a way to close the gap. There is no long-term value in chasing a result that, according to experienced professionals, a court would regard as unfair, unwise or illegal. You should either amend your interest range to match your legal advice, or find a professional opinion that validates your interest range. Your interest range may change over time as you learn more about the legal merits, or otherwise, of your and your

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partner’s case. The important thing is to keep track, and keep the focus on what your interest range on each issue actually is. As a goal, this is quite different from wanting to win or to beat the other party.

When to change your interest range [4.500] Your interest range, as opposed to your stated position on a issue, remains relatively fixed over time. It will only change if: your information or your understanding of the merits of your case changes; or you decide to amend your range on an issue as a trade-off against a particularly good result on another issue that is more important to you. Generally speaking, however, you will try to achieve a result on each issue that is within your interest range.

The effect of circumstance and psychology [4.510] A party’s interest range on a particular issue may reasonably be set low or high in certain circumstances. You may not value a particular issue highly, for example, and seek to trade it off against something you care about more. You may want a quick settlement so you can remarry with a clear slate. You may be determined to avoid court proceedings. You may desperately want a particular asset. You may feel guilty or hardly-done-by. You may want to provide the utmost best for your child. You may have different life values from those promoted by, for example, the courts, lawyers, or the media. Circumstances may completely reasonably skew your particular interest range on an issue away from what most people would consider standard. It will often not be possible for the other party to appreciate your unique interests until negotiation is underway. It is very much their task to discover these peculiarities of yours as early as possible. On the other hand, it is not your job to reveal them until it is useful for you to do so.

Negotiation idea 7: Accept that bargaining is necessary [4.520] Many people feel uncomfortable about bargaining. But though it may seem artificial, and often is at the start, bargaining is actually a sensitive technique capable of sifting out points of true agreement between suspicious or even hostile parties. You can make valuable discoveries about the other party’s mindset and their case even while the more outlandish positions are being exchanged. Bargaining is fundamental to making a true deal. If you’ve ever said to another person, when say, buying a used car: “Let’s not waste time bargaining” and if you then buy the car after the exchange of only first position amounts, you know that you will never be sure that you have in fact achieved the best deal possible! Though you might reveal your own true interest range straight up, without the bargaining process you will never know for sure where the other party’s interest range really was. They may in fact have settled for a point in, or even way above, your interest range.

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Remember, you will nearly always get less than you first ask for. Don’t try to start where you expect, or hope, to finish.

Negotiation idea 8: Start by exploring the issues [4.530] When you first meet, make a list of the issues that either or both of you consider to be outstanding between you. The list should not be too detailed – list items such as “communication between us on children’s matters”, “changeover arrangements”, “property settlement”. This list can be used as a form of agenda for your discussions. Try to agree beforehand that each party will have an opportunity to explain their point of view at the start of discussion on each issue without interruption. In these initial statements, and in early discussion, it is a good idea to avoid making offers or concessions, and especially to avoid issuing ultimatums. Deal-making (or deal-breaking) statements should be left until the parties have listened to each other and understand how the issue sits between them.

Negotiation idea 9: Building positions towards agreement [4.540] Positions are the proposals that are exchanged between the parties in the course of negotiation. There may be many positions put from one party to the other, and back again, until an agreed position (settlement) is reached. Typically, the first positions of each party on an issue are quite a long way apart. They come together gradually, in offer and counter-offer.

Choosing your first position [4.550] Do not reveal your interest range in your first statement to the other party about what you want (your first position). In fact, try to avoid opening negotiations with a position that is even within your interest range. You are entitled to try for the top position in your interest range, after all. Don’t give it all away in the first exchange. You should have at least two positions above your interest range on each issue. If you don’t plan for this, you will end up negotiating in the bottom of your interest range (or worse). Remember that the system requires a few goes-around to work properly, to find the true point of agreement. But not too many goes … If you spend too long in ridiculous proposal territory, the other party will become frustrated and angry, and will suspect that you are not genuine. You could also be held liable for costs if the matter proceeds to court.

Moving through the process [4.560] After you have both put your first positions on the table, and given reasons for them, you may feel stumped. There is likely to be a great yawning gulf between your first position and your former partner’s. Try not to worry about this. At the end of each meeting make or update lists of the matters you have agreed about and those that remain outstanding. Your differences about the matters on this

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second list – perhaps different views about the valuation of a particular asset or the justification for a particular residence arrangement – can turn into homework for both of you away from the negotiating table. You can do further research on the disputed matter, or simply think about the other party’s point of view. And, before you resume negotiations, you have a chance to consider the latest offer and to formulate a counter-offer. Settlement will never come if you demand to be convinced on every single point. Your task is to compromise without abandoning your interest ranges altogether. Start with compromises on small issues, and take satisfaction in the gradual shrinkage of the in-dispute list.

Positions in parenting disputes [4.570] It might seem odd to link the concept of bargaining with parenting arrangements that are in the best interest of a child. Isn’t the best interest of a child an objective fact – how can it relate to making a deal? The reality is that parenting arrangements are frequently the subject of negotiations at the most exquisite level of detail. This is largely because parents often have different – in most cases, honestly different – ideas about what their child’s best interest is. Although a dispute on parenting arrangements could continue until an expert, or perhaps even a court, relatively objectively decides on the child’s best interests, more often parents negotiate a position somewhere between their own ideas. In parenting matters, both parties should be setting aside their self-interest and working to build agreement about the best thing to do for their children – by obtaining information from a third party if necessary, but also by listening to what the other parent, and very importantly, what the child, has to say.

How to put, and justify, a new position [4.580] In ordinary family law negotiation using lawyers, positions are put one at a time, in successive offer and counter-offer, usually with gaps of time in between. These gaps need not be long (though they sometimes are – delay is one reason why lawyers can make it more rather than less difficult to come to a settlement). They are necessary, however, to allow time for the other person to research disputed facts, consider an offer and get back to you. You may need to allow a couple of weeks for this. Try not to be impatient. Moving slowly allows feelings to cool. It takes time, too, to consider and understand another person’s point of view. All offers made and points of agreement reached should be recorded in writing, either at the meeting or by follow-up letter. Each time you make an offer you need to make some effort to justify the position you are taking, and the distance you have decided to move from your last position. A certain amount of exaggeration can be expected from some people in this task, but there is no need to go overboard with explanations. Instead simply restate the main strengths of your position, and indicate how you are seeking to take into account the other party’s views, or new facts, in stating your new position.

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Circumstances change [4.590] Your circumstances are unlikely to be the same at this time next year. This means that you can sometimes make arrangements for now, and arrangements for later (you should do this if you are negotiating parenting arrangements). This can give you scope for compromise and trade-off. Beware of changing property valuations over the time it takes, or might take, to finalise a settlement. If the negotiations fall apart and the case goes to court, the relevant time for valuation is the date of hearing.

Reaching your interest range, and the closing position [4.600] In the ordinary course (but especially if you are negotiating with a solicitor on the other side), you should aim to be holding a position at the top of your interest range by about your third counter-offer (providing the other party’s offer is still way below your interest range, as is usually the case). Closing negotiations can be tricky, with neither party wanting to be seen to give in. One way to do it is to hold your position at the top of your interest range (“I’m sorry, I can’t move, that’s the best I can do”) for as long as it takes the other party to counter-offer into, or near, your range. When the other party finally gets there, make a “final” offer midway between your position and the new offer. If you have been able to bring the other party so far, you should be able to settle at this position. On the other hand, you might take a good hard look at the gap – is it really worth risking the prospect of settlement for this? (If it’s only money, try telling yourself that. You might have better things to do with your life than arguing with your former partner about a few thousand dollars.)

Negotiation idea 10: Package and repackage for a win–win result [4.610] There is rarely only one issue between parties, and the reality is that issues need to be negotiated in packages. Although this makes negotiation more complex, it also enables the parties to trade-off issues that have different interest levels for them. It should be your aim to give the other party as much of what they want as you can. Keep trying to find ways to say “I can offer you [something they want] if you [concede something you want in return]”. Packaging is about finding a way to offer a benefit the other party is seeking while meeting your needs too. Suppose the other party wants regular maintenance that you cannot afford to pay on your salary. In your packaging you might offer to agree to the sale of an asset, with the proceeds going to the other party as a lump sum maintenance payment. Try to think laterally and creatively about how to solve the other person’s problems.

Negotiation idea 11: Keep it positive [4.620] Remember that negative feelings and personal issues form the main road-block to successful negotiation in family law. To keep discussion on track:

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Start each letter or meeting by expressing some sort of positive sentiment (“I really feel like we’re going to get somewhere today” or “Thank you for answering my last letter so quickly”). Promise yourself that you will never be the one to start an argument. If you must express a negative sentiment, do it in terms of “When you say/said [or] do/did … I feel/felt …”. You can make almost any point this way without being directly critical or abusive. Avoid phrases like “I want …”, “You must …” and “I require …”. They sound inflexible, pompous and selfish, and tend to inflame the other person. Instead put and explain positions, particularly sensitive proposals, in terms such as “What I would like to do …”; “It would be helpful if …”; “My first priority is …”. Insist on mannerly behaviour at all times. Withdraw from negotiations if it is not forthcoming. Save the ultimatums until (and unless) you are prepared, as a last resort, to carry them out, and the prospects for a negotiated outcome have approached zero. Threats sour discussion and create suspicion. Remember that every conflict situation needs a hero at some point. This might mean being the first person to stick their neck out and offer a compromise – someone has to do it – or to genuinely listen and acknowledge, or to put themselves in the other’s shoes. If you choose to be the hero for your situation you may well find your dispute resolving more quickly and positively, and feel infinitely better about yourself and your performance at the end of the day.

Negotiating “without prejudice” [4.630] You will see the words “without prejudice” at the top of many lawyers’ letters. You need to understand their meaning and effect, particularly if you are conducting your own negotiations and there is a lawyer on the other side. The law of privilege for evidence of settlement negotiations When an oral or written statement is made without prejudice, it cannot become part of the evidence in a case unless both parties consent. It is protected by the without prejudice privilege (see [6.510] – [6.670] for more about the law of privilege generally.) This is important in negotiating family law settlements. In offering to compromise with the other party you might make certain admissions or statements. You might indicate that you would be prepared to agree to certain arrangements. If it were not for the without prejudice privilege, these admissions, statements or negotiating positions could be used against you later in court if negotiations are not successful. (“He agreed six months ago to only one night a week. It says here in this letter.”) Though it does not use the words “without prejudice”, s 131 of the Evidence Act now incorporates the essence of this old common law doctrine. It states that, in general, a document prepared, or a communication made, between disputing parties “in connection with an attempt to negotiate a settlement of a dispute” is not to be put into evidence in a case.

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Is it relevant? The common law has long held, and the Evidence Act now confirms, that there is no particular magic in the use of the words “without prejudice”. It is the intention of the parties in formulating the communication that matters. The genuine intent must be to further negotiations towards settlement, or the privilege will not operate, whatever words are used. There may, of course, be dispute as to the intent of a communication – particularly in family law, where correspondence between parties sometimes resembles a slanging match more than genuine negotiation. The words “without prejudice” may be used to emphasise that the communication is intended to form part of negotiations and to be protected by the privilege. The fact of the words at the top of the letter will not be decisive, however – it is the genuine intent of the writer as revealed by all the words used that really counts. A case can suffer from the indiscriminate use of this phrase in the correspondence. For example, you may wish to use one of your own letters as evidence in court. If you have marked all your correspondence without prejudice, you may need to argue to have the letter allowed in. Without prejudice “save as to costs” There is a trend towards the longer phrase “without prejudice save as to costs”. This is supposed to indicate that the writer intends the document to be admissible only for the purposes of the court in determining who should pay the parties’ legal costs. The additional words add nothing to what applies at law without them. Under the exceptions to the privilege set out at s 131(2) of the Evidence Act, communications are always admissible when the court is considering the question of costs. When should I use it? Use the phrase for: additional emphasis that you regard your communication as being in connection with genuine negotiation; and communications containing statements or admissions that you absolutely would not want to hear again later in court. Don’t use it for correspondence that does not form part of negotiations. Lawyers overuse the term. There is no need to copy their excessive caution – it could shut out useful evidence later on. Think about the content of your letters The words “without prejudice” on the top won’t protect against the future use of a document if its intention is clearly not to move the dispute toward settlement. Keep your personal arguments private – off paper, and away from other people, message banks, SMS archives, social media, recording devices and email. An offensive or abusive communication may well find its way into court as evidence – with potential

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to damage your case or create a liability for you to pay costs.

Negotiation idea 12: Aim to succeed – and to be fair [4.640] If the other party has moved their position towards yours unexpectedly quickly, there is obviously no need to drop your position in response. If you happen to be this lucky, it is reasonable to keep your position relatively high, and to try to settle up there as soon as you can. Beware, however, of the overly good deal. You might be a spectacular negotiator, or the other party might be desperate to settle, but you might also be missing something. On the other hand, if you are the stronger of the two, you should resist any urge to crush and destroy your former partner’s argument and their capacity to negotiate. If the other party is made to feel incapable, you may find yourself face-to-face with a solicitor instead. And if you force a bad deal on a weaker party they will have a very low level of post-settlement satisfaction. This is likely to lead to: problems with compliance; parenting relationship difficulties; difficulties achieving practical arrangements of any sort; and a very real possibility of future court action on the same issues.

Quick negotiating hints [4.650] Try to get the other party to make the first offer. You then have an information advantage about where they are going, and why. Remember that no one is serious about their first offer. Not you. Not the other party. So don’t let it make you angry. Do not use the word “final” until you (almost) mean it. Try to hide the lowest point in your interest range for as long as possible. Don’t bluff if there is a possibility you will be caught out. You will have very little bargaining power after being busted. Don’t concede a point unless you can get something in return. Make offers in if–then terms.

Mandatory dispute resolution procedures before going to court [4.660] Parties are now required under law to demonstrate “a genuine effort to resolve the dispute before starting a case”. This requirement is expressed in mandatory pre-action procedures and dispute resolution processes.

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The pre-action procedures apply to both parties. Compliance requires a genuine attempt to resolve the dispute before starting litigation, and certification. Your lawyer, if you have one, is also bound by this principle. There is a section on lawyers’ obligations for action towards early resolution of a family law dispute at the back of each Part of the procedures in the Family Law Rules.

Check which provisions apply [4.670] Parties in property and financial cases in the Family Court only have mandatory pre-action obligations (under Part 1 of Schedule 1 Pre-action Procedures, Family Law Rules). See [4.690] below for more detail. All parties to parenting cases, irrespective of the court, are subject to the pre-action family dispute resolution requirements set out at section 60I(7) – (12) of the Act. Parties to parenting cases in the Family Court are additionally subject to Part 2 of Schedule 1 Pre-action Procedures, Family Law Rules. See [4.720] below for more detail. Because of the detail contained in them, and the possible consequences of non-compliance, you should read the full text of the Part of Schedule 1 relevant to your issues, and/or section 60I(7)–(12) of the Act. These provisions are summarised in the following brochures downloadable from http://www.familycourt.gov.au or available in hard copy from a court registry: “Before you file – pre-action procedure for parenting cases”; “Before you file – pre-action procedure for financial cases”; and “Compulsory family dispute resolution – court procedures and requirements”.

When compliance with Family Law Rules is and is not necessary [4.680] Rule 1.05 of the Family Law Rules provides that compliance with pre-action procedures is compulsory for all cases in the Family Court except for divorce, child support, where the case involves bankruptcy, or if the application related to a case commenced in the previous 12 months. Compliance with the pre-action procedures will not be necessary if: there are allegations of child abuse, family violence or fraud; the application is demonstrably urgent; compliance would be unfair on the applicant (for example, in certain circumstances in relation to the recovery of a child, it would be prejudicial to the applicant to insist that they reveal their intention to attempt to recover the child); the dispute is genuinely intractable (not solvable by agreement); or there is another good reason for non-compliance.

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Improper use of the pre-action procedures [4.685] Documents disclosed under the pre-action procedures in the Family Law Rules may not be used for any purpose except the issues contained in the dispute as described: Family Law Rules, Schedule 1, Parts 1 and 2, clause 4. For example, you would need to be careful about using information in documents provided under the pre-action procedures in an application for a child support assessment, if child support is not an issue defined as part of your dispute. Parties cannot use the procedures to delay, harass, cause undue cost or raise irrelevant issues. If one party behaves unreasonably, the other is not expected to try to continue with the procedures to their detriment (see clause 7 and clause 9, in both Parts 1 and 2).

Non-compliance with the pre-action procedures [4.687] If you do not comply with the procedures, you should expect the other party to raise this if and when the matter comes into court. The court may ask about it in any case. If your non-compliance is discovered and you don’t have a good reason for non-compliance, your case may be negatively affected. It may well result in an order that you pay all or some of the other party’s legal costs (on the logic that if you had complied with the procedures, they may not have incurred any). So it’s worth making an effort to comply. Try to negotiate a compromise solution before the matter gets to court.

Pre-action procedures – property cases Although all courts encourage early efforts to resolve disputes through agreement, there are no formal pre-action procedures for property and financial cases in the Federal Circuit Court and lower courts. It is likely, however, that if no family dispute resolution processes have taken place they will be ordered, in any case, by the Federal Circuit Court at the first hearing.

A two-stage process [4.695] For property cases in the Family Court, the basic requirements for pre-action procedure are set out in Part 1 of Schedule 1 of the Family Law Rules as a two-stage process: The first stage If you are considering filing an application in a property dispute in court, you must: deliver a copy of the pre-action procedures to the other party; invite them to participate in a dispute resolution process – negotiation, counselling, conciliation or arbitration – with a person or organisation to be agreed between you; and make inquiries about appropriate and available dispute resolution services. The parties are required to cooperate to agree on what dispute resolution service to use, then use it in a genuine attempt to resolve the dispute. The second stage The second stage only becomes necessary if the first stage fails. You must write to the other party, giving:

[4.715]

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a statement of intention to commence court action if the dispute cannot be resolved by a dispute resolution method; a summary of the legal issues you disagree on (not personal issues – it is not a list of everything you dislike about the other person or their behaviour towards you); a genuine offer to resolve each of the outstanding issues; a statement of the orders you plan to seek if the dispute resolution process is not successful; and a timeframe (no less than 14 days) for the other party to reply with their counter-offer.

Exchange of documents [4.700] Parties are required “as soon as practicable on learning of a dispute”, and in any case, as part of the correspondence involved in the two stages, to exchange the following information: a statement of the parties’ income, assets and liabilities; a list of documents relevant to the dispute (reports, letters, statements, valuations and so on); a copy of the documents that would, if a case commenced, be required to be sent (disclosed) to other side (see Disclosure at [5.960]). There are specific documents required and expected to be disclosed in financial cases – refer carefully to clause 4 of Part 1 of Schedule 1.

Combining the stages [4.710] Although it is a little more work initially, it can be useful to combine the two stages – that is, research the available dispute resolution services and write to the other party inviting their attendance at dispute resolution with you, and, in the same letter, deliver the notice about court action if dispute resolution fails and all the other material required in the second stage. This way you both have a statement of issues and a prospective solution on the table to work with at the first dispute resolution occasion. If you do this, be careful that your timeframe for the counter-offer allows for the initial dispute resolution, and gives the other party time to prepare a response afterwards. Otherwise a court might later consider your requirements unreasonable.

Pre-action procedures and the behaviour of parties [4.715] The pre-action procedures in the Family Law Rules contain a statement of the principles that should govern the behaviour of the parties during the procedures, and afterwards, if a case is started (see Family Law Rules, Schedule 1, Parts 1 and 2, clause 1(6)). These include a requirement that the parties at all times consider the potential damage to a child involved in a dispute, and the likely impact of correspondence they send to each other. These provisions should be read in full.

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The aim is to reduce the incidence of adversarial behaviour between the parties – there have been many obnoxious letters traded under the guise of family law negotiation – and encourage them to look at the whole effect of their dispute, and of their behaviour in the course of it. There are specific requirements, also, for the behaviour of lawyers. If there is a lawyer on the other side and you feel that the spirit of the pre-action procedures is not being followed, state your concerns in a separate letter to the other party.

Pre-action procedures – parenting cases: all courts [4.720] Parties to an application for a parenting order are required to obtain a certificate from a family dispute resolution practitioner in accordance with sections 60I(6)–(12) (see [4.670] for more details). These provisions apply to all parenting cases commenced in any court. There are some additional pre-action procedures set out in Part 2 to Schedule 1 of the Family Law Rules applying only to parenting cases commenced in the Family Court. These procedures require: Notice of intention to claim – This notice must set out the issues in dispute, the orders which would be sought, a genuine offer to settle, and state a reasonable time for the other party’s response. Compliance with the general duty of disclosure – Parties must immediately upon learning of a dispute, exchange copies of relevant documents (eg, medical or school reports, letters, drawings, photographs). It is expected that a party will not start a case unless the other party fails to respond to the notice of intention, or unless agreement is not reached in the course of the subsequent exchange of correspondence.

Family dispute resolution action before commencing a parenting case [4.760] New applications for parenting orders now must include a certificate from an accredited family dispute resolution practitioner: section 60I(7). The certificate must state that: the applicant did not engage in family dispute resolution because the other party refused to or did not attend (section 60I(8)(a)); or the practitioner considered that it was inappropriate to conduct the dispute resolution (so it did not take place) (section 60I(8)(aa)); or all parties engaged in family dispute resolution and made a genuine effort to resolve the dispute (section 60I(8)(b)); or the parties attended at family dispute resolution but the other party did not make a genuine effort to resolve the dispute (section 60I(8)(c)); or

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the family dispute resolution commenced but was discontinued because the practitioner considered that continuation would be inappropriate (section 60I(8)(d)). A person responding to an application does not have to file a family dispute resolution certificate with their response, even if the response is by way of an application for parenting orders: section 60I(9)(a)(ii). See “Finding a family dispute resolution practitioner” at [4.220].

Don't knock it till you've (really) tried it* [4.770] It is important to try to regard mandatory family dispute resolution as an opportunity – that each party owes to themselves and to any children involved – rather than to approach it as a necessary charade or a legal hoop to be jumped through, before court action can be commenced. The dynamics of expert, facilitated, private, personal mediation between two parties can be completely different to negotiation filtered through two sets of lawyers. Some disputes are impossibly entrenched and will, in the end, require an external decision-maker, or, at least, the adversarial process, for resolution. But it’s not possible to know that your dispute is one of these before you’ve committed “genuine effort” – that is, had a real, honest-to-self go – in the non-adversarial alternative. Family dispute resolution practitioners and their legally-informed, genuinely efforting clients can, and regularly do, make miracles happen. And family law litigants often wish they’d tried a lot harder a lot earlier to find a solution privately. Any prior determination about the pointlessness of family dispute resolution deserves rigorous self-examination. Family dispute resolution is often hard, yes, but the experience of family law litigation, resulting from lack of commitment to the alternative private process, is likely to be much, much worse. * These suggestions do not apply in circumstances of family violence or abuse.

Exceptions to the requirement to file a family dispute resolution certificate [4.780] There is no requirement to file a family dispute resolution certificate if the following situations arise. The application is for consent orders. The court is satisfied that there are reasonable grounds to believe that a child has been abused or is at risk of abuse or there has been family violence or is a risk of family violence. The application is in relation to an alleged contravention by a person of an order made within the previous 12 months, and the court is satisfied that there are reasonable grounds to believe that the person has shown serious disregard for their obligations under the order. The application is urgent.

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There are circumstances preventing at least one of the parties from participating effectively in dispute resolution (for example, remoteness from services or physical incapacity). Where a certificate has already been filed in the same proceedings (this was introduced in 2009 by the Family Law Regulations, regulation 12CAB). See s 60I(9) for more details. If you wish to rely on one of the exceptions in sub-section 60I(9), other than for an application for consent orders, you will need to file an “Affidavit – Non-filing of Family Dispute Resolution Certificate” outlining your grounds for claiming the exception and file it with your Initiating Application. If you have already started your case, and you are making an Application in a Case – perhaps for interim orders – include your reasons for claiming the exemption in the affidavit prepared for, and dealing with the main issues in, your Application. Even when one of the sub-section 60I(9) exceptions applies, the court must consider whether to order the parties to mandatory family dispute resolution in any case: section 60I(10).

Dispute resolution processes after a case commences [4.790] Even after the application for court orders to determine a dispute has been filed at court, the law, and the policy of the courts, requires parties to further explore the potential for resolution before a judge’s decision can be obtained.

Parenting cases [4.800] The court can order parties to attend family counselling, family dispute resolution or a particular service or program at any point in the proceedings: section 13C. The likelihood (and timing) of such an order may depend on the effort of the parties in pre-action dispute resolution processes.

First day in court [4.810] On the first day in court, it can be expected that the judicial officer hearing the case will explore the possible options for early resolution of the case by agreement, and possibly order that further specific family dispute resolution processes take place before a hearing date is set: see Family Law Rule 12.04.

Parenting Orders Program [4.820] Both the Family Court and the Federal Circuit Court may order disputing parties – and particularly those considered to be high-conflict parties – to attend a Parenting Orders Program run by an external community agency. A Parenting Orders Program helps parents to focus on the needs of their children, to help them to help their children, reduce conflict, improve communication and make post-separation parenting arrangements work.

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Child Responsive Program [4.830] In the Family Court, if a case is not resolved after the first court event, parties may be ordered to attend the Child Responsive Program, an intensive series of family dispute resolution sessions with a family consultant. A family consultant is a senior officer of the court who is appointed to assist both the court and the parties. See chapter 7 for more on the Child Responsive Program and family consultants.

Failure to attend appointments [4.840] Parties failing to attend an appointment with a family consultant, family dispute resolution practitioner, family counsellor or other program or service as ordered by the court, will be reported to the court, which may then make such orders as it sees fit: sections 11G, 13D. These may include further orders to attend with the professional; orders to pay part or all of the legal costs of the parties; orders to summarily dispose of the case or decide a particular issue; or other interim parenting orders. Orders made in these circumstances may not be to the liking of the non-attending party.

Property and financial cases The case assessment conference – Family Court [4.850] The case assessment conference – the first formal opportunity provided by the court to resolve a property or financial case without a hearing – takes place on the first court date after the application is filed in the Family Court. If the matter is not settled at this point, dates for further dispute resolution processes and/or a conciliation conference will be set. For further details, see [5.310].

First hearing – Federal Circuit Court [4.860] The prospects for agreement between the parties to a property case in the Federal Circuit Court are explored at the first court event. Parties may also be required by order to attend further dispute resolution processes after this event. See [5.320] – [5.350] for more details.

Conciliation conferences [4.870] If a property case does not settle at a case assessment conference or after the first court event in the Federal Circuit Court, it may be set down for a conciliation conference. A conciliation conference will be conducted at court by a judicial officer, but not a judge. The preparation for a conciliation conference is more formal than in other dispute resolution processes. The judicial officer is likely to give more direction than a family dispute resolution practitioner about likely and possible outcomes if settlement efforts failed and the case goes to court.

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Attendance by the parties and their lawyers is mandatory. For procedural requirements, see Family Law Rules 12.05, 12.06 and 12.07, and rule 10.05 of the Federal Circuit Court Rules.

Compulsory and still confidential? [4.880] Statements made in conciliation conferences are protected by privilege, which means that they cannot be repeated in court or used in evidence.

Non-compulsory dispute resolution [4.890] In all cases, proceedings can, and usually will, be adjourned to allow for dispute resolution processes to take place if all parties agree. Depending on their workload on the day, you may be able to ask a duty lawyer at the court to help with negotiations (this may only be possible in parenting matters). Ask at the court registry whether there is, or will be, a duty lawyer in court on your day, and if so where you might find them.

Obligations on advisers to inform [4.900] Advisers in the family law field are required to give certain information to clients who have separated or may separate, or are considering family law proceedings, unless the adviser has grounds for believing that the information has already been provided. Lawyers must give clients information about: – – – – –

the legal and possible social effects of the proposed litigation; non-court-based family services; the court process and the role of family consultants; arbitrators; and reconciliation (unless the lawyer considers there is no reasonable chance of this);

Family counsellors, family dispute practitioners and arbitrators must give a person considering family law proceedings (including divorce) information about reconciliation (unless the adviser considers that there is no reasonable chance of it: section 12G); Lawyers, family counsellors, family dispute practitioners and family consultants giving people assistance or advice in relation to parental responsibility must inform them: that they could consider entering into a parenting plan; about what can be covered in a parenting plan; about how to get assistance to develop a parenting plan; about the interaction between parenting plans and parenting orders; that it is desirable for a parenting plan to provide for consultation between the parties (if parental responsibility is to be shared); that it is desirable for the parenting plan to provide for dispute resolution and variation over time for the changing needs of children;

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that parenting plans should be made in the best interests of the child; about the availability of programs to help people who have difficulties in complying with a parenting plan; that they might consider an equal time arrangement if this would be in the best interests of the children and reasonably practicable; and that if equal time is not an option, they might consider whether an arrangement for “substantial and significant time” with each parent might be both in the best interests of the child and reasonably practicable. Under the 2012 changes to the Act, all advisers are now additionally required to: inform their client that they should regard their child’s best interests as their “paramount consideration”; and encourage their client to act such that: – the child has a meaningful relationship with both parents; and – the child is protected from harm and exposure to abuse, neglect or family violence, (though the protection aim should be given greater weight). See sections 60D and 63DA for more detail about advisers’ responsibilities in these areas. See chapter 7 for more details about the legal concepts of parental responsibility, equal time, substantial and significant time, the best interests of the child, parenting plans and parenting orders.

Confidentiality, disclosure and the admissibility of statements Family counsellors and family dispute resolution practitioners [4.910] Statements made by anyone, including a child, during family counselling and family dispute resolution (note that this does not include the Child Responsive Program) are generally confidential. This means that the family counsellor or practitioner (or any professional to whom the person has been referred by the family counsellor or practitioner) cannot disclose the information contained in the statements to anyone, unless: the counsellor or practitioner is required by law to report the information; for example, information about child abuse or the risk of abuse; the parties to the counselling or dispute resolution, or persons with parental responsibility for a child involved in the case, consent; the counsellor or practitioner reasonably believes that disclosure is necessary to protect a child from harm, or to protect against threats to a person’s life, health or property; the information would assist the independent children’s lawyer to perform their role; or it is necessary for the provision of a family dispute resolution certificate under section 60I.

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Information that does not reveal the client’s identity may also be used for certain family research purposes (see sections 10D and 10H). However, statements disclosed under these circumstances may only be used as evidence in the case if they amount to an admission or disclosure of child abuse or risk of abuse, and there is no other sufficient evidence of the abuse or risk of abuse from another source: sections 10E and 10J.

Family consultants [4.920] Statements made to a family consultant are not confidential. Anything said to a family consultant or a professional to whom the family consultant has referred a person is admissible as evidence in a family law case: section 11C.

Offers to settle [4.930] Whether you manage your own negotiations or your lawyer does it for you, you are likely to make and receive several offers to come to settle (come to agreement) from the other party in the process of finalising parenting, financial or property arrangements. The law does not intervene greatly in the process of offer and counter-offer that often forms most of the communication between the parties in a family law matter. However, it is compulsory to make an offer of settlement at various points in the litigation process. Furthermore, a judicial officer, family consultant or judge may strongly suggest that it is timely for a party to make or accept an offer. They may even suggest what that offer might sensibly be. But the court cannot order you to make any particular offer.

Compulsory offers to settle Before starting a case [4.940] The pre-action procedures state that a party considering bringing a court action on financial or parenting issues in the Family Court must send the other party “a genuine offer to resolve the issues”, along with a notice advising them of an intention to start a case, if dispute resolution processes fail: clause 3(7) of Part 1 and clause 3(5) of Part 2 of Schedule 1 of the Family Law Rules. A party receiving a pre-action notice containing an offer has a minimum of 14 days to reply in writing with a “a genuine counter-offer”. Non-compliance with pre-action procedures may lead to an order to pay the other party’s legal costs if the matter goes to court: clause 1(3).

In a property case [4.950] Each party in a property case in the Family Court must make a genuine offer to settle within 28 days after either the conciliation conference (Family Law Rule 10.06) or if there was no conciliation conference, after allocation of the date for final hearing.

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This particular offer to settle must include the words: “This offer to settle is made under Division 10.1.2 of the Family Law Rules 2004.” The offer should be made in writing, and must not be filed and the fact that the offer has been made, or the terms of the offer, must not be disclosed to the court except for the purposes of the consideration by the court of whether it should make an order as to costs under sub-section 117(2). See rules 10.01 and 10.06, and section 117C of the Act. A Division 10.1.2 offer may later be withdrawn but, if it is, the withdrawing party must at once replace it with “another genuine offer to settle”: rule 10.07.

Non-compulsory offers [4.960] In general, you will not want to formally involve a court in the detail of any particular offer or counter-offer until you and other party actually settle, even where offers and counter-offers are exchanged in a court-ordered dispute resolution process. These exchanges are strictly confidential, and must not even be mentioned in court or in any document filed, unless the document is an application for consent orders or there is an application for costs. The court may consider a party’s action in relation to written offers of settlement – that is, whether they were made and how the party responded – when hearing an application for costs: para (f) sub-section 117(2A).

“Without prejudice” and “open” offers [4.970] The Family Law Rules restate the general law of evidence that an offer to settle is made without prejudice (that is, it is not eligible presented as evidence in court) unless the offer states explicitly that it is an “open offer”: rule 10.02. A party cannot even mention the making of a without prejudice offer in court or in any court document (subject to the exceptions in section 131 of the Evidence Act – see [6.630]) except an application for consent orders or costs. See also “Negotiating ‘without prejudice’” at [4.630].

Forms of agreement [4.980] You’ve come to the end of negotiations. At last, there is an agreed position on all the issues. You must choose now whether: to keep your arrangements private and legally unenforceable (this includes parenting plans); to enter into a private but binding financial agreement; or to apply to the court for consent orders. See the separate section “Consent orders” at [4.1150] for detailed discussion on this process.

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Private agreements [4.990] It might be difficult to believe but it is nevertheless true that a surprising number of separation agreements are made on table napkins! Many separating couples manage perfectly well by agreeing on arrangements for the children and the finances at the time of separation, and then simply carrying them out, varying the arrangements over time as children get older and situations change. For these couples, trust is not an overwhelming issue, there is a reasonable level of communication, and their ideas about what is fair and proper, and the value of co-operative parenting, are similar. Whether or not there was dispute initially, the parties do not believe they need the help of formal documents, family dispute resolution practitioners, lawyers or courts. This type of arrangement is perfectly acceptable – and legal. There is no requirement of law that arrangements about children or property must be formalised at the end of a relationship. In practice, private agreements vary in their formality – whether or not they are written, signed, or in the form of a contract – and how much detail they contain. But an informal agreement does not necessarily signal a positive situation. A very informal agreement may reflect either that the parties are of one mind and that no greater formality is necessary, or alternatively, that they have achieved no mutual clarity at all about their arrangements, and don’t know how to move matters forward. Family dispute resolution practitioners suggest that the level of detail and formality in a private agreement should be matched to the level of conflict between the parties. Where conflict is high, increasing the level of detail in the arrangements and ensuring that they are at least written (or, alternatively, written, signed and dated; or written, signed, dated and filed as consent orders) is likely to increase the probability that the agreement will continue to work for the parties into the future. Agreements made in family dispute resolution processes are increasingly prevalent. The terms of settlement (or parenting plan, memorandum of understanding, or heads of agreement) is a written record of items of agreement negotiated in the course of family dispute resolution.

Are they enforceable? [4.1000] A parenting plan, memorandum of understanding or other private agreement may be signed or unsigned, in writing or otherwise, but it is not legally enforceable unless: it is in the form of a binding financial agreement; or it is converted into consent orders (see [4.1160]) and filed in court. Though not enforceable in itself, a parenting plan is a form of private agreement that can have significant effects on the enforceability of earlier court orders, if made in accordance with simple specifications contained in the Act. See [7.920] – [7.990] for details. If you wish to settle your arrangements informally, it would be wise, at the very least, to record in writing the agreement reached on each item. For what items to specifically address, and how to construct a set of terms of settlement, see “Consent orders” at [4.1160].

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Make sure your written agreement is dated, that it is signed by both parties at the end and also at the bottom of each page, and that each party has a copy.

Case study: An amicable private settlement is overturned [4.1010] David and Amy agreed informally at their separation that David will keep their home but will sign over all their share investments, and a second block of land, to Amy. The necessary transfers were performed. But the couple did not divorce immediately. Four years later, and after she had suffered significant injuries in a car accident, Amy applied for a divorce and commenced an application for property settlement in court. She also applied for maintenance. There was only circumstantial evidence of the earlier agreement, and nothing proving that it was, or was even intended to be, conclusive. The court considered the value of all the property, including the former marital home (which had appreciated in value by 90 per cent since the separation), and the circumstances of the parties at the date of the hearing, as required under the Family Law Act. Amy was awarded a substantial share in the proceeds of the sale of the house and maintenance for three years to allow for her rehabilitation.

Binding financial agreements [4.1020] A binding financial agreement allows parties to secure final and legally enforceable arrangements away from the direct scrutiny of a court. The courts can make orders for enforcement of a binding financial agreement: section 90G(2). Although financial agreements are not filed in court, and their terms are not approved by a court, the Act sets out how they can be made binding, and deals with certain aspects of their operation.

What they can cover [4.1030] Binding financial agreements address the means by which all or any of the property or financial resources that either or both parties have brought to or accumulated during the relationship will be dealt with on the breakdown of the relationship. They can also deal with maintenance. They generally do not deal with parenting matters or lifestyle responsibilities (for example, “The Husband agrees not to drink alcohol in the presence of the children …”). Provisions of this kind in a binding financial agreement will not be enforceable.

When they are used [4.1040] Binding financial agreements are generally only used by parties with substantial assets (or who would bring substantial assets to a relationship), both because of the high cost in legal fees associated with setting them up, and because of the greater financial stakes involved if the relationship fails.

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Binding financial agreements can be made: before marriage or cohabitation (sections 90B and 90UB); during marriage or cohabitation (sections 90C and 90UC); or after a divorce or de facto relationship breakdown (sections 90D and 90UD).

What they achieve [4.1050] A binding financial agreement in relation to specific assets or resources removes the court’s jurisdiction to make any orders for their distribution that it could ordinarily make under the property settlement provision of the Family Law Act. It can also permanently extinguish the possibility of paying maintenance. Although they are not filed in court at the time they are made, the provisions of a binding financial agreement are enforceable by application to the Family Court.

Why enter a binding financial agreement? [4.1060] The effect of a binding financial agreement is to oust the jurisdiction of the court to make an order in accordance with its views about what is just and equitable. People who agree that a binding financial agreement is a good idea generally want to be sure that, in the event of relationship breakdown, their own agreed view of what should happen prevails. Other specific reasons include: to quarantine certain assets from consideration in the property pool; to allocate particular monetary value to certain assets; to know, ahead of time, how the property settlement would be handled; to achieve an advantage over the other party; to avoid going to court; or to avoid financial disclosure requirements in court. See also “Parties with less, proceed with caution” at [4.1130].

Formal requirements [4.1070] The formal requirements for a binding financial agreement were changed with effect 4 January 2010 by the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009. The principal effect of this amendment has been to remove the earlier requirement that the agreement contain a statement about receipt of legal advice. In most cases, for a financial agreement to be binding and enforceable: it must be in writing, and signed by both parties; each party must have received independent advice from a legal practitioner on certain, specific matters; each party has received a signed certificate from the legal practitioner that the advice on the specific matters was provided;

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the legal practitioner’s certificate must have been provided to the other party, or to their lawyer; the agreement must not have been terminated or set aside; and it must be given to one party, with a copy to the other, after signing: sub-sections 90G(1) and 90UJ(1). (Binding financial agreements are not filed in court.) If a court considers that it would be “unjust and inequitable” if the agreement was not found to be binding because the requirements of sub-sections 90G(1) or 90UJ(1) were not met, it can make an order that the agreement is binding in any case: sub-sections 90G(1A) and 90UJ(1A). Because of changes in the formal requirements in 2004, and then again in 2010, there are some complexities in the law about when and how non-compliance with the formalities will make a financial agreement non-binding. See Black & Black (2008), Parker & Parker (2010) and Wallace & Stelzer (2011) and [4.1080] for details.

The legal advice requirement [4.1080] The provision of a signed statement by a legal practitioner in respect of a binding financial agreement is intended to replace the scrutiny of the court. It is quite onerous, and many lawyers without specific experience in the area will refuse to provide it. The lawyer must certify having provided independent advice (that is, advice to one party only) stating the effect of the agreement on the rights of that party, and its advantages and disadvantages for that party, at least as they exist at the date of the agreement: sub-sections 90G(1) and 90UJ(1). The lawyer should be able to effectively evaluate and communicate the likely view of the law in relation to the parties’ particular circumstances, and the available evidence on the issues dealt with in the agreement. Performing the role properly, therefore, requires a high level of expertise in family law and in property matters in particular, and a significant amount of professional time. The skills of an accountant may even be required to accurately describe the financial effect of the terms proposed. Neither this level of expertise, nor the time required to do the job properly, comes cheaply. At the time of writing, the nature of provision and the content of the legal advice are live issues in the courts with a number of cases suggesting different approaches. For example, the decision in Logan & Logan (2013), supporting Hoult & Hoult (2013), held that the requirement for legal advice is about whether the advice has been provided and not about its content. But the court in Renard & Geach (2013) held that the provision of a legal practitioner’s certificate stating that the advice has been provided is not sufficient, if the advice has not actually been provided. Similarly, in Adame & Adame (2014) the court found that the requisite advice was not provided despite the signing of the certificate.

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Varying an agreement [4.1090] The terms of a binding financial agreement can be varied by further agreement between the parties, observing all the same formalities as they originally did.

When an agreement can be set aside [4.1100] A financial agreement can be set aside (made unenforceable) by order of a court if: there was fraud (which includes non-disclosure) involved in its making; a party set out to deprive a third-party creditor in making the agreement; a party set out to deprive the de facto partner (or former spouse) of the other original party; it is void, voidable or unenforceable under the law of contract; it falls within certain circumstances in relation to prior, valid State or Territory de facto agreements (see below); new circumstances make the arrangements contained in it impracticable; there has been a “material change” in circumstances relating to a child that will result in hardship for the child, or for one of the parties, if the agreement stays on foot; a party’s conduct in the making of the agreement involves unfairness or wrongdoing; there are certain circumstances relating to superannuation. If a court sets aside a binding financial agreement, it can make an order for the transfer of property or otherwise as it considers fair, for the parties involved. Provisions dealing with setting aside binding financial agreements are set out in sections 90K and 90UM of the Act. A term extinguishing maintenance liability may only be set aside if: one of the grounds for setting aside the agreement can be established; or the party seeking the maintenance order needed a pension or benefit to support themselves at the time the agreement was made: section 90F.

Prior State or Territory agreements of de factos [4.1110] De facto parties have been able to enter into de facto or cohabitation agreements in relation to the distribution of their property in the event of relationship breakdown under State and Territory legislation for many years. In due course, the referral of jurisdiction in de facto property matters from the “referring” States and Territories (not including Western Australia) will result in all of the binding financial agreements for eligible de facto couples to be made under the Commonwealth’s Family Law Act. In the meantime, however, a raft of transitional provisions continue to apply. See Divisions 3 and 4 of Part 2 of Schedule 1 Transitional Provisions of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008. These provide for the recognition, enforcement and setting aside of validly made prior State and Territory agreements in certain circumstances. The provisions allow that State and Territory agreements that were validly made under their State or Territory legislation, but do not meet the requirements for a binding financial agreement

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under the Commonwealth law, may be recognised in the Commonwealth as excluding the jurisdiction of the court to make a property order. They are liable also to be set aside if the formalities of independent advice and certification were not met and if fairness would result if they are not set aside: see sections 90UM(1)(k) and 90UM(5) of the Family Law Act and item 93(1)(f) of Division 5 of Part 2 of Schedule 1 of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008. There are specific provisions also, in section 90UE of the Act, for couples with a de facto agreement made in Western Australia (the remaining “non-referring State”), who have since moved and are able to establish the necessary geographical connection with one of the other States or Territories.

Tax implications [4.1120] In the past, binding financial agreements suffered from a disadvantage compared with court-ordered property settlements, including settlements by consent orders, in that binding financial agreements did not attract the same roll-over relief from capital gains tax. This anomaly was removed by changes to taxation law in 2006. Unfortunately, the same changes may have narrowed the availability of roll-over relief on the sale of the former marital home. Parties need to carefully (and separately) consider, and if necessary seek accounting advice, in relation to the taxation consequences of all arrangements for distribution of property between parties to a relationship, whether those arrangements are made before, during, or after a relationship.

Parties with less, proceed with caution … [4.1130] Consider the significant legal costs involved in the preparation of and advice on financial agreements. A party prepared to pay these costs may be attempting to achieve a result that is more advantageous for that party than a court would think just and equitable in the circumstances. Love may well be blind. You need to think more than twice before signing away your legal rights to a fair result in the future. People, relationships and circumstances do change. Case study: Pressure to sign a pre-nuptial binding financial agreement Erica and James set a date for their marriage. Erica proceeded to make detailed arrangements for the wedding. A week before the wedding, James presented Erica with a draft of a pre-nuptial binding financial agreement stating that Erica would not receive any maintenance if the marriage broke down. James said: “It’s nothing really. The family lawyers want it. I’d never do anything about it.” Erica trusted and wanted to marry James. She found a lawyer to provide the necessary certification and signed the agreement. When the marriage broke down, Erica was able to obtain a court order to set aside the agreement on the basis that James engaged in unconscionable conduct in pressuring her to sign it just before her wedding. The court then ordered James to

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pay maintenance.

Superannuation agreements [4.1140] Private arrangements for dealing with a superannuation interest can be specified in a superannuation agreement and packaged into an overall binding financial agreement. Interests dealt with under superannuation agreements do not have to be valued in accordance with the mandatory formula that applies for consent orders relating to superannuation (see [8.1310] – [8.1540] for more about this).

Consent orders [4.1150] A roadmap for the balance of this chapter in relation to consent orders: What they are ....................................................................................................[4.1160] How to apply.....................................................................................................[4.1170] No family dispute certificate needed ..................................................................[4.1190] Satisfying yourself and the court ........................................................................[4.1200] Parenting orders.................................................................................................[4.1210] Property and maintenance orders.......................................................................[4.1220] Issues to cover in consent orders ........................................................................[4.1230] Parenting orders.................................................................................................[4.1230] Property orders ..................................................................................................[4.1240] Superannuation..................................................................................................[4.1250] Maintenance ......................................................................................................[4.1260] Changing consent orders....................................................................................[4.1270] Setting aside parenting and maintenance orders.................................................[4.1270] Setting aside property orders..............................................................................[4.1290] Applying for consent orders during a case .........................................................[4.1300] Applying for consent orders during a court event ..............................................[4.1320] Applying through the registry ............................................................................[4.1330] Applying for consent orders when there is no current case.................................[4.1340] The Application for Consent Orders ..................................................................[4.1350] Disclosure of financial information....................................................................[4.1360] Documentation checklist: Applying for consent orders where there is no current case ....................................................................................................[4.1370] The affidavits.....................................................................................................[4.1380] The Consent Orders Supplement .......................................................................[4.1390]

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Minutes of Consent Orders/Terms of Settlement................................................[4.1400] The draft orders.................................................................................................[4.1410] Important timing considerations ........................................................................[4.1420] Essential elements of form .................................................................................[4.1430] Consent orders and independent children’s lawyers...........................................[4.1440] Child abuse and family violence annexure .........................................................[4.1450] Costs orders? But didn’t we just agree?..............................................................[4.1460] After filing .........................................................................................................[4.1470] Notice from the court ........................................................................................[4.1470] Check the orders!...............................................................................................[4.1480] Finished your case? ............................................................................................[4.1490] Documents for consent orders ...........................................................................[4.1500] The cover sheet ..................................................................................................[4.1510] “First page” of consent orders ...........................................................................[4.1520] Minutes of Consent Orders................................................................................[4.1530] Application for Consent Orders.........................................................................[4.1540]

What they are [4.1160] Consent orders are by far the most popular method of making a separation agreement formal and enforceable, whether it was reached privately, in family dispute resolution, or by negotiation between lawyers. Consent orders are made by a court but, unlike other court orders, they are made with the prior consent of both parties. They may be drafted by one or both parties. They state the agreed position reached on the issues during family dispute resolution or settlement negotiations. Consent orders can be made about almost every matter within the jurisdiction of the Family Law Act. They have the same level of authority, certainty and enforceability as any other court order. They can be made either before or after a case is commenced, and there are no court fees. You can file consent orders once a case has been started in either the Family Court or the Federal Circuit Court. If you haven’t started a case, you can file your Application for Consent Orders in the Family Court only. The orders may be granted by that court without a case being started unless: the terms of the orders sought conflict with a family violence order; and the court is not satisfied that the arrangements are “just and proper” in accordance with the guidelines for its consideration under the Act the orders involve the unusual situation of a child living with, and being the responsibility of, someone other than a parent or relative: section 65G.

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How to apply [4.1170] There are various ways to apply for consent orders about one or more issues depending on the circumstances: orally, during a hearing or a trial, in any court; by giving a draft consent order to a judicial officer, magistrate or judge during an event in any court; or by filing an Application for Consent Orders: Family Law Rule 10.15. Draft consent orders are usually submitted in sets – each order is contained in a numbered paragraph of a document signed on each page by both parties. The rules about consent orders require parties to provide advice to the court about family violence, child abuse and other risks to children. See [3.220] in chapter 3 for details.

No family dispute certificate needed [4.1190] Applicants for consent orders need not file a certificate from a family dispute resolution practitioner with the application: sub-para (i) of para (a) of sub-section 60I(9).

Satisfying yourself and the court [4.1200] The court is not bound to make all and any orders that parties apply for by consent. Although, in an application for consent orders, the court does not usually have all the relevant evidence before it, it may consider the same factors as it would if it were making the orders without consent. If the court is not satisfied that the consent orders are “proper” or “just and equitable”, it may decline to make the orders entirely or it may ask the parties to appear in court to provide further information. Parties are strongly advised to become familiar with the considerations that guide the court (set out below), especially when formulating draft consent orders.

Parenting orders [4.1210] In the case of parenting consent orders, courts are bound to consider (so parties should also consider) the following Family Law Act provisions: the objects of the Act, children’s rights and parents’ responsibilities (section 60B); a child’s best interests as the paramount consideration (section 65CA); how a court determines what is in a child’s best interests (though the court need not have regard to all of the best interests factors) (section 60CC); and the presumption of equal, shared parental responsibility (sections 61DA, 65DAA). The Act does not prescribe the types of orders that can be made for children. It says that the court may make such orders as it thinks “proper” (section 65D), with other sections about

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children’s rights, parental responsibility and best interests contributing to the assessment (see chapter 7). The presumption of equal, shared parental responsibility, inserted into the Act in the 2006 amendments, applies also for the making of consent orders. A section of the consent order form requires the parties to consider whether the presumption applies in their case or not.

Property and maintenance orders [4.1220] For property and maintenance consent orders, the relevant factors for consideration as to what orders are “appropriate” – by the court and the applicant – are: matters in relation to maintenance, and future needs and resources factors in property matters (section 75, especially section 75(2) or 90SE and 90SF(3)); the obligation to support a spouse (section 72); the court’s powers and considerations in distributing property (section 79, especially section 79(4) or 90SM(4)); the court’s duty to attempt to finalise relations between parties in property matters (section 81 or 90ST); and requirements for dealing with superannuation interests (Family Law (Superannuation) Regulations 2001, Part VIIIB). Any property order the court makes must be “just and equitable” in the circumstances: sections 79(2) or 90SM(3). The court may make such orders as it considers “proper” for maintenance: sections 74 or 90SE. Parties should consider seeking prior advice from an accountant in relation to the taxation implications of the property orders they may apply for by consent.

Issues to cover in consent orders Parenting orders [4.1230] The parenting issues in dispute differ for each couple. However, some types of issues are regularly addressed in sets of parenting consent orders. There are likely to be orders about: the allocation of parental responsibility; who the child will live with; time to be spent by the child with each parent; communication between the child and each parent; provision for changes in arrangements as the child gets older; parental consultation and joint decision-making arrangements; and dispute resolution arrangements. Discussion on each issue, and sample orders, are set out in chapter 7.

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Property orders [4.1240] Issues to consider in formulating property consent orders (not superannuation) include: the division of specified property in percentage shares to each party; arrangements for a transfer of interest in specified property to a party; the time allowed for one party to decide whether to sell an asset, or keep it and pay the other out; arrangements for the sale of specific property; how the price for the sale of an asset is to be determined; how the proceeds of the sale of an asset are to be distributed (including payments to third-party creditors); cooperation between the parties in signing documents and effecting transfers to allow the settlement to actually move ahead; allocation of responsibility for regular payment for ongoing liabilities (such as the mortgage or credit cards); timing and other conditions for the payment of lump sums; declarations of sole title in specified assets to one party or the other; the making of lump sum maintenance payments; the indemnification of one party by the other in relation to specific liabilities and expenses; arrangements for the sale of assets where a lump sum is not paid within a certain time; and the division of household assets, and arrangements for their collection. Sample orders on these issues are set out in chapter 8.

Superannuation [4.1250] The law concerning superannuation interests contains numerous technical requirements. You should seek legal, and possibly also accounting, advice before submitting draft consent orders about superannuation. See [8.1310] – [8.1540] for more about the law relating to the distribution of superannuation interests. The method of valuation for superannuation interests, unlike that for other property types, is prescribed in the legislation. Most superannuation interests must be valued by the method set out in the Family Law (Superannuation) Regulations – even for the purposes of consent orders.

Maintenance [4.1260] Issues to consider in formulating orders on maintenance include: payment of liabilities (such as the mortgage) by way of maintenance;

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payment of a specified amount by specified means at specified intervals; defining when maintenance payments will start and finish; variation of the amount payable each year, by the CPI or otherwise; and lump sum payments of maintenance. Sample orders on these issues are set out at [8.1940].

Changing consent orders [4.1270] Agreements in family law matters involve, to a large extent, designing for the future. The crystal ball-gazing may be less than accurate, and parties may wish later to change the arrangements described in consent orders (and also in binding financial agreements). What principles will the court apply in evaluating applications to vary or set aside consent orders?

Setting aside parenting and maintenance orders [4.1280] In relation to parenting orders of any sort, the court is usually prepared to discharge (terminate) old orders and grant new ones (applied for with the consent of both parties) if the new arrangements, subject to all relevant considerations, can be shown to be in the best interests of the child. Parties subject to earlier parenting orders (by consent or made by a court) can render those orders unenforceable by making a valid parenting plan (see [7.950] for more about this). If a party disputes an application to change consent orders, a more stringent test, based on changed circumstances, will apply (see [7.1180]).

Setting aside property orders [4.1290] The situation is more complex for property orders because of the court’s duty under section 81 or 90ST of the Act to make its final property orders just that – final. Parties need certainty that their financial and property settlements will not be continually exposed to legal challenge, even when their circumstances change. Under section 79A (or section 90SN), however, property orders (made by consent or otherwise) may be set aside altogether, or varied. The allowable circumstances include that: fraud, duress, suppression of evidence (including non-disclosure) or false evidence made originally for a miscarriage of justice; it has become impracticable for an order to be carried out; a party has defaulted in complying with an order, and fairness to the other party now requires variation or discharge of the order; new circumstances of “an exceptional nature” have arisen in relation to children that now result in an order causing hardship to a party; or there is a proceeds of crime order affecting the property of the marriage.

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Applying for consent orders during an existing case If you have already commenced a case in court but then come to agreement on one or more of the issues, you can apply for consent orders on the issues agreed by: filing a set of consent orders at the registry; asking orally in court for the court to make a certain order by consent; or handing up draft consent orders during an event in court.

Documentation checklist: Applying for consent orders in the course of a case [4.1310] The documents required to be filed are: signed Minutes of Consent Orders or Terms of Settlement (see [4.1400]); draft of the order to be signed by the judicial officer (see “The Consent Orders Supplement” at [4.1390]); the cover sheet (see sample at [4.1510]); parties’ certification of authenticity of Minutes of Consent Orders (depending on the form of documentation selected – see [4.1530]); if, for parenting orders, a certificate annexed to the Minutes addressing family violence and abuse concerns (“Annexure to Proposed Consent Parenting Order”) (see [3.280]); if applicable, a copy of the part of the Superannuation Information Form completed by the trustee of the superannuation fund (see [8.1400]); if applicable, an affidavit from a lawyer that the superannuation interest has been valued and procedural fairness afforded to the trustee; if applicable, copies of any family violence orders; if applicable, a copy of a binding financial agreement affecting any part of the property of the parties. if applicable, a copy of the Family Court brochure “Parenting orders – obligations, consequences and who can help” downloadable from http://www.familycourt.gov.au. File enough copies of all documents for each party to have a complete set plus an additional one for the court.

Applying for consent orders during a court event [4.1320] If the consent orders are requested in court, the judicial officer may agree to make them on the spot if the court: has enough information to decide that they are proper, or just and equitable; and is confident that both parties understand the effect of their actions.

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If the orders are brief – one or two short sentences – the court may be prepared to write down your words. It is considered better form, however, if you hand up a signed draft of the orders requested. The court may adjourn to give you time to write them.

Applying through the registry [4.1330] If consent orders are applied for at the registry, they will be assessed “in chambers” (not in court), and if they seem appropriate, or proper, as the case requires, they may be made without further need for appearance in court. If the court requires more information, another court date will be set and the parties advised. If interim orders have already been made, the set of consent orders should include an order “that all previous orders are discharged”.

Applying for consent orders when there is no current case [4.1340] Even if you haven’t started a case in court, you can obtain consent orders in property, parenting and maintenance cases by preparing a package of documents, centred on the Family Court form “Application for Consent Orders”, and then filing them at a Family Court registry. The Federal Circuit Court cannot grant consent orders when there is no current case. All applications for consent orders for cases not commenced in court must go to either the Family Court of Australia or the Family Court of Western Australia.

The Application for Consent Orders [4.1350] An Application for Consent Orders is obtainable from any court registry, or in kit form on the Family Court of Australia website. A sample completed version is set out at [4.1670].

Disclosure of financial information [4.1360] The Application for Consent Orders requires detailed financial information if the draft orders address property or financial issues. There is space on the form for details about both parties (you will note that it is not necessary that you agree about absolutely everything). Besides the information required to be provided on the form, the parties must also make “full and frank disclosure” about other financial circumstances as set out in rule 13.04 of the Family Law Rules. These include: the existence of any trust; and information about sales of property made within the 12 months before the separation, by a party or a legal entity to any extent owned or controlled by a party.

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There are serious consequences for failing to disclose relevant financial information, including the possibility that the consent orders may be set aside.

Documentation checklist: Applying for consent orders where there is no current case [4.1370] The documents required are: a completed Application for Consent Orders (see [4.1350]); signed Minutes of Consent Orders/Terms of Settlement (see [4.1390]); a draft of the order to be signed by the judicial officer (see “The Consent Orders Supplement” at [4.1390]); parties’ certification of authenticity of Minutes (depending on format used – see [4.1530]); if for parenting orders, a certificate annexed to the Minutes addressing family violence and abuse concerns (“Annexure to Proposed Consent Parenting Order”) (see [3.280]); if applicable, a copy of the part of the Superannuation Information Form completed by the trustee of the Superannuation Fund (see [8.1400]); if applicable, an affidavit from a lawyer that the superannuation interest has been valued and procedural fairness afforded to the trustee; if applicable, copies of any family violence orders; if applicable, a copy of a binding financial agreement affecting any part of the property of the parties; if applicable, a copy of the Family Court brochure “Parenting orders – obligations, consequences and who can help” downloadable from http://www.familycourt.gov.au. File enough copies of all documents (except marriage and birth certificates) for each party to have a complete set plus an additional one for the court. Registries may accept Applications for Consent Orders for filing even if the marriage or birth certificates are not yet available. The certificates must be provided as soon as they are available; if they are not provided your orders cannot be made and your Application may be thrown out.

The affidavits [4.1380] The Application for Consent Orders is not simply signed, but sworn or affirmed in the form of an affidavit. There is one in the form for the party preparing it (the applicant), and one for the other party (the respondent). These affidavits cover a number of important ideas, and you need to read them carefully. In particular, the scheme of consent orders relies on the fact that parties understand the effect of the application they have made, and, in particular, of the orders they seek, through independent legal advice.

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It is not compulsory to obtain legal advice before applying for consent orders, but this is very strongly recommended. If you do not obtain legal advice, and the effect of the orders sought is extensive, you must at least be prepared for the judicial officer to refuse to make the orders in chambers, and make a time to see you and the other party in court.

The Consent Orders Supplement [4.1390] The affidavits contained in the Application for Consent Orders refer to the “attached draft Consent Orders”. A suggested form for these attachments is available in the Consent Orders Supplement Kit. The Supplement is available from court registries and both separately and in the Consent Orders Kit at the Family Court website. It includes: a cover sheet for filing purposes; the draft order-making document that the judicial officer will sign if the orders are granted; the format for Minutes of Consent Orders; and certification by the parties of the authenticity of the copy of the Minutes attached (optional). Although the sample documents in the Supplement have been provided by the court to be helpful, you do not have to use them, so variations are usually acceptable. You do not need to file the cover sheet, for example, if you’re attaching the rest of the package to an Application for Consent Orders (which you would not be doing if you had a case already on foot). The certification document, though not compulsory, will reassure the court that all is as it should be – particularly if the parties are not represented. The Minutes document is often headed, and referred to, as the Terms of Settlement.

Minutes of Consent Orders/Terms of Settlement [4.1400] When you look through the Application for Consent Orders you will see that there is no space for the draft orders you wish the court to make. This is the case even for property orders, despite the fact the form asks you to outline the effect of the financial orders sought. This is because you are required to explicitly set out the orders you and the other party specifically seek in an additional document. This is the function of the Minutes of Consent Orders (or Terms of Settlement) document.

The draft orders [4.1410] The Minutes of Consent Orders/Terms of Settlement is the centrepiece of the documentation package. It is here, finally, that you list the orders that the parties want the court to make. Sample orders for the more common types of case are included in later chapters of this book. There are no standard words, however, that must be used. The issues need not be weighty – “that the father take the child to piano lessons each Tuesday” is a perfectly reasonable order if the issue is important to the parties.

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If you have agreed to amend orders previously made by the court, ensure that the first order listed in the Minutes or Terms discharges the older orders you want to change: for example “That orders 1 to 3 made by consent at the Federal Circuit Court on 6 May 2013 be discharged”.

Important timing considerations Strike while the (agreement) iron is hot! [4.1420] It takes time for one party to complete their part of the Application for Consent Orders, to dig out the requisite financial details, arrange to swear or affirm the affidavit and then send it to the other party, who has to go through it all again. The full package can take so long to prepare that the very idea of agreement may go completely stale, and the parties may change their minds about making the consent orders. As soon as you reach solid agreement in the course of family dispute resolution or negotiation, try to protect against your agreement falling apart by immediately setting out the details in a terms of settlement (or family dispute resolution agreement, parenting plan or memorandum of understanding). Then the other party should check that the terms properly reflect the agreement, and both parties should sign (on all pages). Though the document is not enforceable on its own, the parties then at least have a mental orientation (and likely, also, an internal, moral commitment) to the idea that settlement has been reached. The terms document is then complete and can be attached and filed with the rest of the documentation as soon as all of it is ready. Beware lapsing consent The more proactive party in a dispute usually prepares the consent orders but it really doesn’t matter who does this. It is more important that the process just keeps moving along. If the consent order application is not lodged within 90 days of the signing of the first “statement of truth” in the Application for Consent Orders, the consent of the parties is said to have lapsed (rule 10.18), and they will need to swear them again.

Essential elements of form [4.1430] The essential formal elements in the Minutes/Terms are listed below. Orders should be listed in separate numbered paragraphs, issue by issue. Orders should be framed as orders – before each paragraph, imagine the words: “The court orders …” It is common practice, though not essential, to commence each order with the word “That”. Each party must sign each page, including all pages in attachments. The date of signing should be recorded after each signature on the last page. You may wish to use headings to group the issues.

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Consent orders and independent children's lawyers [4.1440] Where a case is on foot and draft consent orders are proposed that would affect the care, welfare and development of a child for whom an independent children’s lawyer had been appointed, that lawyer must sign the Minutes of Consent Orders/Terms of Settlement.

Child abuse and family violence annexure [4.1450] The requirement to complete and include the “Annexure to Proposed Consent Parenting Order” dealing with family violence and child abuse applies to all parties (and whether or not family violence or child abuse has occurred).

Costs orders? But didn't we just agree? [4.1460] A party may apply for an order for the other party to pay their legal costs after consent orders have been made by the court. This can come as a shock to an unsuspecting party who feels they have just wrapped up all the issues amicably. To avoid this kind of surprise, you can include in the Minutes of Consent Orders/Terms of Settlement a draft order “That each party pay their own costs”. Costs orders will only be a consideration if there was a case on foot in the court before the consent orders were filed.

After filing Notice from the court [4.1470] If your application for consent orders is granted in chambers, you and the other party will each receive a typed copy of the orders under the insignia of the court in the mail. If the court is not satisfied with the information before it or with the orders proposed, it may set a date for hearing the application, and you will receive notice of this instead. Either way, you should have a written response between two and eight weeks later. If your application was made during a hearing, your signed orders may be available to take home from the registry shortly after the case is heard.

Check the orders! [4.1480] Check the orders as soon as you receive them to see that they are the orders you wanted. Errors in transcription and other misunderstandings are reasonably common. Don’t bother the court about irrelevant typing errors and spelling mistakes. But if your written, signed orders do not reflect the essence of what you agreed, bring the matter to the attention of the other party and the court immediately. In most circumstances – particularly if the parties agree about the mistake – the problem can be quickly fixed. Rectification of the orders may not be allowed if:

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you have only just now properly understood, or no longer want, the effect of a particular order; or the problem was caused by your poor construction of the draft orders. Your consent orders take effect from the date the order is signed by the judicial officer. You must then comply with the terms of the orders, or risk being held liable for contravention.

Finished your case? [4.1490] Consent orders don’t finish cases! If you are the applicant for a case on foot in the court, and you regard the case as concluded, you must file, and serve, a Notice of Discontinuance after receiving your copy of the signed consent orders. If you don’t file a Notice of Discontinuance, the case will continue and you will be expected to appear at the next court date or suffer possible costs penalties.

Documents for consent orders [4.1500] Refer carefully to the document checklist at [4.1310] and [4.1370]. Different sets of documents for consent orders must be submitted, depending on whether or not you already have a case in court. Basically: if you already have a case, you will not need an Application for Consent Orders; if you don’t have a case, you will need an Application for Consent Orders.

The cover sheet [4.1510] There is a sample cover sheet at [4.1600]. You only need to use a cover sheet if proceedings are already on foot. You don’t need to use it if there is no current case (because your draft consent orders are “covered” by the Application for Consent Orders). On the left-hand side of the page is each party’s address for service (you will have already advised the court of this – see [5.940]). Only use the other party’s home address if this is their formal address for service. Don’t forget to insert your file reference.

“First page” of consent orders [4.1520] There is a sample first page of consent orders at [4.1610]. This page is necessary: whether or not you have a current case or are using an Application for Consent Orders; and regardless of the format of the Minutes of Consent Orders (as in sample A or B – see below). Insert your case file reference if there is a current case – otherwise leave this part blank.

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Minutes of Consent Orders [4.1530] In the Minutes of Consent Orders you set the orders that you and the other party are asking the court to make. For a range of issues that might be considered for coverage, see [4.1230]. For samples of orders in relation to these issues see [7.2320] – [7.2590] (for parenting matters) and [8.1880] – [8.1940] (for property and spouse maintenance matters). Minutes of Consent Orders are sometimes called Terms of Settlement. Either term is acceptable. They are filed either as an attachment to the Application for Consent Orders (where there is no current case) or under a cover sheet. Both the formats discussed below (A and B) require the additional “first page” described above. Sample A Sample A (see [4.1620]) is in the format for Minutes of Consent Orders set out in the Supplement to the Application for Consent Orders in the Family Court’s do-it-yourself kit. This format is not compulsory. Insert your case file reference if there is a current case – otherwise leave this space blank. The sample is provided as an indication of format only. Each page, including any attachments, must be signed by both parties. Sample B Sample B (see [4.1640]) shows a format frequently used in practice. It has two parts: an introductory sheet, which refers to Exhibit 1 attached; and Exhibit 1 – the actual Minutes of Consent Orders or Terms of Settlement. All pages of both parts, and any other attachments, must be signed by both parties. Sample B is the form more frequently used when parties are filing a set of Terms or Minutes that they negotiated some time previously – before they prepared the formal Consent Orders application.

Application for Consent Orders [4.1540] There is a sample Application for Consent Orders at [4.1670].

Part C, item 13 [4.1550] Item 13 asks the parties to state whether their consent orders provide for equal shared parental responsibility. See chapter 7 “Parenting” for discussion about this. Remember here that the presumption of equal, shared parental responsibility will apply unless there are grounds for excluding the presumption (see section 61DA(2)). If the parties agree that one of these grounds does apply, explain why in the first box. If the parties don’t agree, the different views and reasoning must be outlined in the second box. Similarly, if the parties agree that the presumption applies, but at least one considers that there is rebutting evidence that an order for equal shared parental responsibility would not be in the

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child’s best interests (see section 61DA(4)), this must be explained in the second box. If there is insufficient space, attach an additional page headed “Part C, Item 13, Page 2”.

Part H, items 37–59 [4.1560] In Part H, the parties identify the assets and liabilities in the property pool and declare their values. It can be a difficult section to complete. In the case of joint assets or debt where there is no allocated share, put in 50 per cent for each party. Don’t outline your proposal for distribution of the property here. The task is to describe, in approximate terms if necessary, the ownership of assets and responsibility for liabilities as these exist before settlement takes place. The important thing is to ensure that everything you both own and owe is listed on at least one side. See [8.370] for what is meant by market value. If you’re estimating value, as opposed to working from a formal valuation, use the signifier “E” before the dollar value.

Part H, item 67 [4.1570] If the settlement cannot be expressed as simply as requested – in terms of two simple percentages – attach a page, head it “Part H Item 67 page 2”, and explain the alternative basis of the proposed division. See “Different approaches to the distribution of marital assets” at [8.90].

Part I [4.1580] In Part I, your task is to summarise the financial effect of the orders sought on the parties after settlement occurs. Again, if the format on the form is inappropriate, attach an additional page headed “Part I page 2”. Don’t include too much detail. The draft orders will describe the action of the orders proposed.

Sign each page [4.1590] Each page of the Application for Consent Orders should be signed at its base by both the applicants and the respondent.

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5 Court process [5.20]

Choosing the court .......................................................................................... 168

[5.170]

The process of litigation .................................................................................. 171

[5.370]

Common aspects of court procedure ............................................................... 175

[5.700]

Filing and forms .............................................................................................. 180

[5.850]

Serving documents........................................................................................... 186

[5.960]

Disclosure and discovery ................................................................................. 189

[5.1080]

Obtaining information and documents ............................................................ 192

[5.1210]

Contempt of court ........................................................................................... 197

[5.1270]

Frivolous and vexatious litigation.................................................................... 198

[5.1320]

Court fees and legal costs ................................................................................ 199

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[5.10] It is firm Australian government policy that family court processes should be commenced only after non-litigious dispute resolution methods have been seriously tried. The Family Law Act requires parties to make a concerted effort to resolve their issues by family dispute resolution methods before commencing a case in court. Certification of those efforts from a family dispute resolution practitioner may be required, and other mandatory pre-action procedures apply. Once a case commences, it travels along a pathway of events determined by the courts’ case management systems. These events may include further family dispute resolution processes, in-court appearances and other required actions. The case management pathways for parenting and property cases do differ, however. Details of the rules and procedure that apply specifically to each of these types of cases are set out in chapter 7 and chapter 8 respectively. In this chapter, we look at matters of process common to both, up to the point that a date is set for the commencement of the final hearing or trial. Chapter 9 addresses procedure and preparation for the final trial.

Choosing the court [5.20] Family law is a field of federal jurisdiction, which means that it applies nationally. It is applied by the Family Court of Australia, the Federal Circuit Court, and the Family Court of Western Australia. If you live in the country you can even commence your family law case in a Local or Magistrates Court, though it may need to be transferred to a superior court later on.

Division of cases between the two federal courts [5.30] Although they are both able to apply the federal family law, the Family Court and the Federal Circuit Court divide the work between them according to type. For example, and though the Family Court has jurisdiction to grant divorces and sometimes still does, the Federal Circuit Court hears the vast majority of divorce applications. See [2.120] for additional legislation dealing with property law for de facto couples in each State and Territory.

Family Court of Western Australia [5.40] The Family Court of Western Australia is a one-stop shop for all family law matters arising from both State and federal law in that State. See chapter 1 for more details.

Other State and Territory courts [5.50] Each State and Territory of Australia has its own structure of Local or Magistrates Courts, District Courts and a Supreme Court. These courts deal with the relevant state-based law related to families such as de facto property laws (where the federal Family Law Act doesn’t

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apply), family violence law, adoption and surrogacy law. They can also deal with federal family law applications where power has been expressly granted to them to do this by the Commonwealth and their own rules allow. As these provisions vary widely around the country, and as the legislation about jurisdiction (the powers of a particular court) is complex, queries about whether a particular State or Territory court can accept an application should be directed to the registry office of the court concerned.

Which court? Practical considerations [5.60] There is some overlap, however, in the matters dealt with by the various courts. Although the current case management policies may determine which court eventually hears your case, and you may in any case find your case transferred, there is still some scope for choice in where you might commence a case. There are various practical and strategic factors to weigh up in deciding where to commence your case. These include the following.

Where you would like the case to be heard [5.70] Providing it has powers to accept the application, a case will be heard at the location of the court at which the original application is filed (unless or until it is transferred).

Convenience in the Local/Magistrates Court [5.80] If you live in the country, you may wish to commence your case in your Local or Magistrates Court so that it is easier for you to attend. You should at least be able to achieve interim orders in parenting and financial matters there, and cases often settle after interim orders are granted (and before transfer to a city court becomes necessary). You may wish also to consider the convenience of the other party in relation to travel.

Capacity in the Local/Magistrates Court [5.90] Although they may be conveniently located, there is significant unevenness in the capacity of the lower courts to deal effectively with family law cases. Often there is a lack of resources and time. Certainly experienced family law mediators and counsellors may not be so readily available in regional areas (although this situation is improving all the time). You should find out what capacity your Local or Magistrates Court has for dealing with family law matters before you commence your case there.

Legal aid [5.100] If you want legal aid you will have to commence your application in a court in the State or Territory where you apply for it.

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The location of your lawyer [5.110] Most lawyers don’t travel without charging for travel and waiting time. Or, if the matter is being heard in a different town or city, they may engage a local lawyer as an agent. Either way, the client tends to pay a premium. It is often cheaper to file your application near the lawyer you want to represent you, and then travel yourself.

Beware of possible damage caused by affidavit filing [5.130] Court rules often require an affidavit (a sworn statement of facts) to be filed as evidence in support of an application for family law orders. Both the application and the affidavit will be served (formally delivered) to the other party. Though settlement will continue to be encouraged even after a court process is commenced, you should be aware that the affidavit itself may significantly damage prospects for early settlement if it contains hurtful or embarrassing facts, or disputed allegations concerning the other party.

Transfer between courts Between the Family Court and the Federal Circuit Court [5.140] A case may be transferred to the Family Court from the Federal Circuit Court, or vice versa, if the courts consider this appropriate (and whether or not you want it, though the court may take this into account). Complicating special circumstances are likely, though not certain, to steer the matter towards the Family Court.

From Local or Magistrates Courts [5.150] Local or Magistrates Courts will not generally hear disputed family law cases beyond providing an opportunity for some conferencing between the parties and making interim orders. After this, the case is usually transferred to the nearest Family Court, Federal Circuit Court or Family Court of Western Australia registry. If both parties consent, however, a Local or Magistrates Court may (depending on its rules and policies) continue with a matter to a hearing on final orders. There is no particular advantage to being in a lower court if the Family Court or the Federal Circuit Court is conveniently located. The capacity of a lower court to grant final orders really does matter, however, in country areas, if both parties prefer to have the case heard locally and there is no higher court nearby. You may wish to enquire at your local court about their policy on hearing disputed cases to final orders if both parties consent to this. Remember that the Family Court of Australia, the Federal Circuit Court and the Family Court of Western Australia all provide services in country Australia – either through rural or regional registries or a visiting (circuit) scheme. Check with a metropolitan registry or the courts’ websites for the location nearest to you.

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To another State or Territory [5.160] If the parties agree, you can usually successfully apply to have your case transferred to another State or Territory. Without agreement from the other party (often not forthcoming), it will be difficult to move the case unless you can demonstrate good reasons related to the hardship that will be caused if the matter is not transferred.

The process of litigation [5.170] Family law litigation is essentially about completing prescribed sets of things to do before successive court events. The things to do at any point are defined by the relevant legislation, the rules of court, or orders of the court. But also, at any point, the parties can reach agreement and stop the whole process by filing for consent orders (see [4.1160]). It is also possible to simply discontinue in a case – although there may be cost consequences for this choice.

Stages of the process [5.180] The Family Court, at one point in its procedural reform efforts, established a framework of “stages” for managing its cases. Although the names of the stages are no longer formally used, these still provide a useful scheme for classifying litigation processes from start to finish in all the courts administering family law.

Stage 1: Prevention (pre-filing) [5.190] Before you can file an application, all the courts require some degree of effort or consideration towards the use of family dispute resolution methods (see [4.760]-[4.780]).

Stage 2: Resolution (post-filing) [5.200] The focus of the court’s efforts in stage 2 – which can last for many months – is resolving the dispute through investigation and dispute resolution methods and services. Each court holds a procedural hearing early in this stage to: define the issues between the parties; assign steps and dates for the various court, and other compulsory, actions and events; and investigate the prospects for resolving the dispute. The courts then provide for further participation in family dispute resolution, either through in-court professional services (such as those of family consultants and deputy registrars) or by referral to community-based agencies. Participation in family dispute resolution attempts in stage 2 is mandatory, even if family dispute resolution in the pre-filing phase was attempted, and failed.

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Stage 3: Determination [5.210] If family dispute resolution fails, and the case is not otherwise resolved, parties begin to prepare for the trial. The focus shifts away from efforts to resolve the case without a judicial decision and towards collection, discovery and disclosure of evidence needed for the court to make an independent decision. The determination phase concludes with judgment and a costs award (if any) after a final trial.

Case management in “child-related proceedings” [5.220] The amendments to the Family Law Act in 2006 arose from recognition that our overworked, complicated and adversarial family law system was producing poor results for many families, and particularly for children. The amendments set out a radically changed approach for the management, progress and resolution of cases involving applications for parenting orders, and included: a much more active role for the judge in the hearing process; suspension of the rules of evidence and much of the usual legal procedure; and a significant level of involvement and management by an appointed family consultant. The post-2006 system for child-related proceedings is more informal and flexible, cheaper, and easier for self-represented litigants to manage. The provisions for child-related proceedings are set out at sections 69ZM–69ZX of the Act.

When provisions for child-related proceedings apply [5.230] The provisions for child-related proceedings apply to all applications for parenting orders filed after 1 July 2006 in any court exercising family law jurisdiction. They may also be applied in other types of family law cases (such as property cases) if both parties consent. Oddly enough, where the necessary consents have been given, property cases using the new case management approach are referred to in the Act as child-related proceedings, whether there are parenting issues or not: section 69ZM. In practice however, to reduce confusion, the new approach to family court process has been characterised as the Less Adversarial Trial (or LAT) or Division 12A proceeding . The old system with its civil law traditions will continue to apply to property and maintenance cases where the parties have not agreed to change (this is likely to be most of such cases, except, perhaps, where both parties are representing themselves). Furthermore, aspects of that system, including the application of certain laws of evidence and procedural rules, may be brought back into a LAT if the court decides that this would be appropriate in the circumstances.

Procedures for the new system [5.240] The new provisions in the Family Law Act set out certain aspects of the conduct of LATs, but the detail of exactly what happens, and when, in the course of litigation is not covered in the main Act. This is dealt with in the subsidiary legislation, being the Rules and Regulations of each court, and the current Case Management and Practice Directions for each court (if any). These are available on the courts’ websites.

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The usual practice will vary between courts as it always has, and maybe also between registries, depending on the resources available.

Changes to the rules of evidence [5.250] One principle of the new less adversarial approach is that proceedings should be conducted “without undue delay, and with as little formality and legal technicality and form, as possible”: section 69ZN(7). A major change in this direction is the suspension of the usual “rules of evidence”: section 69ZT. These changes do not mean that the court in a LAT proceeding court will regard all evidence that would have been inadmissible under the “old” system as being equal in persuasiveness and significance to other evidence: section 69ZT(2). Similarly, the change in approach should not be read as a requirement to provide less evidence, affidavit evidence of lower quality, or to suggest a looser application and interpretation of other family law provisions. The court must ensure procedural fairness (Truman and Truman (2008); Lamereaux and Noirot (2008)) and ensure that evidence satisfies the standard of proof required (the balance of probabilities) for the making of a particular order. The purpose of section 69ZT is not to abolish the rules of evidence but to ensure that arguably technically inadmissible but otherwise valuable evidence is not excluded. See chapter 6 for more discussion about this.

The role of the court [5.260] In a LAT, a judicial officer has a more hands-on role, and takes an active part in defining the issues at the start and throughout the case. The court issues directions about what evidence should be provided, who will be a witness, what experts will report on, and all the practical aspects of the conduct of a hearing. The judicial officer may question, or discuss issues with, parties directly, and may even interview the child, if the child consents.

The role of the family consultant [5.270] The role of the family consultant is one of the pivotal features in the less adversarial system: sections 11A–11G. The very existence of this powerful professional role – with its responsibilities between and across the court administration, the courtroom, the judge, the evidence, the parties, the dispute resolution process and external support agencies – is intended to significantly reduce the adversarial experience in family law litigation. The court will, where resources allow, appoint a family consultant to a child-related case to work closely with both the court and the parties to resolve the issues. The consultant can provide evidence directly to the court (rather than through one of the parties), and may actively participate in discussion at the hearing, but will also help the parties outside the courtroom with information, referrals and resolving their dispute.

The role of the parties [5.280] In LATs, the parties may be required to engage in various activities (such as attending programs, services, interviews or family dispute resolution) ordered by the court. They are likely to be more directly involved in discussion in the courtroom than they would be in other types of proceedings.

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The role of the lawyers [5.290] Lawyers in LATs are expected to abide by the non-adversarial principles contained in section 69ZN. As the court’s power to direct the conduct of proceedings increases, and there is more direct engagement of the parties with the court, the lawyer’s role contracts. Lawyers are still be involved in preparing and presenting evidence, but on terms set out by the court.

The role of the case coordinator [5.300] Depending on the court, a case coordinator (not to be confused with the family consultant) may be appointed to manage the administration of your case. The case coordinator is based in the court registry and oversees the progress of the case, particularly in terms of time. The case coordinator will be closely involved in the listing of the various court events, and may report to the court if time periods allowed for parties to perform certain actions are exceeded.

Early case management processes Case assessment conference and initial procedural hearing – Family Court [5.310] Though the purpose of these two early court events is very similar, the case assessment conference (Family Law Rule 12.03) relates specifically to cases which involve financial issues (possibly as well as parenting issues) and the initial procedural hearing (Family Law Rule 12.04) applies specifically to parenting issues only cases. In both cases, the event is the first formal opportunity, facilitated by the court, for resolution of the case by the parties themselves. The event is conducted by a Registrar in financial cases, and/or a court-based family dispute resolution practitioner or family consultant in parenting cases. The court assists the parties to identify the issues and investigate prospects for resolution. In the final procedural part of both events: consent orders (see [4.1160]) may be recorded if the parties have come to agreement; a date for hearing an application for interim orders may be allocated; and other procedural orders for the future conduct of the case may be made. If the case is a parenting case and does not resolve at the event, the parties may be ordered to attend the Child Responsive Program, an intensive child-focused form of family dispute resolution. If the case is financial and does not resolve, it may be set down for a conciliation conference or, if suitable, allocated a hearing date before a judge.

Case management in the Federal Circuit Court [5.320] The processes of the Federal Circuit Court were designed to facilitate the quicker resolution of cases. Although there is still an emphasis on dispute resolution, some of the Family Court procedures are not applied, and a hearing date is allocated at a relatively early stage.

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This court’s streamlined procedure relies on the provisions set out at rules 10.1–10.5 of the Federal Circuit Court Rules.

First day in the Federal Circuit Court [5.330] The first court date in the Federal Circuit Court case is very important. The court will not only make orders about dispute resolution; it may also hear an application for interim orders, and it will make procedural orders and other directions related to preparing the case for trial. It may also allocate a final hearing date.

Parenting cases [5.340] Parties may be instructed to attend interviews or conferences with a family consultant, or further family dispute resolution with an external service.

Property and financial cases [5.350] Parties to a property or financial case also may be ordered to attend further dispute resolution events, in-court or externally. They will also be required to exchange the documents as set out in the Federal Circuit Court Rules.

Appeals [5.360] Some types of appeal on the decision of a court involve rehearing the case from the start. Others require the consent of the appeal court before you begin, and even then the scope of the appeal may be restricted to points of law or procedure. Appeals are extremely expensive, and should not be attempted without legal representation – losing virtually guarantees a requirement to pay the other party’s legal costs. There are also tight time limits after the original decision in which an appeal may be commenced. Speak to your local court registry for more information.

Common aspects of court procedure Mentions and call-overs [5.370] In all the courts, major events such as a conciliation conference or an interim hearing, represent landmarks in the process, but they are by no means the only times that you or your lawyer will be expected to attend at court. After each court event, the court will adjourn to another specific date – the next return date. This date may be for a major court event, but it may also be for a mention or call-over (the word used depends on the court). Mentions and call-overs are short appearances at which progress is reviewed. The court will check whether procedural orders or directions have been complied with, and may make new ones to move the case along. If you are represented by a lawyer, you will not usually need to attend.

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If you are self-represented you must attend at all court events or risk a costs order, or even the dismissal of the case. If you anticipate difficulties about attending in person, contact the registry early to discuss the possibility of arranging to attend at a mention or call-over by electronic means.

Directions and orders [5.380] The judicial officer, after listening to what the parties have to say at any court event, generally makes orders or directions for certain things to happen to try to move the case towards a conclusion. These orders or directions may relate to: the service of documents (see [5.850]); affidavits; the amendment of filed documents; inspections or valuations of real estate and other property; disclosure of specific facts or provision of documents from one side to the other; dispute resolution processes; expert evidence and family reports; the involvement of new parties, including an independent children’s lawyer (see [7.1300]); or dates for the next court event.

How do I check my court dates? [5.390] You can confirm your listing for a court event in the Family Court or the Federal Circuit Court by: checking your local metropolitan newspaper on the day; checking the court website the day before your expected date; or calling the registry. Listings can change without notice. It pays to check. All the courts have a wide discretion to make procedural and other orders. The court may also make interim orders about financial or parenting matters, setting out arrangements until final orders (or consent orders or different interim orders) are made. Final orders are made at the trial, and represent the end of the litigious process (barring appeals). Consent orders are also final, but can be agreed between the parties at any point in the litigation. In a LAT, a court may make a finding of fact, determine an issue or make an order in relation to an issue at any stage in the proceedings: section 69ZR(1). Compliance with all orders and directions of the court is very strongly advised.

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Changing a court date [5.400] If you will have difficulty attending a court event on the set date, and you don’t have a lawyer (in many cases it will be sufficient if your lawyer attends) it may sometimes be possible to have the date changed – either at the registry if the matter is not yet on foot, or by adjournment. Practices differ between the courts. However, the general principles for advising inability to attend include the following. If you want to change the court date on an application that hasn’t yet been served, take all the copies of the documentation back to the registry to have the date amended. For other listed events, advise the court registry and the other party in writing as soon as you become aware that you will not be able to attend and request an adjournment. Fax the letter if you are within seven days of the date of the court event. If you are sick, get a medical certificate. The prospects of your argument for an adjournment will be enhanced if you can obtain a signed note from the other side agreeing to it. Fax this with your request for the adjournment. Make sure your reasons are good. The fact that you have something better to do, that your work is demanding or that you haven’t complied with orders will not be sufficient. Remember that the next return date in a case is itself a court order. Don’t expect to be granted an adjournment even if your reasons are good. The courts may choose to keep the case moving along. There are also court events that will not be adjourned. These include: – case assessment conferences; – pre-trial conferences; and – the final hearing or trial itself. Be prepared to suggest alternative modes of attendance – by telephone or videolink if possible, subject to your payment of the costs involved. Keep in mind that there may be costs implications, even if you have good reasons for the adjournment. See “As between the parties” at [5.1350]. The worst thing you can do is fail to appear without explanation. If you do not attend court on a listed day and there is not sufficient explanation or excuse: – – – –

you may lose your place in the priority listing; you may be required to pay the other party’s legal costs for the day; court orders, or even a determination of the case, may be made in your absence; or your application may be thrown out of court (dismissed).

Electronic attendance [5.410] You may be able to attend, make a submission, give evidence or arrange for another witness to give evidence by electronic means (including, possibly, by videolink) in a Family Court proceeding if you obtain the permission of the court. You will need to file an application with the court to use electronic communication at least 28 days before a judge-managed court event or seven days before other hearings. The application should be accompanied with an affidavit setting out the details required under sub-rule 16.05(3). See rules 5.06 and 16.05 of the Family Law Rules.

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There are no specific rules about attendance by electronic means in the Federal Circuit Court, but it will consider written requests on a similar basis to the Family Court. The court may not be prepared to foot the bill for the use of expensive technology (such as videolink) on your behalf. Discuss the issue with the registry beforehand. Or you may be able to agree with the other party to jointly bear the cost.

Special circumstances [5.420] Depending on the court and the registry, special case management procedures may apply in circumstances where: your case is short and likely to be easily resolved; your case is long and complex; the case involves complex emotional dynamics or other unusual features around the personalities of the parties; there is family violence involved; a child has been abducted; special medical circumstances are involved; there has been abuse of a child involved in the case, or risk of abuse; one or more parties suffers from linguistic or cultural disadvantage; a party has a disability; a party suffers from an age-related disadvantage in the proceedings (youth or age); a party or a witness is distant from the court where the matter is being heard; a party is in jail; a party requires childcare to be able to attend at court; or a party cannot be located or refuses to attend at court. If you are self-represented and any of these circumstances apply to you, make sure the court knows and understands the situation. There are various legislative, policy and service provisions available to assist you. Speak to court staff for more information.

Urgent hearings and hearings without notice [5.430] In the Family Court, if it is necessary for a hearing on an Application in a Case (or on an Initiating Application requesting interim or procedural orders) to be held urgently, a request by letter should be addressed to the Registry Manager. “Significant and credible” reasons for accelerating the case must be provided. See rule 5.05(4) of the Family Law Rules 2004. Permission may also be sought, in the Family Court, for a hearing on an application without notice – being the application of one party that proceeds before the court without the usual notice to the other party. See rule 5.12. Justification for an application without notice must be provided in the form of an affidavit.

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In relation to urgent applications in the Federal Circuit Court, see rules 5.01 to 5.03 of the Federal Circuit Court Rules. Sub-rule 5.03(1) sets out the nature of the evidence required in an application for an urgent hearing.

Court services [5.440] Enquire about the following services at the court registry:

Duty lawyers [5.450] Publicly-funded lawyers may be available at court to assist you with court appearances or with settlement negotiations on the day. You do not have to be eligible for legal aid to receive this assistance. But a duty lawyer may need to check whether they would have a conflict of interest in assisting you (see “Duty lawyers” at [1.330]). Duty lawyers cannot continue to assist you with your case after you leave court on the day.

Photocopiers and computers [5.460] All registries of the Family Court of Australia, the Federal Circuit Court and the Family Court of Western Australia have pay photocopiers for public use. With the number of pages involved in family law documentation, however, it definitely pays to think ahead and make at least three copies of all formal documents by cheaper means. Computer workstations are available for public use in the larger registries.

Child-minding [5.470] Some of the larger family court registries have child-minding facilities onsite. Try to book ahead, as places are limited.

Translation and interpreters To assist in court [5.480] Contact your local registry a full 14 days in advance if possible to arrange to have an interpreter with you at a court event. This is a free service.

Telephone interpreting [5.490] Contact the Commonwealth Department of Immigration and Border Protection about their free telephone interpreting service. The service will set up three-way interpreted telephone conferences (with you, the court and a solicitor).

For translation of documents [5.500] Enquire at your local Migrant Resource Centre for translation services in your area.

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Witnessing documents [5.510] A Justice of the Peace is available to witness the signing of court documents and affidavits at all court registries. To avoid waiting, ring the registry beforehand to either make an appointment or find out the best time to come (and not come!).

Safety at court [5.520] The courts are highly conscious of, and concerned for, the safety of family law litigants, and have procedures, facilities, services and staff to deal with personal security issues. If you have any concerns about your safety when attending at court, call the court registry beforehand to discuss the matter, let your lawyer (if any) know, or, if you feel more comfortable at the time, raise it with the judicial officer. If a person acts in a threatening manner towards you whilst at court, speak immediately to a court staff member.

Filing and forms Filing documents [5.700] You will file documents in court at the start of and all the way through a family law case. Filing the Initiating Application (Family Law) gives life and identity to a case. A case number is allocated to the case by the registry.

The effect of filing [5.710] Filing a document gives formal notice to the court of its contents. By contrast, you give formal notice of documents to the other party by way of service (see [5.850] – [5.950] for more about service). Generally, you cannot rely on the contents of a document to support your case unless it has been both filed in court and served on the other party.

How to file [5.720] Documents can be: filed in person at the court registry; filed by mail with a covering letter listing the documents enclosed, and including a cheque for the filing fee; where this is approved under the relevant court rules, filed by fax or email or otherwise electronically. See rules 24.05, 24.06, 24.07 and 2.02A of the Family Court Rules 2004 and rules 2.07, 2.07A and 2.07B of the Federal Circuit Court Rules; or filed in court with the permission of the judicial officer on the bench. File electronically or in person rather than by mail if possible. There are often errors and missing required parts in documents filed (even those filed by professionals). Notification of these and subsequent rectification can be a lengthy process by mail.

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Both the Family Court and Federal Circuit Court now have protocols for electronic filing of family law documents through the Commonwealth Courts Portal (by lawyers and also by self-represented parties). The system is well designed and easy to use. Access the Portal at https://www.comcourts.gov.au to get registered and for further information. See also at “How do I electronically file an application”, available at http://www.familycourt.gov.au.At the time of writing, divorce applications, Initiating Applications and Responses, and a specified list of supplementary documentation can be e-filed in both federal family courts. Additionally, in the Family Court, Applications in a Case and their Responses can be e-filed. Use the Family Court’s live webchat facility for assistance with procedural matters in family law and queries about the e-filing system. (Find it under “Contacts” at the court websites.)

Mistakes in filing [5.730] Documentation is not necessarily checked for compliance with the legal requirements when you file it. If your incomplete or inaccurate application finds its way into court, the possible consequences include embarrassment, adjournment, a costs award against you, or even the dismissal of your application. Check and re-check that you have signed, attached, served and sent, as the rules require – before you file! Common filing mistakes are discussed at [5.750].

Applications and accompanying documents Family Court applications [5.740] At the time of writing, in the Family Court of Australia, Local/Magistrates Courts and the Family Court of Western Australia: new applications are usually filed on an Initiating Application (Family Law); applications in the course of a current case are filed on an Application in a Case; and applications for consent orders are filed on an Application for Consent Orders. Check the Table at Family Law Rule 2.01 for a complete list of applications and their uses, then refer directly to rule 2.02 to find out what other documentation must be filed with the application. This may include birth certificates, the marriage certificate, a family dispute resolution certificate, family violence orders or other family law orders. No matter what court you are filing in, these supplementary documents should be filed under a cover sheet that complies with Family Law Rule 24.01(h). The format for the cover sheet is available from the registry and from http://www.familycourt.gov.au under the Family Court of Australia Forms Section, under “Document to be filed pursuant to Rule 24.01(1)(h) of the Family Law Rules”, or it can be simply made up from the coversheet specifications in Rule 24.01.

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You can file for interim orders on an Application in a Case or in an Initiating Application. But you cannot file for interim orders unless you have already filed, or are filing at the same time, an application for final orders.

Common filing mistakes Failure to include a required attachment or file additional documentation [5.750] Several family law forms require you to attach particular documents. Others require you to file documents in addition to the principal document; for example: copies of orders made in previous cases; consent orders; agreements previously made; parenting plans; dispute resolution certificates; family violence orders; superannuation documents; undertakings; a financial statement; marriage, birth and divorce certificates; affidavits. It’s easy to forget to include the attachments or to file the additional documentation. Before you complete your final package of documentation, make a last check of the relevant rules (and the documentation checklists in this book) to confirm that you have covered all the requirements. Failure to attach documents you have referred to in the main document In the text of an application, response, affidavit or other form, you may have to refer to attached schedules, reports, letters, valuations and extended answers to questions in the principal document. It is reasonably common for parties to simply forget to physically include them in the filed package. Failure to sign Depending on the document, you may need to sign not only at the end of the form but on every page of the document and the attachments as well (for example, consent orders and affidavits). Failure to complete all the blanks If you come to a difficult question in the form, mark it with a small dot in the margin before you go on. When you reach the end of the form, check back on the dots and cross them off as you solve the problems they present. Don’t sign the form until all the dots have been dealt with.

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Failure to provide correct addresses, telephone numbers and dates Double-check all dates, contact numbers and addresses. It’s easy to use incorrect numbers, or to omit them altogether. Be particularly careful about contact details for the other party when arranging service, details in an application for legal aid, and all birth dates. Failure to bring to court the original plus at least two copies of all documentation to be filed Actually, it’s best to make at least three copies of each document. Three official copies will be stamped by the court – the original for the court, a copy for you, and a copy for you to serve on the other party. You’ll want to keep your official, stamped copy unmarked and safely filed away with all your other stamped, formal copies – so it’s a good idea to have a third copy as an extra working copy on your file to make notes on, copy, and to hand around as necessary.

Filing a response in the Family Court [5.760] If you are served with a family law application, it is highly recommended that you respond formally – even if it is your firm view that the application is full of lies, that it has no basis in law, or that the point of the whole exercise is only to irritate you or “score points” against you. See Chapter 9 of the Family Law Rules for details of what you must (and can) include in a response to an Initiating Application. Use the form “Response to an Initiating Application” for this. Your response should be filed and served if possible at least seven days before the date of hearing marked on the application, although the court should sympathetically consider your request for adjournment for more time (to get legal advice and prepare and file a response) if you were served with the application within about five business days of the hearing. If there is already a case on foot and you are served with an Application in a Case, you should make your response on a Response to an Application in a Case. You will have to file an affidavit with your Response if you are: responding to an Application in a Case; responding to an application for interim orders contained in an Initiating Application from the other side; responding to an Initiating Application filed in the Federal Circuit Court; seeking interim orders, in response to an Initiating Application from the other side. Check rule 2.02 or ask at the court registry for details of other documentation that you may need to file in addition to your response.

Federal Circuit Court application and response [5.770] The Initiating Application (Family Law) used in the Family Court is also used in the Federal Circuit Court.

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Applications in a Case and Responses for cases already on foot are made on special Federal Circuit Court forms. The first major difference in procedure is that in the Federal Circuit Court an affidavit must be filed with all applications and responses, including the Initiating Application, unless the evidence relied on for the application in an affidavit has already been filed: (Federal Circuit Court Rule 4.05). The second major difference is that, since January 2015, the new Federal Circuit Court Form 1 – Notice of Risk must be completed and filed with all applications for parenting orders and their responses. Also new in 2015, if there is an existing family violence order affecting a child (or a member of the child’s family) who is the subject of an application to the Federal Circuit Court for a parenting order, that family violence order must be filed with the application for the parenting order (Federal Circuit Court Rule 22A.08(1)). To apply for a divorce, file an application for divorce, your marriage certificate and the additional affidavits necessary in the circumstances (see [2.770]). If you wish to respond to an Application in the Federal Circuit Court, you must file and serve a Federal Circuit Court Response within 14 days of the date of service of the Application.

Should I bother to respond? [5.780] Yes. If you don’t file a Response you won’t be arrested or fined, but your point of view about the issues raised in the application cannot be heard by the court. Unless you have a good reason for not filing a response in time for the hearing (and then appear at court on the hearing date to present the excuse), there is a strong possibility that the applicant’s orders will be granted and the issue will then be determined against you. In a Response, you can: list the facts in the Application that you disagree with; state the facts you believe to be true; and ask the court to make specific orders; consent to an order sought by the applicant; ask that the Application be dismissed; or ask for orders on issues other than the issues set out in the Application. Affidavits take time to prepare Although you may not want to think about it, if you are served with a Family Court application that includes an application for interim orders, or with any sort of parenting or financial application from the Federal Circuit Court – and you wish to make a response – you will need to file an affidavit. Whether you are represented by a lawyer or not, it is likely that your affidavit will take days to prepare. Leaving the

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preparation of your response to the last minute means risking non-compliance with rules and possible penalties in costs.

What orders should I put in my application/response? [5.790] In any application, you need to tell the court what it is precisely that you are asking it to do. There are blank areas in the application and response forms to insert “the orders you seek”. In a response, you can stick to the issues raised by the applicant, or add new ones. You can put forward alternatives to some or all of the orders sought by the applicant.

Less Adversarial Trial (Division 12A Proceedings) [5.800] Courts may make a rule, direction or order that no party may file or serve a document in Less Adversarial Trial (LAT) proceedings without the court’s permission.

Be careful with sample orders! [5.810] It is very important that you understand the practical and legal effect of the words you use in your draft orders. There are sample orders for various common issues throughout this book. If you are self-represented, you should not use any of these samples unless you understand exactly what it means, and how it would affect you if it became a court order. If you do plan to represent yourself, it is highly recommended that, before filing your application or response, you take your completed package of documentation to a solicitor – pay if necessary – and ask them to check through it all and confirm your understanding of the effect of the draft orders. Better still, pay to have your initial documentation professionally prepared if you possibly can. You don’t have to continue with the representation if you can’t afford to.

Technical requirements for filing [5.820] Check Part 2, “Documents”, in the Federal Circuit Court Rules or Chapter 24, “Documents, filing, registry”, in the Family Law Rules, whichever is applicable, for specifications to assist in preparing documents for filing. Legible handwriting is acceptable on all forms in the Federal Circuit Court. Handwriting is acceptable on all documents for filing in the Family Court, except Affidavits, which must be typed. In the Family Court, attachments to filed documents should include the information set out at rule 24.02(g) on the first page, or on a separate page. Each page of each attachment should be numbered (for example, “Page 1 of 4”). Documents formally required for filing with an Application must be filed with a cover sheet containing the rule 24.02(g) information.

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For filing attachments to affidavits, see the very specific technical requirements set out in Family Law Rule 15.12.

Obtaining forms [5.830] You can obtain forms for use in the Family Court of Australia, the Federal Circuit Court or the Family Court of Western Australia from their websites, or you can collect them from your local family law registry and most Local or Magistrates Courts.

Amending a document already filed [5.840] Filing an amended version of a document (other than an affidavit) will generally be allowed. For requirements, see Family Law Rules Division 11.2.2, or Federal Circuit Court Rules Part 7, or check with the registry. The document should be clearly marked “Amended [document name]”, and the amendment should be identified as required by the rules.

Serving documents [5.850] Service is the process of formally delivering court documents – documents that have been filed and stamped by the registry – to another party in accordance with court rules. Service is the responsibility of the filing party, not the court registry. You should effect service as soon as possible after filing the documents. There are several ways of serving documents, and are different requirements under the rules for serving particular documents. It is easy to get confused, but important to get it right. Mistakes are understandable, but your case will not be allowed to proceed until service is properly effected.

Filed documents you don't need to serve [5.860] In general, all documents filed in the court must be served on the other party except: joint applications (for example, for divorce); applications without notice; copies of marriage, birth or divorce certificates, or nullity orders, filed with an application under the Family Law Rules; Affidavits of Service; documents signed by all parties (such as an application for consent orders); and affidavits seeking an enforcement warrant or third party debt notice.

D-I-Y Service Kits The Family Court’s do-it-yourself “Service Kit” is available from your local registry or online, under Forms, on the Family Court homepage. It contains how-to information and the forms you

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need to effect service. You can use the kit for the Federal Circuit Court and the Family Court of Western Australia as well (although you will have to specify the different Federal Circuit Court forms being served rather than use the tick-boxes provided). The forms for service of a divorce application are available in the special Divorce Service Kit at the court registry or online at the court websites.

How to serve divorce papers – on Youtube! [5.870] See www.youtube.com/familycourtAU or www.youtube.com/federalcircuitcourt for links to all Family Court Youtube productions.

Methods of service [5.880] The methods of service required for various documents are set out in Tables 5.1 and 5.2. Methods of service in the Family Court (Family Law Rules 7.03) Document Method of service Special service by any method Initiating Application Application in a Case fixing an enforcement hearing All documents filed with these forms (except marriage, divorce and birth certificates) Brochures required to be served with these forms Subpoena

Special service by hand (“personal service”)

Application – Contravention Application – Contempt Any other document required to be served under the Family Law Rules

Ordinary service

Methods of service in the Federal Circuit Court (Federal Circuit Court Rules Part 6, Service) Document Method of service Service by hand Any application (including a divorce application) starting a case and all accompanying documentation Subpoena (subject to the exceptions in rule 6.06(2), Federal Circuit Court Rules)

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Document Any other document required under the Federal Circuit Court Rules to be served

[5.890]

Method of service Ordinary service

There are detailed technical requirements for the special service methods, and a number of options for ordinary service. You will need to refer either to Part 7 of the Family Law Rules, Part 6 of the Federal Circuit Court Rules or the Family Court Service Kit (see [5.870]) for details.

Who should serve the documents? [5.890] Ordinary service you can look after yourself, but special service by hand (or personal service) must be performed by an adult who is not a party (that is, not you!). You can get a friend to help, but it is much better to pay a professional process server. (It is not an expensive option.) If special service is not required you can still have the document served professionally by hand (perhaps you should, if the other party is not legally represented). See the Family Court Service Kit or Divorce Service Kit for details.

Engaging a process server [5.900] Your registry may be able to refer you to experienced and reliable process servers. Alternatively, check the Yellow Pages or internet under “Process Servers”. To brief a process server, write a letter: giving the name, nature and file number of the case; giving the date of the hearing, the court concerned and any time limits; itemising the documents to be served; giving the other party’s address for service, or their last known address, or other information on where and when they may be physically found; enclosing the documents to be served, including brochures; enclosing blank Affidavit of Service and Acknowledgment of Service forms; if the document is a subpoena, enclosing conduct money in the form of a cheque or money order and, if in the Family Court, a brochure (see [5.880]); and if possible, a photograph of the person to be served.

Serving additional parties [5.910] Always serve all newer parties to the proceedings, including the independent children’s lawyer (if there is one), as you do your original other party.

Proof of service (it may be vital) [5.920] Even if you are only required to serve by ordinary service, it may become necessary to your case to prove that the other party received the documents, and received them in the way required by the rules. In most cases, proof is provided by filing an Affidavit of Service sworn by

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the person who served the documents, perhaps with an Acknowledgment of Service signed by the person served (or their representative), and possibly also an affidavit of proof of signature from a third person (if you do not personally recognise the signature on the Acknowledgment of Service). As a general rule, when serving anything on an unrepresented party by post – even if only ordinary service is required – do it by registered mail and keep the receipt. If you ordinary serve by fax, keep a copy of the transmission slip. Always file an Affidavit of Service when special service in any form is necessary.

Conduct money [5.930] Conduct money is money tendered along with the documents served to cover the reasonable costs incurred in complying with a subpoena. For subpoenas to give evidence, the amount should cover the costs of travelling to and from court, and any necessary accommodation and meals. The minimum amount is $25.00 but “reasonable” travel accommodation and expenses amounts in the circumstances must be paid within a reasonable time before the requirement to attend at court: Schedule 4 to the Family Law Rules.

Addresses for service [5.940] When a party files their first court document, they are asked to record an address for service. If your address for service changes at any point in a case, it is important to make sure you file a notice of address for service with the court and serve a copy on the other party within seven days of the change. If you don’t keep the court updated with your contact details you may miss important communications about your case, and perhaps even a court date. Always serve the other party at the address for service on the court record.

If you can't serve a document [5.950] If you cannot effect service of a document in the way the rules require, you can apply to the court for an order: dispensing with the requirement for service altogether; or allowing service of the document in another way (an order for substituted service). See Family Law Rule 7.18 and Federal Circuit Court Rule 6.14.

Disclosure and discovery [5.960] It is a fundamental principle of fair litigation, and emphasised in all the family law courts, that each party should make available to the other all material relevant to the case. Each party can then draw from the common pool of information to put their best case before the court.

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The process of revealing information to the other party is called disclosure. The legislation establishes a general duty of disclosure, then makes specific requirements for disclosure in particular circumstances. There are serious penalties for failure to disclose as required. The process of seeking information (sometimes necessary to produce adequate disclosure) is called discovery. It is generally more relevant in larger and more complex property matters. The rules describe various discovery procedures, including orders to produce certain documents. The endpoint of a discovery procedure is often inspection – the opportunity provided to one party to read and take copies of the other party’s documentation.

Disclosure The general duty of disclosure [5.970] A general duty of disclosure applies to all parties in all cases in the family law jurisdiction. This duty is to disclose to the other party all information and documents that are relevant to an issue in the case (subject to the law of privilege – see [6.510] – [6.670] for more about this). The duty applies to all relevant documents and information, not just material that could be characterised as evidence. The relevant issues are those revealed in the application and response documents filed in the case. The general duty applies on a continual update basis – that is, from the time pre-application procedures commence to the end of the case. If something relevant changes, or new information becomes available to you, you have a duty to disclose it as soon as possible.

Disclosure requirements for financial cases [5.980] Parties are required to provide “full and frank” disclosure of their financial affairs, whatever this may mean in the particular case, even if the court rules do not refer to a specific disclosure. Check through the list of material to be disclosed in a financial case at Family Law Rule 13.04 or Federal Circuit Court Rule 24.03. The list (which does not attempt to be exhaustive) refers to: earnings and other financial resources; interests in property; income earned or property held by a legal entity (such as a company or business) owned or controlled by a party; trusts in which a party has a significant role; sale or disposal of property, or use of funds, since separation and 12 months before separation; and debts and continuing liabilities.

When disclosure takes place [5.990] The general duty to disclose exists from the beginning of a case to its end, but there are specific requirements at particular times. These are discussed below.

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In the pre-application period [5.1000] In all Family Court cases, and all parenting cases in the Federal Circuit Court, parties are required to make full and frank disclosure, as soon as a dispute becomes apparent, by disclosing and exchanging at least: a schedule of assets and liabilities; a list of the relevant documents they possess; and a copy of any document on the list that the other party requires. The pre-application procedures set out at Schedule 1 (Pre-Application Procedures) to the Family Law Rules specifically “suggest” that tax records and bank statements be made available. Refer to the Financial Statement and Family Law Rules 4.15, 12.05 and 13.04 as a guide for what information to provide and documents to exchange.

Filing and re-filing the Financial Statement [5.1010] In financial cases, in both the Family Court and the Federal Circuit Court, parties are required to file a Financial Statement, on the approved form, with their Initiating Application. If your circumstances then change significantly in the course of the case, you must file (and serve) an amended Financial Statement, or an affidavit describing the change, within 21 days of the change. See Family Law Rule 13.06.

Around the first court date [5.1020] At least two days before the first court date in the Family Court, parties to a financial case must exchange (Family Law Rule 12.02): tax returns and business activity statements; certain business records; market value appraisals of assets; and certain documents relating to superannuation. In the Federal Circuit Court, similar documentation needs to be exchanged within 14 days after the first court date: Federal Circuit Court Rule 24.04.

Before the hearing [5.1030] Parties approaching the end of the litigation process in the Family Court are required to file an undertaking that the duty of disclosure has been complied with: Family Law Rule 13.15.

Penalties for failure to disclose [5.1040] To counter the temptation to hide evidence of financial resources or other information (either to avoid having to share something with an estranged spouse or to gain a surprise advantage in litigation), the law has set down heavy penalties for failure to meet disclosure requirements. They include: banning use of the information or document as evidence in the party’s case; stay or dismissal of the case; an order for costs; fines and imprisonment; and

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the possibility of a more generous property order for the party disadvantaged by the non-disclosure (see the case of Kannis at [5.1050]).

The negative consequences of non-disclosure [5.1050] In Kannis (2003), the court said that: Whether the non-disclosure is wilful or accidental … is beside the point. The duty to disclose is absolute. Where the court is satisfied that the whole truth has not come out, it might readily conclude that the asset pool is greater than demonstrated. In those circumstances, it may be appropriate to err on the side of generosity to the party who might be otherwise seen to be disadvantaged by the lack of complete candour.

When disclosure may not be required [5.1060] You are not required to disclose a document to the other party if you can validly claim protection under one of the grounds of legal privilege (see [6.510] – [6.670]). Documents that would be protected under privilege if a case commenced need not be disclosed in the pre-application period.

Discovery [5.1070] A party can be forced to provide information if there is any indication that disclosure is being withheld or is otherwise insufficient (see Family Law Rules Divisions 13.2.2 and 13.2.3; Federal Circuit Court Rules Part 14, Disclosure). Among other things, the court can order answers to specific questions put by one party to the other (called interrogatories).

Obtaining information and documents Subpoenas [5.1080] A subpoena is a document prepared and served by a party on a person who is (usually) not a party. A subpoena is issued by the court and carries the court’s authority for the requirements stated within it. It can be used to: require a person who is not a party to produce relevant documentation; compel a witness to give evidence at a hearing; and compel a witness to attend a hearing and produce documentation. There are detailed provisions on subpoenas in Part 15.3 of the Family Law Rules and Division 15A.1 of the Federal Circuit Court Rules.

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Restrictions on issue [5.1090] Subpoenas in the Family Court will not be issued unless the court’s permission has been sought and granted, except that parties with professional legal representation may, without the specific permission, request the issue of subpoenas for the production of documents in relation to an application for interim or procedural orders: Family Law Rules 15.17 and 15.21. Self-represented litigants in the Family Court need the court’s permission before a subpoena will be issued: Family Law Rule 15.18. Permission for the issuing of subpoenas is normally sought at a court event. A maximum of five subpoenas are usually permitted in Federal Circuit Court cases: Federal Circuit Court Rule 15A.05.

Conduct money and witness fees [5.1100] The Family Law Rules and the Federal Circuit Court Rules list the minimum amount of conduct money that must be provided to a witness served with a subpoena to appear. It should be enough to cover the costs of travel and accommodation to attend at court, and must be given to the witness at the time the subpoena is served: Family Law Rule 15.23. Witness fees (to compensate the witness for their time while in court and while waiting) are payable immediately after the witness attends at court. See Part 2 Schedule 4 of the Family Law Rules for the minimum witness fees (the witness can apply to the court for more).

Preparing a subpoena [5.1110] You can make up a subpoena, usable in all courts, from the Family Court or the Federal Circuit Court “Subpoena” pro forma. If the issue of the subpoena you require is approved, or if approval is not required, you may take it to a registry, which will register and stamp it, and allocate a return date. You must then serve a stamped copy of the subpoena on the non-party named in it, using the “special service by hand” method (see [5.890]), and serve a copy of the stamped subpoena on all other parties in the case by ordinary service. Be careful to precisely describe the documents or records, or class of documents or records, that you wish to be produced, and make sure you enclose enough conduct money to cover the costs of complying with the subpoena (for example, attending at court or photocopying the documents). If, in the Family Court, you wish to rely on the automatic right to inspection provision set out at Family Law Rule 15.30, you need to include a notice in the terms set out at subrules 15.28(1)(a) and 15.30(2) with the subpoena. You should also enclose a copy of the brochure “Subpoena (Information for Named Persons)”. You must also file an Affidavit of Service: sub-rule 15.30(3). In the Federal Circuit Court, you can rely on the new auto-inspection procedure at rule 15A.13 if the form “Notice of Request to Inspect in accordance with Federal Circuit Court Rule 15A.13(1)(c)” is filed. In both courts there is process for the other party to object to your access to the documentation.

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It is acceptable to ask for copies, rather than originals, of documents to be produced (Evidence Act sections 48 and 51). See “Drafting a subpoena or Notice to Produce” at [5.1200].

Return of subpoena [5.1120] A party subpoenaed to produce documents must do so, usually to the court, on or before the return date, or as the court specifies. Unless the right to inspect procedures (Family Law Rules 15.28 and 15.30 and Federal Circuit Court Rule 15A.13) are activated by the requesting party, both parties, but most importantly the requesting party, should be in court on that date: to seek permission for access to the documents; to present arguments, if any, based on the law of privilege (see [6.510] – [6.670]) on why access should not be allowed to the other side; and to inspect and copy documents produced. Be prepared for the person or organisation subpoenaed to have objections about producing documents, or to simply be late – especially if they are connected with the other party. The court usually allows some latitude. You may wish to call the registry before the return date to check whether the documents have been produced.

Access to documents during a hearing: Notice to Produce [5.1130] Parties do not usually request the court to issue subpoenas on each other (but see box at [5.1170]). They are bound to disclose relevant documentation anyway, according to both the general duty and the disclosure rules in financial cases. If, however, you want access to a specific document in the other party’s possession at your trial or hearing – one that you know is relevant to the issues in your application – you can serve a Notice to Produce requiring the party to bring the document to a trial or hearing. The notice must not be served within seven days of a hearing or within 28 days of the commencement of a trial in the Family Court. There is no Federal Circuit Court rule about timing, but reasonable notice will protect against an excuse that there was insufficient time to obtain the document.

Preparing a Notice to Produce [5.1140] A Notice to Produce need not be in any specific form – it is not a document that must be filed in court. Head the document “Notice to Produce”, with the relevant rule number (Family Law Rule 15.76 or Federal Circuit Court Rule 15A.17). Set out the case details (parties, file number) at the top, for example:

[5.1180]

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TO: Mr Jonathan Black You are required to produce the following documents [or the documents listed in the Schedule to this Notice] at [location] on [date] at [time]. Sign and date the notice at the bottom, and deliver it by ordinary service under a covering letter.

Receiving a Notice to Produce [5.1150] A party receiving a Notice to Produce should comply with it (that is, bring the document to court on the date named). There is no specific penalty for failure to comply; however, if you do not, the party issuing the notice can lead other (secondary) evidence of the contents of the document, including evidence that would otherwise be hearsay and thus inadmissible (“I read the letter. It stated …”). See [6.270] – [6.320] for the rules about hearsay. Disclosure will not be required if you can successfully argue that the documents are subject to privilege (see [6.510]), or there are other reasonable objections.

Access to documents from the other party at other times [5.1160] To obtain access to documents referred to in other documents filed by another party (or in a party’s correspondence) at times other than at a hearing, issue a written notice to the other party in accordance with Family Law Rule 13.08 or Federal Circuit Court Rule 14.10 as appropriate.

Vital documents in the other party's possession [5.1170] Although parties do not usually ask for subpoenas to be issued to each other, if you do not have any other evidence of the contents of a document that is important in your case – in other words, when you really need a document in the possession of the other party – a subpoena might be more effective than a Notice to Produce, because there is a penalty attached to non-production.

Information from employers [5.1180] Under Family Law Rule 13.30, a party may apply in the Family Court for an order to an employer of the other party for information (as distinct from documents) about: whether the employer owes the employee money; the employee’s rate of earnings or sum of earnings over a period; and the employee’s conditions of work. Such an order will only be made after the employer has refused to comply with the party’s written request to provide the information. When originally writing to the employer, then, requesting such information, refer to the provisions of rule 13.30, and be precise about the time in which compliance is required.

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In the Federal Circuit Court, use a Subpoena for Production to obtain employment records and information.

Drafting a subpoena or Notice to Produce [5.1200] The purpose of each of these forms is to obtain all documents or copies of documents in the other party’s possession that are relevant to your case. Framing the schedule of documents is the most important and challenging part of completing these (not otherwise difficult) forms. You can err by making the requirement too difficult to comply with (for example, in a subpoena to a bank, “copies of all bank statements issued by Central Branch in 1979”). Be careful of the scope of the words you choose. A subpoena may be set aside if it is found to be oppressive (in its effect on the recipient) or if it held to be a “fishing expedition” for evidence that may or may not exist. It is possible, however, that you may not ask for enough. Subpoenas are very powerful. You can obtain a great deal of information from the tax department, banks, employers, medical service providers and schools that, if properly sifted and not protected by privilege, can provide valuable evidence. For example (though it may represent the outside limits of an acceptable request), a subpoena was held to be valid that required production of: all documents relating to Deloittes’ work as Tipperary’s accountants, tax accountants, auditors and financial accountants, including but not limited to those documents relating to the liquidator’s claim against Tipperary for its alleged failure to pick, pack and transport mangoes (Walker Nominees Pty Ltd (in liquidation) v Branir Pty Ltd & Anor (2004)). If you know that a particular document exists, and its details, ask for it specifically (for example, “letter from Mr Smith to Central Bank dated 16 November 2004”). When you don’t know or are not sure of what a person can produce, it is a reasonable approach to: describe the general category of documents required (for example, “documents or copies of documents related to the employment of Mr Smith since 1995”); then list a set of specific inclusions (for example, “including but not limited to his human resources file, wage and leave records, medical certificates for sick leave, work performance reports, accident and injury reports”). Keep in mind that, if the conduct money is insufficient to cover the costs of compliance, the person subpoenaed may refuse to comply, or they may apply for reimbursement. But many organisations will simply produce the original material to the court. You can do your own photocopying once access to the documents is granted. Remember too that you can issue only a limited number of subpoenas. Seek information that you feel will be the most useful as evidence to prove your case.

[5.1240]

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Contempt of court [5.1210] A person can be charged with contempt of court – a criminal offence – if they seriously breach an order of the court or behave in a way that demonstrates contempt for the court’s authority or interferes with the administration of justice: Family Law Act section 112AP. Acts that may be in contempt in court can occur in court or outside it.

Contempt inside the courtroom [5.1220] The Notes to Family Law Rule 21.04 give examples of in-court contempt, including: assaulting or threatening a judge, or any other person; insulting the court; disrupting the court; and disrespect or other misbehaviour in court. The court may take its own action for dealing with contempt in these situations, either ordering the person to attend at court or issuing a warrant for their arrest: Family Law Rule 21.04; Federal Circuit Court Rule 19.01.

Contempt outside the courtroom [5.1230] Many actions outside the courtroom – for example, speaking critically to the media about the conduct of a case while it is still running, or harassing a witness for the other party, as well as failing to comply with an earlier order of the court – could, potentially, amount to contempt of a court’s authority. The action complained of must be of a serious nature – showing a “serious disregard” for obligations under a court order or amounting to a “flagrant challenge” to the court’s authority (see section 112AP(1) of the Act). The court may initiate its own action in response (as described above). Otherwise, any person, not necessarily a party, can apply for an order that the person displaying contempt be punished: Family Law Rules Part 21; Federal Circuit Court Rules Part 19. In both the family law courts, you can apply for such an order by filing a Family Court Application – Contempt with an accompanying affidavit containing evidence of the contempt. Before filing an application for contempt you should freshly consider your reasons. A successful contempt application may result in punishment (e.g., a fine or imprisonment) for the respondent. If what you really want is for arrangements set out in a court order to be complied with, and there is a case on foot, it may be more appropriate and possibly more strategic, to seek the assistance of the court on an Application in a Case.

Where contravention of a court order is the basis for the contempt [5.1240] A contravention of a court order may be in contempt of court if it involves “a flagrant challenge to the authority of the court”: Family Law Act section 112AP. Only serious breaches are punishable as contempt.

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Contempt is raised as an option for failure to comply in a number of places throughout the rules – see, for example, Family Law Rule 15.36, Non-compliance with subpoena.

Relief from obligations under court orders [5.1250] If a party has good grounds for not complying with a court order they can simply wait to explain these to the court during enforcement proceedings, if and when these are commenced on the application of the other party. Alternatively, the non-complying party can make a new application for different orders that include an order for a “stay on enforcement” of the previous orders, or to set aside (cancel) the previous orders altogether.

Punishment [5.1260] A person convicted of contempt can be fined or jailed, though the punishment may be suspended by the imposition of a bond: section 112AP.

Frivolous and vexatious litigation [5.1270] The Family Law Act provides that the court may dismiss an application that is “frivolous, vexatious or an abuse of process”: section 118. It may also order a costs penalty, or bar the person from further applications. A party who commences an application as a self-represented litigant without getting legal advice or reviewing the relevant law may find that their application is considered in one of these categories.

Frivolous applications [5.1280] A frivolous application is one that has no reasonable grounds and is bound to fail. Any application to a court should reveal grounds that have some relation to the factors set out in the law for the court’s assessment of the issue. It should be apparent on the face of the application, also, that there would be sufficient evidence to support the case (see [6.20]).

Vexatious applications [5.1290] An application is vexatious if it has a purpose of harassing someone or causing them inconvenience or cost. Dragging another person through repeated court applications may be considered vexatious.

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Abuse of process [5.1300] Abuse of process is the use of proceedings to obtain an advantage other than any result the proceedings were ostensibly intended to produce (In re Majory (1955). For example, family law orders might be applied for and used to obtain a commercial advantage rather than a just and equitable property distribution.

Repeated frivolous, vexatious or abuse of process applications [5.1310] Through the interplay of rule 11.04 of the Family Law Rules, rule 13.11 of the Federal Circuit Court Rules and section 118 of the Family Law Act, the court may not only dismiss an application from a person who has frequently, habitually or persistently commenced cases that are vexatious or without reasonable grounds, but may bar them from making further applications without leave of the court. The court can order this on its own initiative or after hearing an application from the other party.

Court fees and legal costs Court fees [5.1320] Unless you are entitled to a waiver or exemption, you must pay court fees when you file an application or a response in a court with family law jurisdiction. Hearing fees are also payable if the case proceeds to trial. Ask the registry, or check the court websites for current fees. You are entitled to an exemption from court fees if: you are a pensioner or benefit recipient, or hold a health care card; you are receiving Legal Aid, Abstudy or Austudy; you have a Notice of Exemption from a community legal centre; you are a child; or you are in prison or otherwise legally detained. Even if you are not entitled to an exemption, you may receive a waiver of court fees if you can show, on application to the court, that payment would cause financial hardship. You can obtain an Application for Waiver or Exemption form from the court websites or a registry. Send the completed forms (with copies of proof documents attached) to the registry along with your documents for filing, instead of the fee.

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Legal costs Solicitor and client costs [5.1330] The costs charged by a solicitor for work done and other costs incurred in a case are referred to as solicitor and client costs. The solicitor and client may agree that the basis of the billing should be the scale of costs set up under the Act, or other rates specified in a written costs agreement. It is unwise to allow a solicitor to commence litigation on your behalf without a detailed written cost agreement, including cost estimates for each stage of the process.

Costs controls in the Family Court [5.1340] Regulation of the fees and expenses between clients and their lawyers is now exclusively governed by the relevant State or Territory legislation covering the legal profession. Chapter 19 of the Family Law Rules deals only with party/party costs. (Party/party costs are the amount of legal costs that a court would order one party to pay to another under a “costs award”. They are generally significantly less than the actual solicitor/client costs agreed between the solicitor and the party they represent.) The Federal Circuit Court does not oversee arrangements between solicitors and clients. For information on legal costs in the Federal Circuit Court, see its fact sheet “Legal costs in family law matters”.

As between the parties [5.1350] The general principle in family law cases is that each party bears its own legal costs (see Family Law Act section 117), so there will be no costs order (or award for costs) in the ordinary course. But the court has wide discretion to depart from this principle and order that one party pay some or all of the other’s legal costs. This happens fairly frequently.

Costs orders What are they? [5.1360] If the court awards costs in favour of one party, it means that payment of an amount in accordance with the Act and the relevant court rules has been ordered. These costs are party/party costs. Issues relating to party/party costs and their method of calculation in family law cases are set out in Chapter 19 of the Family Law Rules and Part 21 of the Federal Circuit Court Rules.

How are they calculated? [5.1370] The usual award for party/party costs (if there is one) is on the basis of prescribed rates set out in Schedules 3 and 4 to the Family Law Rules and Schedule 1 to the Federal Circuit Court Rules. The rates in these Schedules are much lower than the solicitor/client costs usually charged by solicitors.

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Notwithstanding, the court can make a costs order against a party that requires them to pay: the costs calculated in accordance with the Schedules for all or part of a case; a specified amount; the other party’s solicitor/client costs; costs on an “indemnity” basis (which basically means all the other party’s costs in bringing the case to court); or an amount calculated by another method decided by the court. See Family Law Rule 19.18 and Federal Circuit Court Rule 21.10. If no award for costs is made, each party is responsible for their own.

Costs awards against a lawyer [5.1380] The court may make a costs award against – not a party but – a party’s lawyer, if the court considers the lawyer has failed in their duty to the court or to the client. See Family Law Rule 19.10 and Federal Circuit Court Rule 21.07.

Obligations to provide information in relation to costs [5.1390] In the Family Court (and notwithstanding the changes to Chapter 19 of the Family Law Rules), lawyers and unrepresented parties are obliged to provide costs information to the client, the court and to other parties at certain points in the litigation. See Family Law Rules 19.03 and 19.04.

Costs for unrepresented parties [5.1400] Under Chapter 19 of the Family Law Rules, an unrepresented party cannot seek an award for professional costs, although it may be possible to seek an award for expenses incurred in bringing the case into court (not including the value of their time on the case or compensation for any lost business time).

Timing [5.1410] The court can itself decide to make a costs award against a party, or it can accept an application for a costs award at any other time during the case and up to 28 days of the hearing of the application for final orders (Family Law Rule 19.08; Federal Circuit Court Rule 21.02). Applications for costs orders are normally made at the end of a case.

Newer grounds for costs orders [5.1420] Costs orders used to be fairly rare in family law. The principle that each party should pay their own costs generally prevailed. Under amendments to the Rules in 2003, and then the major amendments to the Act itself in 2006, however, a costs order is now a possible penalty for failure to comply with particular rules at many points in the process, from the pre-application procedures on. Costs are used to control the performance of parties and their legal representatives in the course of family law litigation. The court must still have regard to the factors set out in sub-section 117(2A) of the Act when considering whether to actually make an order for costs. These factors include: the financial circumstances of both parties;

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whether a party has Legal Aid; the parties’ conduct; whether the case has arisen because a party has contravened an earlier court order; whether a party in the case was “wholly unsuccessful”; a party’s response to offers of settlement made in the course of the case; and other relevant factors. For example, there is a strong possibility that a costs order will be made against a party if: they dragged another person into court unnecessarily; their conduct in the case unnecessarily prolonged proceedings or otherwise caused unnecessary cost; or they committed serious breaches of the Rules.

6 Evidence [6.20]

The basic task for evidence .............................................................................. 204

[6.160]

The law of evidence ......................................................................................... 209

[6.240]

Admissibility.................................................................................................... 211

[6.510]

Claiming privilege............................................................................................ 220

[6.680]

Affidavits......................................................................................................... 225

[6.780]

Reports............................................................................................................ 231

[6.900]

Witnesses ......................................................................................................... 236

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[6.10] The court brings a blank mind to a new case. The story of the case and everything about it – the people, the places, the events, the relationships, who said what and when – has to be built for the court by the evidence of the parties. For a court to be able to even consider accepting – let alone actually accept and agree with – the perspective on the events and circumstances that form the basis of your case, there must be evidence brought into court, in an acceptable manner, for all but the most obvious of these facts and circumstances. (So, for example, you usually don’t need to bring evidence that you are who you say you are, that you live where you say you live or that you are a parent – though you may, if these facts are disputed.) The evidence can come from either party. So you don’t need to contradict everything in the other party’s case – only the parts you disagree with. You must ensure that for each necessary fact in your argument, you can refer to an item of admissible evidence that tends to prove that fact. If you can do this, you have made a prima facie case – that is, you have built at least an acceptable story for the court. Without a prima facie case (if you have a story with significant evidence “holes”) you have no chance of success. If it becomes apparent that a party does not have a prima facie case, their case may be dismissed without a full hearing: Family Law Rules Part 10.3; Federal Circuit Court Rules Division 13.3. The court process at a hearing is described in detail in chapter 9.

The basic task for evidence [6.20] It is your task to provide the court with the basis for making orders that are “proper” or “just and equitable”, and, at the same time, in your favour. The court will not come around to your way of thinking simply because it is obvious – to you – that yours is the only sensible or fair position. This means being able to: prove facts that are relevant under a set of factors or considerations set out in the legislation; and bring the proof into court in a form that the court will allow – that is, present admissible evidence. Proceedings under the new Division 12A of Part VII of the Family Law Act (the Less Adversarial Trial procedure – LAT) now have more generous parameters for admissibility. See below for further details.

[6.50]

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Factors, facts and evidence [6.30] It is important to appreciate the difference between the legal factors, the facts, and the evidence in a case. See Table 6.1 for examples. The difference between “factors”, “facts” and “evidence” Factors that must be considered Relevant fact alleged by the Evidence tending to prove by the court party the fact The 13-year-old son wishes Under sub-section 60CC(3)(a): Family report “any views expressed by the to live with the father Teacher’s affidavit child” Letter of child annexed to affidavit of parent Hearsay statements of the child in parent’s affidavit Under sub-section 79(4)(c): “contribution made in the capacity of homemaker or parent”

The wife has been primarily responsible for cleaning, cooking, washing and caring for children throughout the marriage

Affidavit of wife Affidavits of close relatives and friends

Factors the court must consider [6.40] Under the Family Law Act, the court is bound to consider certain factors in deciding what orders are “proper” or “just and equitable”. These factors are set out: in parenting cases, mainly at sections 60B and 60CC; in maintenance cases, mainly at sections 72 and 75(2); and in property cases, mainly at sections 79 and 75(2) for spouses and sections 90SM and 90SF(3) for de facto relationships.

Judicial discretion [6.50] A family law court is not obliged to choose between two competing views of what has happened and about what should happen next. Instead, the court is bound to make orders that are either “proper” (in parenting and maintenance matters) or “just and equitable” (in property matters), in the particular circumstances of the case. Compared to the criminal law and other types of civil action, there is a large amount of judicial discretion in family law, and with the recent changes in the management of parenting cases, there is now more scope for judges and magistrates to make critical, unappealable decisions. The final result may be orders the applicant wants, orders the respondent wants, orders neither party had even thought of, or no orders at all. In particular, parenting cases “will not be viewed as adversarial proceedings, but as an investigation of what order will promote the best interests of children”: Brown and Pedersen (1992).

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What is “proof” in a family law case? [6.60] One hundred per cent proof of a fact would be possible only if we were able to run a replay of life itself for the court. We have to make do in court instead with information that has a tendency to prove the facts we want the court to believe. In family law, parties must generally try to prove facts on the balance of probabilities. You need to be able to demonstrate that your version is more probable than not.

What is evidence? [6.70] Evidence is admissible testimony (statements made under oath), hearsay, documents, or things that possess characteristics that tend to prove the facts a party alleges.

Kinds of evidence Documentary evidence [6.80] A document is usually brought into evidence as a statement of fact arising from what is written in it. For example, a credit card statement may be evidence of the fact that Bob bought something from a florist on 5 May 2005. In this context, documentary evidence is subject to the admissibility rules ordinarily associated with oral statements. A document might also be brought into evidence as an object; for example, showing fingerprints.

Evidence of a witness [6.90] The testimony of a witness in a family law case is ordinarily given in the first instance by affidavit, rather than orally before the court. The witness may be required to take the stand to give further testimony, orally, under cross-examination, if the other party requires it and perhaps also, if the court agrees. The court can also order that oral testimony be given (if, for example, an important witness refuses to provide an affidavit). In family law cases, courts often have to choose between conflicting versions of events described by the parties in their affidavits. In other words, it is often one party’s word against the other’s. There is no legal requirement for corroboration in family law. In fact, “cheer squad” affidavits – where a team of witnesses enthusiastically backs up and repeats a party line – are actively discouraged.

Analysing your case [6.100] An analysis like that in Table 6.1 at [6.30] will help you achieve a prima facie case at least. Make sure that all the facts in your argument are listed. The steps in case analysis are:

[6.130]

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1

identify the legislative factors affecting your case;

2

identify the facts relevant to each factor; and

3

identify the admissible evidence to prove the facts you allege.

You must consider the quality of each item of evidence, and how it is presented. This can bear significantly on the weight ultimately assigned to it by the court.

The issues in dispute [6.110] You will be asked to identify the issues in dispute in your case on your first day in court, and then probably several times again before the end of your case. No time spent reflecting on, clarifying or restating “the outstanding issues in dispute” – right up to the final word of your closing argument at trial – is ever wasted. The more precisely you can identify the issues at any point in the course of your dispute, the more efficient will be your work on the balance of the case, the better your case will look to the court, and the more quickly it will resolve.

What are the “issues” in a family law case? [6.120] Answers to the issues question such as “it’s about where the children should live”, “… whether the wife should get maintenance” or “… how the property should be split” are wrong answers! They restate the purpose of the case – that is, why we are all here in court – but they do not clearly identify the legal issues that you must address with your evidence in order to be successful. The legal issues are either about: disputed facts – “whether the 13-year-old wishes to live with his father” or “the change in property value since separation”, with each party seeking to convince the court of its own version; or how the facts should be weighed under the set of considerations prescribed by the Family Law Act. For example, though both parties might admit that the 13-year-old wishes to live with his father – a fact relating directly to two of the Act’s “best interests” considerations (sub-sections 60CC(2)(a) and (3)(a)) – they might also admit that the father is an alcoholic-in-recovery, which may relate to three other best interests factors (sub-sections 60CC(3)(f), (g), and (i)). The legal issue is about how these competing (though agreed) facts should be weighed against each other to discover the best interests of the child.

Identifying and resolving the legal issues [6.130] It is sometimes difficult to disentangle the legal issues from the emotional ones in the early stages. One party may have nothing but revenge, obstruction or their own misery in mind, and be unable to define the issues beyond “you’ll get nothing if I can help it”, “you don’t deserve to be a parent”, or “why are you doing this to me?” Parties often find it difficult to think straight when sitting in the same room in early dispute resolution sessions. Often this situation resolves itself in the weeks or months after separation, clearing the way for productive negotiations on property and parenting.

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But while you may wish to allow some time for feelings to cool, you will not want to allow the status quo in relation to parenting arrangements (see [7.490]) to become established to your child’s disadvantage. Nor will you wish to see an opportunity for fair distribution of property wasted as time passes. It is important for at least one party to be able to properly identify the real issues in a dispute. This will help the other to focus at the earliest possible time. But clarity as to the real issues almost always comes eventually – often with the assistance of lawyers, family dispute resolution practitioners or even the court. The goal then for everyone is the resolution of each item on the list of issues, one by one, by settlement or decision, until none remain.

The “best evidence” [6.140] Being able to make a prima facie case is the most basic requirement to keep your case on foot. To win a case, however, you must not only be able to prove the whole case, you must have the best evidence of the facts in dispute, and then the best argument to help the court weigh the factors in your favour. Where there is dispute about a fact, and conflicting evidence to match, the court must decide which is the “best evidence”. The best evidence of a fact is the evidence having the greatest “tendency to prove” (sometimes called high probative value).

Ideas about “best evidence” Search for better evidence than the other party’s simple say-so evidence on important facts in dispute. The other side, even if they are represented, may not have the will or the funds to match your tenacity. Poor quality evidence may win the day if there is no competing evidence. If your evidence is not allowed, or if you forget or otherwise fail to bring in contradictory evidence on a disputed fact, the court is likely to favour the other party’s evidence – the only evidence before it – as the best view of the fact. Direct evidence of a fact will be preferred over circumstantial evidence (it has higher probative value). The opinion of a family consultant, or other expert, will often carry greater weight than a party’s own evidence on a disputed fact (such as the views of a child). Try not to rely solely on the strength of your own word on an important issue. The court may prefer one witness’s testimony to another’s notwithstanding that it is simply “your word against mine”.

[6.200]

chapter 6 Evidence

The law of evidence Why there is a “law of evidence” [6.160] Different items of information brought forward (adduced) as evidence have different capacities to represent the truth – or, alternatively, to completely mislead the court. After all, anything short of a true life replay might be simply made up, misinterpreted, used out of context, or perhaps adjusted by the adducing party for better effect. The court has no capacity to know one way or another. Instead it must judge. The law of evidence exists to guide the court in its judgment on receiving, rejecting and, to an extent, weighing the various items of information that a person might want to bring forward to support their case – their proof – so that its final decision is based on “facts” that are as close to the truth as possible.

Where to find the law of evidence [6.170] Evidence is dealt with by Commonwealth, State and Territory, and common law.

The Commonwealth Evidence Act [6.180] The Commonwealth Evidence Act 1995 normally applies to evidence in the Family Court of Australia and the Federal Circuit Court(but see Evidence in child-related cases at [6.490]). Except for certain provisions set out in sections 4 and 5, this Act does not apply to family cases heard in the State and Territory courts. The application of the Evidence Act to child-related cases in the federal family law courts has been substantially modified by the 2006 amendments (see [6.490]).

State and Territory evidence laws [6.190] At the time of writing, the Australian Capital Territory, New South Wales, Tasmania, Victoria and the Northern Territory have enacted evidence legislation for their State-level courts that mirrors the Commonwealth legislation. South Australia, Queensland and Western Australia retain their own evidence laws. Review of the State and Territory laws of evidence, under reform (or not as the case may be), is beyond the scope of this book. Before appearing as a self-represented litigant in a State or Territory court, it would be a good idea to ask at a State court registry, law library or community legal centre about finding a summary of the applicable law of evidence, or find the text of the relevant Act at the AustLII website (http://www.austlii.edu.au).

Special evidence rules in family law [6.200] The Family Law Act makes some special rules for evidence in family law cases that override anything to the contrary in the Commonwealth Evidence Act, and in State and Territory evidence legislation, except in Western Australia. They include provisions relating to:

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evidence in Division 12A of Part VII (less adversarial trial or child-related) proceedings (see below); the hearsay evidence of a child (section 69ZV); a journalist’s privilege in relation to protecting a source (sub-section 69ZX(4)); admissions made to a family counsellor or family dispute resolution practitioner (sections 10E, 10J); evidence from parentage testing (section 69V); spouses giving evidence (section 100); children swearing affidavits or being witnesses (section 100B); oppressive, offensive questioning of a witness (section 101); evidence of birth, death, marriage and parentage (section 102); and protection of children against unnecessary examination for evidence of abuse (section 102A). See also Family Law Rules Chapter 15, Federal Circuit Court Act Part 6, Division 4 and Federal Circuit Court Rules Part 15.

Evidence in family law cases in Western Australia [6.210] In Western Australia, the evidence provisions in that State’s Family Court Act 1997 and Evidence Act 1906 apply to all family law matters.

The common law of evidence [6.220] Neither the Commonwealth nor any State or Territory’s evidence legislation entirely “covers the field” in defining the law of evidence that applies in a case. In each jurisdiction, there are areas in which the old common law of evidence still applies.

Evidence in child-related proceedings [6.230] New in 2006, sections 69ZT and 69ZM of the Family Law Act state that certain rules about whether evidence is admissible under the Commonwealth Evidence Act will not ordinarily apply in child-related proceedings in federal family law courts, or even to property proceedings if both parties agree that the case will be heard as a Division 12A of Part VII (less adversarial trial – LAT) proceeding. The changes mean that the court is not bound to exclude an item of evidence simply because it offends against one of the rules of admissibility under the Evidence Act. The usual rules about admissibility continue to apply in most property cases. They will also apply to child-related (LAT) proceedings if the court considers that the importance and value of the evidence is such that the usual rules should be applied in a particular “exceptional” case: sub-section 69ZT(3).

[6.250]

chapter 6 Evidence

Admissibility [6.240] A piece of information, a document, thing, opinion, or testimony, normally cannot become part of the evidence in a case if it is not admissible according to the rules of evidence. The grounds on which evidence may be inadmissible are discussed at [6.250] – [6.480]. Evidence a party considers vital has often been ruled inadmissible. Entire sections of an affidavit may be simply “ruled out” – in fact, an affidavit may be “torn to shreds” by the deletion of inadmissible material, leaving the party without a prima facie case (although this is now unlikely in child-related proceedings). There is, however, almost always an admissible way to tender the essence of otherwise inadmissible evidence. You should review each piece of evidence for admissibility before it is filed or tendered, including each statement made in your affidavits. An understanding of the principles is also useful in arguing for the admissibility of evidence for your case, and objecting to the admissibility of material the other party wants to bring in (see [9.740]).

A short course on admissibility [6.250] A roadmap for this overview: 1. 2. 3. 4.

5. 6. 7.

8.

9. 10.

Irrelevant statements are not admissible.................................................................[6.260] Hearsay is not admissible – the general rule ...........................................................[6.270] “Original evidence” is not hearsay.........................................................................[6.280] Exceptions to the hearsay rule:...............................................................................[6.290] (a) The “personal knowledge” exception..........................................................[6.300] (b) The “first-hand hearsay” exception.............................................................[6.310] (c) The “feeling and state of mind” exception ..................................................[6.320] (d) The “business records” exception ...............................................................[6.330] (e) The “essential facts” exception ...................................................................[6.340] (f) The “child statement” exception .................................................................[6.350] (g) The “interim hearing” exception.................................................................[6.360] Opinion evidence is not admissible (the general rule) .............................................[6.370] But opinion may be admissible as “original evidence” ...........................................[6.380] Exceptions to the opinion evidence rule .................................................................[6.390] (a) The “specialised knowledge” exception ......................................................[6.390] (b) The “necessary opinion of a layperson” exception ......................................[6.400] Other evidence that may be excluded.....................................................................[6.410] (a) “Long, scandalous, or argumentative evidence”, offensive evidence, and evidence obtained during oppressive cross-examination ..............................[6.410] (b) Prejudicial evidence .....................................................................................[6.420] (c) Evidence of “tendency”...............................................................................[6.430] (d) Evidence of the “impossibility of coincidence”............................................[6.440] (e) Evidence obtained improperly or illegally....................................................[6.450] Evidence of “an admission” ...................................................................................[6.460] Evidence of prior convictions .................................................................................[6.470]

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11. 12. 13.

[6.260]

The credibility rule.................................................................................................[6.480] Evidence in “less adversarial trials” and child-related cases ...................................[6.490] The court’s discretion to waive the laws of evidence ..............................................[6.500]

The following summary of the main principles of evidence applies to federal courts in which the Commonwealth Evidence Act applies (including the Family Court and the Federal Circuit Court), and to State/Territory courts where the jurisdiction has adopted mirror legislation (see [6.180] – [6.200]). Where the principles would not usually be applied to exclude an item of evidence because of the new provisions in child-related (LAT) proceedings (see above), this is noted. Keep in mind, however, that even in a parenting case, failure to comply with the rules of evidence may mean that the evidence will have less value or weight in the eyes of the court.

1. Irrelevant statements are not admissible [6.260] A great deal of irrelevant evidence is put forward in family law cases, often in the form of generalised character assassination, or its opposite. The court will give such material no weight in deciding the outcome of a case, and you can waste a lot of time and money preparing it. Remember that evidence is relevant only if it tends to prove a fact that is a necessary link in your chain of argument on a legal issue in the case. See Evidence Act Part 3.1.

Fact in issue: Did Wendy sell the family boat, or was it stolen? Evidence: Statement by Wendy’s husband Hugh in his affidavit: “Wendy said to me that day: ‘I’ve always hated motor cruisers.’” Ruling: Inadmissible – no relevance to the fact in issue.

2. Hearsay is not admissible – the general rule [6.270] The general rule of hearsay is that you can’t give evidence of your own or someone else’s statement in order to prove the truth of the facts contained in it. “Statement” includes both oral and written communications. See Evidence Act section 59. Since 2006, the general rule against hearsay evidence will usually not apply in less adversarial trials or child-related proceedings. This does not necessarily mean, however, that hearsay evidence will be given the same weight as ordinarily admissible evidence. It will almost always be more convincing, if possible, to present evidence other than hearsay.

Fact in issue: Did Wendy sell the family boat, or was it stolen? Evidence: Statement by Wendy’s sister Alice to Hugh recorded in Hugh’s affidavit: “Wendy sold your boat.” Ruling: Ordinarily inadmissible as hearsay.

[6.300]

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The law of hearsay (and its exceptions) is essentially about prior statements made by a witness and/or others – something a person said or wrote at an earlier time. On the other hand, evidence may be given of events heard, seen or perceived by the witness at an earlier time. These matters are not hearsay, and they normally supply the bulk of a witness’s evidence.

Fact in issue: Did Wendy sell the family boat, or was it stolen? Evidence: Statement in Hugh’s affidavit: “I saw that the boat shed contained an empty boat trailer only.” Ruling: Admissible as direct evidence.

3. “Original evidence” is not hearsay [6.280] Another person’s statement is not hearsay and is admissible as “original evidence” if it is tendered for the purpose of proving a fact other than the fact in the statement. See Evidence Act sections 59 and 60.

Fact in issue: Did Wendy sell the family boat, or was it stolen? Evidence: In Wendy’s brother Robert’s affidavit: “Mr P. telephoned and said to me: ‘Tell your sister I don’t have the money for the boat.’” Ruling: Admissible as original evidence that Wendy had tried to sell the boat to Mr P. It would ordinarily not be admissible if the fact in dispute was whether Mr P. could afford to buy the boat.

4. Exceptions to the hearsay rule [6.290] There are a number of exceptions to the rule of hearsay. Those most often relevant in the family law context are explained below. There are several additional exceptions applying to more particular circumstances. For example, evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group will not be hearsay: section 72. See Part 3.2 of the Evidence Act for the full set of (legislated) exceptions.

(a) The “personal knowledge” exception [6.300] If a witness with personal knowledge of a fact is available to give evidence, their earlier statement about the fact may be put into evidence in support of its truth, so long as their experience of the fact is still fresh in their memory at the time they are giving evidence. There must be no circumstances likely to affect the accuracy of the memory. This type of evidence is admissible through the testimony of either the witness (“I said: ‘Stop – you’re hurting me,’”) or a second witness who heard or saw the first witness saying or writing the words: Evidence Act section 64. A witness is “available” for the purposes of this section if that person:

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is alive; has mental capacity to give evidence; is not forbidden by law to give evidence; and has been called to give evidence. A witness may be “unavailable” if: they cannot be found after a party has taken reasonable steps to locate them; or calling them as a witness would involve undue expense, delay or impracticality.

Fact in issue: Did Wendy sell the family boat, or was it stolen? Evidence: Prior statement by Alice to Hugh recorded in Hugh’s affidavit: “Alice said to me: ‘Wendy and I towed your boat down to the consignment yard yesterday.’” (Alice is available to testify.) Prior statement by Wendy (who is clearly available) to Alice, recorded in Alice’s affidavit: “Wendy said to me: ‘I want you to help me tow the boat down to the wharf.’” Ruling: Admissible under the personal knowledge exception to the hearsay rule. If you intend to lead evidence under this exception to the hearsay rule, you need to give reasonable notice to the other party before the hearing or trial: Evidence Act section 67. See Family Law Rule 15.74 (Notice of Previous Representation) for use of the notice in family law cases in the Family Court.

(b) The “first-hand hearsay” exception [6.310] If a witness is not “available” (see The “personal knowledge” exception at [6.300]), evidence of a statement by the witness may still be admissible if it is given by someone who heard, saw or otherwise directly perceived the witness making the statement. This is called first-hand hearsay, and it is admitted as an exception to the general hearsay rule: Evidence Act sections 62 and 63.

Fact in issue: Did Wendy sell the family boat? Evidence: Recorded in Wendy’s brother Robert’s affidavit, a recounting of a prior statement by Mr P. to Robert: “Mr P. said to me: ‘I saw your sister down at the wharf hammering a “For Sale” sign onto the boat rail of that cruiser of hers.’” Mr P. cannot now be located. Ruling: Admissible as first-hand hearsay evidence that Wendy sold the family boat. If you intend to lead evidence under this exception to the hearsay rule, you need to give reasonable notice to the other party before the hearing or trial: Evidence Act section 67. See Regulation 5 of the Evidence Regulations 1996 for the form of the notice, and Family Law Rule 15.74 for the use of the notice in family law cases.

[6.340]

chapter 6 Evidence

(c) The “feeling and state of mind” exception [6.320] The report of a statement by another person that asserts that person’s “health, feelings, sensations, intention, knowledge or state of mind” at the time the statement is made is admissible as evidence of the fact: Evidence Act section 66A. Fact in issue: Did Wendy sell the family boat? Evidence: In Robert’s affidavit: “Then Mr P. said: ‘I wish I could help your sister. I’m going to ring Jake down at the consignment yard now and tell him to expect her.’” Ruling: Admissible as evidence of Mr P’s intention at the time he made the statement.

(d) The “business records” exception [6.330] Statements made in business records are admissible in another witness’s testimony as evidence of the facts they contain, if: the records have been created by a person who might reasonably be supposed to have personal knowledge of the facts they contain; or the records have been prepared on the basis of information supplied by such a person; and the document has not been prepared for the purposes of litigation. See Evidence Act section 69. A “business” includes any profession, calling, trade or undertaking, whether or not for profit, and whether or not in Australia, including government agencies. See Part 2 of the Dictionary of the Evidence Act. It includes records held in a hospital (Albrighton v Royal Prince Alfred Hospital (1980)) and made by ambulance officers: Jackson v Lithgow City Council (2008).

Fact in issue: Did Wendy sell the family boat? Evidence: Statement in weekly sales summary signed by the manager of the consignment yard, given by him to Hugh and annexed to Hugh’s affidavit: “16/5/04 – sale of FOCC 345 motor launch on consignment from Wendy Black to R Smith – $4555”. Ruling: Admissible as a statement contained in a business record.

(e) The “essential facts” exception [6.340] Statements made by a person about the nature of a family relationship, or the age, death, marriage or circumstances of cohabitation of a person at any particular time may be reported in another person’s evidence: Evidence Act section 73.

Fact in issue: Did Wendy sell the family boat? Evidence: Prior statement by Robert to Hugh reported in Hugh’s affidavit: “I am only Wendy’s half-brother.” Ruling: Admissible as a statement about a family relationship.

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[6.350]

(f) The “child statement” exception [6.350] A prior statement made by a child that is relevant to the welfare of that (or another) child, as reported in the evidence of another person, will not be excluded solely because of the law against hearsay: Family Law Act section 69ZV. This exception applies even if the court decides on the strict application of the evidence rules (including the law of hearsay) in a child-related proceeding under sub-section 69ZT(3). See DT v JT (1999) a case in which a father alleged child abuse by the mother’s new partner, and where evidence of a departmental interview with children (three years earlier) was held to be admissible.

(g) The “interim hearing” exception [6.360] The hearsay rule does not apply to evidence in a hearing on an application for interim orders: Evidence Act section 75. Thus, another person’s reported statements can be admitted as proof of the facts they contain at an interim hearing if the witness giving the evidence (including by affidavit): identifies the person who made the statements in the body of the evidence; and believes the statements to be true.

5. Opinion evidence is not admissible (the general rule) [6.370] Evidence of an opinion is usually not admissible to prove the truth of the opinion: Evidence Act section 76. “Summaries” of events and conclusions often amount to statements of opinion. You need to leave the task of interpreting evidence to the court (or, at least, to keep it in your oral submissions (arguments) to the court and out of formal evidence).

Fact in issue: Is Harry a responsible carer for son Jamie? Evidence: In wife Nellie’s affidavit: “Harry is an alcoholic.” Ruling: Inadmissible as a statement of opinion. Since 2006, the rule against opinion evidence will usually not apply in child-related proceedings.

6. But opinion may be admissible as “original evidence” [6.380] An opinion may be admissible for a purpose other than proving the truth of the opinion (Evidence Act section 77) – that is, as original evidence (see [6.280]).

Fact in issue: Is Harry a responsible carer for son Jamie? Evidence: In Harry’s affidavit: “I took Jamie to live up on the Gold Coast with me because the climate up there is better for his asthma.” Ruling: Admissible as original evidence of why Harry took Jamie away to live in Queensland (not as to whether the Gold Coast is a healthier place for Jamie to live).

[6.410]

chapter 6 Evidence

7. Exceptions to the opinion evidence rule (a) The “specialised knowledge” exception [6.390] An opinion is admissible if it is based wholly or substantially on specialised knowledge arising from an expert’s training, study or experience: Evidence Act section 79. The opinion must be applied to facts for which there is evidence, and these facts must be clearly set out. There are restrictions on the number and form of expert opinions that will be allowed into evidence in a family law case (see [6.830]).

Fact in issue: Is Harry a responsible carer for son Jamie? Evidence: In psychiatrist Dr Watson’s family report: “The father suffers from alcoholism.” Ruling: Admissible as an opinion based on specialised knowledge applied to facts for which there is independent evidence (Harry’s drinking and behaviour).

(b) The “necessary opinion of a layperson” exception [6.400] As an exception to the general opinion rule, opinion evidence given by a non-expert will be admissible if the opinion: is based on the personal experience of the witness; and is necessary for the court to understand the person’s perception of the matter or event (Evidence Act section 78).

Fact in issue: Does Nellie deny contact unreasonably? Evidence: In Nellie’s affidavit: “I decided he was drunk so I wouldn’t let Jamie get in the car with him.” Ruling: Admissible as a layperson’s “necessary opinion” (unless we understand Nellie’s opinion, she cannot explain her actions).

8. Other evidence that may be excluded (a) “Long, scandalous, or argumentative evidence”, offensive evidence, and evidence obtained during oppressive cross-examination [6.410] The Family Court may order material to be struck out of an affidavit if it is “unreasonably long, scandalous or argumentative”: Family Law Rule 15.13(1)(a). Section 101 of the Family Law Act allows the court a discretion to exclude evidence that is “offensive, scandalous, insulting, abusive or humiliating” and also evidence obtained during “oppressive, repetitive or hectoring” examination of a witness.

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[6.420]

(b) Prejudicial evidence [6.420] Even if evidence appears relevant and is otherwise admissible, the court can reject or limit its use if it is unfairly prejudicial, misleading or confusing, or would result in undue waste of time: Evidence Act sections 135 and 136. These provisions are important reforms, and are now used regularly.

(c) Evidence of “tendency” [6.430] Evidence of a person’s character, reputation or conduct is not admissible to prove that the person has a tendency to act or think in a particular way, unless it has high relevance to a fact in issue: Evidence Act sections 94 and 97. In Sokolowskyj v The Queen (2014) the fact that the accused had a history of exposing himself to adult females was held to be not admissible as tendency evidence in a case involving the indecent assault of a young girl. If you intend to bring evidence of tendency into court, you must give notice to the other party in accordance with the requirements of Regulation 6 of the Evidence Regulations 1995. Since 2006, the rule against evidence of tendency will not usually apply in child-related or other LAT proceedings.

(d) Evidence of the “impossibility of coincidence” [6.440] Evidence will not be admitted of two or more events that, taken together, are supposed to show that a person must have done something because of the impossibility of the events occurring by simple coincidence, unless: the evidence has high relevance to a fact in issue; and the events had “substantially similar” facts and circumstances (Evidence Act section 98). If you intend to bring this kind of evidence into court, you must give notice to the other party in accordance with the requirements of Regulation 6 of the Evidence Regulations 1995. Since 2006, the rule against such evidence will not usually apply in child-related or other LAT proceedings.

(e) Evidence obtained improperly or illegally [6.450] Section 138 of the Evidence Act establishes that the court must exclude evidence obtained improperly or illegally, unless it is clearly in the interests of the case that it be admitted. In Ames & Ames (2009), the court held that the father’s improper and deceptive behaviour in the manner of his obtaining a sample of DNA for a paternity test justified exclusion of the results of that paternity test from evidence. Section 138 of the Evidence Act is not one of the rules of evidence that is deemed not to apply in child-related or other LAT proceedings under section 69ZT of the Family Law Act.

9. Evidence of “an admission” [6.460] An admission is any statement made by a party that could negatively affect the outcome of the case for that party.

[6.490]

chapter 6 Evidence

The courts take the view that admissions, because of their self-damaging potential, possess a significant tendency to prove the truth of the fact admitted, and they therefore value the inclusion of admissions in evidence. Thus, in general, the rule against hearsay and opinion evidence is suspended in relation to admissions: Evidence Act section 81. Except in child-related or other LAT proceedings, evidence of an admission will, however, be excluded if a party raises an issue about its voluntariness, if the evidence of the admission is not first-hand, if the admission relates to a third party, or if it cannot be shown to have been made without the influence of “violent, oppressive, inhuman or degrading conduct”, either towards the person making the admission or someone else: Evidence Act sections 82, 83 and 84.

10. Evidence of prior convictions [6.470] You can bring evidence of a party’s previous criminal convictions for reasons relevant to the family law case, but not as proof of a fact that was in issue in those earlier criminal proceedings (for example, that A assaulted B). For example, in a parenting case, evidence of a string of prior convictions for assault may be admissible to show a risk of further violence, this being a relevant factor in relation to the child’s best interests: sub-section 60CC(3). Since 2006, the rule excluding evidence of prior convictions will not usually be applied in child-related or other LAT proceedings.

11. The credibility rule [6.480] Evidence tendered only to show that a person lies, or has lied, or that their recollection, or capacity to accurately retell an event, cannot be relied on, is not admissible in a family law matter unless: the credibility-questioning evidence comes from a witness during cross-examination, and the court considers it highly relevant (Evidence Act sections 103 and 104); the evidence of the lack of reliability is taken from another witness to rebut a denial made under cross-examination by the witness whose credibility is under attack (Evidence Act section 106); or the evidence is from a person with “specialised knowledge” (Evidence Act section 108C). Since 2006, the rule excluding this type of evidence will not usually apply in child-related or other less adversarial trial proceedings.

12. Evidence in less adversarial trials and child-related cases [6.490] As noted previously, sections 69ZT and 69ZM of the Family Law Act state that certain rules about whether evidence is admissible under the Commonwealth Evidence Act will not ordinarily apply in child-related or less adversarial trial proceedings in federal family law courts. The changes mean that the court is not bound to exclude an item of evidence simply because it offends against one of the rules of admissibility under the Evidence Act. This does not mean that the usual rules of admissibility are irrelevant. If a piece of evidence would have been inadmissible under one of the rules, it is likely that it has relatively low

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probative value – that is, that it has some taint of unreliability. The court wishes to ensure that it is deciding what is in the best interests of a child on a firm basis of evidence. So evidence admitted under the operation of the new law – evidence that wouldn’t have been admitted previously – will be given “such weight (if any) as the court thinks fit”: sub-section 69ZT(2). The court may decide to give it no weight, or less weight than competing evidence, or it may require direct corroborating evidence. The older rules will also apply in a less adversarial trial or child-related case if the court decides that the “circumstances are exceptional” in accordance with sub-section 69ZT(3).

13. The court's discretion to waive the laws of evidence [6.500] Irrespective of whether a case is child-related or a LAT proceeding, the court can order that the laws of evidence will not apply – either in relation to a particular piece of evidence or even an entire proceeding – if: both parties consent; or the evidence does not relate to a matter genuinely in dispute; or the application of the rules would involve undue expense or delay. See Evidence Act section 190.

Claiming privilege [6.510] A successful claim of privilege for certain evidence means that it will be exempt from admission into court. It also exempts from disclosure in the proceedings certain information that would otherwise be required to be disclosed under the Family Law Act, either: under the general duty of disclosure; under specific requirements for disclosure (including in the pre-action period); in response to a Notice to Produce; or under the court’s usual policy of allowing both parties access to documents produced under subpoena. See chapter 5 for more about these various obligations and procedures.

Sources of privilege [6.520] There are a number of sources of privilege recognised under both the common law and the Commonwealth’s Evidence Act.

Which law applies? [6.530] Most of the privilege provisions of the Commonwealth’s Evidence Act apply only to evidence at a hearing or trial. The common law of privilege, therefore, still applies to pre-trial processes such as disclosure, discovery and subpoenas (except in relation to communications, documents or information described under the new professional confidential relationship provisions at Division 1A of Part 3.10

[6.560]

chapter 6 Evidence

of the Evidence Act. Section 131A extends the operation of the Evidence Act to pre-trial processes in relation to such material). In courts where the Evidence Act does not apply, the relevant State or Territory evidence legislation, together with the common law of privilege, apply to both pre-trial procedural and hearing processes. (The State-based legislative provisions differ significantly from those in the Commonwealth Act, and from each other, in relation to the extension of their privilege rules to pre-trial processes.) The differences between the Commonwealth’s Evidence Act and the common law are highlighted in the discussion of the law of privilege that follows. State legislation on privilege may differ from what is discussed here in important respects. If you are representing yourself in a State-level court, you should make enquiries to determine the relevant law. You may wish to start at the AustLII website (http://www.austlii.edu.au) for a look at the legislation.

Client legal privilege [6.540] The common law and the Commonwealth’s Evidence Act are now very similar in this area. In general terms, the law has two “arms”. Under the legal advice arm, confidential communications and documents need not be given in evidence or disclosed during earlier litigation processes if they are made: between a client and their lawyer; or between two lawyers of the client; and for the dominant purpose of providing legal advice. Under the litigation arm, confidential communications and documents need not be given in evidence or disclosed during earlier litigation processes if they are made: between a client and their lawyer; or between the client or the client’s lawyer and any other person; and for the dominant purpose of preparing for a legal proceeding that involves the client as a party.

Client legal privilege for self-represented litigants [6.550] Under the Evidence Act, self-represented litigants may claim privilege in respect of confidential communications, and also documents, made for the dominant purpose of preparing or conducting a legal case: section 120. There is no similar provision under the common law.

Losing client legal privilege [6.560] There are a number of circumstances in which client legal privilege can be lost, under both the Evidence Act and common law. Under the Evidence Act, it can be lost in relation to certain evidence if:

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the evidence relates to the intentions of a party who has died (sub-section 121(1)); not receiving the evidence would prevent the court from being able to enforce an order (sub-section 121(2)); the evidence affects someone’s rights (sub-section 121(3)); the party has consented to the evidence being given (sub-section 122(1)); the party has knowingly and voluntarily disclosed, or authorised the disclosure of, the information to a third party, unless the third party: – has the same lawyer or legal firm as the client; or – has a common interest relating to the legal action, in which case the privilege is preserved (sub-sections 122(2), (4), (5), 124); the evidence is a document that has been used in court as an aid to revive a witness’s memory (sub-section 122(6)); the communication or document was made to further an illegal purpose or a deliberate abuse of power (section 125); and the communication or document is necessary in evidence to understand other admissible evidence (section 126). Under the common law, loss of legal privilege occurs by waiver – action indicating that the benefit or the right to privilege has been “given up” by the client. Waiver may be express (deliberate) or implied (unintentional). To decide whether or not there has been implied waiver of legal privilege, the court will look for inconsistencies between the conduct of the client, and the ordinary expectations and protocols of confidentiality as between client and lawyer. The mere fact that a person has chosen to discuss with others advice received from their solicitor will not in itself amount to a waiver of privilege: Mann v Carnell (1999).

Journalists' privilege [6.570] New in 2011, journalists are now entitled to resist pressure to reveal the identity of a source if they have promised protection to the informant and provided the court does not consider that the public interest in disclosure outweighs factors supporting protection of the source: Evidence Act section 126H. The new provision is also countered by an express exception for family law purposes, namely that the journalists’ privilege will not be upheld if the court considers that disclosure is in the best interests of a child: Family Law Act section 69ZX.

Religious, medical and other confidential communications Evidence at a hearing or trial [6.580] Although strictly not a privilege, there is some protection available for parties who have given information in a professionally confidential relationship (such as a doctor-patient relationship): section 126A. In R v Leung (2012) the ambit of this provision was extended to include a nurse conducting a mental health assessment.

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The protection provided by section 126B is that, either on its own initiative or the application of a party, a court can direct that evidence must not be given if it would disclose a “protected confidence” – if the disclosure would likely harm a “protected confider”, and if that harm would outweigh the importance of the receiving the evidence in the case. The Evidence Act protects members of the clergy from being forced to give evidence about a religious confession made “according to the usual ritual” of the church or religion involved: section 127.

Disclosure in pre-trial processes [6.590] At common law, there is no free-standing privilege in relation to religious confessions or any other confidential communication that could be applied to pre-trial processes such as disclosure and subpoenas.

Statements made in family counselling or dispute resolution [6.610] Statements made by a person, including a child, during family counselling and family dispute resolution, are usually confidential. This means that the family counsellor or practitioner (or any professional to whom the counsellor or practitioner has referred the person) cannot disclose the information in the statements to anyone, except in certain circumstances (which include where a person’s safety would be at risk if the information was not disclosed – see sections 10D, 10H). Even where disclosures may be made, the statements disclosed may only be used as evidence in a family law case if they amount to an admission or disclosure of child abuse or risk of abuse, and there is no sufficient evidence of the abuse or risk from another source: sections 10E, 10J. Statements made to a family consultant, on the other hand, are rarely confidential. Anything said to a family consultant or a professional to whom the family consultant has referred a person will usually be admissible as evidence in a family law case: section 11C.

A privilege against self-incrimination? [6.620] A witness can now be compelled to give evidence even if it would tend to prove they had committed a criminal offence or were liable for a civil penalty, if “the interests of justice require”: Evidence Act section 128. Ordinarily, however, a witness can refuse to give self-incriminating evidence. If the witness chooses or is instructed to give the evidence, the court may issue a certificate to prevent its future use against the witness. Under common law there is no requirement to provide information (for example, in pre-trial processes) that would tend to expose the person to a civil penalty or conviction for a crime.

“Settlement negotiations” privilege [6.630] Although the words “without prejudice” are not used, section 131 is essentially a codification of the old common law “without prejudice” privilege, so far as its effect on the admissibility of evidence is concerned (see [4.630]). A document prepared, or a communication

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made, between disputing parties “in connection with an attempt to negotiate a settlement of a dispute” may not be used as evidence in a case: Evidence Act section 131. Thus, conversations and letters between the parties forming part of negotiations, including conversations and letters containing actual offers of settlement, cannot usually be put into evidence.

When evidence of negotiations can be admitted [6.640] Sub-section 131(2) lists a number of exceptions to the inadmissibility of “without prejudice” material. Evidence of negotiations can be admitted if: the parties consent to its use; the substance of the evidence has already been disclosed; the communication or document expressly states that it is not confidential; the communication or document contradicts or qualifies other evidence about efforts to settle the dispute; the principal issue of the case is either the making of an agreement, or enforcement of an agreement, to which the negotiations relate; other evidence already admitted will mislead the court unless the privileged evidence is admitted to qualify or contradict it; the court is attempting to determine liability for legal costs; and the communication or document was prepared to perpetrate a fraud, an abuse of power or an offence.

Offers of settlement [6.650] The Family Law Rules provide for the filing of a formal offer of settlement. Although the Evidence Act does not extend the settlement negotiations privilege to pre-trial processes, the Family Law Act does do so (in a limited context) in relation to formal offers of settlement. Rule 10.02 provides that a party may not mention that a “without prejudice” offer of settlement has been made at any hearing or in any document filed in the proceedings.

There is no privilege protecting spouses [6.660] In family law proceedings, spouses are not protected by any privilege against either giving evidence about or disclosing communications made between them during their marriage: section 100.

How to claim privilege [6.670] The court makes no assumptions about the existence of a privilege. If you want the protection of the law of privilege you must claim it. If you wish to claim privilege for information otherwise subject to disclosure requirements, you can explain the circumstances in writing to the other party (if there is time), or by argument before the judicial officer. You should have the information available for the court to assess, even if you hope and expect that you will not need to provide it to the other party. You have an opportunity to claim privilege about documentation provided to the court by subpoena at the call-over date (see [5.370]) set down for the return of subpoenas. You will be

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asked if you have any objection to the other party having access to the documents. Raise the privilege issue at this point if you have one. If you are not sure whether there is privileged information in the documents, you may ask the court to grant you first access. This will give you an opportunity to review the documents ahead of the other party and a timeframe in which to claim privilege if you decide to do so (your lawyer, if you have one, should manage all this for you). There is also an opportunity to claim privilege at the point where a party seeks admission of the information as evidence at a trial or hearing. Apart from issues that arise in relation to oral testimony and cross-examination, privilege issues on the main body of the evidence will be expected to be dealt with prior to the final trial. At interim hearings, however, it may be necessary to make an oral claim of privilege on the day.

Affidavits [6.680] A party’s evidence-in-chief is the evidence the party puts before the court from their own witnesses in support of their version of the relevant facts. It is the main thrust of the party’s case. It may be distinguished from evidence obtained under cross-examination, and also rebuttal evidence. In other types of proceedings, witnesses must appear personally in court to give their evidence-in-chief by oral testimony. In family law proceedings, however, witnesses generally give their evidence-in-chief – their testimony – in the form of an affidavit. An affidavit is a formal written record of the evidence-in-chief of a witness. An affidavit does not become part of a party’s evidence unless and until the party relies on it at the hearing or trial, and the court is satisfied that its contents are admissible.

Formalities When to file [6.690] An application for interim orders must be filed with an affidavit, which should normally be served on the other party at least one clear business day before the date for hearing the application. In the Family Court, unless the requirement to file an affidavit is set out in the Rules, parties must obtain the permission of the court before filing an affidavit. The time for filing will ordinarily be specified in the court’s procedural order for the affidavit. In the Federal Circuit Court, the party’s affidavit must be filed with the Initiating Application (in the Family Court, it must not).

In child-related proceedings [6.700] In child-related or other less adversarial trial proceedings in all courts, the judicial officer may give directions on the witnesses from whom affidavit evidence should be taken, and the content of the affidavits.

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Physical form [6.710] There are pre-worded affidavits for particular legislative purposes on certain forms in family law proceedings (such as the Application for Consent Orders). The Family Court publishes a pre-printed form headed “Affidavit” suitable for use in all courts hearing family law matters. Although it is not mandatory, its formatting makes it convenient to use. It is available in hard copy for completion by typewriter, but the downloadable version (from the Family Court website) is more practical for word-processing purposes. Affidavits cannot be handwritten. They can, however, be completely home made on a computer or typewriter if they meet the requirements of rules 15.08 and 24.01 of the Family Law Rules. This usually means that the first page takes the form of a cover sheet, with the body of the affidavit commencing on page 2. The formal requirements are summarised at [6.740].

Swearing and affirming [6.720] The content of an affidavit is possible evidence. Like oral testimony, it must be either sworn or affirmed. People authorised to witness (attest to) the swearing or affirming of an affidavit include solicitors and Justices of the Peace (but not Commissioners for Declarations). The affidavit should not be signed until the deponent is in the presence of the attesting person and is asked to either swear or affirm the truth, so far as the deponent is aware, of facts contained in it. Swearing or affirming an affidavit is a solemn civil procedure to be undertaken in correct form, and with serious intention. Knowingly swearing false evidence may constitute contempt of court, a criminal offence. Swearing and affirming have the same effect. A person with religious beliefs may prefer to swear to the truth in the name of God, with or without a copy of a religious text, such as the Bible or the Koran, in hand. Or a deponent may prefer to make the secular and non-denominational affirmation of truth, which is founded on the deponent’s sense of personal honour.

Annexures and exhibits [6.730] Other documents presented in evidence are ordinarily attached to an affidavit as annexures. If a document is too bulky to attach, or there are too many documents, the additional material may be filed with the affidavit in separate volumes. The cover sheet for the additional material must identify the affidavit in which the additional material is referred to. See [6.740] for important rules relating to affidavit attachments. The rules about admissibility of evidence contained in an affidavit also apply to its annexures. A document will be inadmissible as hearsay if it is annexed to an affidavit by anyone except a person who had personal knowledge of the facts contained in the document, unless one of the exceptions to the hearsay rule applies, or, if the matter is child-related, by suspension of the hearsay rule.

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A most useful exception to the hearsay rule in relation to documents is the “business records” exception (see [6.330]).

Non-compliance with the formalities [6.740] A party can usually only rely on an affidavit in a hearing or trial if it has been filed and served in accordance with the rules of court. But the court does have a discretion under Family Law Rule 1.12 to dispense with the requirement for compliance and under section 190 of the Commonwealth Evidence Act (in jurisdictions in which this Act applies) to dispense with the requirement to comply with rules of evidence in individual situations. In child-related or other less adversarial trial proceedings – indeed, in any case, and especially where a litigant is self-represented – a court might be persuaded to exercise its discretion to allow an affidavit that is technically non-compliant, provided there would be no significant detriment to the other party’s case. Check your affidavit against the formal requirements Check that your affidavit meets these formal specifications. It is printed “by machine” on one side of standard, white, A4 paper. In the top right hand corner of the first page: – – – –

the full name of the court and registry at which the affidavit is filed; the court file number; the client identification number; and the date of filing (leave this blank for the court to complete). The first page has the title “Affidavit” and the rule number under which the Affidavit is filed then: “Sworn by [full name of the deponent]”.

The first page contains: – the full name of each party to the case and of any independent children’s lawyer; – the name of the party filing the affidavit in support of their case; – the address for service for the party filing the affidavit; and – if not already provided, the full name, telephone number, facsimile number and email address (if any) of the person filing the document. Both left and right margins are no wider than 2.5 cm but are wide enough to allow for binding. The line-spacing is no greater than one-and-a-half spaces. Each page is numbered. Each paragraph is numbered. Any crossings-out or interlineations (corrections or insertions) are initialled by both the deponent and the attesting person. Any reference to a date or a number or to currency is printed in figures not words (except the month). The document is stapled or otherwise securely fastened (not with paperclips or bulldog-clips).

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Each page of the body of the affidavit (not the attachments) is signed, usually at the foot, by both the deponent and the attesting person. The jurat at the end of the document should not stand alone on the final page (needs to be present with other affidavit content), and should contain: – – – –

the signature and full name of the deponent; the date of swearing/affirming; the town/city where the affidavit is sworn/affirmed and signed; and the signature, full name and capacity of the authorised person before whom the affidavit is sworn (“the attesting person”); for example:

“Sworn/ Affirmed by ......................... on ......................... at ......................... before me ......................... ” [plus two signatures: the deponent’s and the attesting person’s]. There is a statement at the end identifying the attesting person and their qualification. Attachments – are physically attached to the affidavit (unless they are too large – see below); – are identified at the top by a letter (for example, “Annexure A”); – contain on the first page a statement by, and signature of, the attesting person identifying the document (for example, “this is Annexure A referred to in the Affidavit of [deponent] sworn on [date] before me: [space for signature] [name of person]”); – are paginated in a continuous sequence from the first page of the first attachment to the last page of the last attachment; – are each referred to in the body of the affidavit (for example, “a true copy of that valuation is attached to this affidavit as Annexure A”; – are no thicker than 2.5 cm; – contain an index at the start if there is more than one document; and – if the attachments are thicker than 2.5 cm, they are filed under a cover sheet in separate volumes no greater than 2.5 cm thick, and indexed (if there is more than one document).

See Family Law Rules 15.08, 15.09, 15.12 and 24.01, and Federal Circuit Court Rules 15.25, 15.26 and 15.28.

What to include, what not to include [6.750] Frankly speaking, it is not easy to draft an affidavit that includes all the relevant information known to you, and is at the same time 100 per cent compliant with the rules of evidence. It is important, though, to strive for that result with each affidavit, because it is essentially the strength or otherwise of the affidavit evidence that wins and loses family law cases. You can draft an affidavit in your own words, but it is usually better if your words are put into affidavit form by a person with a grasp of the law in relation to the form of affidavits and the rules of evidence.

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A reasonable approach is to make a first draft on the basic affidavit rules set out at [6.760], then go back for a more detailed assessment of each paragraph under the rules of admissibility discussed on [6.240] – [6.500], to determine whether anything must be excluded or approached in another way.

Basic affidavit drafting [6.760] The Family Court publishes a fact sheet entitled “Preparing an Affidavit”. You can download the brochure from the Family Court website or obtain a copy from a court registry. Also, keep in mind the following pointers. There should be one affidavit per party and one for each witness (in most cases, you will need the permission of the court to file affidavits for witnesses other than yourself). Keep each deponent in their own area. Corroboration of one deponent’s evidence by another (cheer squad affidavits) wastes court time and is expressly discouraged. Consider afresh the factors in the legislation that the court must consider in your type of case (see [6.40]). Only facts relevant to those legislative factors should be included in the affidavit. The affidavit contains facts only. These can include: – facts about what the deponent saw, heard, felt, smelled or tasted; – facts about the deponent’s thoughts, feelings, beliefs and plans; and – facts about circumstances in which the deponent has had direct experience. Facts do not include: – a summary of a situation (“she was always sending him to his room”); – qualifying, colourful comments (“he hurled objects around the room like a madman”); – opinions (“she was depressed”), subject to the exceptions to the opinion rule (see [6.390]); and – hearsay, subject to the exceptions to the hearsay rule (see [6.290] – [6.360]). Use the first person voice (“Then I saw …”). Use the deponent’s exact words where they are relevant and admissible. Children cannot give admissible evidence in their own affidavit without a court order. Children’s evidence may be given as an exception to the hearsay rule through an adult’s affidavit (Family Law Act sections 69ZV and 100B) or in accordance with the judge’s directions in child-related proceedings. Don’t refer to another deponent’s evidence, unless you are expressly replying to it.

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Don’t include pleas to the court, argument or reasoning. Don’t refer to offers of settlement or other efforts made to resolve the case. Tell only the truth. Stylistic hints Don’t assume the court is aware of any fact. Start the affidavit by explaining the history of the relationship between the deponent and the other party, including detailed reference to any children involved. Consider each affidavit in terms of the unique story the deponent has to tell. Unfold each topic in chronological or any other order that makes sense. Don’t simply present a pile of facts. Use subject headings between the paragraphs to guide the court in a long affidavit. Include details rather than comments to add colour, distinction and value to the evidence (“he climbed into a shiny orange Porsche”). Use action words wherever possible (“I observed …”, “I believe …”, “I said …”). Particularise – that is, break down a description into several factual pieces. If you don’t, your description may amount to an inadmissible summary or opinion (see [6.400]). So, instead of “Donald was abusive to me throughout our marriage”, say “Donald physically struck me at least once a week throughout our marriage”. Use exact words and quotation marks when reporting dialogue. Remember that dialogue is usually hearsay and must be admissible under one of the established hearsay exceptions, or through the suspension of the hearsay rule in child-related or other less adversarial trial proceedings (see [6.200]). Include short pieces of relevant dialogue. Quote dialogue. Use the phrase “or words to that effect” after your best effort at reporting the gist of the dialogue if you cannot remember the exact words when reporting admissible hearsay. Watch the length. An affidavit for an interim hearing of more than about ten pages, with one-and-a-half line spacing, risks delaying, and therefore irritating, the court. Don’t use bold type, capital letters or big fonts to emphasise particular text. It creates the impression that the reader is being shouted at, and is likely to have the opposite effect to the one you intend. Subheadings, on the other hand, are appreciated.

Contradicting affidavit evidence [6.770] Although procedure in a less adversarial trial proceeding is likely to be more relaxed, in general, you cannot contradict the evidence of another witness, including the other party, by simply claiming “it is not true” in verbal argument before the court. A fact put forward in an affidavit is likely to bear its full weight as evidence of the truth unless contradictory evidence is admitted – by another affidavit, under cross-examination or by evidence-in-reply. You should seek an opportunity to expressly, and admissibly, deny a version of a fact in issue contained in an affidavit from the other side if you disagree with it. Depending on the

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circumstances, you may be able to file an Affidavit in Reply. Check with the registry or ask a judicial officer about your options. You may need to seek leave (permission), orally, in court. In an Affidavit in Reply, make an opening statement: “I refer to the Affidavit of [other party] sworn on [date] and respond now to matters mentioned in it with which I disagree and have not previously addressed.” Then, in successive paragraphs beginning: “As to paragraph X” (referring to a paragraph from the disputed affidavit), either state “I deny the facts alleged” (or “the alleged statement”) or state your own different version of the facts (“I say …”). You do not need to address each paragraph of the original affidavit. If you don’t disagree with a paragraph, simply leave it alone.

Reports What is a family report? [6.780] The reports of a family consultant (family reports) are now a regular feature in cases concerning the care, development and welfare of children. The report may be researched and prepared by the family consultant alone, or with the help of other professionals.

The importance of a family consultant's report [6.790] The family consultant’s report is powerful evidence in a trial. The court will rely heavily on its conclusions, unless they can be shown to be clearly flawed, or insufficient. The report, then, may also be a powerful impetus for settlement. Unless there are strong grounds for challenging it, the report usually amounts to “the writing on the wall” in regard to the likely final decision of the court. Parties ignore this signal at their peril.

What is reported? [6.800] The issues to be investigated and addressed in a family consultant’s report are set out explicitly by the court when the report is ordered. Depending on the case, they may include: any aspect of parenting and parenting arrangements; the views of a child; the quality of relationships between children and significant others, including parents and new de facto partners; allegations of violence and abuse; other matters the court considers relevant; and other matters the consultant considers relevant. Parties may be ordered to attend an appointment with the consultant and to provide relevant information. The consultant is likely to want to interview the children, and other important people in the family’s life. See sections 62G and 60CD of the Family Law Act.

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See [6.820] for a sample brief to a family consultant.

Obtaining an order for a family report [6.810] A family report may be ordered on the initiative of the court, or on the application of one or all the parties (including the independent children’s lawyer), if: issues around the care, welfare and development of a child are relevant in a case (section 62G); or the court is not satisfied about arrangements for children in an application for divorce (sub-section 55A(2)). In a child-related proceeding, a family consultant’s report will not usually be ordered until the conclusion of the dispute resolution phase of the court’s case management process. A formal request for a report may be made orally during the hearing of the case (in the Family Court at least), or by letter. It may be a good strategy to write to the deputy registrar (with a copy to the other party) before the first hearing day in a child-related proceeding, stating your intention to apply orally, on the day, for a family consultant’s report, and setting out your reasons for requesting the report and the issues you wish to see addressed. It may thus be possible to obtain an order for the family report on the first day of the hearing. Be ready to hand up a list (agreed with the other party, if possible) of the matters you would like to be addressed in the report. The Family Court publishes a brochure entitled “Family Consultants” describing the role of family consultants, including in relation to the preparation of the family report. You can download the brochure from the Family Court website or obtain a copy from a court registry.

Applying for an Order for a Family Report [6.820] In most cases a family report prepared by a family consultant will be ordered on the initiative of the court itself after it becomes apparent the case cannot be resolved in family dispute resolution. A party may, however, apply for an order for a family report if this has not occurred, or alternatively for further investigation on specific issues, by the family consultant. Apply for orders for a family consultant’s report on an “Application in a Case” in the Family Court, or an “Application” in the Federal Circuit Court. The order applied for may be in the following terms: To assist the parties towards agreement about matters in issue between them in relation to the children, the parties will attend upon [name or identification of consultant to be appointed] (“the family consultant”) as required by the family consultant for the preparation of a family report subject to these orders as set out herewith. Then file and serve the Application in a Case or Application with a prepared Terms of Reference. You can use the material set out below as a basis for the Terms of Reference or draft your own, as the circumstances require. Alternatively you can apply orally at court on the first day of the hearing. Ask the court to make an order for a family consultant’s report or for an update to the report or other specific investigation. Explain your reasons. Hand up the prepared draft Terms of Reference (preferably negotiated; at least show the other party beforehand).

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FAMILY LAW ACT 1975 IN THE FAMILY COURT OF AUSTRALIA [or FEDERAL MAGISTRATES COURT/LOCAL/ MAGISTRATES COURT] AT [court location] File No. ...................................... of 20 .......... [APPLICANT’S NAME] AND [RESPONDENT’S NAME]

FAMILY CONSULTANT'S REPORT TERMS OF REFERENCE 1

That a family consultant’s report be prepared in this matter.

2

That the family consultant interview, observe and assess the parties and the children [names and dates of birth of children] (“the children”) for the purpose of preparing a report on matters relating to the welfare of the children.

3

The parties will do all things necessary to facilitate the preparation of the report including attending upon the family consultant as requested.

4

That the family consultant prepare a report to consider the following issues: [Consider carefully which of the following terms to include. You are likely to need to include more than you exclude]: (a)

the emotional attachment of each of the children with each of the father and the mother;

(b)

the likely effect on the children of the continuation of their existing living arrangements, and of other arrangements for them to spend time and communicate with each of their parents, including the likely effect of the continuation of those arrangements on each child’s relationship with each parent;

(c)

the likely effect on the children of each parent’s proposals for living arrangements for the children, and of other arrangements for them to spend time and communicate with each of their parents, including the likely effect of the continuation of those arrangements on each child’s relationship with each parent;

(d)

the capacity of each of the mother and the father to provide for the needs of the children;

(e)

the likely effect of separation of each child from each of the mother, the father and each other child;

(f)

whether, in the opinion of the family consultant, a child is at risk of being subjected or exposed to abuse, neglect or family violence in either household;

(g)

any factor which the family consultant considers relevant to the court’s determination of whether child abuse or family violence has occurred;

(h)

the impact or potential impact on a child of being subjected or exposed to abuse, neglect or family violence in either household;

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(i)

the effect or potential effect on each child of any hostility of either party towards the other including the effect or potential effect of the use by either party in the presence of the children of denigrating language relating to the other party;

(j)

any views expressed by a child in relation to where and with whom they live or might live, or as to when and how the child spends time or communicates with each parent, and any factors which the family consultant considers are relevant to the weight that ought to be given to those views. In this regard the family consultant should note that, whilst the family consultant may question the children regarding these issues, no child may be required during the course of the examination to express their views about any matter;

(k)

the family consultant is at liberty to contact any of the following for further information about the children for the purpose of this assessment: [list the people concerned] any other person the family consultant considers may have information relevant to the welfare of a child;

(l)

any other matter which the family consultant considers to be relevant to the welfare of any of the children.

5

That the family consultant may include as part of his or her assessment of the purpose of the preparation of the report in this matter, a visit to the respective homes of each of the mother and the father to observe the interaction between each of the children and each parent at their respective homes;

6

If any child expresses a relevant wish for the purpose of paragraph 4 (j) above, then the family consultant is requested to include in their assessment of the weight to be given to those wishes the following factors: (a)

the strength and duration of the views;

(b)

their basis;

(c)

the maturity of the child;

(d)

the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications;

(e)

how the child would feel if the court did not reach a conclusion which accorded with the child’s views;

(f)

any other factors that the family consultant considers relevant.

Expert reports [6.830] An expert report may cover issues similar to those covered in a family consultant’s report, but not being restricted to proceedings involving parenting issues, it may also cover much more, or different, subject matter. The assistance of an expert witness is rarely obtained without considerable cost – the expert must be paid for professional time in preparing the report, attending at conferences, and appearing at court. Recent reforms have sought to reduce the number of expert reports in the Family Court, particularly the situation where each party comes to court with armfuls of expert reports that contradict one another.

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Who is an expert? [6.840] An “expert” is defined as an independent person with relevant specialised knowledge based on training, study or experience: Family Law Rule 15.43. An expert is not a family consultant, or a teacher, doctor or other service provider who is providing or has provided treatment to a party or relevant child: rule 15.41. A judge must rely on opinion from experts in the field, not on his or her own research. In Jackson v Macek (2015) the trial judge’s decision was overturned on appeal after it was established he had relied on his own internet research at the sites of Hepatitis Australia and the Australian Breastfeeding Association in holding that there was a risk of transmission of HIV to a baby from a breastfeeding mother after she had obtained a tattoo.

Disclosure of reports [6.850] An expert report obtained during the pre-application period may come under the general duty to make a full and frank disclosure of all relevant information, unless privilege applies: Family Law Rules Schedule 1. In any case, rule 15.55 requires a report obtained by one party to be given to the other (again, subject to privilege) within two days of an imminent case assessment conference or within seven days of the receipt of the report at other stages of proceedings, unless the report relates to a valuation or market appraisal: rule 15.53.

Restrictions on the use of expert evidence In child-related proceedings [6.860] The 2006 amendments to the Act gave the court broad new powers to restrict the nature and number of expert reports admitted into evidence in child-related proceedings. The court can decide who can give evidence, the matters about which an expert witness can give evidence, the number of expert witnesses (if any), and how their evidence will be given: section 69ZX.

In other proceedings [6.870] Theoretically at least (but subject to disclosure requirements and the availability of a bottomless wallet), any number of expert reports might be prepared for a party in, say, a property case. On the other hand, they cannot be used in evidence in the Family Court if the rules set out in Divisions 15.5.2 and 15.5.3 of the Family Law Rules are not followed, or the reports obtained are not disclosed to the other party. Family Law Rule 15.52 requires that the permission of the court be sought for tendering of the evidence of an expert witness. There is no similar requirement in the Federal Circuit Court Rules.

The single expert witness [6.880] The Family Law Rules require the parties to try to agree to jointly appoint and brief a single expert witness to give an opinion on an issue. An order of the court is required for the appointment of a single expert witness but a report from that witness then is admissible without any further order required: Family Law Rule 15.45. Similarly, the Federal Circuit Court provides for the appointment of a “court expert”: Federal Circuit Court Rule 15.09.

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[6.890]

Orders for both a single expert witness and other expert witnesses will not be made unless it can be demonstrated that expert evidence on a particular issue in dispute is necessary.

“Clarifying” a single expert witness report [6.890] Family Law Rules Division 15.5.6 (rules 15.64A to 15.67A) describes procedures for clarifying the content of a single expert’s report. This may be done either in a conference between the expert and the parties or by questions put by a party to the expert in writing (who is bound to respond). The procedure may be useful – in fact, possibly essential – if a party wants to challenge material raised in a single expert’s report. For example, in Bass & Bass (2008), the father’s application for a single expert witness to be discharged (because of an alleged bias against him) was dismissed because the father had not engaged in the procedure at Division 15.5.6 nor sought to cross-examine the expert at trial.

Witnesses [6.900] In choosing your witnesses, you need to carefully consider the relevant legislative factors, and the facts in dispute grouped under those factors (see [6.30]). Your evidence must include proof for all the links – the factual, rather than the argumentative, links – in the chain of reasoning that establishes your version of the facts as the truth of the matter. Though some evidence of facts that are not in dispute may be necessary to paint the whole picture for the court, the focus for the material contained in each affidavit, and the strategy for selection of witnesses, should focus on proving your version of the facts that are in dispute. In a child-related or less adversarial trial proceeding, the judge may decide what witnesses you may call and the issues about which they will be permitted to give evidence.

In a parenting case [6.910] In parenting applications, the court will expect to hear from any new partners to the parties, and any other adult forming part of the proposed households incorporating the children. It may be useful to try to obtain an affidavit from each adult with whom a child regularly has contact. You may not be permitted or need to use them all, but you will at least have some options. The parents themselves will be important witnesses. Children are not permitted to give evidence without a special order of the court, though their views may be reported in the affidavits of adult witnesses such as parents, teachers, neighbours, doctors or counsellors (section 69ZV), or in an expert or family report.

In a property matter [6.920] Strictly speaking, in a property case, evidence should be provided of the value of each asset in the asset pool, even if the values are agreed between the parties. In practice this often does not happen. It will be vital, however, to lead evidence of value if value is disputed (see chapter 8 for a discussion of property matters).

[6.940]

chapter 6 Evidence

Ideally, the court would like to see evidence of all the monies spent or received in a marriage or de facto relationship. This is not likely to be available. It is best instead to address all the matters in general terms in affidavits while focusing, in terms of witnesses and attachments, on the issues in dispute.

Desirable and undesirable testimony [6.930] Don’t serve up squads of witnesses who have nothing new to add to the story you yourself are telling, just for the sake of appearing to have a big team or a great quantity of evidence. On the other hand, you may want to make an effort to find a unique angle from a witness who you know will impress the court with their position, integrity or apparent truthfulness. All witnesses should be deposing to matters peculiarly within their knowledge in their affidavits (rather than merely corroborating, for example, that Joe Blow is a good bloke). Each person has a unique perspective. Careful interviewing and affidavit drafting will reveal this individual perspective, and significantly increase the weight and value of the evidence in the estimation of the court. Find the witness who has the best evidence on a fact in dispute due to their closeness to the situation that is disputed, or their expertise.

Be careful who you leave out! The rule in Jones v Dunkel [6.940] Consider a fact in dispute in a parenting case – the quality of the relationship between a mother’s 12-year-old daughter and her de facto partner. The father alleges that the new de facto resents the presence of the daughter in the house and shouts at her frequently. The mother says that the de facto cares for the child and that they get along just fine. The mother needs to lead evidence of the good relationship to prove her version of the fact in dispute. She can do this through any number of witnesses, including in her own evidence. But it is the de facto and the child who have the best evidence to give on this particular issue. Although both the mother and the father could make hearsay representations of the child’s views (under section 69ZV), these accounts are likely to be contradictory. The court would expect to see evidence from the de facto. The mother might fail to tender an affidavit from the de facto for any number of reasons, including that: she ran out of time to prepare and file one; the de facto was overseas; she didn’t think it was necessary; or the de facto couldn’t honestly swear an affidavit that would support her version of the facts. The common law rule first established in Jones v Dunkel says that the court is entitled to assume the truth of this last, worst-case, scenario if evidence from a witness is not tendered, when the witness would ordinarily be expected to give

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[6.950]

evidence on a particular fact in dispute. That is, the court is entitled to assume that the witness has nothing to say that would support the party’s version of the fact, and that in fact his evidence, if given, may support the contention of the other party.

If an obvious witness cannot give evidence [6.950] The rule in Jones v Dunkel (see [6.940]) makes it necessary, if the best evidence from the most “obvious” witness cannot be provided, to tender additional evidence by affidavit as to why this is the case. Provide evidence from someone who had personal knowledge of the witness’s overseas trip, sickness or whatever. Alternatively, try negotiating with the other party for an undertaking that they will not raise the matter in court.

Reluctant witnesses [6.960] Lots of people are reluctant to become involved in family law cases. Teachers and health services providers often refuse, at first, preferring to maintain confidentiality and keep the trust of people they are asked to give evidence about. Some have fears for their own safety, while some simply wish to avoid involvement in other people’s court dramas. You need to be sensitive to these possibilities when asking people to act as witnesses.

Must they appear in court? [6.970] Making an affidavit exposes a witness to the possibility of being required to appear in court to face cross-examination, possibly in person, by the other party. If a potential witness asks “Will I have to go to court?” a reasonable answer would be: “Only if the other party wants to cross-examine you on your affidavit and you will have at least a fortnight’s notice if this is the case.” Federal Circuit Court Rule 15.29A now provides that this court may dispense with the attendance for cross-examination of a person making an affidavit or direct that an affidavit be used without the person making the affidavit being cross-examined. In child-related or less adversarial proceedings, the Family Court may refuse to allow cross-examination of a particular witness: Family Law Rule 16.04.

Using a subpoena [6.980] If a reluctant but otherwise available witness has the best evidence of a fact in dispute (due to closeness to the action, relationship or particular expertise), take care not to fall foul of the rule in Jones v Dunkel (see [6.940]) by failing to lead evidence from that witness. An important witness refusing to give an affidavit may be compelled to give oral testimony in court by a subpoena to give evidence: Family Law Rule 15.17. See chapter 5 “Court process” for more about subpoenas.

[6.1020]

chapter 6 Evidence

Other ways of tendering material from a reluctant witness [6.990] If the evidence of a reluctant potential witness is not crucial, but still has value, and you don’t want to subpoena them, it may be possible to tender a letter or other document written by them – perhaps even a statutory declaration – through your affidavit or that of another witness, under one of the exceptions to the hearsay rule (see [6.290] – [6.360]), or by suspension of that rule if the matter is a child-related or other less adversarial trial proceeding.

Evidence from cross-examination and re-examination Cross-examination on the facts [6.1000] Although a party usually has an opportunity to tender contradictory evidence on a fact in dispute by affidavit, the most effective way to challenge it may be by cross-examining the witness on their affidavit at the hearing or trial. Admissible evidence obtained from a witness under cross-examination has just as much weight as affidavit evidence. It is important to remember that, in child-related and other less adversarial trial (LAT) proceedings, the judge decides in what order evidence will be heard, and from whom, and whether cross-examination will be allowed. To be consistent with the LAT principles of child-related proceedings set out at section 69ZN of the Act, the judge may decide not to allow cross-examination: see Family Law Rule 16.04 and Federal Circuit Court Rule 15.29A.

Re-examination on the facts [6.1010] Evidence obtained under cross-examination is often selectively extracted for the benefit of the cross-examining party. It may mean the court hears an incomplete or misleading version of the story, or that the court is led in a direction unfavourable to the party who called the witness in the first place. So after cross-examination is completed, the party who originally called the witness usually has an opportunity to re-examine the witness on the issues raised in the cross-examination. They may then seek to rectify the incomplete or misleading version of events created under the cross-examination.

Cross-examination and re-examination on credibility [6.1020] Another possible area for cross-examination and re-examination is a witness’s capacity to reflect the truth of a matter in their evidence. See “How to attack credibility” at [9.980] for a discussion of this approach.

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7 Parenting [7.20]

A child-centred approach to the separation journey......................................... 242

[7.80]

The parenting principles .................................................................................. 245

[7.120]

The philosophy of shared parenting................................................................. 246

[7.260]

The best interests of the child .......................................................................... 251

[7.650]

Summary of parenting order law ..................................................................... 264

[7.660]

Post-separation parenting arrangements .......................................................... 265

[7.920]

Parenting plans ................................................................................................ 275

[7.1000]

Parenting orders .............................................................................................. 277

[7.1480]

Evidence in parenting cases.............................................................................. 290

[7.1600]

Relocation ....................................................................................................... 295

[7.1680]

Travel with a child........................................................................................... 300

[7.1730]

Abduction of a child ........................................................................................ 301

[7.1860]

Step-parents, functional parents and non-traditional families .......................... 305

[7.2010]

Contravention of parenting orders................................................................... 310

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[7.10]

[7.10] The Family Law Act is intended to encourage and facilitate shared, cooperative parenting, and meaningful relationships between children and both parents, even though the parents live apart. This chapter looks at how these values are set out in the law and what they mean for applicants to the court. It then examines, in detail, some of the frequently asked questions and concerns about practical issues in post-separation parenting and how they might be addressed. We discuss parenting plans and parenting orders, and consider some special parenting issues – the problem of relocation, travel, step-parenthood and “functional parenting”. The sample orders at the end of the chapter may be used in an application for consent orders, as well as in a disputed application to the court. Most of them are also suitable for inclusion in private agreements.

A child-centred approach to the separation journey Children's response to relationship breakdown [7.20] Parents are the main players in the drama at the end of a relationship. But children are often central to post-separation disputes, and they’re often fully aware of this. While trying to keep out of the way or adopting a business-as-usual approach, they may be desperate to hear and to understand, and, maybe also, to be heard. They may want to ask questions. They may wish they could say what they think but find this difficult. If young, they may simply wonder why things are changing and why everyone is unhappy. They may feel some of their parents’ hurt. They may feel alone, unsafe, and fearful of the future. Studies consistently show that it is not divorce or separation that has the greatest negative impact on a child, but a high level of conflict between the child’s parents. Children exposed over a long period to parental conflict perform worse at school, are less likely to form secure relationships in adulthood, have lower self-esteem, and suffer a significantly higher rate of both physical and mental disorders throughout their lives. In severe cases, cognitive development – learning to walk, talk, read – may be delayed. Children may feel particularly distressed and unsafe when they realise that the separation of the family is possible or imminent, if there is violence or abuse, or if they know that their parents are fighting about them. Children often feel responsible. They worry about what now seem to be conflicting loyalties to each parent. They grieve at the prospect of losing a person they love, a person who has always been there for them. The good news is that most families survive the difficult time of separation without long-term damage to children. It is true that children are adaptable – generally more so than adults. If children are relieved of stress, fear and the presence of conflict at an early stage, if they realise they will be able to continue relationships that are important to them, and if their parents are able to maintain a cooperative parenting relationship after separation, it is likely that they will be able to make an early return to emotional equilibrium.

[7.50]

chapter 7 Parenting

Sources of information [7.30] There is some good literature available to help parents help their children weather the separation process. This includes the booklet “Because it’s for the kids – Building a secure parenting base after separation”. It can be downloaded from http:// www.familyrelationships.gov.au/BrochuresandPublications/Pages/CIF_brochure_2007.aspx, along with the other useful publications “Children and Separation: A Guide for Parents” and “Questions and Answers about Separation: For children”. Printed copies of all booklets may be available at your local Family Court registry but, in any case, may be ordered by calling 1800 050 009.

Helping children cope [7.40] A child will probably indicate, either in words, or by changed or unusual behaviour, if they are suffering in the course of a family conflict. If this occurs, parents should if possible discuss their concerns with each other and react, at the very least, by being more available for, and attentive to, the child – even though they may be under great pressure themselves. If the emotional impact appears serious, they may decide to consult a family therapist or other professional. Parents of children who are clearly having problems also need to take an urgent look at whether existing or proposed arrangements are truly in their children’s best interests, and at how they can restore a supportive environment, free of parental conflict, as quickly as possible.

The child-centred approach [7.50] Most children, even very young ones, will have views about the conflict, and, probably also about the arrangements that should prevail after separation. If a parent resolutely enforces their own views about parenting arrangements over a child’s keenly felt urges and genuine needs, the long-term result may be a loss of connection between the parent and child as soon as the child gains independence. Sometimes, such a breach will be permanent. It is parents, not children, who must decide what is in their child’s best interests. But child-centred parents take the views of their children into account. They don’t ask the children to decide what to do. Children don’t have the emotional or cognitive capacity to deal with this responsibility. But neither do child-centred parents discount the long-term value of, or seek to damage, the child’s relationship with the other parent. They are careful to keep their own needs in the background when considering the best possible parenting arrangements. They are willing to try to change employment conditions, and to re-arrange their own sporting and other leisure activities. They are honest with themselves about the quality of their current relationship with their children, whatever their intentions for the future might be.

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[7.60]

Shielding your child from conflict [7.60] Parents committed to minimising the negative effects of their own conflict on their children: use family dispute resolution to resolve conflict as early as possible; do not take positions on issues about the children that are designed to punish each other; do not lean on or rely on children for emotional support (or company); work together to prevent children being exposed to arguing and abuse; seek to protect children from physical or psychological examination for reasons connected with the court, unless these are absolutely necessary and in the child’s best interests; do not force children to express their wishes, or choose between their parents; do not abuse, criticise or blame each other in the presence of the children; do not leave children to negotiate arrangements for time to be spent with each parent, or to decide whether they feel like going from one occasion to the next; commit to finding an effective way of communicating and making decisions about the children’s needs during and after separation; do not send messages through the children; actively prepare for the phased introduction of a new partner (and are sensitive to their child’s likely strong feelings about the matter); honestly value the best interests of the child (possibly as opposed to their own) as the primary criterion for decision-making about parenting arrangements; and may agree that child-centred dispute resolution principles will form part of the ground rules for their dispute resolution process – even if the dispute is about parenting arrangements.

Talking to children [7.70] Child-centred parents make sure that children understand what is going on, and why, explaining and discussing the changes. They make time and energy available to help their children express their thoughts, feelings and opinions if they wish. Sometimes children do not want to speak, and this is respected (although not interpreted as the child having no views). Sometimes children feel more comfortable expressing themselves to a non-parent – perhaps a friend, relative or school counsellor. Some counselling and mediation organisations employ trained child consultants who will not only support the child by listening, but also provide input into the dispute resolution process on the child’s behalf. Parents should ensure that whoever speaks with a child about such sensitive and important matters is on the child’s side, a person who is there to listen rather than tell, to understand, and, hopefully, respectfully translate to the parents how the child is travelling in the new circumstances of the family.

[7.100]

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The parenting principles Parenting values in the law [7.80] Australian family law seeks to ensure that children receive adequate and proper parenting (which includes a focus on parental responsibilities) in the light of principles set out at sub-section 60B(2). These principles are that: (a)

children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)

children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)

parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)

parents should agree about their future parenting; and

(e)

children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The effect of the parenting principles [7.90] The parenting principles have considerable influence on how a court will view a parent’s behaviour. The court will look to see that a parent has tried to uphold the principles, regardless of whether: there is heated dispute between the parents; achieving some of the principles may be difficult in practical terms; or there are issues of wrongdoing between the parents (such as infidelity).

The objects of the Family Law Act [7.100] The objects (aims) of the Family Law Act explain and provide a framework for the court’s efforts in determining a child’s best interests. These objects, set out at sub-section 60B(1), are: to ensure that children “have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”; to protect children “from being subjected to, or exposed to, abuse, neglect or family violence”; to ensure children receive “adequate and proper parenting to help them achieve their full potential”; to ensure that parents fulfil their parental duties and responsibilities; and to give effect to the United Nations Convention on the Rights of the Child.

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These objects have no determinative power in themselves, but they are important guiding principles for both the parties and the courts. There has been recent confirmation in the court system that the objects and principles have an important role to play in the determination of parenting orders by providing the “context in which [the ‘best interests’ factors] are to be examined, weighed and applied in the individual case”: Goode v Goode (2006).

Parents' rights [7.110] There are no explicit rights for parents or any other relatives in the Family Law Act.

The philosophy of shared parenting Parental responsibility [7.120] There is little difference between the concept of “parental responsibility” and the older notion of “guardianship”, a feature of pre-1996 Australian family law. Biological parents have parental responsibility from a child’s birth, whether or not they marry, live together, separate or divorce, unless a court orders otherwise: Family Law Act section 61C. Other types of parents possessing parental responsibility include adoptive parents, people presumed to be parents under the “parentage presumptions” (see [7.1870]), and those deemed to be parents by the operation of the provisions for artificial conception and surrogacy (see [7.1880] and [7.1890]). But parental responsibility can also be gained by an order of the Family Court under a special provision for “functional parents”: section 65G. See [7.1860] – [7.1960] for more about this. Section 61B gives a person with parental responsibility the “duties, powers, responsibilities and authority” to make decisions about the care, welfare and development of a child. The full scope of parental responsibility covers both important and mundane issues, from deciding on medical treatment to signing permission notes for school excursions. It does not confer rights on the parents; and, specifically, it does not give a parent a right to spend time with the child. Parental responsibility may be exercised jointly and independently: Goode v Goode (2006). There is no requirement, however, for sharing, joint action or joint decision-making (although the parenting principles set out at sub-section 60B(2) do encourage a cooperative parenting approach).

The importance of using up-to-date terminology [7.130] Legislative reforms in 1996 removed the words “custody”, “access” and “guardianship” from family law because it was felt that these words encouraged parents to consider their children as assets to be held and controlled, even owned. There was a perceived need to shift the emphasis from parents’ rights to children’s rights, and to encourage shared parenting. The terms “parental responsibility”, “residence” (who the child lives with) and “contact” (time spent with the parent who did not have a residence order) were used between 1996 and 2006.

[7.150]

chapter 7 Parenting

A bipartisan Senate enquiry in 2004 found, however, that the changed terminology had not achieved the desired attitudinal change, while additional, negative connotations had developed around the new terms “residence” and “contact”. These connotations included the idea that the “residence parent” was the main or primary parent, with the “contact parent” being secondary in importance or value to the child. In July 2006, the Family Law (Shared Parental Responsibility) Act 2006, which amends the Family Law Act, commenced its phased implementation program. The term “contact” was replaced with the more straightforward concepts of “time spent” and “communication” with each parent (according to either a parenting plan or a court order). The term “residence” was replaced by simpler language describing the person or persons a child lives with. The 2006 amendments also further refined and gave much greater prominence to the concept of “parental responsibility”. Parties engaged in a family law dispute, particularly one that has reached the court, are acting in their own and their children’s best interests if they make an effort to use the currently recognised terminology. Use of the old language can suggest disregard for, or wilful ignorance of, the current state of the law.

Equal, shared parental responsibility Distinguish between the presumption, and the order, for “equal shared parental responsibility” (e-s-p-r) [7.140] The 2006 amendments to the Family Law Act provided that when the court is considering making a parenting order, it must, except in specific circumstances, apply a presumption that it is in the child’s best interests for the parents to have “equal, shared parental responsibility” (e-s-p-r): section 61DA. In specific circumstances, the presumption does not apply. In other circumstances, the presumption can be rebutted. For details, see [7.160] and [7.170]. Further down the track, but not necessarily, the court may decide to make an order for e-s-p-r, which can seriously influence subsequent orders about how much time a child will spend with each parent. It is very important to distinguish between the operation of the presumption of e-s-p-r and the effect of an order for e-s-p-r, as they each involve quite different and separate sequences of legal consequences (though the second is likely to flow from the first).

When the presumption of e-s-p-r applies [7.150] The presumption of e-s-p-r applies in any child-related application to the court unless there are reasonable grounds to believe that a parent, or a person living with a parent, has engaged in child abuse or family violence: sub-section 61DA(2). The presumption applies only when the court is considering making parenting orders.

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When the presumption of e-s-p-r does not apply [7.160] The presumption of e-s-p-r does not apply if there are reasonable grounds to believe that one of the parents, or a person who lives with them, has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family: sub-section 61DA(2). The presumption does not apply to parents when they are making a parenting plan or other private arrangements. It has effect only on the order-making considerations required of the court. Parents who do not wish to become involved in the downstream effects of the operation of the presumption (which include the possible making of an order for e-s-p-r) may make a parenting plan or other private arrangement, and order their arrangements for parental responsibility in their own way.

Rebutting the presumption of e-s-p-r [7.170] Even if the presumption applies, it may be “rebutted” by evidence that it would not be in a child’s best interests for the parents to have e-s-p-r for a child: sub-section 61DA(4). See H and H (2007) for an example of the rebuttal of the presumption. But to justify the rebuttal there must be “explicit and cogent reasons” that the application of the presumption is not in child’s best interests: Dundas & Blake (2013). See [7.260] – [7.640] in relation to the court’s assessment of the child’s best interests.

Does an active presumption of e-s-p-r mean an order for equal shared parental responsibility will be made? [7.180] When the presumption of equal shared parental responsibility applies, and is not rebutted by evidence that it is not in a child’s best interests, it is likely, but not required, that the court will then make an order for e-s-p-r: Lansa & Clovelly (2010). But a court might decide, for example, not to make such an order if the sharing of parental responsibility is not a disputed issue between the parties, or a concern of the court arising out of its best interests considerations.

Two types of effect of an order for e-s-p-r [7.190] If the court does decide to make an order for e-s-p-r (as it most likely will, if the presumption applies and is not rebutted), there are two subsequent areas of effect. The first relates to a change to the obligations of the parents, and the second to a process of required considerations by the court, about equal or “substantial and significant” time – a process ignited only by the making of an order for e-s-p-r.

Effect of an order for e-s-p-r on parents: “major, long-term issues” [7.200] An order for e-s-p-r has the effect of imposing a specific character of parental responsibility on the parents, or other people who share parental responsibility, under the order. The court in the important case of Goode v Goode (2006) examined what, if any, difference there was between the innate “parental responsibility” which exists as a result of section 61C and the “equal, shared” version. The court decided that, in contrast to the innate section 61C parental responsibility, e-s-p-r:

[7.210]

chapter 7 Parenting

can only come into existence by direct court order relates only to the major decisions concerning the long-term care and welfare of children, and must be exercised jointly unless the court otherwise orders. Under section 65DAC, shared, parental responsibility under a court order requires that parents must consult with each other and make a genuine effort to come to joint decisions about major long-term issues in relation to the child. Major long-term issues are defined in sub-section 4(1) to include issues about the child’s education, religion, cultural upbringing, health, name, and any changes to the living environment that make it significantly more difficult for the child to spend time with a parent (for example, a proposal by one parent to relocate). The requirement that parents apply genuine effort in coming to joint decisions does not require a court to give equal weight to the views of the parties – even when deciding a “major, long-term issue”. The best interests of the child will be the paramount consideration for the court, as it is when considering parenting orders on any issue. Thus, for example, the effect of the choice of school on a residential parent’s capacity to parent effectively (taking into account the convenience or inconvenience of the school alternatives proposed, for that parent) may be a relevant consideration for the court: Re G: Children’s Schooling (2000). Similarly, where parents disagree on (what some regard as a major, long-term issue) the surname of a child post-separation, the courts have repeatedly affirmed the best interests of the child as the paramount consideration. This may involve consideration of such matters as: the short- and long-term effects of a change of name; the child’s embarrassment or identity confusion; the effect of change of name on parenting capacity; and the degree of existing or desired identification with the father, the mother or a new sibling Chapman and Palmer (1978) and Beach and Stemmler (1979). Failure by parents to consult or attempt to reach a joint decision on a major, long-term issue may be a breach of an order for shared, parental responsibility and may lead to contravention proceedings. On the other hand, if genuine effort to consult and reach a decision jointly does not work, a parent can apply to the court to either decide the question itself (such as which school the child will attend) or to allocate responsibility for that issue to one parent. The law in relation to shared parental responsibility does not require parents to consult on, or jointly decide, issues relating to any aspect of the care of the children except those defined as major long-term issues, or decisions that a court orders to be shared.

Effect on the court of an order for e-s-p-r: not an order for equal time! [7.210] The second area of effect of an active and not-rebutted presumption of e-s-p-r is the very significant impact it has on the court’s decision-making process concerning the amount of the child’s time to be spent with each parent. If the presumption of e-s-p-r applies and is not rebutted, and an order for e-s-p-r is in force or is to be made, the court must consider making an order that the child spend equal time with both parents – though subject to an assessment of the child’s best interests, and a reasonable practicality test: sub-section 65DAA(1).

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[7.220]

The High Court, in the recent case of MRR & GR (2010), has confirmed that a positive finding on both the best interests test and on “reasonable practicality” test is required before an order for equal time can be considered. An active, non-rebutted presumption of e-s-p-r does not itself mean – or pre-suppose that it will, or is likely to, be found – that it is in a child’s interests to spend equal time with each parent.

Or an order for “substantial and significant time”? [7.220] If, after consideration, the court decides that an equal time arrangement is either not reasonably practical, or not in the best interests of the child, it must then further deliberately consider whether it should instead make an order that the child spend “substantial and significant time” with each parent – again based on an assessment of the child’s best interests and what would be “reasonably practicable”. “Substantial and significant time” is defined at sub-section 65DAA(3) to include days falling on weekends, weekdays and holidays, time that would enable each parent to share in the child’s daily routine, and occasions and events that are special to both child and parent. See Dylan & Dylan (2007) where the provision was interpreted to support a father’s application for additional time contrary to the expressed wishes of the 15-year-old daughter, and the views of the independent children’s lawyer and two court experts.

What is “reasonably practicable”? [7.230] If the court is contemplating orders that the child spend either equal, or substantial and significant, time with each parent (section 65DAA), it must consider both the best interests of the child and whether that type of arrangement would be “reasonable and practicable” in the circumstances. The section says that the court must consider, at least: how far apart the parents live; the parents’ capacity to implement the arrangements being considered; the parents’ capacity to communicate with each other and resolve difficulties; and the effect of the proposed arrangement on the child. The courts will be concerned, for example, about the practicality of an equal time arrangement where there is a history of dispute about parenting issues and poor communication between the parents. Parties seeking to persuade the court to make orders of this type need to prepare convincing proposals for cooperative, communicative parenting and stable, sensible care arrangements for the child. It is likely that a parent’s willingness to care for a child for equal time, or substantial and significant time, would be considered under the “capacity to implement” head (see [7.700]). The presumption of e-s-p-r will not operate so as to foist significant periods of care on parents who are unwilling or unable to manage it.

[7.260]

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“Parental responsibility” under older orders [7.240] Orders made before the commencement of the 2006 amendments are not magically converted to the new scheme. They remain governed by the law as it was at the time the orders were made. Many current sets of parenting orders – including consent orders – made before the commencement of the amendments include a provision for joint parental responsibility. This was the prevailing concept before the arrival of e-s-p-r. If parents are bound by an order for joint parental responsibility in relation to the long-term care, welfare and development of a child, they are required to discuss and jointly decide on the big issues in the child’s life. These decisions are not defined in the legislation, but in practice they correlate closely with the “major long-term issues” under the new law. (See B and B: Family Law Reform Act 1995 (1997).) Parents with orders under the old law may also have specific issues orders allocating responsibility for a particular area or decision (for example, the “day-to-day care, welfare and development of the child”) to a particular person or even to the parties jointly (for example, in relation to any tattoos proposed to be placed on the child’s body). The new meaning of shared, parental responsibility does not apply to parents who have these older forms of parenting order.

“Equal, shared parental responsibility” is not equal, shared care [7.250] The presumption of e-s-p-r is not a presumption of equal, shared care. Similarly, an order for e-s-p-r is not an order for equal time. The principal test (“the paramount consideration”) in the making of any parenting order, including an order about the amount of time a child is to spend with each parent, remains the “best interests of the child”, as it has been since the early years of Australian family law. The presumption of e-s-p-r does not form any part of the assessment of the best interests of the child.

The best interests of the child [7.260] The court does not know the child. It does not know the parents. The judge may come to a limited understanding of the family situation from observing the parties briefly in the courtroom, but does not have the time or capacity to devise a set of appropriate arrangements purely on instinct. So the law gives the court an objective guide in deciding what might be the best post-separation parenting arrangements. The law says that, in deciding on a parenting order, the paramount (top, main, principal) consideration for the court is the “best interests of the child”: sub-section 60CA.

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This means that the court will seek, above all other considerations, to make the order that is best for the child – regardless of what either parent might need, or claim as “fair”. Parental needs are not completely irrelevant to the court, but they are likely to be sacrificed if they conflict with the child’s best interests.

“Best interests”: a simple idea? [7.270] Many Australians are aware of the best interests principle and its role as the “paramount consideration” for deciding parenting orders. People believe they know and can tell the court what is in the best interests of their child, and why. But unless they at least try to do this by specific reference to the legal, rather than the popular idea of the child’s best interests, they may not be able to make out a case. The best interests of your child as assessed under the Family Law Act may not necessarily be the same as your own idea of the real-life best interests of your child. If you and your former partner wish to ensure a result that suits your family specifically, you should focus your efforts on reaching agreement privately or in family dispute resolution.

How the best interests principle affects parents [7.280] Strictly speaking, the best interests principle binds the court, not parents. But parents may be held retrospectively accountable for their attitudes and behaviour in relation to a child’s best interests if, later, there is litigation. The 2006 amendments introduced the requirement that when assessing a child’s best interests, the court must have regard to how far each parent “fulfilled, or failed to fulfil, his or her responsibilities as a parent”: sub-section 60CC(3). Furthermore, amendments to the law effective in June 2012 promote the adoption of the best interests principle more widely. The new provisions require that certain professional workers, acting in the capacity of “adviser” to a party about parenting orders, must now advise the person to “regard the best interests of the child as the paramount consideration”. They must encourage the person to act on the basis that a child’s best interests are met by the child having a meaningful relationship with both parents, and by the child being protected from harm (with the harm criterion taking precedence): sub-section 60D(1). The workers affected by the new advice requirement include lawyers, family counsellors and dispute resolution practitioners and family consultants: sub-section 60D(2).

How the court determines best interests [7.290] The process of arriving at a decision about what is in a child’s best interests under the law is more complex than the natural meaning of the words might suggest. In B and B: Family Reform Act 1995 (1997), the court said that in deciding on parenting orders, the proper process required that the court:

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go through each of the [best interest factors] which appear to be relevant and discuss their significance and weight, and then perform the same task in relation to the matters in section 60B [objects of the Act and parenting principles] which appear relevant or which may guide that exercise. This approach has been affirmed more recently in Goode v Goode (2006).

The best interest factors [7.300] Section 60CC says that the court must consider certain matters in order to determine what the best interests of a child might be. Sometimes referred to as the best interest factors, these matters are listed in sub-sections 60CC(2) and (3). There are 15 factors in all, and there is some overlap in the types of circumstances that can be considered under each.

Two tiers of best interests factors [7.310] Since the amendments in 2006, the best interest factors have been divided into two tiers, called “primary” and “additional” considerations. The amendments do not say how the court should treat this division. There is certainly no explicit instruction that circumstances activating a primary consideration necessarily cancel out factors ranked in the “additional” group, though some early commentators predicted that the two-tier arrangement might work in this way. The interaction of the two groups will be a matter for continued development in the case law over time. But the direction of case law appears to be against the idea that the primary considerations must always trump the additional considerations: Mulvaney & Lane (2009). It is true, however, that the court is likely to give greater weight to individual primary factors than to individual additional factors, though a combination of additional factors – or even the strength of circumstances in one additional factor in an exceptional case – might outweigh a primary consideration in determining the best interests of a particular child. The factors are only considerations after all, in the ultimate measure, being the best interests of the child. As the court in Marsden and Winch (No 3) (2007) stated: It is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. The primary and additional considerations are described briefly below. An indication of how the courts are required to deal and have, in fact, dealt with the factors that existed before the amendments is included where appropriate. What is impossible to describe and predict, however, is how a particular judicial decision-maker in a particular case will exercise their discretion in weighing the evidence for one consideration against the evidence for others. This state of affairs again suggests the wisdom of disputing parties focusing their effort towards private settlement.

Primary considerations – the twin pillars [7.320] The two primary considerations – being the requirement to consider the benefit of a meaningful relationship with not just one, but with both of the child’s parents, and the

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requirement to consider the need to protect a child from harm – are frequently referred to, jointly, as the “twin pillars” of the best interests principle. Amendments to the law effective in June 2012 allocate different weight to each of the two primary considerations. (These changes are explained further below.)

“Twin pillar” 1: Meaningful relationship with both parents [7.330] In determining what is in the child’s best interests the court must consider … the benefit to the child of having a meaningful relationship with both of the child’s parents: sub-section 60CC(2)(a). This was an addition under the 2006 amendments, intended to focus the court’s attention on the child’s right to have both parents play a role in their life. “Meaningful relationship” is not defined in the Act. There is no suggestion that it should be related to the concept of “equal time”, nor to any other particular measure. The phrase received comprehensive analysis in Mazorski v Albright (2007) where Brown J concluded that “a meaningful relationship … is one which is important, significant and valuable to the child”. It has been noted further that “meaningful does not necessarily equal optimal”: Godfrey v Saunders (2008). More recently, in McCall and Clark (2009), the court concluded that the proper approach was to consider how orders might be crafted to create conditions for a meaningful relationship that are in the best interests of the child in the specific circumstances of the case. This was distinguished from the alternative interpretations: (a) that evidence of the relationship at the time of the application was pivotal, or (b) that the provision operated like a presumption that all children benefit from a meaningful relationship with both parents.

“Twin pillar” 2: Protection of the child from harm [7.340] In determining what is in the child’s best interests the court must consider … the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence: sub-section 60CC(2)(b). Any negative or harmful behaviour exhibited by a parent in the presence of their child may be assessed under this head, which allows the court to consider parental behaviour that indicates even a potential to harm the child. The court may take into account: “denigration” (criticism and abuse of another, whether or not they are present) in the presence of the child; harassment at changeover times; physical, including sexual, abuse; the effects on the child of high conflict between the parents before separation; relations between parents and new boy or girlfriends and de facto partners; a negative attitude in relation to the child spending time with the other parent; neglect of the child; and

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exposure of the child to family violence or abuse of another family member.

Priority is given to protecting against harm – to twin pillar 2 [7.345] Changes in 2012 required that the second of the primary considerations (namely, protection of the child from harm) be given greater weight than the first (the “meaningful relationship with both parents” consideration): sub-section 60CC(2A). This is a particularly important development for the current scheme of parenting order decision-making with impact, most particularly, in circumstances where the “twin pillar” considerations “tend in different directions”: Marsden and Winch (No 3) (2007). For example, in Parkin & Sykes (2013) family law litigation had been in train for most of the child’s life. The harm caused to the child by the continuing litigation and the fractious, ongoing attempts at joint parenting, was held to be a more important consideration than the possibility of alienation from the father. Despite concerns about the effects of mother’s anxiety, the court opted for orders most likely to finalise or reduce the disputing, providing for the child to live with the mother and spend limited time with the father.

The effect of modelling [7.350] The court is keenly aware of the harm caused by negative behavioural modelling by parents, in terms of both the likely negative effect on the child’s future significant relationships as an adult, and also on how the child relates to, and behaves towards, the other parent. Evidence of such modelling – for example, the similarity of the swearing of a six-year-old boy addressed to his mother to the language used by his father to his mother – may be considered under this head.

Additional considerations The views of the child [7.390] in determining what is in the child’s best interests, the court must consider … 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: sub-section 60CC(3)(a).

Views and wishes [7.400] In the 2006 amendments, “views” replaced “wishes”, to allow the court to consider a wider range of input. The new term encompasses the child’s perceptions and feelings about the family situation as a whole, as well as the child’s wishes, if they have any or they choose to express them, in relation to an aspect of parenting arrangements.

The child's age [7.410] Until the early 1980s, the courts would not make an order contrary to the wishes of a child aged 14 or more unless there were special considerations. This absolute age benchmark has now disappeared in favour of a growing tendency by the courts to take the views of children into

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account, by whatever means the court deems appropriate. The views of an adolescent may well be reflected directly in the orders made. The views of a four-year-old will also be factored into the best interests assessment, though the resulting orders may not reflect those views in practical terms. The revised wording and approach may have led to more uncertainty about the court’s treatment of even more mature children’s views. See Dylan and Dylan (2007) in which the court ordered more time to the father upon his application, as against the expressed wishes of the 15-year-old daughter and the evidence and submissions of court experts and the Independent Children’s Lawyer.

Weighing the child's views [7.420] In deciding how to weigh the child’s views against other relevant factors (such as the benefit to the child of a meaningful relationship with both parents), the court may consider: the reliability of the evidence (is there bias or manipulation involved?); the child’s intellectual and emotional maturity and level of understanding, which may be different from that of their same-age peers; the child’s developmental stage; the strength of the views expressed; and whether the views are reasonable in the circumstances. In R v R (Children’s wishes) (2002), a 12-year-old’s wish to have no contact with her father was held to be “not based on mature and independent consideration”, since the mother had not encouraged any contact. In the similarly-named but different case R and R: Children’s Wishes (2000), the expressed wish of brothers aged 10 and 12 to live with their father after he had been overseas for five years was interpreted by the court as a desire to spend more time with their father rather than actually live with him. See also “Evidence of the views of children” at [7.1500].

Relationships with parents, grandparents and others [7.430] In determining what is in the child’s best interests the court must consider … the nature of the relationship with: each of the child’s parents; and other persons (including any grandparent or other relative of the child): sub-section 60CC(3)(b).

Relationship with parents [7.440] The court will look carefully at the relationship between the child and each parent. This can be difficult to address in preparing evidence, but it is vitally important. The court will be interested in the quantity and quality of time spent together, the type of activities they have been involved in together, the nature of the parent’s care, the emotional closeness between parent and child, and familiarity with and knowledge of each other. (Do you know your child’s favourite colour? Music? Video game? Food?)

Splitting siblings? [7.450] “Other persons” commonly considered under this factor include the child’s siblings. The court will usually seek to keep siblings together, except, perhaps (depending on the child’s maturity and other circumstances) if their wishes strongly contradict this, or when there are other

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relevant factors, such as that the siblings have already been separated. The fact that the siblings fight and do not seem to get on very well may be outweighed by the developmental value they provide in helping the child learn to live with and care for significant others: H and H (1995).

Grandparents and other significant relationships [7.460] In line with the Act’s revised objects and parenting principles, the 2006 amendments explicitly provided for the relationship between the child and their grandparents to be considered in determining the child’s best interests. The court will have regard to all relationships of significance to the child – including those with extended family, new partners of the parents, teachers, neighbours and friends – and the effect on those relationships of any court orders sought.

Preference for parent against a non-parent? [7.470] The parenting principles set out at section 60B emphasise the importance of relations between parent and child. Whether these provisions raise the overall status of parents in the best interests assessment has recently been addressed in the courts. In Valentine & Lacerra (2013), the dispute about arrangements for the child existed between the father and the maternal aunt and grandmother. The mother of the child was deceased. The court held that there is no preference for a parent as against a non-parent in deciding parenting orders. The consideration of what is in the child’s best interest is paramount. In Mauldera & Orbel (2014), the court held that the significance of parenthood is to be weighed against all the other factors in assessing what is in the best interests of a child – that “section 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex”.

Demonstrated willingness to be a responsible parent [7.480] Sub-sections 60CC(3)(c) and (ca) require the court to consider: (c)

(ca)

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;

the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child …

The set of indicators of “responsible parenting” then are based on time spent, communication, participation in major decisions and maintenance.

The “status quo” [7.490] In determining what is in the child’s best interests the court must consider … the likely effect of any changes in the child’s circumstances, including the likely effect on the child

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of any separation from: either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living: sub-section 60CC(3)(d). The life situation of a child when a case comes into court – that is, the parenting arrangements at that time – is referred to as the status quo. Until its relegation to the “additional” considerations in the 2006 amendments, great prominence attached to this factor, partly as a by-product of the unwieldiness of the court system.

The significance of the “status quo” [7.500] Before the 2006 amendments, it was settled case law that where interim (temporary) orders were to be made about residence and contact, the status quo – that is, the existing parenting arrangements for a child – would not usually be disturbed unless there was evidence of risk to the child’s welfare. The rationale was that stability should be a prime consideration in the interim period. Then, at the final trial, in theory at least, the status quo was supposed to take its place alongside all the other best interest factors (as they then were). The problem has always been that the final trial is often many months, if not years, after the date of the original application. The weight of the status quo, as a consideration in the assessment of the child’s best interests, might be said to increase over time as settled arrangements become ever more settled over time. In fact, it has been said that time “ticks away” to the advantage of the parent whose parenting proposal supports the continuation of the status quo. The importance of the status quo was reinforced, pre-2006, by its equal position in the best interests factors, and by the importance given to it in decisions such as Cowling v Cowling (1998). Post-2006 in the reformed Act however, the status quo factor is only an “additional” consideration. See [7.1490] for a more detailed discussion of the treatment of the status quo in relation to interim orders particularly. It would be true to state that the general weight of the status quo factor has been diluted in the post-2006 environment, despite that it may still tell significantly, in individual cases, in the assessment of best interests.

When it starts [7.510] The status quo normally starts to run from the date of separation, or from changes to the arrangements for children since separation. Parents may well have strong arguments for measuring a status quo from a different time. For example, a parent who has been the primary carer of a child since birth and then no longer spends significant time with the child by no fault or action of their own may be able to establish a different and relevant status quo from the one existing at the time of a court hearing.

How will change affect the child? [7.520] A parent seeking to overturn the status quo will produce evidence to show that the likely effect of change would be not a negative but a positive outcome for the child. They may also argue that, as a result of the change, the child would benefit more in the long term from being able to enjoy a meaningful relationship with both parents, despite a temporary, minor, destabilising effect.

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A parent seeking to support an existing, disputed status quo will produce evidence for the strength and importance of existing relationships in the child’s life, and the likely negative effects of any change.

Difficulty and expense of spending time and communicating [7.530] In determining what is in the child’s best interests the court must consider … the practical difficulty and expense of a child spending time 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: sub-section 60CC(3)(e). This consideration is particularly strong when one parent seeks to relocate a significant distance from the other. See Relocation at [7.1600] for more about this. A relocating parent should have practical, cost-effective, and (subject to the financial resources of each parent) cost-sharing proposals for maintaining all relationships important to a child, notwithstanding the distance involved, to present to the court.

Capacity of the parent or other significant people [7.540] In determining what is in the child’s best interests the court must consider … the capacity of: each of the child’s parents; and any other person (including any grandparent or other relatives of the child); to provide for the needs of the child, including emotional and intellectual needs: sub-section 60CC(3)(f). This factor is nearly always relevant, but it may be particularly important where the parties’ proposals for spending time with the child compete. The court will look for evidence of warmth in the relationship between the parent and the child, as well as the time the parent has available for ordinary parenting duties such as supervision, food preparation, help with homework, transport to extracurricular activities and other aspects of day-to-day care. The type of housing occupied by the parent may also be relevant, as may be the objects and facilities it contains. The parent’s overall capacities, including their particular skills, and even their intellectual capacity, may be relevant for some of these matters in relation to the needs of a particular child. A parent’s genuine intention to improve parenting skills as demonstrated by attendance at parenting courses and other specific efforts at good parenting may be favourably considered. In this context, parties sometimes bring forward the unsuitability of the other parent for a substantial parenting role – perhaps alleging substance abuse, emotional or mental health problems, such as an inability to manage anger, or questionable aspects of the parent’s lifestyle. Such facts may indeed be relevant, but it is vitally important that they are substantiated by clear, factual evidence: Mills and Mills (1978). In JG v BG (1994), Chisholm J gave significant weight

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to the attitude of a violent parent (who had completely denied the violence) and the negative effect of that attitude on his capacity to parent effectively. “Conduct” issues such as adultery, desertion or substance use, and “values” issues such as exactly how clean a house is, will only be relevant to the extent that they affect the child in the context of the orders sought. A stricter standard of general behaviour may, for example, be relevant if a child is expected to spend a significant amount of time in the parent’s home (see Griffiths and Griffiths (1981). In the important recent case of Partington & Cade No 2 (2009), the court held that a finding of the “possibility” that sexual abuse had occurred should be factored into the assessment of the alleged abuser’s parenting capacity (without describing exactly how that factoring should occur). The courts have also considered that a parent’s capacity to care for a child effectively might be so affected by orders allowing the child to spend time with the other parent, because of the anxiety that they would cause – arising from a sincere belief that the child is at risk of abuse in the care of that parent – that such orders would not be in the child’s best interests: A v A (1998). See also TKR and CPW (2006).

Characteristics of the child and parents [7.550] In determining what is in the child’s best interests the court must consider … 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: sub-section 60CC(3)(g). Although there are behavioural norms for age and sex, many children possess characteristics that do not conform to these. Evidence of any special needs, talents or other physical, emotional, intellectual, developmental or behavioural characteristics of a child may be assessed under this sub-section. The ethnic and cultural context of the family is also specifically relevant. The particular requirements of a child at a certain time need not be extraordinary to be considered under this head. A party may wish, for example, to establish its relevance in relation to the onset of puberty and the significance of the relationship with the same-sex parent. The 2006 amendments recognised, at several points, that parenting arrangements may need to change as a child matures. Paragraph (g) provides the reference point for the maturity factor. The court may also consider the child’s maturity as relevant when deciding between orders in their long-term and orders in their short-term best interests. The short-term best interests of a child may be considered more important in babyhood: Raby and Raby (1976). But see also Watts and Watts (1976) where the long-term benefit of more appropriate arrangements were held to outweigh the short-term distress caused by change to status quo arrangements of three years duration.

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Aboriginal or Torres Strait Islander background [7.560] In determining what is in the child’s best interests the court must consider … if the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right: sub-section 60CC(3)(h). The distinction of indigeneity from the balance of other, specific characteristics of the child (as covered in the previous sub-section), occurs with recognition and acknowledgment of the importance of the support of a child’s relationship with their Aboriginal and Torres Strait Islander culture, and as further acknowledgment, and a reminder to the courts, that parenting orders need to be considered in the light of any likely effect on that relationship.

Parental attitude to parenting responsibilities [7.570] In determining what is in the child’s best interests the court must consider … the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents: sub-sub-section 60CC(3)(i). The parental attitude provision is one of the most important in the “additional consideration” set. You could call it the big picture factor. Under it, the court assesses the parent’s long-range approach to the responsibilities of parenthood. The court may look at the parent’s ability to consider the child’s needs before their own. It may consider the parent’s own emotional maturity, and their capacity in the longer term to develop the child’s. Attitudes to parenting issues such as schooling, health and social involvement will affect how “responsible” the court considers the parent to be. So will lifestyle factors. For example, under consideration of this factor, evidence of a parent’s penchant for binge-drinking and joy-riding in wheelie-bins on nights when the child is spending time with the other parent might have a negative influence on, say, an application to substantially increase time with that parent or to move into an equal time arrangement – even though the behaviour is not witnessed by, and does not directly affect, the child. Especially in the context of the changed objects of the Act in 2006, the court may, in specific factual circumstances, consider under this head the willingness of each parent to respect the other and encourage the child to have a positive relationship with them: Re David (1997).

Family violence and family violence orders [7.580] Refer to [3.360] in chapter 3, “Family Violence and Child Abuse”.

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The likelihood of finality [7.600] In determining what is in the child’s best interests the court must consider … 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: sub-section 60CC(3)(l). The court will be keen to find permanent solutions for the issues in a parenting case, but sometimes this is not possible, or not desirable. In its decision-making in the best interests of children, the court must make calculated predictions that may turn out to be wrong, especially when the plans and circumstances of the parents are in confusion. Under this factor, the court must weigh up the desirability of making orders that would tend to exclude the possibility of future proceedings against making orders that are likely to be suitable only for the short term. See Wemble & Dautry (No 2) (2014) in which the judge struck out a Notice of Child Abuse, Family Violence or Risk of Abuse (Form 4) filed by the mother for reasons which included the importance of bringing litigation to a close. The case was pending hearing of an appeal at the time of writing.

Other relevant facts [7.610] In determining what is in the child’s best interests the court must consider … any other fact or circumstance that the court thinks is relevant: sub-section 60CC(3)(m). The inclusion of this catch-all paragraph in the list of best interests considerations allows the court to use its discretion to consider any fact that might be relevant.

Sexuality [7.620] A parent’s sexuality may be considered relevant in relation to the assessment of the best interests of a child. In Re L (1983), the court outlined seven factors to be considered when a gay or lesbian parent seeks an order to spend time with a child. This judgment, though contentious, continues to have some influence.

Other factors that have been considered relevant [7.630] Other factors that have been held to be relevant in individual cases are: evidence of the child’s contentment and happiness (K v Z (1997)); a parent’s criminal record (Murphy and Smith (1986)); surrogacy (Re Evelyn (1998); Re Mark (2003)); cultural differences (DKI and OBI (1979)); Aboriginality (B and R and the Separate Representative; M and L (Aboriginal Culture) (2007) FLIC 93–320); and religion (N and N; Morrison and Morrison (1995); Elspeth and Peter (2007)).

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Since the amendments in 2006, all of these circumstances, and a parent’s sexuality, may be more appropriately addressed in consideration of sub-section 60CC(3)(g) (characteristics of the child and parents – see [7.330]).

There is no presumption … … in favour of mothers [7.640] It used to be assumed by the courts that young children were simply better off living with their mother. This attitude arose at a time when caring for children was regarded as a role that properly belonged to women. But then in the 1970s, fathers began to challenge mothers in custody cases, and in the absence of any convincing psychological evidence of its validity, the “mother principle” was officially killed off (by the High Court, in Gronow v Gronow (1979)). Some would argue that it lives on as an unexpressed bias, but increasing numbers of men are now awarded court orders that provide for their children to live with them. It has been said that amendments to the law in 2006 – such as the presumption of equal shared parental responsibility and the changes to the best interests factors – improve the legal position of fathers who want a more substantial parenting role. It is difficult to determine whether this trend is playing out as detailed global statistics on the types of orders made were not kept prior to 2007-2008. … in favour of equal time In 2004, a Senate committee of enquiry investigated the feasibility of a presumption in favour of children spending equal time living with both parents. The enquiry recommended against creating this presumption because it could not be reconciled with the best interests principle. Instead, Parliament enacted a “presumption of equal, shared parental responsibility”. The presumption of equal, shared parental responsibility, which does exist, should not be confused with a presumption of “equal time”, which does not. … that all parents have a right to spend time and communicate with their children Parents have no rights under the Family Law Act to any particular form of relationship with their children. But the objects of the Act (sub-section 60B(2)) state that children have a right to a meaningful relationship with both parents, though this principle does not, in itself, surmount the best interests principle. So, although the court recognises the general desirability of children having a relationship with both parents, it will not make an order for time to be spent with a parent, or even for communication with a parent, if it is not in the best interests of the particular child. For example, in Tate (2000) the court refused to allow a father any contact with his child because “as a matter of practical reality” it was possible that the child had been abused by the father.

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Summary of parenting order law [7.650] The legal process of decision-making by a court about parenting orders may be summarised as follows: 1.

The court must start with a presumption (meaning a taken-for-granted condition or “the default” position) that it is in the best interests of a child for the parents to have equal, shared parental responsibility for the child: section 61DA. But the presumption does not apply in certain circumstances and can be rebutted (disproved with evidence) in others. (a)

The presumption does not apply if there are reasonable grounds to believe that a parent (or a person living with them) has engaged in: (i)

abuse of the child (or another child a member of the parent’s or the other person’s family (or that other person’s family), or

(ii) family violence (as defined in the Act). See sub-section 61DA(2) and the definition at section 4AB. (b)

2.

This presumption can be rebutted by evidence that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: sub-section 61DA(4).

If the presumption applies and is not rebutted, the court is likely to make an order for “equal, shared parental responsibility”. This order is different from the innate parental responsibility possessed by every parent of a child (section 61B) because if there is or will be such an order, the court must then also consider: (a)

whether it is both practicable and in the child’s best interests that the child spend equal time with each of the parents – and, if so, to make an order for equal time, but if not, then it must consider further:

(b)

whether it is both practicable and in the child’s best interests that the child spend “substantial and significant time” with each of the parents, and if so, to make an order for substantial and significant time with each parent.

See section 65DAA. 3.

If parents share parental responsibility – whether under court order or “naturally” – decisions about “major long-term issues” must be made jointly: section 65DAC.

4.

In deciding what orders would be in a child’s best interests (on all the issues before the court, not just about time spent) the court must consider all of the factors set out in section 60CC, and the parenting principles at section 60B.

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Post-separation parenting arrangements Spending time and communicating after separation [7.660] Parents will often ask their legal practitioner about whether there is a “standard” or “recognised” set of arrangements for interaction between them and their children after separation. The answer is that though some arrangements are quite common, there is no set formula. It is a matter of what best suits the particular child in the particular circumstances of the family.

Hallmarks of successful post-separation parenting arrangements Consistency [7.670] A routine is necessary so that both parents, and the child, can plan for and rely on “what’s happening when”. Flexibility (tolerance, a helpful attitude) Changes to the usual arrangements for the preference or convenience of either parent, or the child, will be necessary from time to time. Communication systems Parents need communication systems for discussing both major long-term and day-to-day issues. These might include telephone contact, email contact, contact through social media, contact through a “parenting book” that travels between households, talking at changeover, or regular meetings to discuss “child issues only”, possibly in a public place. Parents often make a specific agreement about the issues on which they will consult with each other. Dispute resolution systems Parents need to decide together how to deal with disagreement on what should be joint decisions. Methods could include meeting for discussion, seeking a third party’s opinion, seeking the views of the child, or mediation or counselling. Support from both parents Successful cooperative parenting includes an appreciation on both sides of the value to the child of a relationship with both parents. Children often need to be encouraged by one parent to maintain and develop their relationship with the other. Arrangements that suit the child Parenting arrangements should not be so complex that they interfere with a child’s capacity to develop as an effective individual in their own right. It is vital for a child to be able to maintain friendships, activities and personal order.

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The legislation [7.680] The Family Law Act offers some guidance by describing what the court will consider to be “substantial and significant time” spent with a parent. It must at least include time: at weekends and on holidays; on weekdays; that allows the parent to be involved with the child’s daily routine; and that allows participation together in events and celebrations that are significant for both parent and child: sub-section 65DAA(3). The arrangements should take account of the child’s views, friendships and activities, and should be age-appropriate. Generally speaking, a young child needs shorter absences from each parent, particularly the primary carer. Arrangements that allow for greater flexibility and that accommodate the child’s other commitments and wishes are generally appropriate from adolescence onwards.

Popular arrangements [7.690] For parents living reasonably close, with at least one working standard full-time hours and with school-age children, a common post-separation arrangement has been for the children to live with one parent and spend time with the other every second weekend, usually with at least one overnight stay. Some parents arrange the weekends so that time can be spent with each. Arrangements for one parent to spend time with the children for all of each weekend are uncommon. Under this arrangement, the parent with whom the children live during the week has no opportunity for leisure time with them, while the “weekend parent” has restricted opportunity for social activities. Many parents with more flexible working arrangements, or with suitable childcare arrangements and proximity to school, arrange to spend time with their children for longer periods over the fortnight. Arrangements for equal, or near-to-equal, time are increasingly common. A nine-night/five-night split (or thereabouts) over the fortnight is now fairly common. Other common arrangements include: half of each school holiday with each parent (sometimes alternating annually as to which parent has the children in the first half of the long summer holiday); Monday public holidays with the parent the child stayed with the previous weekend; Mother’s day and Father’s day at the relevant household; Christmas day alternating between households from year to year, or splitting the day between the parents, perhaps commencing from an overnight stay on Christmas Eve; birthday dinners alternating between households from year to year; half the Easter holiday at each household, alternating each year; regular telephone, email and sms communication; and

[7.710]

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changeover at the beginning and end of school time (so that parents don’t need to pick up and deliver the child to each other’s homes).

Evidence in relation to “equal time” [7.700] To encourage the court to consider “equal time” with both parents to be “reasonably practicable” (see [7.230]), a party may try to demonstrate: Reasonable travelling distance between the parents’ homes. Capacity to implement equal time arrangements. Apart from obvious issues such as employment and childcare, the court may want to hear about the parents’ specific plans for effectively managing the child’s life between the two homes (eg, can the child keep the same set of friends? What if an important object is left behind at one home?) Parents should realistically examine their own work pressures, lifestyle, and personal and relationship needs, to ensure that they are indeed capable of the sole care of a child for fully half of their waking (and sleeping) lives. Capacity to communicate. Courts do not wish to sentence children to arrangements where the parent caring for them at any particular time has no idea what is happening for half of their lives. Parents must be able to demonstrate willingness and capacity to effectively communicate important information, impressions and initiatives concerning the children. Courts have always been reluctant to order “equal time” or even “substantial and significant time” where there is poor communication between the parties, or a high degree of hostility. A party who wishes to argue against “equal time” will try to demonstrate that these criteria are not met, and also that equal time is not in the best interests of the child (in terms of the considerations at section 60CC).

A duty of each parent to encourage the child's relationship with the other? [7.710] It is frequent enough in practice that one parent tries to minimise the time the other parent spends with the child, or to frustrate communication between them, by either creating practical obstacles around changeover, or by talking down the other parent in the child’s presence. Some parents are unhelpful by simply being passive, allowing the child to decide whether they feel like spending time with the other parent on any particular occasion. Quite apart from the composition from time to time of the set of best interests considerations set out in the Family Law Act, case law decided by the courts is firm on the existence of the parental duty to actively promote and facilitate the relationship between the child and other parent. In Bainrot and Bainrot (1976), for instance, the court said that the parent with whom the child lived must have the child dressed and ready to leave at the proper time, and that there must be no psychological “spoiling” about the child going to spend time with the other parent. In Filipovic v Filipovic (1977), the court expressed the view that the parent with whom the child

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lived should routinely assure the child of the other parent’s love, and of the child’s likely enjoyment of time with that parent – even if the first parent did not actually believe the time spent with the other parent to be in the child’s best interests. This valuing of positive and cooperative attitudes as between parents remains present in the Family Law Act in the “reasonably practicable” test (see [7.230]). The “friendly parent provision” was removed as an express best interests consideration in the 2011 amendments, but as the set of considerations remains open and subject to judicial discretion (subsection 60CC(4)(m)), the negative positioning of one parent in relation to the other may still be relevant in particular cases. It may be easier to say than do, but parents should try to avoid communicating to the child any negative attitudes they may privately have about the other parent, or about the child spending time with the other parent. The resulting disharmony is likely to be a source of unhappiness for the child and to create on-going difficulties for everyone. There is also research evidence that persistent criticism by one parent of the other in the child’s presence may cause resentment in the child, and a weakening of the relationship between the child and the criticising (rather than the criticised) parent.

Concerns about sharing the parenting role [7.720] Parents often have concerns about: deliberate flouting by the other parent of agreed or ordered arrangements (such as bringing children back late, early or not at all); arrangements that prevent one parent from having an independent social life; aggressive or abusive behaviour at changeover; an undermining of the relationship between one parent and the child by the other parent; one parent “failing to show”, or frequently, or at short notice, cancelling arrangements for time to be spent with a child; the other parent’s ability to adequately care for a child (especially a baby) during time spent with the child; the other parent’s different attitudes to food, homework, bed-time, discipline, swearing and other day-to-day issues; the other parent’s use of drugs or alcohol during time spent with the child; and contact by the child with people disliked by one parent during time spent with the other. These concerns form legitimate, and common, subject matter for specific agreements between parents, parenting plans, and court orders.

[7.740]

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An obligation to “spend time”? [7.730] Different views have been expressed in the courts about whether a court order that a parent “spend time” with a child creates an obligation on the parent to actually spend the time. It is arguable from some of the background documents for the 2006 amendments that Parliament assumed or intended that such an obligation would indeed be created. Orders “to spend time” are often not drafted to be specific about creating this legal obligation. Sometimes a person who is supposed to spend time with a child will treat this arrangement as optional – sometimes failing to appear at the relevant times and days, or even at all. This type of non-performance can be very distressing for a child, and disturbing and inconvenient for members of the child’s usual household. See [7.2390] for draft orders creating a legal obligation for a parent to spend specific time with the child.

Concerns about quality of care [7.740] A parent sometimes worries that their child, especially a baby, will not receive proper care while spending time with the other parent. This may arise from both real and imagined circumstances – the parent who is not with the child at the time cannot know exactly what is going on. A worried parent should first try, as honestly as possible, to examine the possibility that their concerns might arise from their own over-anxious approach to parenting generally, an instinctive desire to control the care of the child, or their own negative feelings about the other parent. Unless they have worked together to establish and maintain the same environment for the child in their two households, separated parents must, nearly always, come to terms with different care standards, values and routines at the other parent’s home. Usually (unless these differences become the source of conflict between the parents), the child adapts to them and is not negatively affected. For the parent, then, the task becomes one of learning to let go, and trying to accept that the style of each parent’s relationship with, and care for, the child will have its own benefits for the child, despite the differences between them. But what if a child’s welfare is being significantly compromised by the quality of care provided by the other parent? It may be possible to negotiate solutions such as parenting support or training, assistance during time spent with the child or a restructuring of the parenting arrangements if the relationship remains relatively cooperative and open. If necessary, one of these options may even be compelled by applying for a new, and possibly urgent, court order. But a non-adversarial approach in the first instance is likely to yield the best results. A parent who is genuinely struggling with the challenges of sole parenting may even appreciate a supportive, non-critical, joint problem-solving approach from the other parent. See also “Variation of parenting orders” at [7.1160], and “Order for supervised time with a child” at [7.1340].

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Is the child ready for overnight time? [7.750] Research shows that routine time spent together – watching television, brushing teeth, sharing meals – is fundamental to the development of good relationships between parents and their children. But it may be difficult to find opportunities for sharing routine time if the basic rituals of finishing and starting a day always take place apart. There is some debate about the age at which a young child should begin spending overnight time with a parent who has not recently been the primary carer. The current state of the law certainly provides that overnight time could be ordered for children from babyhood up – if the parent is competent, and has played a significant role in the care of the child since birth, there has been no major break since the child and the parent have spent time alone together, and no negative considerations. In many cases, however, the courts’ traditionally more conservative approach – waiting until a child is three or four – will continue to prevail.

Spending time with a baby [7.760] Usually parents try to arrange that time away from the mother of a very young or breast-fed baby takes place more frequently but for much shorter periods (say, two hours at a time). Parents should try to understand that separation anxiety (arising because of separation from the primary carer) may increase rather than decrease over the first two years of a child’s life, and that this occurs in both intact and separated families.

Dealing with gaps [7.770] Many parents, and also children, have concerns about proposals for time alone with the other parent when there has been a long break (say three months or more) in contact between the child and that parent. Whatever the reason for the break, the child’s level of attachment to the first parent may have increased in the meantime. The child’s uncertainty about being cared for by the returning parent often dissolves as soon as they start spending time together again. To ease the change, however, many parents agree to stage the introduction of time together, increasing it gradually over, say, a two- to six-month period (depending on the length of the break, and the age and anxiety level of the child). Typical staging involves day visits only at first, possibly quite brief for young children. More frequent short visits follow, then longer visits with longer breaks between them, then single overnights, and finally multiple overnights. The level of detail in the written agreement should be matched to the likelihood of dispute; the more likely there is to be conflict, the more detail should be included in the arrangements.

Supervised time [7.780] If the court has concerns for the welfare of the child in the sole care of one parent, it may order the parent to spend time with the child in the presence of a supervising third party. See [7.1340] for more about this.

[7.800]

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If the child is reluctant The relevance of the child's wishes [7.790] Children may be reluctant to leave the care of a parent or the routine of the home where they usually live. There are several possible reasons for this – some of which will not weigh very heavily in the best interests assessment against the importance of maintaining the relationship between parent and child. So a child’s wishes on the issue of spending time with both parents will not necessarily determine the court’s view of their best interests. See Keaton and Keaton (1986), where orders were made for overnight contact with the aim of re-establishing a parental relationship against the wishes of a nine-year-old boy. However, if fears are chronic or severe – if the child suffers from insomnia, agitation, nightmares or bedwetting or otherwise manifests distress – their reluctance to be cared for by one parent will be a significant factor in deciding on the proper order, or indeed whether there should be any order for spending time or communication at all: Litchfield and Litchfield (1987). A parent cannot ignore or disregard their child’s reluctance to spend time with them without risking damage to their relationship with the child. The child’s feelings should be acknowledged and validated (even though this might be difficult) and the situation sensitively approached and managed. Parents should try to get to the bottom of the child’s concerns, and consider adjusting arrangements (times, changeovers, overnights, the attitudes of either parent, duration, activities, facilities in the house, contact with new partners or step-siblings …) to better meet the child’s needs. This isn’t the same as allowing agreed parenting arrangements to degenerate into arrangements based on what the child feels like doing, or not doing, from time to time. Acting in the best interests of a reluctant child may require a firm approach, preferably with the parents cooperating.

As children get older [7.800] Most parents accept that parenting arrangements must change as children get older. Apart from the child’s increasing capacity to remain happily apart from their primary carer between birth and school age, there is also the growth in the child’s independent social life and their extra-curricular commitments to consider. These changes require increasing flexibility on the part of parents as a school-age child grows. Where developmental shifts can be anticipated, the nature and timing of appropriate changes to parenting arrangements should be discussed and agreed, if possible, in advance. If parenting arrangements are recorded in writing, agreements about these matters should be incorporated in the terms. As a child gets older, their wishes increase in weight in any legal assessment of their best interests. Thus, the strong views of an older child about suitable arrangements for seeing their parents should be heard and seriously considered by both. A teenage child is likely to end up voting with their feet in any case.

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[7.810]

Timing problems [7.810] Unfortunately, the complexity of shared parenting arrangements means that issues around timing – parents picking up and returning late, or not at all, children not being ready and so on – arise for many separated parents. The first consideration is whether the arrangements are clear. Often it’s the missing details that cause misunderstandings – for example, when Mother’s Day falls on the father’s weekend and this is not specifically addressed in the agreement. Some parents are able to be flexible and work things out as situations arise. But others need to negotiate specific arrangements for all foreseeable types of special days and “what ifs” (what if the child is sick and can’t go to school – who should take time off work?). The higher the level of conflict, the more detail you should aim for, and the more formal the agreement should be. If breaches of ordered parenting arrangements are repeated, or their circumstances show deliberate disregard for the orders, you may be able to have them enforced and/or varied by the court by filing a contravention application. See “Contravention applications” at [7.2130]. But remember that unavoidable circumstances can prevent compliance with agreed or ordered arrangements. Or there may be an error in judgment, confusion or even forgetfulness. This does not make the situation any less irritating for the parent inconvenienced or caught out. But unless the lapses are repeated or deliberate, enforcement action by a court is not likely, and other approaches to preventing such difficulties in the future must be taken instead.

Problems at changeover [7.820] The term changeover refers to the transfer of care and control of the children from parent to parent. It can offer a valuable opportunity for the parents to communicate about the children. Unfortunately, however, some parents (newly separated parents in particular) use the opportunity to engage in emotional outpourings, or in argument, harassment or abuse. Children are caught between their parents during a hostile or emotional changeover. They may witness angry diatribes, threats, violence, tormenting, or extreme emotional disturbance in one or both parents. These children learn to dread changeover as much as the adults do, or more. Many parents know that they do not yet have enough control over their feelings to avoid aggressive or emotional behaviour at changeover. The situation is often worse if it takes place at the former family home. Parents may agree instead that, in the short term at least, changeover will take place on neutral ground (see [7.830] for ideas). When conflict at changeover is a continuing feature of the parental relationship, parents should, if possible, specify detailed changeover arrangements in a written agreement, or obtain court orders.

[7.870]

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“Neutral ground” options for safe and calm changeovers [7.830] A neutral changeover could take place: at a child and family service (see below); at the home of a willing third party such as a grandparent, possibly with staggered arrival times; in a carpark at a fast food outlet, supermarket, playground or other public place; at school or day-care; or in extreme cases, outside (or even inside) a police station.

Children's contact services [7.840] In all capital cities, and some regional centres, there are community organisations that may be able to help fee-paying families with changeover, or supervised time with a child. These services may be run by local family support organisations, as an adjunct to childcare centres, by charities or by purpose-funded child and family centres. They have various titles, including “child and family service”, “family centre” and “contact and changeover service”. To find a children’s contact service near you, check the listings at http://www.familyrelationships.gov.au or call the Family Relationship Advice Line on 1800 050 321.

Supervision [7.850] Some parents who use a children’s contact service have court orders saying that time spent with a child must be supervised, at least temporarily (see [7.1340]). Other parents choose to take their children to the service when spending time with their children to receive parenting training and support.

Changeover [7.860] Parents may seek, or a court may order, the assistance of a contact service to eliminate conflict at changeover. A parent arrives with the child and, through the agency of workers at the service, delivers the child into the care of the other parent. The other parent takes the child away from the centre to spend time with them, then returns at a pre-arranged time for the next changeover. Parents don’t usually see, meet or speak to each other, and enter and leave by separate doors.

Intake procedure [7.870] All children’s contact services have an application and intake process to assess a family’s needs and its suitability for the resources available at the service. There is often a waiting list, particularly for assistance at popular times on popular days.

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The costs of spending time with a child [7.880] Generally speaking, a parent is responsible for all costs while they have day-to-day care of the child (including on holidays away), unless there are explicit alternative arrangements between the parents. But issues arise when a parent moves further away, and travel costs increase. Who should pay? If parents cannot agree, they may apply for a court order allocating the child’s travel and accommodation costs. The order may be to share the cost in certain proportions, depending on the parents’ financial resources and the child’s best interests. Often, too, when a child spends overnight time in different households, issues arise about responsibility for purchasing a child’s clothes, where the clothes are kept, and who will wash them (and when). Similar problems can occur about toys, video games and equipment, and computers. These micro-disputes deserve specific discussion before they develop into big ones. Although some movement of children’s clothes and favourite items may be inevitable, many parents find, initially at least, that having two sets of clothing and toys is best. Over time, the heat in such issues tends to fade with the reduction in the level of conflict and the establishment of workable day-to-day routines.

Disputes about post-separation arrangements [7.890] Managing the large number of disputes around time spent with a child remains one of the family law system’s biggest challenges. The court system is not the right place for most of these cases. Apart from the inappropriateness and unhelpfulness of the court context for dealing with such intimate rituals of daily life and relationships, the alleged breaches of agreements or court orders often arise from simple misunderstanding, mistakes, unforeseen events, or insufficient detail in the arrangements. Communication rather than litigation is the key to resolution and peace in the shortest possible time for all concerned.

Solving problems through family dispute resolution [7.900] Many disputes about post-separation parenting arrangements may be resolved in negotiation or family dispute resolution with the other parent. Settled arrangements arising out of these processes can be put in writing and then filed as consent orders, if the parties wish, to give their agreement legal enforceability (see [4.1160]).

When litigation is necessary [7.910] The courts are not keen to use their limited resources on minor or isolated breaches, especially those that can be reasonably explained. Litigants who file repeated contravention applications may eventually be prevented from filing more under “frivolous or vexatious” case provisions. A case with only a slight basis for complaint may simply be dismissed. If, however, there are persistent difficulties in obtaining compliance with agreed arrangements, or if arrangements cannot be successfully negotiated either privately or in mediation, firm resolve

[7.940]

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to pursue court action may be necessary to secure a threatened relationship between a child and a parent, or establish parenting arrangements that are otherwise in the child’s best interests. You can apply to the court for: parenting orders establishing legally enforceable arrangements; variation of existing orders; or enforcement in relation to existing orders. Enforcement provisions in the legislation were tightened considerably in the 2006 amendments.

Parenting plans [7.920] Many parents make their own arrangements for post-separation parenting. A private agreement specifying parenting arrangements may or may not be in writing. If it is in writing, it may take the form of a parenting plan. It may be negotiated between the parties themselves or with the assistance of counsellors, family dispute resolution practitioners or lawyers. If efforts at private agreement fail, parties may apply to the court for orders specifying post-separation arrangements. Private agreements and parenting plans are cheap, quick, and easy to vary, and they do not take the same emotional toll as litigation on either children or parents. Since the 2006 amendments, they can be used to override previous court orders. The downside is that they are not enforceable under the law.

Formal requirements [7.930] A parenting plan is a type of parenting agreement that meets certain technical requirements under the Family Law Act. The plan must: be in writing; be signed by both parents; be dated; deal with certain parenting issues (see [7.960] for what these are); and not be made under any threat or coercion: sub-section 63C(1). Parenting plans are not compulsory for separating parents. A parenting plan is a flexible document that can take any shape the parties find useful, as long as the basic technical requirements are met.

Registration of parenting plans? [7.940] The Act still contains references to the registration of parenting plans. These relate only to plans registered under the law as it was before changes in 2003: sub-section 63C(6). It is no longer possible to formally register a parenting plan at court (or anywhere else). A new parenting plan has all the necessary effect under the legislation simply by satisfying the technical requirements at sub-section 63C(1).

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Effect of a parenting plan [7.950] A parenting plan is not legally enforceable in itself – parties cannot be brought to court or punished for breaching a parenting plan. But the changes in 2006 mean that a parenting plan can have the effect of making a previous court order, on the same issue, unenforceable. For example, if earlier court orders stated that a child was to spend equal time with each parent, and the parties now make a proper parenting plan stating that the child will live with one parent and spend certain time with the other, the order for equal time will no longer be enforceable. (There are exceptions – see [7.960].) Of course, the new arrangements agreed in the parenting plan are also legally unenforceable while they remain in this form. Many parents do not want or need to make their parenting arrangements enforceable. But if the parties do want more certainty and legal enforceability in their arrangements, they may apply to the court for consent orders after coming to agreement (see “Consent orders” at [4.1160]). Though they may sound complicated, the 2006 provisions mean that older orders, including consent orders, can be amicably, cheaply and conveniently changed by simple agreement. Previously, variation of orders, even consent orders, required the filing of new applications to the court. Parenting plans are likely to be used to vary the effect of the now near-mandatory equal shared parental responsibility order (see [7.140]), if the parties can agree to a different allocation of parental responsibility.

Parenting plans that vary parenting orders [7.960] Under section 64D, the general rule is that a court order made after the commencement of the 2006 amendments is subject to the provisions of any later parenting plan dealing with the same issues. This means that parties can effectively vary arrangements made in a court order by later making a valid parenting plan. There are exceptional circumstances, however, including those involving family violence, abuse or the likelihood of one parent using coercion or duress to seek the agreement of the other to a parenting plan: see sub-section 64D(3). In these types of exceptional cases, the court may make a special order saying that its orders can only be varied by other court orders, effectively negating the usual effect of parenting plans and requiring the parties to return to court if they want the order changed: sub-section 64D(2).

Changing or terminating a parenting plan [7.970] A parenting plan may be changed, or terminated, at any time by written agreement between the parties: section 63D.

[7.1010]

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Issues addressed in a parenting plan (or parenting order) [7.980] A parenting plan (or parenting order) can deal with one or more of certain parenting issues. These are: who the child will live with; the time the child will spend with certain people (including the parents, obviously, but also other significant people such as grandparents); the allocation of parental responsibility, including responsibility for making decisions about long-term, major issues; procedures for consultation and decision-making between people sharing parental responsibility; what communication the child can have with certain people; maintenance of the child (as distinct from child support); a process for resolving disputes arising under the plan (or orders); the process for varying the plan or, in the case of a parenting order, the steps to be taken before any application is made to vary the order; and any other aspect of the child’s care, welfare and development that the parents wish to address. See sub-sections 63C(2)–(2C) for parenting plans, and sub-sections 64B(2)–(4A) in relation to the subject matter of parenting orders.

Parenting plans and child support [7.990] A parenting plan may contain provisions relating to child support, but they will have no effect as far as the operation of the agreement as a parenting plan under the Family Law Act is concerned. However, if the requirements at sub-section 84(1) of the Child Support (Assessment) Act 1999 are met, the agreement may have separate and additional validity as a “child support agreement” under that Act: Family Law Act section 63CAA. As noted previously, detailed discussion of child support issues and legislation is beyond the scope of this book.

Parenting orders [7.1000] Under section 64B of the Family Law Act the court can make parenting orders covering a wide range of issues. These matters are listed at sub-section 64B(2).

Who can apply for parenting orders [7.1010] A parenting order in relation to a child may be applied for by: either or both of the child’s parents; the child;

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the child’s grandparents; or any other person concerned with the care, welfare and development of the child (section 65C). Clearly, “any other person” might include a concerned neighbour or other citizen (including in relation to children in Australian immigration detention centres), relatives, step-parents, and representatives of welfare agencies. Any of them may apply for any or all of the parenting orders provided for at section 64B. The court is always concerned to find the best possible arrangement for the particular child, regardless of the applicant’s status. See Smith and Swain (1978), where residence was awarded to non-parents. See also Re Hodak (1993), Rice v Miller (1993) and Mulvaney & Lane (2009). The cases confirm that there is no presumption in favour of a biological or adoptive parent (as against a step-parent or “functional” parent) despite the fact that different considerations apply. It is the best interests of the child that are paramount in deciding parenting orders. This was confirmed in the recent case of Aldridge & Keaton (2009), in which the appellant sought to establish a hierarchy of potential recipients, with applications by a non-parent carrying less weight. The appeal was dismissed. (This is notwithstanding that some of the section 60CC considerations are drafted in terms that appear to refer only to “legal” parents. See [7.1930] for more discussion on this.)

Who parenting orders may be made about? [7.1020] A child need not have been born to a married couple (or any particular sort of couple) to be the subject of a parenting order. Parenting orders cannot be made about a child if a care and protection order (or similar) has been made about them under State or Territory child welfare law: sub-section 69ZK(1). Apart from this, parenting orders may be made about any child who: is physically in Australia on the date of the application requesting the order (the “relevant day”); or is an Australian citizen, or is ordinarily resident or present in Australia; or has a parent who is an Australian citizen, or is ordinarily resident or present in Australia. An application for orders in an international case may also be considered if there is an international treaty or arrangement or rule of private international law that would allow an Australian court to deal with it: section 69E.

Family dispute resolution requirements Pre-action requirements [7.1030] Prospective applicants to all courts (including Local Courts and the Federal Circuit Court) for parenting orders must satisfy the certification requirements at sub-sections 60I(7)–(12) of the Act. Prospective applicants to the Family Court, additionally, must satisfy the pre-action dispute resolution requirements of Part 2 of Schedule 1 of the Family Law Rules.

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Certification requirements [7.1040] The 2006 amendments state that a court cannot hear an application for parenting orders unless it is filed with one of five types of certificate that may be issued only by an accredited family dispute resolution practitioner: sub-sections 60I(7), (8). See “To commence parenting proceedings” at [4.760]. This requirement means that the parties must engage in a family dispute resolution process before commencing litigation, unless one of the exceptions in sub-section 60I(9) applies (see [4.760]). The requirement for pre-action family dispute resolution does not apply if the court can be reasonably satisfied about past, or the risk of future, family violence or child abuse: sub-section 60I(9). For further important detail and discussion about family dispute resolution and relevant procedures in these circumstances, see [3.60].

Types of parenting order [7.1050] There are a number of types of parenting order: orders by consent (agreement between the parties); final orders, made by a judge or magistrate at a trial; interim orders (short-term, temporary orders); other interlocutory orders (procedural and short-term), such as orders for parentage testing, location or recovery of a child, lodging of security and so on; ex parte orders (orders made in the absence of, and without notice to, one of the parties); orders to “vary, cancel, suspend or revive” earlier orders; and orders by way of injunction (to prevent someone doing something). Each may deal with the issues listed at sub-section 64B(2) (see [7.960] – [7.990]). The following sub-sections explain how to apply for each of these types of order.

Equal shared parental responsibility, equal time? [7.1060] When a court is considering an application for any type of parenting order, it must begin with a presumption that it is in a child’s best interests for the parents to have equal shared parenting responsibility (see [7.140]) – unless there is evidence that a parent, or a person who lives with a parent, has engaged in child abuse or family violence: sub-section 61DA(2). The practical effect of the presumption is that the court will consider making an order for equal, shared parenting responsibility, in addition to (or instead of) the orders applied for, unless there is evidence before it that this would not be in the child’s best interests: sub-section 61DA(4). An order for shared parental responsibility requires consultation and joint decision-making on “major long-term issues”. It does not mean that the child must spend equal time with both parents (see section 65DAC). However, if equal shared parental responsibility is to be ordered, the court must further consider whether to

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make an order for equal time, or “substantial and significant time”, with both parents. These issues are discussed on [7.140] – [7.230]. The presumption applies to the hearing of applications for all types of parenting orders, including interim orders. But the Act specifically requires the court to disregard any allocation of parental responsibility made at the interim order stage when considering final orders: section 61DB.

Applying for consent orders [7.1070] See from [4.1150] – [4.1540] in chapter 4 for detailed discussion and procedure about applying for consent orders.

Applying for final orders [7.1080] Applications for property orders under sub-section 64B(2) should be made on an Initiating Application form in all courts. Sample orders that may be included are set out at [8.1860] – [8.1940]. In the Family Court, an affidavit must not be filed with the Initiating Application unless there is also an application for interim orders. In the Federal Circuit Court, an affidavit must be filed with the Initiating Application. In addition to the Initiating Application form you will need to file: a certificate from a family dispute resolution practitioner unless one of the exceptions under sub-section 60I(9) applies; if you claim one of the exceptions under sub-section 60I(9), then file an “Affidavit – Non-Filing of Family Dispute Resolution Certificate”; in the Federal Circuit Court, an affidavit in relation to the application for final orders and for interim orders, if any; in the Family Court, an affidavit in relation, only, to the application for interim orders, if any, included in the Initiating Application; in the Family Court, a “Notice of Child Abuse or Family Violence – Form 4” if you allege relevant abuse, family violence or risk of abuse or family violence; in the Family Court, a “Notice of Risk – Form 1” in any application for parenting orders, whether or not there is risk alleged; current family violence orders (if any), if a Form 4 or Form 1 is filed; children’s birth certificates, marriage and divorce certificates (if relevant). If you are claiming exception from the requirement to undertake family dispute resolution on the grounds of family violence or child abuse you will additionally need to complete the form “Acknowledgment – Information from a Family Counsellor or Family Dispute Resolution Practitioner” and be prepared to hand it to the judicial officer at the first court event. See sub-section 60J(1).

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See [5.740] “Applications and accompanying documents” for suggestions about additional documentation that may need to be filed.

Applying for interim or interlocutory orders [7.1090] It can take a long time to get final orders. Waiting times vary, depending on the court’s workload and resources, but final orders may not be obtainable from the Family Court in less than two years. Many people want, or their children need, enforceable parenting arrangements much earlier than this. The courts can make interim (temporary) orders for parenting, financial or property issues. They are enforceable until a date specified in the interim order or until final orders are made, whichever is earlier. Interim orders can be obtained urgently if the welfare of a child is seriously threatened, but will ordinarily be listed for hearing within two weeks of filing an application. Interim orders may be obtainable from the Local or Magistrates Court in regional areas.

Other interlocutory orders [7.1100] In the course of a parenting case, it may become necessary to apply to the court, from time to time, for procedural orders or orders for specific matters such as parentage testing or location and recovery. These interlocutory orders are of the same type and have the same procedural requirements as other interim parenting orders, and as such, are subject to the best interests considerations: Ames v Ames (2009)

Filing for interim and interlocutory orders [7.1110] An application for interim and other interlocutory parenting orders can be made either alongside an application for final orders (on the Initiating Application), or, if a case is already on foot, on an Application in a Case form. Applications for interim orders in both the Family Court and the Federal Circuit Court must be filed with an affidavit from the applicant.

Family dispute resolution and interim orders [7.1120] Parties are required to engage in family dispute resolution before applying for an interim parenting order, unless one of the statutory exceptions applies (see sub-section 60I and [4.660] – [4.750] for more about these requirements). If you plan to rely on one of the statutory exceptions, include your grounds in the affidavit accompanying your application for interim orders.

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Ex parte orders [7.1130] Orders are made ex parte when they are made in court in the absence of one party. The applicant for the orders must be present in court. Ex parte orders can be made on interim or procedural applications if there is an important reason for the hearing to take place urgently and without notice to the other party: Family Law Rule 5.12; Federal Circuit Court Rules Part 5.

Applying for an ex parte order [7.1140] To apply for an ex parte order there must be a case on foot. If you don’t have a case on foot, you can make an application for final parenting orders on the main issues on an Initiating Application. You can apply for the ex parte orders on an Application in a Case. If you do have a case on foot, use only the Application in a Case. You should specify in your application that you want the draft orders made on an ex parte basis. See the sample orders at [7.2600] for some suggested wording. An ex parte order will not be granted unless the applicant can establish by affidavit, or, with permission of the court, orally, the special circumstances set out at Family Law Rule 5.12 in Family Court cases, and at Federal Circuit Court Rule 5.03 in Federal Circuit Court cases.

Orders made on an undefended basis [7.1150] Sometimes a party knows about a hearing but doesn’t appear in court on the appointed day. (Sometimes neither party turns up!) The court has various options in such situations. It may decide to dismiss or adjourn the proceedings. But it also may decide to make such orders as it sees fit in the circumstances: see Family Law Rules 5.11 – 5.17; Federal Circuit Court Rules 10.01(2), 13.03A and 13.07.

Variation of parenting orders [7.1160] It has always been an option for parties to agree on the need to vary court orders, and apply for the varied orders “by consent”. This is not strictly necessary if all they really want is to establish new arrangements without being in breach of previous court orders. They can, instead, enter into a parenting plan that expressly varies the orders (see [7.920] – [7.990]). If, however, they want the certainty and enforceability of court orders, they may jointly apply for new consent orders. The court will not usually have any difficulties with agreed variation to existing arrangements. If the parties cannot agree on the need to vary the orders, however, one party may apply to the court to change its earlier orders. The court can make a new parenting order that “discharges, varies, suspends or revives” some or all of a previous order: sub-section 65D(2).

The presumption applies … [7.1170] When considering an application to vary a parenting order, the court is required to apply the presumption of equal, shared parental responsibility (subsection 65D(2)) and to undertake the full suite of statutory considerations under the

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operation of the presumption: see [7.140] – [7.220] and sub-section 61DA.

The “substantial change” test [7.1180] Given that the court will have done its best the first time around, it will not be keen, in the case of a disputed application, to change parenting orders unless there is evidence of “substantially changed circumstances” (Rice and Asplund (1979); King and Finneran (2001); Miller and Harrington (2008)). In Rice and Asplund, it was said that the court could consider an application to vary parenting orders only where: there is a change in the parties’ circumstances; or some new factor has arisen (such as a parent’s remarriage); or there is significant evidence that was not disclosed at the previous hearing. In Newling and Newling and Mole (1987), the court held that psychological or physical change in a growing child may be sufficiently substantial to justify variation in a particular case. A specific note to the 2006 amendments provides that the mere fact of the changed law is not to be regarded as “changed circumstances” sufficient to justify a variation to a parenting order.

Applying for a variation by consent [7.1190] An Application for Consent Orders is obtainable from any court registry or in kit form at the court website. You will need to file a copy of the existing orders with your completed Application. There is no requirement to obtain a family dispute resolution certificate to file for consent orders. An Application for Consent Orders to vary older orders must be filed in the Family Court. You cannot file for consent orders in the Federal Circuit Court unless there is an active case on the issues already on foot there.

Applying for a variation of consent orders in a disputed case [7.1200] If you cannot agree privately to vary the consent orders, or one party will not cooperate to complete a consent order application, you can apply to vary the order in either court as if you were commencing a case. Use an Initiating Application, and attach and refer to a copy of the existing orders. If you file in the Federal Circuit Court you will need to file an affidavit with your Initiating Application. You will also be required to file a family dispute resolution certificate, a Notice of Risk, and, in the Family Court, to observe the pre-action dispute resolution requirements – see [4.690] – subject to the statutory exceptions.

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Updating your orders [7.1210] If arrangements change by consent, or details such as names, times, dates and locations change over time, it is a good idea to take the trouble to have old orders either discharged or updated by one of the methods described above (including by parenting plan). Otherwise, one or both parents may be liable on an ongoing basis for breach of the legally current orders.

Early stages in a parenting case First day in court [7.1260] At the first court event the judicial officer will attempt to clarify the issues that are in dispute between the parties and explore options for resolution on the spot. If the case is not resolved, the judicial officer will make procedural orders for the future conduct of the case. In the Family Court, these include the possibility of referral to the Child Responsive Program (see below) and the possible appointment of a family consultant. See Family Law Rules 12.04. Parties in the Federal Circuit Court may also be referred for further family dispute resolution and possibly other family services before a hearing date is set.

Family consultants [7.1270] The family consultant is a senior officer of the court who assists and advises both the parties and the court to resolve cases. A family consultant may be appointed to a case before, at or after the first court event. Family consultants have a variety of duties and have a pivotal role in the management of a case. The family consultant conducts the Child Responsive Program with parties to help them, if possible, to reach agreement. The family consultant assists the court, if agreement is not reached, by conducting an independent investigation and assessment on the issues and formulating a family report which may be submitted to the court as evidence. The family consultant is sworn-in to provide evidence at the final hearing in child-related proceedings. Be aware that anything said in discussions with a family consultant, including in the course of a Child Responsive Program, is reportable to the court and admissible as evidence in your case (unless the court explicitly orders that the consultant is to act as a family counsellor or family dispute resolution practitioner). See sub-sections 11A, 11C, 11F and 38BD of the Act. It is mandatory for parties to attend appointments with the family consultant. Failure to attend is effectively a breach of a court order. The court may make further orders for attendance with the family consultant, or orders for the payment of legal costs, to dispose of the case, to decide a particular issue or make other interim parenting orders: see sub-sections 11G and 13D of the Act.

Child Responsive Program [7.1280] In the Family Court, if the case is not resolved after the initial procedural hearing, parties may be ordered to attend the Child Responsive Program to assist them further towards settlement of the disputed issues without a court decision.

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The Child Responsive Program is a series of intensive dispute resolution sessions, focused on the needs of the child in a parenting dispute. The Program is managed by the family consultant allocated to a case. The Child Responsive Program may involve: separate intake meetings between parents and the family consultant; child and family meetings (with the family consultant); and settlement meetings (parties, lawyers and family consultant). The family consultant may prepare a Children and Parents Issues Assessment report. This report may be presented as evidence in the final hearing. Unless it is inappropriate because of the age, maturity or other special circumstances, the family consultant is required under subsection 62G(3A) to “ascertain the views” of the child and to include them in the family report (to the extent this is possible without forcing the child to express a view, which is prohibited under section 60CE). There is a useful brochure on the Child Responsive Program available from court registries or the Family Court website at http://www.familycourt.gov.au. If the case does not resolve in the course of the Child Responsive Program, another procedural hearing will be held.

Procedural hearing after Child Responsive Program [7.1290] In the Family Court, if the case does not settle after the Child Responsive Program, another procedural hearing must be held: rule 12.09 Family Law Rules. During this court event, the court may: order more family dispute resolution; appoint an independent children’s lawyer; set the case down for hearing and accept payment for the hearing fee; order completion by each party of a parenting questionnaire; order filing of undertakings as to disclosure; and allocate a date for a compliance check. See chapter 9 for information on the procedure applying after the date for final hearing has been set.

Independent children's lawyer [7.1300] An independent children’s lawyer is appointed to ensure that “the best interests of a child are independently represented” during court proceedings. This is not the same type of representation as a lawyer would provide to an adult (who can “instruct” their lawyer to act in particular ways). In the proper exercise of their duties, an independent children’s lawyer may need to make submissions to the court that are against the child’s wishes. Once the independent children’s lawyer is appointed, parties must effectively treat the lawyer as another party to the proceedings. All documents that are served or disclosed to the original parties must be served or disclosed to the independent children’s lawyer. The independent children’s lawyer should be involved in settlement discussions.

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When an independent children's lawyer will be appointed [7.1310] The independent children’s lawyer is almost invariably a Legal Aid lawyer, or a private lawyer organised through the Legal Aid system. They may be appointed on the court’s own initiative, or by order on the application of: the child; a party in the case; any other interested person; or an organisation concerned with the welfare of children. Appointments are now reasonably common, and usually made early in court proceedings. The court in Re K (1994) summarised the circumstances in which they will ordinarily be made. These include where: there are allegations of child abuse; the parents are in “apparently intractable conflict”; the child appears alienated from one or both parents; there are religious or cultural issues affecting the child; the sexual preferences of one or both parents, or another person who spends a significant amount of time with the child, are likely to affect the child’s welfare; there are significant medical, psychiatric or psychological issues; neither parent seems a suitable custodian for the child; a “child of mature years is expressing strong views, the giving effect to which would involve changing long-standing custodial arrangement or the complete denial of access to one parent”; a party proposes to take the child to a place in or out of Australia that will greatly restrict or exclude the possibility of access for the other parent; separation of siblings is proposed; both parents want the child to live with them, and neither has a lawyer; and where the court’s “welfare jurisdiction” in relation to a child’s medical treatment is involved, and the child’s interests are not adequately represented. The court may also order the appointment of an independent children’s lawyer when it appears to the court that the child’s interests ought to be independently represented: subsection 68L(2).

What the independent children's lawyer does [7.1320] An independent children’s lawyer is not obliged to act on the child’s instructions as a lawyer does with an adult client. Their role is to: form a view from available evidence as to what is in the child’s best interests, and act in the proceedings accordingly; and to suggest to the court any course of action that the lawyer believes is in the best interests of the child. Specifically, the lawyer is required to: act impartially in relation to the other parties;

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ensure any relevant views expressed by the child are put before the court; analyse family consultant and other specialist reports to identify the most significant matters for determining the child’s best interests, and bring them to the court’s attention; try to minimise the amount of trauma the child suffers due to the case; and work to reach settlement with the parties to the extent that this is in the child’s best interests. See section 68LA. The independent children’s lawyer usually investigates the child’s circumstances, arranging for independent evidence to be compiled and brought into court. The court may order that the child be available to be interviewed by a person preparing a report: section 68M.

Order for supervised time with a child [7.1340] If a court has concerns for the welfare of a child during the child’s time spent with a parent, it may order that the time should be spent in the presence of a supervising third party, possibly in the presence of a family consultant: section 654L. Very often, however, supervised time with a child is ordered on an interim basis, with transition to unsupervised status after a certain period or the meeting of certain conditions.

Reasons for supervision [7.1350] Usually, supervised time will be ordered when the court has concerns about substance abuse or other abusive or violent behaviour of a parent, and the possible effects of this on the child. Supervised time may also be ordered when the court has significant concerns about the quality of a parent’s care arising from any basis, including lack of skill and experience in basic parenting functions (like feeding, bathing and changing a baby).

Who should supervise? [7.1360] If a court orders supervision, the identity or status of the supervising party is specified in the order. A family consultant or private counsellor, a social worker, a community service agency that regularly provides supervisory services, or a third party such as a grandmother, may be considered suitable. Supervision may also be provided by a child and family service (see [7.850]). Where no supervisory services are available locally, the party may nominate a reliable relative or willing person in the community in their application. But courts do not favour supervision by a friend or relative who does not believe that the alleged violence, abuse or substance abuse has occurred, or that it is relevant to the child’s safety. The other parent would rarely be ordered to be the supervisor. Parties sometimes agree between themselves, however, that the father of a very young baby will spend time with the baby while remaining in the general vicinity of the mother.

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Functions of a supervisor [7.1370] The supervisor is there not only to oversee and assess the parent’s behaviour, but also to help the parent develop appropriate parenting skills and attitudes: Bainrot v Bainrot (1976). Sometimes, a supervisor has the power to decide whether and when the amount of time spent with the child should increase or decrease: Spry v Spry (1977). The court may also arrange orders such that a supervisor may terminate a parent’s time with children if a parent acts or speaks inappropriately: Cappetto & Cappetto.

Formulating a supervision proposal [7.1380] A party applying to restrict a parent’s level of unsupervised time with a child must be able to present a suitably researched supervision proposal in the draft orders. New in 2009, the Family Court’s Best Practice Principles for dealing with cases involving family violence or child abuse include, at the end, a model order for supervision by a contact centre, which may be useful for the formulation of draft orders.

An order for no communication? [7.1390] The courts are very reluctant to make an order that effectively prevents interaction between a parent and a child. The preferred method is to vary or suspend parenting arrangements to make appropriate provision for the safety and welfare of children, if this is feasible. But in some cases a court has ordered that a parent cannot spend any time, or have any communication, with a child. In A v A (1998), “no contact” was ordered after the father’s violence towards, and sexual assault of, the mother. In M v M (2000), a possibly abusive father was ordered not to spend time, or communicate, with his child. In Hughes and Hughes (1980) the court stated that arrangements for time or communication with a child might be suspended or refused if there was a real risk that one parent would seriously undermine the other’s relationship with the child, or ordered arrangements would be breached.

Parental responsibility orders Orders for equal, shared parental responsibility [7.1400] If the presumption of equal, shared parental responsibility is upheld on the hearing of an application for orders, the court is likely to make an explicit order for equal, shared parental responsibility. Under section 65DAC, this means that parents must consult together and make a genuine effort at joint decision-making on “major long-term issues” affecting the child. Day-to-day care issues are not major long-term issues. Consultation on them is not required.

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Orders about an aspect of parental responsibility [7.1410] The court may make an order allocating responsibility for decision-making about a specific aspect of a child’s life to one person. This may be a “major, long-term issue”, or it might be something that concerns the particular family (certain medical treatments, for example).

Where will the child live? [7.1420] Changes to the law in 2006 officially abolished the concepts of “residence” and “contact” as defining labels for orders, and even for parents. “Custody” is an even more outdated term. The Act now deals with such concepts as “equal time”, “substantial and significant time”, and “communication” with both parents. Although the amended Act tends to read at times as though children after separation are effectively homeless – drifting between “time spent” with various persons – there is still scope for orders about where, or at least with whom, a child will reside. In fact the statutory list of matters that may be covered in a parenting plan or order includes “the person (or persons) with whom the child will live”: subsection 61B(2). This is not to say that the resulting orders must specify where or with whom the child will live; the residence of the child can actually be described effectively in the new language of “time spent”. There are sample orders at [7.2370] – [7.2480] that relate to both methods of describing domestic arrangements for the child. You can use or adapt these orders for inclusion in a parenting plan, or in an application for consent orders, interim orders, or final orders.

Orders for steps to be taken to resolve issues [7.1430] The court may make orders about the practical measures the parents must take to consult with each other, reach decisions jointly and resolve disputes on parenting issues. These measures may, for example, involve consulting with a family dispute resolution practitioner or other third party. But they may also involve more creative provisions in some cases; for example, that the parents should meet to consult about parenting issues at a particular public location, or maintain a parenting book, or correspond by email.

Anti-denigration orders [7.1440] One parent may be concerned that the other denigrates (abuses or criticises) them in front of the children. This may be hurtful or damaging to the child, and may affect the child’s relationship with either parent. The court may make an anti-denigration order – an order that one parent will not criticise, harass or abuse the other in the child’s presence – if there is evidence that the denigration is affecting the care, welfare and development of the child, or the exercise of parental responsibility. Some lawyers resist the inclusion of an anti-denigration provision in a set of orders on the basis that it is essentially unenforceable. Words said to children are not easily policed. But if the

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issue is important to a parent, they should insist on having the provision included. It establishes an expected standard of behaviour, and that may be useful in itself. If a certain level of abuse and harassment regularly occurs in the presence of the child, a family violence order may be a more powerful remedy.

Evidence in parenting cases Changes to evidence in child-related proceedings in 2006 [7.1480] The 2006 amendments substantially modified the law of evidence as it applies to child-related proceedings under the Family Law Act. Under the revised scheme, the usual rules of evidence about witnesses, hearsay and certain other matters do not apply to child-related proceedings, unless the judicial officer sees fit to apply them. Instead, the judicial officer must use their discretion in giving weight to the evidence before the court; for example, allowing a piece of unsubstantiated hearsay evidence which would previously have been excluded as inadmissible but, perhaps, accord it less weight than other evidence (see [6.240]). This greater emphasis and reliance on “active judicial management” is a feature of the amendments. The changes free the courts and also the parties from what has sometimes been a “straitjacketing” effect of the technical laws of evidence and legal procedure. There is now more latitude when bona fide efforts are being made to bring important facts to court for consideration. Judges and magistrates have more power to focus parties’ efforts in providing evidence on the issues that the court sees as particularly relevant. Overall, the changes should mean that it is easier for a self-represented litigant to bring their case in evidence before the court, and to manage the conduct of hearings. It should be noted, however, that the increased flexibility applies to procedure only, not to the substantive law guiding the court’s decision-making in parenting matters.

Evidence in interim hearings [7.1490] With the aim of keeping the volume of evidence in interim hearings (which are meant to be short) as low as possible, Family Law Rule 5.09 allows a party to rely on only one affidavit per witness (although the filing of an amended affidavit close to the date of hearing will often be allowed). Affidavit evidence from witnesses who are not parties to the case will only be allowed into court if one of the parties cannot provide the evidence in their own affidavit. See details about special provisions in relation to the assessment of best interests considerations at the interim hearing stage at [7.1570]. The contents of affidavits for this stage should be planned to account for this. See chapter 9 for information about preparing a case for hearing.

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Evidence of the views of children [7.1500] The Family Law Act acknowledges the potential for significant emotional harm to a child who is forced to choose between parents, or to otherwise express wishes they would rather keep to themselves, by not permitting a child to make an affidavit or give oral evidence (unless circumstances warrant the special authorisation of the court for these measures – section 100B)). Section 60CE also states that neither the court nor anyone else can force a child to express their views for family law purposes. But research shows that children often have views, in any case, about the possible outcomes of an application for parenting orders. How can a shy or young child’s views reach the court if the protections against forcing the child to speak are maintained? In attempting to reconcile these issues, the 2006 amendments provided that the court can inform itself about the views of a child (section 60CD): through a report from a family consultant; by hearing in court from an independent children’s lawyer; and subject to the prohibition on forcing a child to express their views, and other technical requirements, in any other way it sees fit. One possibility is that parents (and others) may give an account of the child’s views, even if this would be hearsay evidence. Parents can give evidence of a child’s wishes in their own affidavits, or arrange for them to be put into evidence through the affidavit of a third party, such as a teacher: sub-sections 69ZT(1) and 69ZV(2). This method is clearly open to the criticism that the child’s views will be coloured by the bias of the reporting adult. Accordingly, where the views of a child are considered vital to a case, a family consultant (see [7.1270]) may interview the child and provide sworn, neutral evidence on the issue in a report to the court. The judge may also interview a child in a private session and in the presence of the family consultant, with the child’s consent. Evidence from such an interview would come into court in the family consultant’s sworn statement. See [7.1270] for information about family consultants.

Evidence of parenthood [7.1510] Evidence of a biological link between parent and child is only required where parentage is in dispute between the parties.

The presumptions of parenthood [7.1520] The court will presume that a person is a parent of a child if at least one of the presumptions of parenthood set out at sub-sections 69P–69U apply, unless the person objecting to the effect of the presumption provides evidence to prove that it is incorrect. Blood tests can categorically exclude the possibility of fatherhood, but they cannot confirm it. Evidence of parentage usually comes to court in the form of a DNA test. DNA tests can confirm paternity of a child with 99.9 per cent accuracy.

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Orders for parentage testing [7.1530] The presumptions of parenthood do not apply to children conceived in a casual relationship (where the parties have not lived together). But if biological parentage is an issue – usually in relation to a dispute about child support obligations – a party, or the child, may apply for an order that: a party provide evidence that is relevant to the issue (section 69V); or a party and/or the child undergo a “parentage testing procedure” (section 69W). The court will not order parentage testing unless there is “honest, bona fide and reasonable” doubt on the matter, not just the personal doubts of one parent: In the Marriage of F and R (1992).

Refusal to undergo parentage testing [7.1540] A person refusing a parentage test ordered by the court expressly contravenes a court order, but no penalty applies: sub-section 69Y(1). There may be religious, cultural or other good reasons for refusing the test. On the other hand, the court is entitled to “draw such inferences as appear just” from the refusal. It may infer that the test would probably have shown a result contrary to the wishes of the refusing party. See G v H (1994), where the mother was a working prostitute, and the alleged father refused a test. The court inferred fatherhood from the alleged father’s refusal to be tested.

Do's and don'ts: Affidavits in parenting cases [7.1550] Do be concise, especially in affidavits with applications for interim orders. Address only issues that are relevant in the best interests assessment. Affidavits that are excessively long or that contain quantities of only marginally relevant facts irritate judges and do not help your case. Do use a personal tone that tells the court who you are, and who your child is. Refer to details of household routines, preferences, brand-names (“I let him watch Bob the Builder and Playschool, then the TV goes off”). Don’t focus the affidavit on the parenting sins of the other party. It will reflect badly on your attitude to cooperative parenting without providing any evidence to support your own proposal. Do give details, if appropriate, of physical household facilities and the location of the proposed accommodation. If the information is relevant, provide details such as the number of bedrooms and who will sleep in each; whether or not there is a backyard and any play facilities; proximity to schools, transport and the child’s extracurricular activities; proximity to the child’s friends; the child’s prospects for making new friends locally. Don’t try to hide any history of mental health problems (including depression) if you think the other side might raise these issues. The other

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party will make any emotional problems sound much worse than they actually were (or are). You will make a better impression if you produce any concrete evidence of emotional difficulties yourself. Explain the facts honestly, while drawing boundaries around the timing and limited effect of the problem. Do provide evidence about your relationship with your child. Perhaps more appropriately in an application for final orders, refer to personality traits you think you share with the child; things you like about each other; things you enjoy together; things you understand about the child. Don’t ignore the other party’s proposals. These are contained in the draft orders the other party is seeking. If you have evidence as to why they are not in the best interests of the child, make sure you include it. Do focus on stability as a theme. If you are seeking to disrupt the short-term status quo in some way, investigate the broader effect of your proposals to see whether they provide better stability in the longer term. Do refer to practical arrangements for the care of the child. List proposed arrangements for childcare; maintaining routines; the location and movement of the child’s possessions (if this is relevant). Don’t ignore statements made in an early affidavit from the other party if you have contradictory evidence. Address everything you disagree with. Don’t assume your love life is off-limits. The court will be interested in anyone you are seeing regularly, particularly if they live with you or sometimes stay overnight. Tell the court in your affidavit who the new person is, their age and what they do for a living. Describe their relationship with the child and any interests they happen to share. For the final hearing, it is likely that an affidavit from a new de facto partner dealing with these matters will be requested or permitted by the court.

How the court decides parenting orders – final trial [7.1560] The task for the court at the final trial is to assess all the available evidence to determine the best interests of the child in relation to the issues in dispute, in accordance with the objects of the Act and the various considerations discussed in this chapter. Under section 69ZR, the court may decide and make orders at any point in child-related proceedings. You should be ready to ask the court to make a final finding on a disputed fact, or even an order on a legal issue, if you can argue effectively for it (orally before the court, or on the basis of material already filed) and demonstrate that it would further the case management principles for child-related proceedings set down at section 69ZN. This power is not about enabling the court to dispose of the central issue in a case early. Its purpose is to focus proceedings. Everything need not be left open for argument and evidence at the final hearing. The court may now make an early finding that, for example, family violence did

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take place, or there is an unacceptable risk of child abuse, or the mother did crash the car one night while under the influence of alcohol. These issues will be taken as decided from the time the findings are made.

How the court decides parenting orders – interim hearing The pathway to decision-making at an interim hearing [7.1570] At an interim hearing, the court does not have time to make a detailed assessment of a child’s best interests; nor is all the evidence available. The courts therefore use a slightly different approach in deciding parenting orders at this stage. The case of Goode v Goode (2006) clarified the “legislative pathway” for factoring the two-tier scheme of best interests considerations in the context of interim orders. The process was set out as follows: (a)

identifying the competing proposals of the parties;

(b)

identifying the issues in dispute in the interim hearing;

(c)

identifying any agreed or uncontested relevant facts;

(d)

considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e)

deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f)

if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g)

if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h)

if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i)

if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

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(j)

if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k)

even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

An interim decision based solely on disputed facts? [7.1580] In Goode v Goode (2006), the court suggested that, as the court may be restricted to a condensed enquiry into the issues in an interim hearing, interim orders may have to be decided on the basis of the less contentious facts. In Banks & Banks (2015) the court clarified that the judgment in Goode did not require that every one of the best interests considerations should be discussed and characterised as disputed or otherwise, when it is clear that there are one or two decisive factors. Parties should ensure, then, that they consider both of the primary considerations and all and any of the relevant secondary considerations in framing their interim applications and responses. Parties need to think strategically about what issues the court will be able to feasibly deal with in the interim hearing context.

Treatment of the presumption at the interim stage [7.1590] It is not only the best interests considerations that matter in the interim context however. In the significant, subsequent case of Marvel & Marvel (2010) the Full Court corrected the interpretation in Goode v Goode (2006) of sub-section 61DA(3) of the Act, which states: When the court is making an interim order, the presumption [of equal shared parental responsibility] applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order. In Goode, the provision was taken as suggesting a general discretion for the court not to apply the presumption of equal, shared parental responsibility in the time-pressed context of interim proceedings. In Marvel, however, the court re-asserted that the provision requires the same consideration of the presumption in interim proceedings as is required in proceedings for final orders – that is, with scope, after the due consideration, for not eventually applying the presumption if this would be appropriate (because there are reasonable grounds to believe there has been family violence or child abuse).

Relocation [7.1600] Many of us no longer want to live in the one place for a long time. Our lives seem more like real journeys as our choices take us from place to place, often with a lot of distance in between. After relationship breakdown, setting off with the kids to a far-flung location (where there is much greener grass …) can seem a particularly desirable option.

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Sometimes the aim is to simply get away from the former partner. Sometimes it’s to return to the support of the parent’s original family. Sometimes it’s to find new employment (there is nothing like separation to highlight the absence of employment and educational opportunity in a small town). Sometimes it’s simply all about new starts, new horizons: “We’ll just be happier in Byron Bay (Cairns/Lismore/Broome/the Hills/Launceston/ Darwin/Fremantle).” But no matter how good a parent’s reasons for moving away with a child, the result may be disastrous for the parent left behind, and sometimes for the child as well. It is a tragic reality that parents and children separated by significant, geographic distance often simply lose each other. In both court proceedings and private negotiations around this issue, the task seems to be to identify the least worst situation for the child. The parties and the courts must weigh up the benefits and detriments for the child of all possible scenarios. A court will act, if necessary with firmness, to support the child’s best interests and rights, notwithstanding that these may conflict significantly with those of a parent.

Legislation [7.1610] Disputes about relocation are really only particularly difficult disputes about who a child will live with. Under the “major long-term issues” concept in the 2006 amendments, parents with orders for shared parental responsibility must consult with one another and genuinely attempt to jointly decide about “any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent” – a direct reference to relocation, among other possible applications. As a result, a parent with a shared parental responsibility order who relocates without consulting the other parent will be in breach of the order. This is a significant change to the law. But there are no specific provisions in the legislation to guide the parties or the court in relocation disputes. The issue must be considered in terms of the child’s best interests in the particular circumstances of the case. This involves applying the best interests considerations (section 60CC) and the principles and objects that underlie their interpretation: section 60B. If there is equal, shared parental responsibility, or the court proposes to make such an order, the additional set of considerations in relation to equal or substantial time must also be undertaken. So although in the absence of a shared parental responsibility order there is no explicit legal barrier to one parent relocating without the consent of the other and without orders, there is now less reason than ever for the departing parent to assume a court’s eventual blessing. Many relocated parents are ordered to return with the child.

At the interim order stage [7.1620] A parent may wish to apply for a temporary order that either prevents, or expressly permits, a relocation. Courts will far more readily grant the first type – called an injunction – than the second. This reflects the courts’ currently strict approach with relocation applications. An injunction can be obtained under section 68B – possibly on an urgent or ex parte basis – to stop a parent from leaving with a child. See “Obtaining an injunction” at [7.1780].

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Trends in relocation cases [7.1630] In the past, the relocation of the parent who lived with the child was usually permitted. But decisions were trending back towards maintaining the child’s relationship with both parents even before the 2006 amendments, and a disputed application for relocation has now only a 50-60 per cent chance of success.

Particular challenges in relocation cases [7.1640] The first difficulty for the court in a relocation case is that it must try to form an accurate picture, from the evidence, of the child’s life in the new location. With often no experience of or background of the family in the new place – only assertions from the applicant about how terrific things would be – this is essentially an exercise in crystal ball-gazing. Secondly, the court may be asked to consider the effects of forcing a parent to continue to live somewhere they don’t want to live. The impact on a parent “stuck” in a place can be huge – often in terms of career opportunity, but also in terms of the practical, financial and emotional support that extended family elsewhere can provide. But the crucial question is how these circumstances affect the child. For example, a relevant and significant, if not singularly determinative, circumstance may be how the unhappiness caused to a parent in having a relocation disallowed might impact on their capacity to parent effectively: Hepburn & Noble (2010). These factors, difficult as they are to assess, must be factored in the process required under the new legislation in relation to both the presumption of equal, shared parental responsibility and the assessment of a child’s best interests. The varying results, through the successive levels of appeal, in the relatively recent case of Rosa & Rosa (2009) illustrates the complexity of the competing legal concepts in a relocation scenario. In the initial case, a decision subsequently upheld on appeal to the Full Court of the Family Court, the mother was ordered to return the child from Sydney to North Queensland. It was held that the mother did not demonstrate sufficient appreciation of the child’s “very real need to foster and develop a relationship with the father”, a factor relevant in the context of the (additional) best interests consideration at section 60CC(3)(c), namely the “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”. She appealed this decision to the High Court and succeeded. The High Court stated that both the trial judge and the Full Court had been mistaken in focusing exclusively on the best interests considerations, and not expressly considering the “reasonable practicality” requirement before deciding an order for equal time under sub-section 65DAA(1). See MRR v GR (2010) (formerly Rosa) for the High Court judgment.

Competing proposals [7.1650] In A v A: Relocation approach (2000) the court outlined the four possible competing proposals in a relocation scenario: 1.

the child leaves with one parent;

2.

the child stays with one parent;

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3.

both parents and the child stay where they are; or

4.

both parents and the child move to the new location.

[7.1660]

The so-called “fourth proposal” – where both parents and child move – was first raised as a serious option in U v U (2002). In that case the mother, who was the principal carer, wished to return with the child to the support of her family in India. The father also had substantial contacts and employment prospects in India, but his first proposal was that the child should remain with him in Wollongong. The majority of judges hearing the appeal agreed that a proposal number 4 should have been suggested and tested at the original trial. Justice Hayne said in the course of his judgment in the case: … it must not be assumed that one parent (the father) cannot move and that the other must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them. Parties who are applying for relocation orders, responding to an application, or addressing relocation in private negotiation should be prepared to argue the relative merits and demerits of each of the four possible competing proposals. Though it may still be relevant on specific issues, case law on relocation made prior to the significant changes in 2006 to the Family Law Act should be very cautiously applied. For more contemporary approaches to the application of the current law to different relocation scenarios, see Taylor and Barker (2007); Sealey & Archer (2008); Starr & Duggan (2009); McCall & Clark (2009); MRR & GR (2010) and Hepburn & Noble (2010).

Applying for orders [7.1660] Interim (as opposed to final) orders allowing relocation are rare. To obtain such an order, there would need to be a truly compelling reason arising from the welfare of the child. Interim orders to restrain relocation are far more common. If a case is not already on foot, apply on an Initiating Application for both interim and final orders to restrain or permit relocation. If a case is on foot and you wish to make an interim application, file only an Application in a Case. All applications for interim orders should be accompanied by an affidavit.

Relocation proposals If you are applying for final orders to relocate with the child [7.1670] If you are applying to relocate you may wish to draft a principal proposal, and then some alternative proposals for parenting arrangements. These might include proposals for: Your relocation with the child with the other parent remaining. The proposal for the child to spend time and communicate with the other parent

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should be as generous and detailed as possible to minimise any loss of relationship. It may provide for frequent telephone and email contact as well as a significant number of visits, and proposals for bearing, or sharing, travel costs. Your relocation with the child with the other parent also relocating. This wouldn’t involve an order that the other parent must relocate, but a crafting of arrangements that would only be achievable if the other parent lived in the same general location. If orders for your relocation with the child were refused, living with the child in the original location with the child spending time and communicating, on certain terms, with the other parent. If orders for your relocation with the child were refused, the child living in the original location with the other parent and spending time and communicating, on certain terms, with you. You should include evidence to demonstrate the advantages for the child of your preferred scheme. This might include evidence about appropriate schooling, extended family, childcare facilities, extracurricular activities, quality housing, potential new friends, the capacity of the other parent to relocate, and the advantages of continuing the parent–child relationship if the other parent also relocated. There should also be evidence of the advantages of the relocation for you (and possibly also the disadvantages that would result if you don’t relocate), with the link between those advantages and the child’s best interest considerations at section 60CC clearly explained. If a relocating parent has been served with, or has an idea about, the other party’s competing proposals, evidence of the disadvantages for the child of those proposals (including the effect of parental unhappiness on parental capacity) should also be given. If you are applying for final orders to prevent the other parent relocating with the child If you are seeking to prevent the relocation of a child, you may choose to present alternative proposals for orders: that the child live with you, with a proposal for them to spend time and communicate with the departing parent (the proposal should be as generous as practicable – see above); or that the other parent live in a defined area with the child, thereby effectively preventing their departure. Affidavits supporting draft orders to prevent relocation should provide evidence of the benefits for the child of continuing links with school, friends, relatives, sporting teams and other facilities in the community, as well as the strength and importance (for the child) of the relationship between you and the child. Affidavits may also include evidence of the disadvantages for the child of the other parent’s

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proposals, and/or of the impracticability of you also relocating.

Travel with a child Local and interstate travel [7.1680] Sometimes a parent is concerned that the other parent should not take a child “out of town” or interstate without their knowledge or consent. It is natural for a parent to want to know where their children are. Most parents notify each other before any proposed travel as an ordinary courtesy. In the absence of such cooperation, however, a more detailed agreement may be needed. Whether the arrangements are made in family dispute resolution, private negotiation or more formally as part of a parenting plan or a set of consent or parenting orders, parties usually agree that one or both of them will not take the child from a defined local area without prior notice to the other, and that if the child will be absent from the local area for any length of time, the non-travelling parent be given contact details and a travel itinerary. The question of prior approval is more difficult. In the absence of orders to the contrary, there is no law that prevents a parent from taking a child travelling, or visiting, anywhere in Australia, with or without the other parent’s consent. There is a legal problem only if parenting orders are contravened in some way by the travel.

Overseas travel [7.1690] The situation is quite different for overseas travel. If a parenting order is in force, or if court proceedings for a parenting order have been commenced, it is illegal to take a child out of Australia without: a specific court order; or the other parent’s written consent: sub-sections 65Y and 65Z.

Applying for an order [7.1700] You can apply for an order allowing you to take a child overseas if you cannot obtain the other parent’s consent. If proceedings are already on foot, and you want to travel before final orders are made, you can file an Application in a Case with an affidavit. If there is no current case, you need to file an Initiating Application (in the Federal Circuit Court, with an affidavit as well). The draft orders should specify that the parent may travel with the child from Australia to a named location and back on certain dates (or according to a specified itinerary). There may be other conditions in relation to the travel, and to communication with the parent remaining in

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Australia. An order that the departing parent lodge a bond in a neutral trust fund, as a form of guarantee that the parent will return with the child, might also be anticipated. Also, as such trips often cut across existing parenting arrangements, an applicant may wish to suggest orders for make-up time with the non-travelling parent after the trip is over.

The affidavit [7.1710] A parent wishing to take a child overseas without the consent of the other parent faces an uphill task in court. For a start, the applicant’s affidavit must specifically address the other parent’s lack of consent. How hard did you try to obtain it? What appear to be the reasons for the refusal? You must then make a very good case for the benefit of the travel to the child, addressing the issue of duration, and the reasons for, and benefits of, travel to particular destinations. If the child is young, or the trip is long, the court will be concerned about the effect of the trip on the relationship between the child and the other parent. The court will also be very careful about assessing and managing the risk that the parent will not return to Australia with the child. Evidence will be required of a bona fide intention to return – detailing obligations, ties, and other inducements, including financial security specifically arranged for the purpose. Evidence from other witnesses may also be useful in this regard. Note that the court will be more concerned about travel to some countries than others (see “Recovery of a child taken overseas” at [7.1830]).

The child's passport [7.1720] If the child does not already have a passport, or the passport is in the possession of the non-travelling parent, the applicant may need to request further orders, either: requiring the child’s passport be surrendered to them; or permitting the Department of Foreign Affairs and Trade to issue a passport, even though both parents do not consent. A parent seeking to ensure that a passport is not issued without their knowledge may lodge an alert or objection with the Department of Foreign Affairs and Trade’s passport office. See the department’s webpage on the issue at http://www.passports.gov.au/Web/ ChildAlert.aspx, or enquire directly for further details.

Abduction of a child [7.1730] If you believe that a child has been taken from your care, and that the child’s safety is at risk, you should notify police at once. Be aware, however, that if the child is with a parent, the police are unlikely to take any action if the child’s safety is not in question, and there are no court orders rendering the “possession” of the child by the other parent unlawful.

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Recovery of a child in Australia Recovery orders [7.1740] The Family Law Act allows a parent, grandparent or any other concerned person to apply for a recovery order – actually a series of orders authorising the finding, taking possession and return of a child, by force if necessary. Some sample recovery orders are set out at [7.2660]. For a more comprehensive package of draft orders, see the resource kit prepared by Legal Aid NSW entitled “Seeking Urgent Recovery Orders in the Family Court” and available at http://www.legalaid.nsw.gov.au/get-legal-help/factsheets-and-resources.

A spectrum of kidnaps [7.1750] There is a range of severity of “kidnap” situations. At one end of the spectrum is the angry parent using forced change to the child’s living arrangements to upset or frighten the other parent, only to return the child in a day or so. This is, unfortunately, quite common. At the other end is the parent who has taken a child and doesn’t intend to return them. The location of this parent and the child is usually unknown. Tailoring your response Choosing an overly passive response initially can waste valuable time if a child is truly in trouble. On the other hand, being too aggressive can entrench the determination of the absconding parent to keep the child. If you are confident that a child will be safe with the absconding parent, the most effective initial response may be to try to negotiate openly about the issues concerning that parent. This may be extremely difficult for a worried or panicking parent to do. But such negotiations, often involving concerned relatives and friends, can be far more effective than an exhausting and expensive recovery order process, and often result in the voluntary return of the child in a fairly short time. On the other hand, a parent who has taken a child may need the nudge of threatened or actual court proceedings to prompt a voluntary return. When it is understood that voluntary return is unlikely in the short term, formal recovery action should be initiated without delay, with an application for urgent interim orders that the child live with the recovering parent if these have not already been obtained.

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How to apply [7.1760] Think carefully and take legal advice before applying for a recovery order rather than a contravention order. Will the court agree that your child has been removed from your care and that you need its help for the return of the child or is it more accurate to consider that the other party has breached their parenting orders? For more about contravention orders, see [7.2010] – [7.2120]. Apply for recovery orders, and any new or additional parenting orders, on an Initiating Application. An affidavit should be filed with the application, setting out the existing arrangements for the care of the child and showing that the child normally lives with the applicant, or that the applicant is the child’s primary carer. It should also explain the circumstances of the child’s removal, and the detriment to the child of remaining in the sole care of the other party. Recovery orders are usually granted on an ex parte basis – that is, without notice to the other party. Family Law Rule 21.14 requires that a person who has been ordered to find and recover a child must serve a copy of the order on the person from whom the child is recovered, at the time of the recovery.

Keeping a child in Australia Police watch lists [7.1770] If you are concerned that the person who has taken your child may try to leave Australia, contact the Federal Police about putting the child’s details on their watch lists at airports and other points of departure around the country. The police should agree to do this if you can show them: a parenting order to the effect that the child should live with you; or orders for recovery of the child (see [7.1740]) and/or an injunction (see below); or a certified copy of the application for one of these orders; and a statutory declaration or affidavit detailing the circumstances of the taking of the child and the basis for your belief that the child may be removed from the country.

Obtaining an injunction [7.1780] You can apply under section 68B (through the Federal Circuit Court, Family Court of Australia, Family Court of Western Australia or a local or magistrates’ court if necessary) for an injunction to stop someone taking a child overseas. The application should be made on an Initiating Application or an Application in a Case, depending on whether a case is on foot or not. Include a request for an order that federal and State police be empowered to enforce the injunction. (An alternative is to apply for a personal protection order if a threat to the safety of the child can be demonstrated. This carries with it the necessary powers of arrest.) Injunctions may also be obtained under State or Territory family violence and personal protection laws. It may be quicker and more effective to obtain one of these. In the accompanying affidavit to all applications, you must provide evidence of a real risk that the child may be removed from the country, and the danger and likely detriment to the child. An injunction may be made ex parte (in the absence of one party).

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If you don't know where the child is … [7.1790] The difficulty of recovering a child is compounded if you don’t know where they have been taken. The first task, then, is to find the absconding parent (who is usually trying to stay hidden) and of course the missing child.

Finding a child informally [7.1800] Act quickly to get information from friends, relatives and associates of the departing parent. That parent will probably try to shut down these sources as soon as they can, but they may not be well enough organised to have made all the necessary contacts before you do. If you plan to engage a private investigator, it is best to do so while the trail is warm.

Location orders [7.1810] A location order under section 67J instructs named persons, or a Commonwealth department or agency, to give the court information about a child’s location. The persons named in the order (usually including a representative of Centrelink) must comply with it, notwithstanding other laws such as privacy laws. One concession to privacy concerns that may present a stumbling block for self-represented litigants is that the information must be returned to the court, not the applicant. The court registrar may only release the information to certain persons – not including the applicant. See section 67P for details. It may be necessary to engage a solicitor for this purpose at least.

How to apply [7.1820] Apply for a location order on an Initiating Application, or an Application in a Case, depending on whether a parenting case is already on foot or not. Request that “leave be granted to proceed ex parte”. Request an order that any named private persons give information on a child’s whereabouts to the court and, or instead, that a single Commonwealth department or agency provide the information (unless exceptional circumstances justify the involvement of more than one (section 67N)). The application must be served on the agency before the court date for the hearing. The accompanying affidavit should provide evidence about: the circumstances in which the child’s location became unknown to the parent; the measures taken already to find the missing parent and child; and relevant best interests considerations. It should also state why the persons or organisations named in the draft location order are likely to have or come into possession of information on the child’s whereabouts. Location orders are often applied for at the same time as recovery orders. See [7.2670] for sample location orders.

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Recovery of a child taken overseas [7.1830] The level of difficulty involved in recovering a child taken to another country depends on whether or not the country has signed the Hague Convention on the Civil Aspects of International Child Abduction. Unfortunately, overseas abduction is an area of considerable legal complexity, involving criminal law, private international law and diplomatic processes. Detailed discussion of these issues is beyond the scope of this work.

Abduction to a Hague Convention country [7.1840] The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty brought into Australian law under the Family Law (Child Abduction Convention) Regulations 1986. It provides an agreed machinery for the return of children abducted to and from signatory countries. The Hague Convention procedures only apply to the child’s return to the country. They do not determine who the child should live with. You should also apply for a parenting order for the child to live with you, on an urgent basis if necessary. For information and assistance in making a Hague Convention application, contact the Commonwealth Attorney-General’s Department. See also, the Child Abduction Section at the Hague Convention website at http://www.hcch.net.

Abduction to a non-Hague Convention country [7.1850] The level of official cooperation and assistance available for the return of a child from a non-Hague Convention country will vary enormously, and may depend on various forms of authority, contact and influence. An application for the return of the child from a non-Hague Convention country should be made to the country according to the relevant laws applying there. Diplomatic approaches should also be used. Contact the Australian embassy in the country in which the child is living for direction and assistance.

Step-parents, “functional parents” and non-traditional families [7.1860] Many Australian children live in families that do not conform to the traditional family structure. Long-term and important care relationships develop between children and adults who are not their biological or adoptive parents. Like many other Commonwealth laws, the Family Law Act has lagged in its recognition of the practical realities of contemporary Australian family life by failing to recognise non-biological, non-adoptive parenting relationships in its provisions. But changes in 2008 established at least that same-sex relationships were to be recognised as eligible de facto relationships (section 4AA),

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with access then to step-parent status. Although this improved the equity issues in relation to this particular category of functional parenthood, there remains significant difficulty in relation to the narrow definition of “parent” and the post-2006 scheme for assessment of a child’s best interests and the operation of the presumption.

Who's who? Who is a parent? [7.1870] The definition of “parent” at section 4 of the Act is somewhat obscure, expressly including only adoptive parents. Biological parents are impliedly covered, and parents under surrogacy and artificial conception procedures, by the operation of sub-sections 60H and 60HB. In addition, however, a person will be accepted by the court as a parent if one of the presumptions of parentage set out at sub-sections 69P-69T apply. These include the presumption of: parentage arising from marriage (section 69P); paternity arising from cohabitation (section 69Q); parentage arising from registration of birth (section 69R); parentage arising from findings of courts (section 69S); and paternity arising from a formal acknowledgment of paternity (section 69T).

Surrogate parents [7.1880] Relatively recent laws on surrogacy in the States and Territories provide legal machinery for determination of the parentage of children born under surrogacy arrangements. See the Surrogacy Act 2010 (NSW), the Surrogacy Act 2010 (Qld), the Parentage Act 2004 (ACT), the Assisted Reproductive Treatment Act 2008 (Vic), the Assisted Reproductive Treatment Act 2009 (SA) and the Surrogacy Act 2008 (WA). Under section 60HB of the Family Law Act, if an order has been made under one of these State or Territory schemes to the effect that a child born under surrogacy arrangements is the child of certain people, or otherwise determines parentage, then those orders will be observed for the purposes of proceedings under the Family Law Act.

Children born after artificial conception procedures [7.1890] If a child is born to a woman in a married or de facto relationship with an “intended parent” (a man or woman) at the time of artificial conception, the mother and the intended parent will be deemed to be parents under the Act, provided that those people and any other person who provided genetic material for the procedure, consent to the arrangements. In addition, the Family Law Act will recognise and uphold any orders made by State or Territory courts in relation to parentage, whether or not the child is biologically the child of the person or persons involved. See section 60H of the Act.

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Who is a step-parent? [7.1900] Under new definitions at section 4 and section 60EA, a step-parent is a person who is, or has been, a married or de facto partner of a parent of the child, and who treats (or treated) the child as a member of the family formed with the parent. A de facto partner may be of the same or different sex to the parent of the child.

Non-parents who parent [7.1910] Many children live with people who are not biological or adoptive parents, to whom the parentage presumptions don’t apply, and who are unable to meet the criteria for deemed parenthood, or step-parenthood. This group of carers includes grandparents, and other people unrelated by blood or marriage, who care for children often from birth, as would a parent (including some who are sadly surprised by proof of the lack of biological relationship). These people are referred to, in the following discussion, as functional parents.

Functional parents, step-parents and parenting orders [7.1920] Under the Family Law Act’s scheme of parental responsibility and parenting orders, anyone concerned with the care, welfare and development of children may be granted parenting orders, even orders conveying long-term parental responsibility. It is arguable, however, that an entirely different regime for parenting orders applies in relation to children where a functional parent or step-parent is the applicant.

Differences in best interests assessment? [7.1930] Under the 2006 amendments to the Act, the factors required for consideration in the assessment of a child’s best interests were divided into “primary” and “additional” groups. One of only two primary considerations is that the court must consider the “benefit to the child of having a meaningful relationship with both of the child’s parents”: section 60CC(2). Functional parents and step-parents are not covered by the definition of parent. Because of the stated primacy of the consideration at section 60CC(2), as against all but one other necessary consideration in the best interests assessment, the applicant who is a functional parent or step-parent would appear to be at a disadvantage, on the face of the legislation at least, as against a person to whom the word “parent” applies. The word “parent” then appears in the additional considerations, without a matching provision covering functional or step-parents, in paragraphs (c), (e), (g), and (i) of subsection 60CC(3). Although the court may regard “any other fact or circumstance that the court thinks is relevant” (sub-section 60CC(3)(m)), it is apparently the case that a different set of considerations overall would apply in relation to the decision about parenting orders, where a functional parent or step-parent is a party. These issues were considered in the case of Aldridge & Keaton (2009), a case involving a functional parent who sought an order for regular time with the child against the wishes of the biological parent. Despite the technical difficulties around the application of Part VII provisions to functional parents, the court affirmed that the best interests of the child were met by the granting of the order. The court rejected a suggestion that an application from a person who is not a grandparent or parent should be treated more cautiously, foreshadowing possible future legislative change to clarify the position of functional parents in relation to the best interests

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assessment. (However, see Simpson & Brockman (2010) in which the court rejected an argument that non-parents should be treated as parents because of difficulties inherent in the legislation.) See “Grandparents and other significant relationships” at [7.460]. The recent cases of Valentine & Lacerra (2013) and Mauldera & Orbel (2014) confirm explicitly that “parents” take no precedence in the best interests assessment over non-parents.

Differences in relation to parental responsibility [7.1940] “Parental responsibility”, of the type described in sub-section 61C, does not arise for a functional or step-parent, although any person with an interest in the care, welfare and development of a child is eligible to apply for an order for parental responsibility. Further, the presumption of equal, shared parental responsibility does not apply to functional parents, and so the functional parent may be at a disadvantage relative to a biological or adoptive parent for whom the court is obliged to apply the presumption.

Where functional parenthood is not recognised [7.1950] A parenting order possessed by a functional parent creates a legal relationship between that person and the child, but only to the extent defined by the order, and only until the child turns 18. It does not create the long-term legal relationship that would be natural, useful, and in the child’s best interests in many other areas. Depending on the legislation applying in the State or Territory, functional parent–child relationships may have restricted, or no, recognition in relation to: parental leave; authorising a child’s blood donation, organ donation or post-mortem examination; superannuation death benefits; other insurance schemes; day-to-day authority (a biological or adoptive parent can sign a school permission slip; a step-parent or functional parent needs a court order); certain areas of victims compensation schemes; child support; workers’ compensation; domestic relationships property legislation; dying intestate (either the functional parent or the child); the definition of certain terms (“child”, “parent”) in a person’s will; and parental responsibility for the child on the death of the biological parent, if there is no court order (whether or not there is another biological parent alive).

Do the differences matter? [7.1960] It could be argued that the difference in status under the law, as described, applies to the disadvantage of both the functional or step-parent, and their children (because of the lesser certainty of their parenting arrangements). An alternative position is that a bias in favour of biological and adoptive parenthood is a natural and appropriate policy position for reflection in the Act.

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It should be noted, however, that, despite the trend of the detail in the legislation, case law does not indicate any pre-disposition in favour of biological parents in a dispute about parenting. Courts have always tried to determine the best interests of the child in the light of “common sense” and “general experience”: Obrenovic and McCauley (1985); also Mulvaney and Lane (2009).

A creative option for functional parents [7.1970] To increase the certainty of outcome in relation to parenting arrangements, in the event that one of them should die or their relationship otherwise ends, functional parents may wish to apply for parental responsibility and other orders by consent whilst they are still together.

If there are no court orders … [7.1980] Only “parents” have authority under the law of parental responsibility for the care and control of a child if there is no court order. The definition of “parents” includes adoptive parents (section 60D), but not step-parents, or functional parents of any kind. However, the Act presumes that certain people are parents, whether or not they actually are, unless and until it is proved otherwise. For example, a man who lives with a woman for a certain period before she gives birth to a child is presumed to be the child’s father: section 69Q. See also sub-sections 69P, 69R, 69T and 69U in relation to other presumptions of parenthood; section 60H in relation to artificial conception and section 60HB in relation to surrogacy.

Adoption [7.1990] Adoption is the traditional means by which the parental relationship is legally formalised for all time and all purposes. The circumstances in which adoption is allowed, however, are carefully limited. Although laws differ from State to State, the provisions relating to adoptions by de facto couples generally require that the child be of a certain age, that the proposed set of parents have lived together for a long time, and that the child’s biological parents, if they are alive, consent. The process is long and expensive, and if a step-parent, or a person in a de facto relationship with a biological parent, or a biological parent who had previously lost legal parentage is involved, the Family Court’s permission to commence adoption proceedings in a State or Territory must first be sought: section 60G. If the adoption proceeds without this permission, it won’t have the effect of removing parental responsibility from anyone who had it immediately before the adoption: section 61E. The purpose of these provisions is to allow the court to review the best interests of children in schemes by the partners in subsequent marriages and relationships to adopt children and remove parental responsibility from those who are legally subject to it.

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Same-sex parents [7.2000] As noted previously, same-sex parents may now obtain step-parent status under the Family Law Act if their relationship qualifies as a de facto relationship under the Act, and, like other functional parents, they apply for parenting orders, including orders for parental responsibility, under the Act. See [7.1920], however, in relation to the different law that applies in relation to functional parents seeking parenting orders. At the time of publication, same-sex couples may adopt children in the Australian Capital Territory, Western Australia, New South Wales, Victoria and, in limited circumstances, in Tasmania. There is ongoing movement for similar reforms in the balance of jurisdictions. In 2011, a Victorian court circumvented the same-sex prohibition to adoption – to an extent – by upholding the existence of the requisite “special circumstances” to permit an adoption order in favour of a single person (who happened to be in a long-term, same-sex relationship): AB and VEOHRC and Separate Representative of J (2011).

Contravention of parenting orders [7.2010] There are two basic ways in which a person – anyone, not just a parent – can contravene (act illegally in relation to, or breach) a parenting order: by failing to comply with the explicit terms of the order (for example, returning children on Sunday rather than Saturday as specified); or by taking action that prevents another person from exercising powers, duties or responsibilities under an order (for example, preventing a child from spending time with the other parent). The law in this area is rather complex, although it is clearer now than it was before the 2006 amendments. A person contravenes an order that binds them personally if the person intentionally fails, or does not make a reasonable attempt, to comply with the order: section 70NAC(a). In addition, a person must not: deliberately prevent someone else from exercising powers, duties or responsibilities under an order that binds them (sub-paragraph (i) of section 70NAC(b); remove a child from the care of someone authorised by a court order to live with the child (sub-sections 65M and 70NAD); refuse or fail to deliver or return the child to someone authorised by a court order to live with the child (sub-sections 65M and 70NAD); interfere with the exercise of any of the powers, duties or responsibilities of a person authorised by a court order to live with the child (sub-sections 65M and 70NAD); hinder or prevent someone from spending time with a child in accordance with a court order (sub-sections 65N, 70NAD); hinder or prevent someone from communicating with a child in accordance with a court order (sub-sections 65NA, 70NAD); hinder or prevent someone from acting in accordance with an order for parental responsibility (sub-sections 65P, 70NAD); or

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“aid or abet” a contravention of an order by a person who is bound by it (section 70NAC).

Reasonable excuses for contravention [7.2020] A person has a reasonable excuse for contravening a parenting order if: they did not, at the time of the contravention, understand the obligations imposed on them or another person by the order, and the court is satisfied that they should be excused (sub-section 70NAE(2)); or they believed, on reasonable grounds, that the contravention was necessary to protect the health or safety of the child or someone else, and it lasted no longer than necessary (sub-sections 70NAE(4)–(7)).

Categories of contravention [7.2030] Contraventions are divided into four types: Subdivision C type: contravention alleged, but not proved. Subdivision D type: contravention proved, but reasonable excuse found. Subdivision E type: less serious contravention proved, no reasonable excuse. Subdivision F type: more serious contravention proved, no reasonable excuse. These are discussed below.

Sub-division C type: contravention alleged, but not proved [7.2040] If it is alleged, in an application before the court, that a person contravened a court order, but the court decides that this did not occur, the court may order the party who made the allegation to pay part or all of the other party’s legal costs: section 70NCB.

Sub-division D type: Contravention proved, but reasonable excuse found [7.2050] If contravention of an order is established but the person can prove they had a “reasonable excuse”, the court may: order “make-up” time for time not spent with a child as a result of the contravention; or require the contravening party to pay some or all of the other party’s costs (subsections 70NDB and 70NDC).

Sub-division E type: Less serious contravention proved, no reasonable excuse [7.2060] A less serious contravention occurs where there have been no previous contraventions, or the court chooses to treat a repeated contravention as a less serious contravention. In such cases the court can:

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order make-up time for lost time with a child as a result of a contravention (sub-section 70NEB(1)(a)); order the person to (sub-section 70NEB(1)(b));

attend

a

post-separation

parenting

program

allow parties to apply for varied orders (sub-section 70NEB(1)(c)); require the person to enter into a bond (see [7.2080]) (sub-sections 70NEB(1)(d) and 70NEC); order payment of compensation for costs such as travel expenses wasted as a result of the contravention (sub-section 70NEB(1)(e)); and require the person to pay some or all of the other party’s legal costs (sub-section 70NEB(1)(f)).

Subdivision F type: More serious contravention proved, no reasonable excuse [7.2070] A more serious contravention will be found when the person’s behaviour shows “serious disregard for their obligations under the order”. It may also include repeated breaches of an order. In such cases, the court must make an order that the contravening party pay all the other party’s legal costs, unless this is not in a child’s best interests: sub-section 70NFB(1)(a). In addition (or instead, if the best interests of the child prevent an order for full costs) the court may: order the person to be subject to a community service order (sub-section 70NFB(2)(a)); require the person to enter into a bond (sub-section 70NFB(2)(b)); order make-up time for lost time with a child as a result of the contravention (sub-section 70NFB(2)(c)); order payment of a fine (sub-section 70NFB(2)(d)); sentence the person to imprisonment for up to 12 months (sub-sections 70NFB(2)(e) and 70NFG). order payment of compensation for expenses, such as travel expenses, wasted as a result of the contravention (sub-section 70NFB(2)(f)); and order the person to pay some or all of the other party’s legal costs (sub-section 70NFB(2)(g)(h)).

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Bonds [7.2080] A bond ordered by the court in response to a contravention will be for up to two years, and may require a person to attend appointments with a family consultant, a counsellor, or a family dispute resolution practitioner, or to be of good behaviour: section 70NEC. The court may order payment of a sum of money or the lodgment of a security to be forfeited if the bond is broken.

Attendance at a post-separation program [7.2090] If someone has been ordered to attend a post-separation program as a result of a contravention, the program provider must inform the court if the person does not attend all or part of it or is unsuitable for attendance: section 70NED. Admissions or statements made at a post-separation program are not admissible in court except where they indicate child abuse, or the risk of it: section 70NEF.

The best interests of the child [7.2100] The court will not order a contravening party to pay the legal costs of another party, nor will it order make-up time, if these measures would not be in the best interests of a child.

Effect of a parenting plan on a contravention allegation [7.2110] In considering an alleged contravention of an order, the court must have regard to the terms of any later parenting plan that deals with a matter contained in the order, as long as the plan was in force at the date of the alleged contravention: section 70NBB.

Variation of the orders [7.2120] Whether the court decides the contravention occurred or not, it may make an order varying the original orders. It will take the terms of any relevant parenting plan into account, and will consider, in relation to more serious contraventions, whether the person contravening attended, or had an opportunity or was eligible to attend, a post-separation parenting program: sub-sections 70NAA(2) and 70NBA.

Contravention applications [7.2130] An applicant is generally required to attempt to engage in family dispute resolution first, then, if this doesn’t resolve the issues, file a family dispute resolution certificate along with the application alleging the contravention.

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Applicants are excepted from dispute resolution requirements where there are reasonable grounds to believe that a serious contravention of an order less than 12 months old has occurred: paragraph (c) of sub-section 60I(9).

Methods of application [7.2140] There are three methods of applying to the court in relation to contravention of a parenting order, depending on the severity of the contravention.

Less serious contraventions [7.2150] A party seeking a remedy such as enforcement or variation of existing orders, or an order for costs, for a party to attend a parenting program, for make-up time, or for compensation for expenses, rather than punishment of the contravening person, may be able to apply for these orders on an Application in a Case, filed with an affidavit outlining the facts of the alleged contravention, a copy of the orders allegedly breached, and a family dispute resolution certificate.

For more serious contraventions [7.2160] When the contravention is severe, or repeated, and a punitive reponse is considered necessary, an “Application – Contravention” may be filed. This form is available from the court registries, or their websites. The orders alleged to have been breached must be attached to, and referred to directly, in the Application. You must detail each instance of breach (including dates and times) that you want the court to consider. Generalisations (“he is always late”) are not acceptable, and nor will the court be able to consider evidence of breaches you might want to talk about at the hearing but that are not included in the Application. The form contains an affidavit requiring the applicant to swear that the contents of the application are true, but another affidavit containing material proposed as evidence of the breach must be filed as well. It must contain details of any previous court findings as to previous breaches of the orders: Family Law Rule 21.02(3).

When the contraventions amount to contempt of court [7.2170] The contravention of a parenting order may be so serious that it amounts either to a “flagrant challenge to the court’s authority” (sub-section 112AP(1)) or a “serious disregard of the respondent’s obligations under a parenting order”. If such a breach is proved, the person could be charged with contempt of court, a criminal offence and imprisoned (see [5.1210] – [5.1260]). An application for an order for contempt should be made on an “Application – Contempt” form and filed with an affidavit (or affidavits) detailing the facts of the breach and its seriousness in the terms required by the relevant law.

Service [7.2180] Applications for enforcement and contravention applications must be “personally served” on the allegedly breaching party (see “Who should serve the documents?” at [5.890]).

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Who should attend a contravention hearing? [7.2190] Both parties should attend. If it can be demonstrated that a contravention application has been properly served, and the respondent hasn’t appeared, a warrant can be issued for their arrest.

Order drafting and sample orders [7.2200] What follows applies to all applications.

Using attachments to set out the proposed orders [7.2210] Unless the matter is very simple and can be dealt with in the small space provided on the relevant application form, you will most likely need to attach extra pages setting out the orders sought. It is probably better to refer in the space on the form to an entire set of draft orders contained in an attachment, rather than start the orders on the form, and run the remainder over onto other pages. On the attachment, include: at the top, a statement such as “This is Attachment 1 to the Application of James Black dated 1 October 2009 in the Family Court of Australia in the matter between JAMES BLACK (Father) and ANNA BLACK (Mother)”, with a file number if one has been allocated; a heading – “Minutes of Orders”, “Terms of Settlement” or even “Parenting Plan”; a numbered list of all the orders sought; and (un-numbered) subheadings between groups of related orders (for example, “Parental responsibility”).

Identifying parents and children [7.2220] The court is accustomed to the consistent use of a set of identifying words such as “Mother/Father”, “Husband/Wife” or “Applicant/Respondent” (rather than parties’ names) throughout the application and attachments. In the first order referring to the children, list their names and dates of birth and directly afterwards put the words “the children” (or “the child”). In subsequent orders, refer only to “the children” or “the child”. See the sample at [7.2330] for an example of this naming protocol.

Covering the issues [7.2230] Sometimes an applicant will want orders that deal with a single issue, such as the person the child will live with, or arrangements for spending time and communication. Usually, however, applications contain orders that cover a wide range of parenting matters.

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A common pattern for these sets of orders includes coverage of the issues in this order: overall parental responsibility (shared or otherwise); allocation of individual aspects of parental responsibility such as day-to-day responsibility for the child’s care, welfare and development; the amount of time the child will spend with each person in a week or other period, and/or the person the child will live with; additional arrangements for spending time or communicating with either or both parents; arrangements for changeover; provision for future change in parenting arrangements as the child gets older (if appropriate); arrangements for consultation on issues of concern; arrangements for resolving disputes; and other issues of importance in the parties’ circumstances.

How much detail? [7.2240] The level of detail in the draft orders should usually be matched to the quality of communication between the parties. High-conflict parents may need the support of much more detail – in specifying times, for example, or providing for different types of events – than parents who get on reasonably well.

Using the sample orders Language [7.2250] The word “child” is used in all of the sample orders set out below, but “children” may be substituted. For the sake of clarity, the sample orders are expressed to refer to “Mothers” and “Fathers” quite arbitrarily, without discrimination, and with no meaning intended by the choice of one rather than the other in any particular context.

Put in your own details [7.2260] Details in the sample orders, such as length of time spent, dates and times, are by way of illustration or example only. They do not indicate any normal or expected order of the type (although they do reflect very ordinary and common types of arrangements between separating parents).

Vary the orders as required [7.2270] There is an infinite number of possible parenting orders. The list is only intended to indicate what can be addressed, and how. The sample orders may be varied and extended to suit individual circumstances.

[7.2320]

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Order the orders [7.2280] Be wary of the effect of the wording of one order on another. Orders that “clash” will not be granted on the terms sought. Depending on the structure of the package as a whole, qualifying words may be used to indicate if an order is to give precedence to another. A simple example: 1

Subject to Order 2, the Father shall spend time with the child every Sunday, Monday and Tuesday.

2

The Mother shall spend time with the child on each Mother’s Day.

Get your orders professionally reviewed [7.2290] Serious and undesirable effects can result from inexperienced order drafting. The services of an independent legal practitioner to check, explain or draft orders before filing an application, or a response to an application – including an application for consent orders – is strongly recommended.

Drafting consent orders and parenting plans [7.2300] The provisions in an application for consent orders, or in a parenting plan or other private agreement, can be the same as the orders in an application in a disputed matter. With the exception of the ex parte orders, injunctions and location and recovery orders, all the parenting orders set out in this section may be agreed between the parties, and included in a joint application for consent orders or in a parenting plan or other private agreement. To use the sample orders in a parenting plan or private parenting agreement, simply replace the word “Order” with the word “clause”; and replace “party” and “parties” with “parent” or “parents”, or the parents’ names. Because consent orders and parenting plans are often the product of dispute resolution processes, they may be expressed in softer, or less legalistic, language, and may address issues of intent and principle that lawyers ordinarily do not encourage. Parenting plans, for example, often contain very positive statements about the parents’ wishes to use their best endeavours to cooperate with each other, to be flexible, to share the burden of their worries and concerns about the children with each other. Such provisions are perfectly acceptable, and are often very useful for the parents concerned in their attempts to meet the requirements of the order. It is important that any written version of a parents’ agreement reflects their values, and is expressed in terms that are meaningful and understandable to them.

Applications for Consent Orders [7.2310] See [4.1300] and [4.1310] for detailed instructions on compiling the documentation required for filing with an Application for Consent Orders.

Sample parental responsibility orders [7.2320] Parental responsibility orders are often the first to appear in a set of orders.

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[7.2330]

Equal, shared parental responsibility [7.2330] If an order for equal, shared parenting is sought, use a version of the following to clarify that long-term decisions will be made between the parents by agreement between them, and to emphasise the parties’ acceptance and understanding of their joint parenting role: That the Mother and Father have equal, shared parental responsibility to consult with one another and to make a genuine effort to come to a joint decision about any major, long-term issues in the care, welfare and development of the child of the relationship PETER JOHN BLACK born 2 February, 2004 (“the child”) that may arise.

Other allocations of parental responsibility [7.2340] The presumption of equal, shared parental responsibility will not always result in an allocation of equal, shared parental responsibility in the final orders. The presumption does not apply in all cases, and will be rebutted if there is evidence to suggest that its application would not be in the child’s best interests. “Equal, shared parental responsibility” is not likely to be imposed by a court on parties who have agreed on other arrangements. Alternatives may include allocating aspects of parental responsibility to one person, or less rigorous requirements for consultation or joint decisionmaking. If no order or parenting plan provision allocating parental responsibility is made, the innate parental responsibility of parents (section 61C) applies in any case. The presumption does not apply to parenting plans at all. Parties to a parenting plan can apply any division of parental responsibility they like.

Aspects of general parental responsibility [7.2350] Orders allocating aspects of parental responsibility to one parent or the other are frequently sought: That the Father have sole responsibility for making decisions about the day-to-day care, welfare and development of the children. That the Father have responsibility for the day-to-day care of the child when he is spending time with the child and the Mother have responsibility for the day-to-day care of the child at all other times.

Specific issues [7.2360] Draft a simply worded provision to allocate or clarify parental responsibility for decision-making on any particular issue of importance: That the Mother have sole parental responsibility for decisions about [for example]: The discipline of the child. The child’s religion, religious instruction and religious practice. Childcare arrangements for the child including baby-sitting and supervision when the child is home from school for any reason.

[7.2380]

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Schooling, and communicating with school teachers and school administration about the child. The child’s participation in sporting and other extracurricular activities. The child’s homework routine and bedtimes. Medical, psychological and alternative health treatments to be administered to the child (unless there is a medical emergency in which case both parents have the necessary parental responsibility to make decisions). Body-piercing and tattooing. The child’s access to video games. It may be possible for a shared, parental responsibility order to be made subject to an order allocating a specific aspect of the responsibility in a way that has the effect of varying the effect of section 65DAC (see [7.1400]).

Sample orders about where the child will live Sharing living arrangements [7.2370] 1

Week-about/50-50/equal time That the child live [or spend time] with each parent from Monday to Sunday in alternate weeks – with the Father in Week 1 commencing Monday 7 February 2009, and then with the Mother in Week 2. “Equal time” need not follow a week-about routine. For older children, longer periods – or for younger children, shorter periods – with the one parent may be more suitable.

2

Divided over a fortnight That during school terms, the child live: (a)

with the Father between 4:00 pm on Tuesday of Week 1 and 9:00 am on Thursday in Week 2; and

(b)

with the Mother between 4:00 pm on Thursday in Week 2 and 9:00 am on Tuesday in Week 1, in a fortnightly cycle commencing Tuesday 8 February 2009.

Living principally with one parent [7.2380] That the child live with the Father.

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Sample orders for spending time and communication Incorporating special days [7.2390] All the various arrangements for spending time with a child may be incorporated into one provision (as in the example below), or, alternatively, numbered into separate orders. Note the qualifying words establishing the “special events” orders at paragraphs (c) to (f) as exceptions to the provisions in (a) and (b). X. That the Mother spend time and communicate with the child as follows: (a)

subject to Order X(c), (d), (e) and (f) below, each alternate weekend from 5:00 pm on Friday to 7:00 pm on Sunday, commencing 4 February 2009;

(b)

subject to Order X(d) below, each Wednesday from 4:00 pm to 7:00 pm, commencing 9 February 2009;

(c)

with the exception of Christmas and Easter, in the event that a weekend on which the Mother spends time with the child falls on a long weekend (that includes a Public Holiday on the Monday), then the time to be spent by the Mother and the child will extend to 7:00 pm on that Monday;

(d)

once the child attends school, half of all school holidays with each alternate Christmas holiday to include Christmas day;

(e)

half of the Easter break;

(f)

for at least two hours on the child’s birthday;

(g)

on Mother’s Day, between 10:00 am and 7:00 pm;

(h)

by telephone between 4:00 pm and 7:00 pm on any evening;

(i)

as otherwise agreed between the parties.

When deciding what provisions to include in an order for spending time, keep in mind the formulation the court uses for estimating “substantial and significant time” at subsection 65DAA(3) (see [7.680]).

Reinforcing obligations in relation to spending time [7.2400] It will often be desirable for the provisions to be more specific about: a person’s legal duty to spend time with a child (at the times mentioned in the order and without failing to appear); or the requirement for a parent to make the child available and to facilitate and encourage the child to spend time with the other parent. The wording of the commencement of an order for spending time may reinforce both of these obligations: Each of the parties shall take all reasonable steps to ensure that the child spends time with the Mother as follows: …

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Separate, exceptional and alternative orders for spending time [7.2410] There may be a need to create exceptions, or make additions, to the provisions contained in the main order setting out arrangements for the child to spend time with the parents. For example: In the event that Father’s Day falls during a period when the child is spending time with the Mother, the Mother shall return the child to the care of the Father between 10:00 am and 7:00 pm on that day. In the event that the child’s birthday falls during a period when the child is spending time with the Father, the Father shall return the child to the care of the Mother for at least two hours on that day.

Flexible provisions [7.2420] If it is not practicable for the parties to commit to a regular regime for spending time, a flexible provision may be useful. For example: That the Mother spend liberal and flexible time with the child as agreed between the parties from time to time.

Electronic communication [7.2430] Very precise electronic communication orders are difficult to draft without binding the parents to potentially unreasonable and inconvenient obligations. A better provision is “liberal communication by telephone, Skype or SMS messaging”, meaning that the parent with whom the child lives or is spending time will allow and in fact in encourage regular but not excessive (in terms of duration or frequency) or unreasonable (for example, very late) electronic communication with the other parent. Though this may seem like a vague order, it may be important to forestall the unfortunately fairly common practice of a parent not allowing the child to speak to the other parent when the child is spending time with them. An example of a more prescriptive arrangement, which may be necessary in particular situations, is set out below: The Mother shall facilitate electronic communication between the Father and the child, at the request of either the Father or the child, between 4:00 pm and 6:00 pm on any week-night – provided that the child and the Mother are both present at the Mother’s residence at the time the communication is requested or as otherwise agreed. With the additional element of privacy: That, when the child is spending time with each parent, that parent shall facilitate liberal and private electronic communication between the child and the other parent.

Email communication [7.2440] It is clearly preferable for the child to have their own email or webmail address at least (if not a separate email account) so that both the child’s and the parent’s privacy can be assured. Most importantly, however, the parent must ensure that the email system actually works and the child is permitted access to it.

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[7.2450]

That each parent shall facilitate the child’s regular access to an email address/account in the child’s name and an operative internet connection.

Communication by letter or package [7.2450] Many parents do not have access to electronic means of corresponding directly with the child. They must be able to rely on the other parent to facilitate the child’s receipt of their letters: That the Father shall hand to the child, unopened, any letter or package addressed to the child that is clearly marked as sent by the Mother. Parents must use their judgment about what a child wishes or thinks it appropriate to send to a distant parent, so it is more difficult to draft a general provision requiring a parent to post return missives from children. A provision may, however, be designed for the specific circumstances and wishes of the parties.

Christmas Day [7.2460] Some alternative types of arrangements: The Father shall spend time with the child on Christmas Day in odd-numbered years, between 10:00 am and 2:00 pm and on even-numbered years, between 2:00 pm and 7:00 pm. The Mother shall spend time with the child on Christmas Day in odd-numbered years, and on Boxing Day in even-numbered years.

The child's birthday [7.2470] For example: The Father shall spend time with each child on his or her birthday.

Supervised time [7.2480] A not-unusual supervision approach: (a)

The Mother shall spend time with the child once per fortnight at a children’s contact centre in the Sydney Metropolitan area, nominated and arranged by the Mother, for as long as the centre allows, for a period of six months; and

(b)

After six months of time at the contact centre, the Mother to spend supervised time with the child every fortnight, on either Saturday or Sunday as agreed with the Father, from 10.30 am to 5.00 pm, together with another adult chosen by the Mother who shall be present in a monitoring role for the duration of the time period.

For use only in a high-conflict situation with risk of family violence/child abuse (with supervisor undertakings): X. The Father’s time with the child shall be subject to the following conditions: (a) Prior to the child’s first supervised time with their Father, the supervisor sign the Undertakings set out at the conclusion of these orders and such Undertakings be lodged by the Father at the Registry of the Family Court of Australia at Sydney.

[7.2520]

(b)

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The Father provide a sealed copy of the signed Undertakings to the Mother and to the Independent Children’s Lawyer.

(c)

In the event that the Father endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate to or in the presence of the child, denigrates the Mother or attempts to undermine the effect of the orders contained herein, the supervisor is forthwith to terminate the Father’s time with the child and the supervisor is to immediately contact the Mother so that she might collect the child. X+1. In the event that the Father breaches Order X, all further time between the child and the Father is to be suspended pending further agreement between the parties or further Order of the court. Undertaking [locate at the end of the draft orders] I [name] agree to act as supervisor in the time the Father, Mr ......................... ., spends with the child, [full name of child]. I will keep the Father within my sight and hearing at all times that he is in close proximity with the child. In the event that the Father endangers the safety, health or well-being of the children either physically or emotionally, acts inappropriately or says anything inappropriate to or in the presence of the child, denigrates the Mother or attempts to undermine the effect of the orders contained herein, I will terminate the Father’s time with the child and immediately contact the Mother so that she might collect the child. Signed ......................................................... Dated .........................................................

Sample orders for changeover [7.2490] Insert the changeover provision as a separately numbered order after the main order detailing times and days for spending time and communication. The following clauses may be varied as necessary.

At the one home: child picked up by the parent spending time [7.2500] The Mother shall collect the child from the Father’s residence at the commencement of the period for time to be spent between the Mother and the child, and return the child to the Father’s residence at the conclusion of the period.

Between the two homes: transport shared between parents [7.2510] (a)

The Mother shall deliver the child to the care of the Father at the Father’s residence at the commencement of the period for time to be spent between the Father and the child.

(b)

The Father shall return the child to the care of the Mother at the Mother’s residence at the conclusion of the period.

Changeover on neutral ground [7.2520]

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[7.2530]

The Father shall deliver the child into the care of the Mother at the commencement of the period for time to be spent between the Mother and the child, in the carpark at Coles, Canberra City and collect the child at the conclusion of the period from the same place, unless otherwise agreed between the parties. The Mother is to make the child available to the Father at the commencement of the period for time to be spent between the Father and the child at the home of the Father’s parents, and collect the child at the conclusion of the period from the same place, unless otherwise agreed between the parties. Other options might be: at McDonald’s or a café; at school; outside a local police station; at a safe-to-park road intersection near home. Organising changeover around the school day may remove the need for any contact between the parents.

Other orders for spending time and communication [7.2530] Other reasonably common orders for spending time and communication include provision for: sharing the costs of transport to and from the places at which children spend time with each parent; a staged introduction of increasingly long periods with a parent for a very young child, or any child with separation anxiety, or where there has been a long break since the child regularly spent time with that parent; “make-up time” for when parents agree (as most do on occasion) to vary the usual arrangements for the benefit or convenience of one of them; and the child spending time with a parent at a certain place (such as a grandmother’s home), or the time being supervised by a named person, or a representative of a named organisation or government agency.

Sample orders limiting parental behaviour [7.2540] That the Mother/Father/Both parties shall not: … consume alcohol during or for 12 hours before spending time with the child. … use prohibited drugs during or for 12 hours before spending time with the child. … smoke in the presence of the child or in a house in which the child is also present. … leave the Sydney metropolitan area with the child without speaking in person with the Mother/Father about arrangements for departure, return and contact details. … change the place of residence of the child without the written consent of the Father/Mother. … attend hotels with the child. … leave the child in the care of third parties (except as agreed between the parties beforehand). … swear in the presence of the child. … use physical force when disciplining the child. … criticise, harass, threaten, abuse or denigrate the Mother/Father in the presence of the child.

[7.2560]

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… discuss any issues connected with these proceedings/this Agreement with the child or permit any third party to do so.

Sample orders requiring parental behaviour or procedure [7.2550] The draft provisions below are indicative only. Mix and match and change and create better and different orders to suit your circumstances and the needs of the child. That the Mother/Father/both parties/each party shall: … encourage and facilitate the child spending time with the Mother/Father. … encourage and assist the child to communicate with the Mother/Father by telephone and email. … encourage and facilitate the child spending time with the Mother’s/Father’s parents [or other extended family members]. … purchase, maintain and keep clothes, toys, and other personal and entertainment items for the child, at their respective homes. … have access to school reports, newsletters and events and will facilitate that access for the other if necessary. … in writing, inform each other of their current address and telephone number. … be responsible for the costs of the child’s health and dental care. … share equally [or in proportions being x% for the Mother and y% for the Father] in the costs of the non-reimbursable costs of orthodontic and dental care. … advise the other at the earliest opportunity in the event of any medical emergency involving the child or affecting her care. … be responsible for school fees and miscellaneous education expenses (such as uniforms, books, equipment and excursions). … share equally [or in proportions being x% for the Mother and y% for the Father] in the costs of school fees and miscellaneous education expenses (such as uniform costs, books and equipment and excursion costs). … ensure that the child arrives to spend time with each parent in clean clothes. … provide the child with at least three nutritious meals daily [when spending time with the child]. … buy separate presents for the child unless otherwise agreed. … do all things necessary and sign all documents required to ensure [that copies of the child’s school report cards and notices relating to the child are forwarded directly to the Father].

Sample orders for communication and consultation [7.2560] The circumstances in which parties need or agree to communicate and consult is really a function of their own particular situation. Some examples follow; but parents need to consider what is important to them and how they would like to deal with issues as they arise. That the Mother/Father/both parties/each party/shall: … advise and consult with the other at the earliest opportunity in the event that issues arise in relation to the child in any of the following areas: [for example] health, religion, cultural upbringing, name, changes to the child’s place of residence, travel interstate, major disciplinary issues, employment of the child, entertainment, social contacts

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[7.2570]

[include additional issues as appropriate, but after considering the effect of section 65DAC (see “Mandatory consultation and shared decision-making” at [7.180]), delete those that aren’t relevant to you]. … advise the other in writing (including by email), and in advance where possible, of any arrangements or appointments for the child that may affect the time to be spent by the other parent with the child. … exchange the Parenting Book at changeover time. … complete notes in the Parenting Book about developmental milestones, or any issues or concerns about the child’s care, welfare and development, that arose during the period the parent spent time with the child. … meet at midday on the first Friday of each month at The Goose Café in Bega, or as otherwise agreed, to discuss issues arising in relation to the care, welfare and development of the child. … facilitate telephone contact with the other parent at the conclusion of each period of time spent by the parent with the child to discuss any issues in relation to the care, welfare and development of the child. … each party ensure that they keep the other advised at all times of their respective residential address, telephone number and email address.

Sample orders for dispute prevention and resolution [7.2570] Use one or more of these provisions, as appropriate.

Decision-making [7.2580] That the parties shall, in the first instance, use genuine effort to reach a joint decision in private discussion [or by written/email correspondence], about any issue arising in relation to the child about which they must, or have agreed to, consult one other (“major, long-term issue”) [or perhaps “joint parenting issue” if the statutory formula is not being followed]; That, in the event that the private discussion [or written/email correspondence] does not result in a joint decision by the parties on an outstanding major long-term issue [or joint parenting issue], the parties shall, before commencing any legal proceedings, jointly engage the services of accredited family dispute resolution practitioner [or other identifiable third party] and use genuine efforts to reach a joint decision in the dispute resolution process; That, parties will record any agreement reached on a joint decision on a major long-term issue [or joint parenting issue] in relation to a child, in writing signed and dated by both parties.

Other disputes [7.2590] That the parties shall, in the first instance, use genuine effort to settle any dispute arising between the parties about any aspect of the care, welfare, or development of the child, or in relation to these Orders [or this agreement] in private discussion [or by the exchange of written/email correspondence];

[7.2640]

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That, in the event that a dispute between the parties cannot be settled in private discussion [or by written correspondence] the parties shall, before commencing any legal proceedings, jointly engage the services of accredited family dispute resolution practitioner [or other identifiable third party] and use genuine effort to engage in a dispute resolution process to settle the dispute; That, in the event that the settlement of the dispute involves an agreed suspension, variation or other departure from these orders [or the provisions of this agreement] the parties shall record such agreement in writing, signed and dated by both parties.

Sample urgent and ex parte orders [7.2600] Include the following order as the first in any application for interim orders sought to be made without notice to the other party (ex parte): That the Mother be granted leave to proceed ex parte. If there are grounds to ask the court to deal with a case faster than it ordinarily would, request an order to the following effect: That the case be deemed urgent and its progress expedited.

Sample orders dealing with relocation To restrain (stop) relocation [7.2610] That the Mother will not remove the child from the Sydney metropolitan area without the Father’s written consent. That the Federal Police be empowered to enforce this order.

To stop an application for a passport [7.2620] That the Father be restrained from commencing or proceeding with any application for a passport for the child from the Commonwealth of Australia or any other country. That the Secretary of the Department of Foreign Affairs and Trade be requested to take such steps as may be appropriate to ensure compliance with the preceding order and to request the Libyan Embassy and Consulates within Australia not to issue a passport for the child.

For surrender of a child's passport [7.2630] That, pursuant to section 67ZD, the Mother immediately surrender to the Registrar of this Court any passport that the Mother holds for the child or any passport which would enable the child to be removed from Australia.

Orders “in the alternative” [7.2640] An applicant for orders in relation to relocation may wish to propose an alternative scheme in the event that the court does not decide in favour of their preferred proposal.

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[7.2650]

For example, although the first order applied for by a father who seeks to restrain the mother from relocating with a child may be “that the child live with the Father”, the father may wish also to apply for a second order in the following terms: In the alternative, if an order is made that the child live with the Mother: (a) that the Mother live with the child in the Melbourne metropolitan area; (b)

that the Father spend time and communication with the child as follows: …

Orders to allow relocation [7.2650] The order first proposed by an applicant asking the court to allow relocation might state, for example: that the child live with the Mother and that they may reside together in the Brisbane region. This order would be supported by detailed draft orders for time to be spent, and communication, with the other parent, and include orders for travel and cost-sharing arrangements. The applicant may also wish to suggest that the court make orders for spending time with the child that are only practically possible if the other parent relocates as well. For example: As an alternative to Order X [the previous proposal for spending time and communication], that the Father spend time and communicate with the child in the Melbourne region as follows: … Applicants who do not have current orders that the child live with them may also wish to apply for another order “in the alternative”: As an alternative to Order Y [the proposal for an order that the child live with the Mother in the new location], that the child live with the Mother. It is highly likely that the respondent to an application for relocation will apply for orders that the child live with that person in the original location. If the court decides not to allow the relocation, it must then decide where the child should live. The parent who fails to gain an order for relocation needs, in their application, to have specifically indicated their preference, if relocation is not permitted, to live with the child in the original location, by making a competing proposal for the child to live with them. (Otherwise the court may assume that you’ll be off in any case and order that the child should now live with the other parent.)

Sample recovery orders [7.2660] Recovery orders may be preceded in the application by location orders (see [7.2670], [7.2680] for sample location orders). The following orders would normally appear packaged together. That leave be granted for the Applicant father to apply for orders ex parte. That the child live with the Applicant father. That the Respondent mother return the child immediately to the care of the Applicant father. That the Respondent mother be prohibited from again removing or taking possession of the child.

[7.2680]

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That: (a) any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth or of a State or Territory; or (b) any person holding or acting in the office of child recovery officer; be authorised and directed, with such assistance as he or she requires or they require, and if necessary, by force: (a)

to stop and search any vehicle, vessel or aircraft and search any premises or place for the purposes of finding the child;

(b)

to recover the child;

(c)

to deliver the child to the Applicant father;

(d)

to arrest the Respondent mother, without warrant, in the event she again removes or takes possession of the child, except in compliance with any further orders of the Court. That the Court issue a warrant, pursuant to Section 65Q, authorising any member of the Commonwealth or of a State Police Force to arrest the Respondent mother. That leave be granted to serve short notice of this Application. That the Respondent mother pay the costs of and incidental to this Application, including all costs associated with the return of the child to the Applicant father.

Sample location orders To an individual [7.2670] That leave be granted for the Applicant to apply for orders ex parte. That Mrs Anne Gray of 16 Brown Street, provide the Registrar of the Family Court of Australia at Brisbane with information she has or obtains about: (a) the whereabouts of the Respondent mother; (b)

the whereabouts of the child.

To a government agency (an “information order”) [7.2680] The following orders should be numbered separately but set out together as a package. That leave be granted for the Applicant to apply for orders ex parte. Pursuant to Section 67N, the Chief Executive Officer of Centrelink will provide to the Registrar of this Court at its Adelaide Registry, any information about the child’s location that is contained in or comes into Centrelink’s records. For the purposes of the preceding order: (a)

the Chief Executive Officer will cause the records of Centrelink to be searched within 10 days after service of Centrelink of a sealed copy of this order, and every 3 months thereafter while the order is in force;

(b)

the Chief Executive Officer will provide written notification to the Registrar of this Court of the result of each search of Centrelink’s records;

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(c)

[7.2680]

information about the child’s location will include information about the location of the Respondent father with whom the child is believed to be, and will include but is not limited to: (i)

information about any address of the child or of the Respondent father;

(ii)

information about the name and address of any person with whom Centrelink’s records suggest the child or the Respondent father may be; and

(iii)

location arising from any payment by Centrelink to or in relation to the child or the Respondent father or any person with whom Centrelink’s records suggest the child or the Respondent father may be including: (A)

(B)

the name of any financial institution conducting any account to which such payment is or was made, and the branch at which the account is or was conducted;

the name and number of any account to which such payment is or was made. Pursuant to sub-section 67N(8), if the Chief Executive Officer provides information under this order, the Chief Executive Officer must, at the same time, provide any information about actual or threatened violence to the child, to a parent of the child, or to another person with whom the child lives, that is in the records of Centrelink. Pursuant to sub-section 67N(6), this location order remains in force for a period of 12 months.

8 Property [8.20]

Bargaining in the shadow of the law................................................................ 332

[8.40]

Settling privately.............................................................................................. 332

[8.60]

The court’s process in deciding a property order ............................................. 334

[8.130]

Step 1: Identify and value assets and liabilities................................................. 338

[8.420]

Step 2: Assessing the parties’ contributions...................................................... 345

[8.660]

Step 3: Needs and resources factors – sections 75(2) and 90SF(3).................... 352

[8.880]

Step 4: Testing for justice and equity overall.................................................... 358

[8.890]

Pre-settlement property issues.......................................................................... 358

[8.1050]

Final property distribution............................................................................... 363

[8.1310]

Specialised family law property issues.............................................................. 372

[8.1590]

Maintenance.................................................................................................... 381

[8.1780]

Order drafting and sample orders.................................................................... 386

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[8.10]

[8.10] This chapter outlines the principles of property distribution described within the Family Law Act for couples who are or have been married or part of a de facto relationship.

Bargaining in the “shadow of the law” Introduction [8.20] The property provisions in the Family Law Act have been drafted to guide the court in making property settlement orders. But they may also provide a useful framework for negotiation and agreement, even if you aim to resolve your property settlement without court action. To bargain effectively with another person on a family law matter, you need to have a clear sense of the range of results obtainable from a court in the event that your private talks fail. This is sometimes referred to as bargaining in the shadow of the law. It is the basis for negotiation undertaken in family dispute resolution, where the practitioner will most likely recommend that you obtain legal advice prior to attempting to resolve your dispute through the family dispute resolution process. The chapter describes the practical process of reaching and implementing a property settlement. We also look briefly at more specialised property areas such as superannuation, the rights of third parties (like creditors), financial agreements and bankruptcy. There is complex law associated with each of these. It is particularly advisable to obtain legal advice if these are areas of concern for you. The sample property orders at the end of the chapter may be used in an application for consent orders, as well as in an application to the court. Most are also suitable for inclusion in private agreements.

Settling privately [8.40] There are significant financial and other incentives for private negotiation of the property settlement and financial matters at the end of a relationship. The cost of a fully litigated property case, for example, starts at about $50,000 per party. When considering an offer made in private negotiations, it is useful (and sobering) to think of at least this figure (multiplied by two, for two parties) as funds from the property settlement that will be lost in legal fees if you can’t reach agreement privately. On the other hand, there may be significant capital gains tax and stamp duty costs involved in settling privately that are not involved if more formal procedures are pursued. There is, however, no legal requirement to settle financial and property matters at the end of a relationship in any particular way. You don’t have to lodge a form with the court or obtain court approval to complete a private property settlement. Couples are free to make their own agreements and arrangements if they wish. If a relationship has been short, if the total value of the assets is low, if the parties are relatively evenly balanced in their bargaining power and strongly in agreement, it may be appropriate to keep the entire process simple and private. It may also be useful to separate the process of negotiating the agreement from the process around its final form. Most people are able to reach agreement on their property and financial

[8.50]

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arrangements privately – either alone, in family dispute resolution, or with the assistance of lawyers. Many choose then, however, to make these private agreements formal and binding in one of the several ways that the law provides. In terms of the content of the agreement, again, you are free to divide the assets in shares of 50–50, 0–100, 60–40, or even 0–0 (if you agree to give it all to someone else). You may, for reasons that are important to you, make an arrangement that others think is not sensible or even fair. It is a good idea, however, to discuss the possible long-term consequences of any arrangement you negotiate privately with a legal adviser, family dispute resolution practitioner or counsellor before signing off on the deal. Once the terms of the settlement are agreed, you could, if you wish, simply proceed to divide the assets and funds as you have agreed. There are major advantages, however, in having private agreements formalised in a way that is recognised by the law. Firstly, a formalised agreement provides as much certainty as is possible that your final agreement is, in fact, final. Secondly, a formalised agreement under family law provisions is legally enforceable by family courts. Consent orders are the most commonly used way to formalise a private property agreement. They achieve a result for the parties that is cost-effective, fast, private, low-conflict, final, and enforceable. Alternatively, or in addition, parties can make a binding financial agreement about all or part (say, just about the superannuation) of the property of the relationship. Financial agreements can also deal with maintenance and child support. You will need to speak to a lawyer to decide if a binding financial agreement would be appropriate in your circumstances and for professional assistance in its preparation. For more on consent orders, see [4.1160]. For more on binding financial agreements, see [4.1020]. Arbitration is another alternative to full litigation, particularly in relation to property matters, although agreeing to abide by the decision of an arbitrator is definitely not the same as a making a private settlement. For more about arbitration see [4.270].

Since 2009 … property law for de facto couples [8.50] Your eligibility as a de facto party for coverage under the 2009 Commonwealth de facto provisions may be affected by where you live, the technical definition of de facto relationship, and an additional set of “gateway” requirements. These are described in detail in chapter 2. It is important to seek legal advice on de facto property issues, particularly if it becomes necessary to go to court in the States or Territories. State court procedure is complex and often difficult for non-lawyers, and litigation in State courts can be expensive. There remain significant differences, too, between the entitlements of former de facto partners under State and Territory legislation and those under the Commonwealth’s Family Law Act, particularly in relation to their future needs and resources. All this reinforces the vital importance for former de facto partners subject to State property law of making a genuine effort in dispute resolution methods such as negotiation, counselling and family dispute resolution (see [4.50] – [4.260]).

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[8.60]

Treatment of the various schemes for State-based de facto property law (which may apply if there is no eligibility under the new Commonwealth scheme) is beyond the scope of this work. The law and procedure described in the rest of this chapter applies to parties in de facto relationships, unless otherwise noted, but only in relation to the de facto relationships under the Commonwealth law. On the other hand, many of the sample orders on [8.1840] – [8.1970] may be used in the privately negotiated agreements of separating de facto couples, whatever their circumstances. The property settlement provisions in the Family Law Act have been tested in the courts on many occasions for their proper interpretation in relation to particular assets, debts, arrangements and family circumstances. Several of the cases are referred to in this chapter. They mostly arise from pre-2009 when only the property of married couples came within family law jurisdiction. It should be noted that the court will not be bound to follow case law that arises from sections of the Act that (still) relate only to married couples in new cases concerning the property of de facto couples – even if there is a new “mirror provision” (another clause in identical terms) for the de facto context. These cases may well provide direction for courts, however, in establishing new streams of binding case law interpreting the new de facto sections, and therefore may be read as indicative of the possible treatment of the property of de facto relationships.

The court's process in deciding a property order [8.60] The court uses a staged process to help it determine a “just and equitable settlement”. Until recently, it was settled law that this process involved a set of four steps based on the provisions of section 79(4). With the advent of the important High Court decision of Stanford & Stanford (2012), however, there is now a threshold question to be addressed before that process is applied. The law has had significant effect in a number of contexts, including where the value of the property pool is low.

The Stanford “just and equitable” threshold [8.65] By definition, a property order made by a court has the effect of changing existing legal and/or equitable rights to property, possibly with effect also on third parties. In Stanford, for the first time, it was recognised that there should be no property order made at all unless it is “just and equitable” in all the circumstances of the case, that those existing rights should be interfered with.

Three propositions [8.70] The court identified three “fundamental propositions”: 1.

There must be existing legal or equitable interests about which a property order can be made.

2.

There is no special “right” to a property law settlement that arises specifically from family law.

[8.85]

3.

chapter 8 Property

Deciding what is “just and equitable” doesn’t rely solely on the provisions of section 79(4) but on all the circumstances of the parties.

In Bevan & Bevan (2014), the Stanford threshold was applied to deny the husband a property order. It was held that, in the circumstances of the case which included a separation of 18 years, and his move to the United Kingdom while representing to his wife that she could keep the Australian property and giving her power of attorney in relation to it, it would not be just and equitable to make an order interfering with her existing property interests. The Stanford approach has been applied to refuse the making of a property order in de facto property proceedings: Watson & Ling (2013). More unusually, Stanford has been applied to refuse a property order applied for by consent by a couple in an intact marriage who sought to avoid paying stamp duty: Redman & Redman (2013).

In the usual case… [8.75] The formalities of property ownership that have developed in the course of a relationship (joint ownership and debt for example) are not likely to be appropriate nor fair once parties separate. Thus, in the ordinary case, the simple fact of separation itself will be sufficient to satisfy the Stanford threshold (that it should be just and equitable that a property should be made): Erdem & Ozsoy (2012).

“Low money” cases [8.80] It is likely, however, that application of Stanford will develop in cases where there is a particularly small asset pool. In Shea-Frost & Frost (2013), the judge applied Stanford deciding that it would not be just and equitable to make a property order where the only assets of the parties were the household chattels and the husband’s shareholding, of negligible value, in his own business. See also Mitchell & Keener (2013).

The four-step process in the making of a property order [8.85] The court in Bevan & Bevan (2014) confirmed that there was nothing in the Stanford judgment that unseats the currently settled law in relation to the four-step process. What it does do is make the application of that process conditional on a requirement that the making of any property order at all is just and equitable. In summary, the four-step process involves: Step 1 involves identifying and valuing the assets and liabilities that form the global pool of property that is the subject of the settlement. Step 2 requires: assessment of each party’s financial contributions to the family’s assets; assessment of non-financial contributions (such as homemaking and caring for children); and

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[8.90]

some consideration of “negative contributions”, such as violence, gambling and substance abuse. At the conclusion of this stage, a preliminary percentage or dollar-value allocation of the property may be made – on the basis of the contributions assessment only. Step 3 requires consideration of the parties’ future needs and resources – factors such as their age and health, their ability to support themselves, and their other commitments. These factors are used to adjust the allocation reached on the basis of contributions alone at Step 2. In Step 4, the results of Steps 1 to 3, and the consequences of the various orders that might potentially be made, are checked for overall fairness in the light of all the circumstances of the case.

Applying the four steps to out-of-court settlements [8.90] You may wish to use this process in your own analysis and negotiation – the method is designed to result in a fair distribution of assets, and it helps you to keep in view the likely result in court if negotiations fail. On the other hand, there are no particular rules to private negotiation other than the ones you agree on with the other party. If you agree to discard a principle observed in the four-step process (for example, excluding superannuation from the asset list) – well and good. Just remember that the principle will come back into play if you can’t agree, and you end up in court. The four steps are discussed in detail at [8.130] – [8.880].

Different approaches to the distribution of assets [8.95] Meaningful negotiation can take place only after both parties have disclosed all relevant information in their possession, and jointly identified a global pool of assets and liabilities. From this point, many people try to allocate the assets, or a portion of each, one at a time – or at least by one category of asset at a time. This is called the asset-by-asset approach. The second most common method is the global approach, under which the parties agree on the single, central pool of assets and liabilities, calculate its value, then negotiate and finally distribute on the basis of percentages of the total. A third may be identified as the two-pool approach and applies when the global approach is not suitable for the treatment of superannuation. The three methods are discussed below.

The asset-by-asset approach [8.100] The asset-by-asset approach may be suitable if: it is possible to horse-trade on items of relatively low value and remove them from the pool without significantly changing the percentage going to each party; the relationship has been short; the property pool is small; property interests were kept separate in the course of the relationship; there is a significant difference in the initial contributions of each party;

[8.125]

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an asset or cash representing a significant proportion of the property pool was received close to or after separation; there was a lengthy period of separation before the divorce during which at least one party gained or lost significant assets; the parties just want to do it this way. But beware – though it may feel right initially to share things on a “you have this, I’ll have that” basis, many couples soon find that they cannot seem to negotiate a fair result using this method. It may be difficult to arrange for equality in the overall value that each party is taking. It may also be difficult to apply the court’s Step 2 and Step 3 assessment principles to individual assets – a significant threat to the chance of a fair outcome.

The global approach [8.110] Under the global approach, parties agree on the value of a pool of assets and liabilities and then negotiate a percentage split – once at Step 2 of the court’s process, and then again, on a different set of considerations, at Step 3. At Step 2, for example, you might, after considering contributions factors alone, negotiate a 50–50 split. At Step 3, after considering your future needs and resources, you might allocate an additional 10 to 20 per cent to the party who has responsibility for, say, the care of three young children and a reduced future earning capacity. After the final percentage split is negotiated, the parties go back to work out which assets and shares of assets will go to make up the shares. There are usually a number of ways in which the shares can be made up. The global approach is favoured by lawyers and courts to reduce the complexity of negotiation, ensure fairness overall and to obtain a set of comparable options for property division.

The two-pool approach [8.120] The two-pool approach, applied in Coghlan v Coghlan (2005), involves separated application of the four-step process to two pools of assets – where one of the pools contains superannuation only. The two pool approach is likely to be useful when: the value of superannuation assets is disproportionately large in relation to the value of the pool as a whole; and/or the superannuation will not vest for a considerable time; and/or the value of contributions to the superannuation made during the relationship is small relative to the whole of the contributions in the fund.

The importance of an agreed set of assets, liabilities and values [8.125] To negotiate meaningfully in percentages, the parties must be playing on the same field. Before you start to negotiate shares, you need to work to agree on the values of individual assets and liabilities and the total net value of the global property pool.

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Step 1: Identify and value assets and liabilities [8.130] Property eligible for consideration in settlement proceedings is, simply, all of the property of both parties. It includes property held in joint and separate names, and property under the control, or for the benefit of, one or both parties. The settlement also takes account of the parties’ liabilities (debts). All the assets and liabilities together are often referred to as “the global pool” or “the property pool”. Everything in the pool is assigned a dollar value (liabilities take a negative value). The total value of the pool is calculated by adding and subtracting the values of the assets and liabilities. People quite often expect that certain of their assets – say, a business or an inherited item – will be quarantined from inclusion in the global pool. This is incorrect – all of the property, financial resources and financial obligations of both parties are on the table, though the court may ultimately treat some assets and liabilities in different ways. The court must make such orders as it deems proper in the context of the whole property and the whole circumstances of the parties.

Identifying assets and liabilities [8.140] Assets and liabilities that may be included in the global pool include: property owned by the parties when they married or commenced their de facto relationship; capital gain on property a party owned before the marriage or de facto relationship; inheritances; property obtained by a party during the relationship; property obtained by a party after separation; assets and goodwill in a business; superannuation; compensation and damages awards paid during the relationship; lottery winnings; redundancy payouts; loans; mortgages and other securities; and certain life insurance policies.

Assets held by third parties (such as a private company) [8.150] Unless arrangements for a property holding that involve a third party, such as a company or a trust, can be clearly shown to be a sham (that is, the third party is a mere puppet of one of the relationship parties), the court will respect the third party’s rights. It may not be possible to include an asset in the global pool when a third party (such as another person, organisation, trust or company) is sufficiently separate and independent from the parties to a relationship, and has legal title to the asset. For discussion on the independence of the third party from parties to a relationship, see In the Marriage of Stein (1986).

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But the situation is not as simple as it used to be. See “Third party interests in property settlement” at [8.1460].

Important timeframes The date of separation does not determine property rights [8.160] The date of separation does not, in itself, signify an end to rights in the parties’ property or financial resources. Property rights become final and certain only: by a legally enforceable private agreement; by the making of final property orders; or at the expiry of the deadline for filing for orders for property settlement, unless the court gives permission to apply after this – see below. A long separation may however affect whether a court will hold that it is just and equitable to make a property order: Bevan & Bevan (2014). Deadline for applying for property settlement orders for parties to a marriage An application for property settlement orders must ordinarily be made within 12 months from the day on which a divorce is declared final. You can apply for an extension if: the delay can be explained; and a party, or their children, would otherwise suffer hardship. Deadline for applying for property settlement orders for parties to a de facto relationship An application for property settlement orders must be made within two years after the end of the de facto relationship. An extension may be granted if a party or a child would suffer hardship if it were not. De facto parties who find themselves out-of-time in relation to the Commonwealth provisions may still have access to State or Territory law dealing with property interests.

Non-tangible assets Businesses [8.170] Value in a business (including tools of trade, vehicles and other assets) can be considered for distribution in a property settlement under the Family Law Act. If the business is not fully controlled by a party to the relationship, the proportion they do control is eligible property. A partnership interest is usually eligible property under the Act, although a mere expectation of future profit from a partnership is not: In the Marriage of Best (1993).

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Not all businesses have a distributable value. Unless there are forward contracts in place or debts owed, a business based on a person’s services (as, for example, a professional in sole practice, a tradesman or a health service provider) may not yield much distributable value beyond the garage-sale value of the tools of trade.

Trusts [8.180] Trusts are created for many purposes in Australia, and they take various forms. The assets of a discretionary trust – the usual form of a family trust – are eligible property in a family law case if a party to the relationship has effective control and can unilaterally vest the property of the trust for the benefit of at least one of the relationship parties: In the Marriage of Ashton and Davidson (1991). The court can infer that a “constructive trust” exists if this is necessary to defeat sham arrangements that result in unfairness and “unjust enrichment”: Baumgartner v Baumgartner (1988). In the case of Spry v Kennon (2008), the High Court confirmed that the rights of a party as a beneficiary or object of the trust to “due consideration” and to “due administration”, as well as the power of a trustee to appoint, may all be considered as “property” for family law purposes, and that, if any of these conditions applies to a party in a family law case, the property of the trust is eligible for distribution under the Family Law Act.

Liabilities [8.190] According to the standard methodology: the value of a secured liability (such as a mortgage) is deducted from the value of the securing asset before its value is listed in the global pool; and unsecured liabilities (such as lease commitments, credit card debts, personal loans and tax liabilities) are deducted from the total value of the assets. Therefore, the focus of the final property orders is usually on the remaining value – that is, on the net value of the pool after total liabilities are subtracted from total assets.

Treatment of debt [8.200] In most cases, the standard methodology will be applied. But under changes to the Family Law Act in 2004 (section 90AD), the Act provides that a debt owed by a party “is to be treated as property”. Basically, the effect of this is that court orders are not limited to determining the ownership of assets; there is also powerful scope for orders that change and determine responsibility for debts. It is likely that in future there will be more creativity in final orders, in terms of the reorganisation of entitlement to and responsibility for individual assets and liabilities in the pool. See “Third party interests in property settlement” at [8.1460] for further discussion.

Loans from one party's parents [8.210] If it is clear that a loan from one party’s parents was intended to be repaid, the court will treat it like any other liability. Often, however, it is not clear that the parents intended the money

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to be repaid, in which case it will be treated as a gift rather than an item for the property pool, and factored in as a financial contribution later in the process (see “Financial contributions” at [8.560]).

“Adding back”: Assets that once were … Where only one party benefited [8.220] Property may have been sold in the course of a relationship (or before the settlement, anyway) and the proceeds used for the benefit of only one party (perhaps to pay a pre-relationship debt or fund an expensive holiday for that person). In this case the value of that property (or a percentage of the total property to account for it) may be “added back” as a notional (hypothetical) asset in the global pool – despite the fact that it no longer physically exists as property of the parties. The court will permit add-backs only where there has been a significant imbalance in the use of relationship property. According to Omacini and Omacini (2005) this is likely to involve expenditure of one of three types: expenditure on legal fees; premature distribution of the pool; reduction of matrimonial assets “recklessly, negligently or wantonly”. See Hickey (2003) where it was held that financial misconduct could be accounted for by the notional inclusion of an additional amount in the property pool. Add-backs will not be permitted to rectify minor differences in the costs of hobbies, clothes, medical treatment or post-separation living expenses. The court in Todd & Todd (2013) stated that since Stanford, add-backs would likely be permitted less frequently, and possibly restricted to circumstances where the property could be retrieved (as the first “fundamental proposition” arising from Stanford is that property proposed to be subject to a property order must exist at the time of the order). See Sand & Sand (No 2) (2012) where no property order was made because all of the property was notional. But in Bevan & Bevan (2014) the court stated, in the ordinary case where add-backs and/or notional property were part of a larger property pool, it was likely they could properly be accounted for in the four-step process. Family Law Rule 13.04 specifically requires the parties to disclose to each other the details of any sale of property since, or within 12 months before, separation.

Waste, recklessness and poor investment decisions [8.230] If one party deliberately wastes, or takes action designed to minimise, the value of a significant asset, or acts “recklessly, negligently or wantonly” with an asset, its value may be added back to the global pool: Kowaliw and Kowaliw (1981). If the relevant reckless intent or attitude is not demonstrated by a party’s behaviour, an add-back benefiting the other party is not likely to be allowed. In C and C (1998), the court stated that the concept of add-back should be treated as an exception rather than the rule. In

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particular, the unhappy financial consequences of poor investment decisions – including over-capitalisation – will usually be shared between the parties, even if only one of them made the decision.

Gambling [8.240] If one party’s gambling has featured in a relationship, and the resulting losses can be valued with reasonable certainty, they might be treated as an early distribution of part of the relationship assets to the gambler, and added back at the time of settlement: Townsend and Townsend (1995). Alternatively, the gambling may, in exceptional circumstances, be considered as a “negative contribution” at the next step of the process (see “Negative contributions” at [8.610]).

Funds already paid towards legal costs [8.250] Legal costs paid to the parties’ solicitors up to the time of the trial may be notionally added back into the property pool at Step 1: Farnell v Farnell (1996). The court has a discretion not to treat legal costs in this way if it would result in unfairness: NHC and RCH (2004).

Expenditure after separation [8.260] You are entitled to support yourself and to get on with your life using joint funds after separation: generally no add-backs will be allowed for this ordinary, reasonable expenditure, nor for expenditure not drawn from joint funds (see NHC and RCH (2004), where the price of an engagement ring for a party’s new fiancée was not added back because it was paid for on credit, and there had been a significant contribution by the fiancée). In Campbell and Kuskey (1998), the wife withdrew $100,000 from the company account just before separation. On appeal, the husband wanted the money added back to the property pool. The appeal was denied. Although the withdrawal was large, it was used only for rent, legal costs and living expenses – all “legitimate purposes” for the use of matrimonial property.

Hidden assets [8.270] It may be impossible to discover the exact nature and value of property that one party has tried to hide from the other. However, if the existence of the property can be proved, a value may be inferred by the court and added back as a notional asset. In Chang v Wu (2002), residency documents showed the existence of $4.5 million in the hands of the husband, the whereabouts or fate of which he refused to disclose in family law proceedings only four years later. As Callinan J remarked in the hearing of the husband’s application for special leave to appeal in the High Court (which was refused): “You would have to be pretty good to lose $4.5 million in four years …”

Future assets Inheritances [8.280] The court will not take a likely future inheritance into account at Step 1 of the four-step process. Depending on the circumstances, a prospective inheritance might be taken into account in Step 3: see White & Tulloch v White (1995) and [8.660].

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Long service leave, redundancy and workers compensation payments [8.290] Likely future payments in the form of lump sum long service leave, redundancy and workers compensation will not be counted in the property pool at Step 1: Bourke and Bourke (1993). Depending on the circumstances, they may be assessed as a future resource at Step 3 (see [8.660]). A redundancy payment or long service leave payment (taken in lieu of leave) that has already been received by a party may be taken into account: Tomasetti and Tomasetti (2000).

Future liabilities [8.300] When the existence of a future liability – for capital gains tax, for example – is certain or probable, and it is possible to determine the amount, it may be taken into account at Step 1 and deducted from the property pool. In the case of tax, at least, it is necessary to work with a reasonably accurate estimate, perhaps from an accountant or financial adviser. If the amount, or the fact, of the future liability is uncertain, it will not be included at Step 1, but it may be considered at Step 3. See Campbell and Kuskey (1998), Rosati v Rosati (1998).

Loans after separation [8.310] Loans taken out after separation will not generally be regarded as debts of both parties and will not be included in the property pool at Step 1. They may be taken into account at Step 3.

Unpaid or future legal costs [8.320] Although legal costs already paid may possibly be added back as notional assets to the property pool, unpaid legal costs will not: NHC and RCH (2004).

Valuing assets and liabilities [8.330] Property negotiations may be difficult and extended if you cannot agree on the value of the assets in the pool. Apportionment in percentages, for example, is only meaningful in practical terms when the value of the 100 per cent share – the whole pie – has been quantified and agreed. Without this, the value of, say, a 60 per cent share cannot be understood. It is worth the effort involved in agreeing on values for assets and liabilities before you begin to negotiate the allocation of items or percentages. Your negotiations may stumble at this very first hurdle. Many people’s do. If you can’t accept each other’s assertions of the value of cars and boats and so on, work towards an agreement instead on a method of determining the value. Selling the asset in an agreed timeframe is one way of determining market value. Some people agree, for example, that they will split the proceeds from auctioning a property, whatever they turn out to be, in certain percentages. This is a viable method of breaking a deadlock about asset value, though a little risky – the market sometimes yields results that surprise everyone. If there is a certain dollar-value threshold that is vital to the sustainability of the settlement from your point of view, and the values of significant assets remain undetermined, it may be unwise to commit to a percentage-only settlement.

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What the court will do if values are not agreed [8.340] Parties should be able to provide reasonably certain evidence of the values of all of the assets in the property pool by the time they go to trial. If the values are not disputed, the absence of firm evidence may not matter a great deal. If they are disputed and the parties’ assessments differ significantly, the court will not simply halve the difference. It will apply “appropriate principles and methodology”, and arrive at its own assessment of value. Its methodology may involve an order for the sale of the property. See the 1953 case of Commonwealth v Milledge (1953) as applied in many cases since, including Little and Little (1990).

Timing of the valuation [8.350] Unless there is a great distance between the separation date and the trial date, or other special considerations, the relevant date for valuation is the date of the trial. This is worth bearing in mind when considering the dollar effect of the delays involved in long-term litigation, particularly in relation to capital gains or losses on real estate and other investments.

Assessing value [8.360] There are no fixed rules for valuing assets in the pool. The method chosen should reflect the nature of the asset and the circumstances of the case.

Fair market value [8.370] The measure usually employed by the courts is “fair market value”. This is the price that a willing but not desperate buyer, with adequate information about the asset, would pay to a willing but not desperate seller. Depending on the nature of the asset, fair market value might be: the price achievable at auction; the garage-sale price; that is, the price (without a trade-in) obtainable from a second-hand dealer; or the value given by a licensed valuer. Fair market value does not usually equate with “the price I paid for it”, “what I think it’s worth”, the insured value, or the replacement value.

If there are time pressures… [8.380] If it is likely that an asset will need to be sold to give effect to the settlement, the relevant value is the price for which the asset can be sold quickly – which may be lower than what might be achieved if the parties had time to strive for the best possible price.

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Obtaining a valuation [8.390] There are licensed valuers for almost all assets, with many specialising in valuations for family law purposes. Check with a financial adviser or real estate agent, or look in the Yellow Pages to find local professional valuers. Although it may prove to be accurate, a real estate agent’s assessment of real estate value, in writing or otherwise, is not a professional valuation and cannot be relied on as such. In any case, the other party may have difficulty accepting the impartiality of an assessment made by an agent briefed only by you. A licensed valuer’s assessment of real estate should cost between $600 and $1500. Many couples can agree to split this cost and/or deduct it from settlement shares, like other costs of sale. It usually proves to be money well spent.

Valuing superannuation [8.400] There is a separate scheme for valuing superannuation under the Family Law Act and the Family Law (Superannuation) Regulations 2001 (see “Superannuation” at [8.1310]).

Valuing a company [8.410] Although family companies are often valued on the basis of dividends, they may also be assessed on the basis of revenue, or capital or garage-sale value, depending on which method appears likely to yield the most realistic result in the circumstances: Mallet v Mallet (1984). Valuation of a business, trust or corporate structure should be referred (by the parties jointly, if possible) to an actuary, accountant, solicitor or other professional adviser.

Step 2: Assessing the parties' contributions [8.420] After the assets and liabilities in the property pool have been identified and valued, each party’s contributions to the relationship – both financial and non-financial – are assessed. A preliminary division of the property pool is then made, on either an asset-by-asset or a percentage basis (see [8.95]–[8.120]). The relevant period is the time between the commencement of cohabitation and the hearing date.

Making the assessment Criteria for the contributions assessment [8.430] The factors the court is required to take into account to decide what would be an appropriate distribution at the contributions step are set out at section 79(4) and, for de facto relationships, at section 90SM(4). These include financial contributions, non-financial contributions to property, and contributions as a homemaker and parent to the welfare of the family.

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Parties negotiating privately may choose to have regard to these factors or not. Either way, it is useful to be aware of them, and how they are likely to apply, if negotiations fail and the dispute goes to court.

Equality: A frequent outcome, not a starting point [8.440] In the words of Justice Fogarty in Waters and Jurek (1995): In the majority of property cases, little difficulty is encountered in the contributions step, and increasingly in the general run of cases the conclusion is likely to be one of equality or thereabouts.

But although equality (a 50–50 split) may be a frequent outcome of the contributions assessment, there can be no assumption of equal contributions as a starting point: Mallet v Mallet (1984). “Equal contributions” (in Step 2 assessment terms) are often made in longer relationships where both parties started with little property and then worked together to increase wealth, raise a family and support each other. Assessing contributions is more difficult in cases involving: a large disparity in the parties’ initial financial contributions (including property); exceptional changes in the value of the property during the relationship due to inheritances, lottery winnings, or the business acumen of one party; significant changes to the value of the property after separation but before settlement or trial; and negative contributions by one party, such as gambling, substance abuse or domestic violence.

A mathematical approach? [8.450] Parties should not try to calculate contributions with mathematical accuracy. In court, usually only broad estimates are made, and categories of contribution are offset against each other in general terms. There is, in any case, a range of non-financial contributions that must be taken into account (see [8.530]), and these are simply not quantifiable: Garret and Garret (1984).

“Contributions overall” or “contributions per asset”? [8.460] The court may decide to divide the property pool using either an asset-by-asset or a global approach (see [8.100]–[8.110]), depending on the circumstances, although the global approach is generally preferred. If the asset-by-asset approach is used, contributions should be assessed per asset or per category of asset. If property is assessed globally, contributions will generally also be assessed on a global basis.

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Financial contributions [8.470] Under this heading, the court will consider the financial contribution of each party, in funds and assets, to the “acquisition, conservation or improvement” of anything in the joint property pool: sub-section 79(4)(a).

Property brought in at the start of the relationship [8.480] The treatment of property brought intothe relationship (“initial contributions”) is one of the great challenges for Australian family law. The difficulties are particularly acute when there is a great difference in the value of the assets brought by each party, and those assets still represent a significant part of the property pool at the end. Unless a relationship is very short, there is little chance that the value of the initial contribution will be returned to the contributing party on a dollar-for-dollar basis. The initial contribution must be considered in the light of its impact on the assets of the parties, and also of the “erosion” of that impact by other contributions made by the parties in the course of the relationship: Elgabri & Elgabri (2009). How and to what extent the initial contribution is eroded depends on the initial difference in contributions, the use made of the assets, the change in value over time, the length of the marriage and any other later contributions: Zyk v Zyk (1995). It is confirmed, however, that substantial initial contributions must be given significant weight: Pierce and Pierce (1999); Kardos v Sarbutt (2006).

Financial assistance from parents [8.490] The court will treat a gift of property or cash from a party’s parent as a contribution by that party, unless there is evidence that it was a gift to the parties jointly (in which case it would be considered a contribution by both parties equally: Kessey and Kessey (1994).

Damages awards [8.500] The existence of a mere right to sue (in the future) for personal damages is not a form of property and cannot be accounted for in a property settlement case: Zorbas and Zorbas (1990). Where a party has contributed funds to the relationship in the form of an award for damages for personal injury, however, the funds themselves (or what remains of them at the time of the hearing) are treated like all other property in the property pool. The total amount will be treated at Step 2 as a contribution of the party who received the award: Aleksovski v Aleksovski (1996). On the other hand, if the other party can show that they made a contribution to the acquisition, conservation or improvement of the award, a proportion may be shared. For example, in Zubcic (1995), the wife’s nursing assistance to her injured husband was successfully argued as a contribution towards the maintenance of the damages award for his injury.

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Cases about initial contributions [8.510] In Bremner (1995), the husband’s unimproved rural property, brought into a marriage that lasted 22 years (with children), represented the major part of the value of the property pool at the time of the hearing. The husband argued that the wife had made no contribution at all to this asset. The court determined that the length of the marriage and the contributions of the wife overall had effectively eroded the value of the husband’s initial contribution. The court assessed the parties’ contributions as equal. In Rosati v Rosati (1998), the husband brought a sizeable inheritance along with significant premarital assets into a marriage that was ten years old at the date of the hearing. Although the court acknowledged the importance of giving weight to the wife’s contributions as homemaker and parent, it also gave significant weight to the fact that the husband’s initial contributions equated to some 25 per cent of the value of the property pool, and that they had “provided the financial springboard or base” for the accrual of the parties’ wealth. On contributions alone, the just and equitable distribution was assessed at 60–40 in the husband’s favour. Similarly, see Cabell & Cabell (2009) where the income earned to fund property purchases during the marriage was found to arise from partnership equity acquired by the husband prior to the 25-year-old marriage. Though the in-marriage contributions were assessed as equal the husband was awarded an additional 10 per cent for his initial contribution.

Windfalls [8.520] The current view appears to be that windfall gains, such as lottery wins or capital gain caused by market changes rather than improvements to the property, should be treated as a financial contribution from the parties equally: Zyk v Zyk (1995).

Non-financial contributions [8.530] Section 79(4)(b) and, for de facto parties, section 90SM(4)(b) deal with non-financial contributions to the “acquisition, conservation or improvement” of the parties’ property. Any type of non-financial contribution to the property may be relevant. The wife of the famous Australian artist Brett Whiteley successfully argued a non-financial contribution – quite apart from her homemaking contribution – by way of her “artistic inspiration [to Whiteley] and intellectually as [his] critic and confidante”: In the Marriage of Whiteley (1992). If a spouse or de facto party decides to “intervene” in the case under provisions in the 2008 amendments, however, it is possible that contributions to two families may be assessed at the same time. See [8.1520] for more on multiple relationships.

The homemaking role in money-making [8.540] The homemaking and parenting role in itself is more substantially covered by the “welfare of the family” factor (see “Contributions as a homemaker and parent” below), but it may also be considered as a non-financial contribution to property in that one party’s

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performance of all the non-financial obligations of the relationship allows the other to give 100 per cent of their energy and time to the money-making and property acquisition effort: Ferraro and Ferraro (1993).

Labour committed to home improvements [8.550] The labour devoted by one party to genuine home improvements – more than just maintenance or decoration – leading to a significant increase in the value of the property may be counted as a non-financial contribution: Pettit v Pettit (1969). Home-improvement labour given by a parent of one of the parties might also be counted as a non-financial contribution of that party.

Contributions as a homemaker and parent [8.560] Sections 79(4)(c) and 90SM(4)(c) require consideration of contributions to the welfare of the family constituted by the parties to the relationship and to any children of the relationship, including any contribution made in the capacity of homemaker or parent. The contribution must be to the children of the marriage or the de facto relationship. Financial obligations in relation to a second family or an earlier family will usually be factored into the process at Step 3 (see [8.660]).

It applies to men too … [8.570] Although the traditional role division in Australian households still sees women’s contributions figuring under the welfare of the family factor more frequently than those of men, the balance is slowly shifting. In any case, the factor relates not only to cleaning, cooking and child-raising but also to non-financial, handyman-type contributions, and also to financial contributions to the parenting or homemaking role (as long as these have not been accounted for under the financial contributions head).

Costs of accommodation [8.580] Payment of rent in new accommodation after separation might be considered as a contribution under the welfare of the family factor if it involves housing the children. Equally, and although the payment of the mortgage and rates in the post-separation period would usually be considered as a financial contribution to property rather than a contribution to the welfare of the family, it is not excluded from treatment under this head.

Valuing the homemaker/parenting role [8.590] The welfare of the family factor was introduced into the legislation in 1983, reflecting a trend to a view of marriage as a supportive partnership, with the

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breadwinner and homemaker roles having equivalent intrinsic value. In Waters and Jurek, the court recognised that “home-maker contributions are to be given as much weight as those of the primary bread-winner”. However, there is no assumption of equality as a starting point. Homemaker contributions are to be judged “in their own sphere”: Mallet (1984). And, as was pointed out in the case of Ferraro (1993), it is very difficult to objectively assess a person’s performance in the homemaking and parenting role. What is the quality of the homemaking or parenting in a particular case? Although certain evidence may be found to back up assertions about being a good mother or an obsessive housekeeper, there remain some dicey gender-political and practical issues around weighing the value of this type of contribution against financial contributions.

Post-separation contributions [8.600] The courts have traditionally equated the financial and non-financial contributions of the parties in the period after the separation: Williams v Williams (1984). With the advent of the superannuation-splitting mechanism, the frequency of significant distance between separation and the trial date, and also a possible trend to longer periods of post-separation cohabitation, there is now greater scrutiny of the parties’ respective contributions which are estimated on the individual facts of the case. A range of results appears to be possible. See Jacobsen & Jacobsen (1989), Giller and Procopets (2004), Spiteri (2005), Coghlan (2005) and Polonius & York (2010).

Negative contributions [8.610] The reform of the family law system in 1975 introduced an important policy perspective. It removed the previous emphasis on fault – that is, on behaviour – in divorce and property matters. More recently, the issue of a party’s conduct appears to be coming back into focus. Bad behaviour can be factored in, not by assessment of its moral wrongness, but to the extent that it reduces the innocent party’s capacity to make a full contribution to the relationship. In Kennon (1997), it was decided that a court is entitled to take domestic violence and other negative forms of behaviour into account in assessing contributions, and thus the term “negative contributions” was established as a legal concept in family law. The concept was applied to heroin use in Farmer and Bramley (2000), and to alcoholism in P and P (2003). The desire to exclude behavioural considerations in assessing rights to property, however, remains strong. Even in Kennon (1997), the negative contributions principle was firmly stated to apply to “exceptional” cases only.

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“Special contributions” Big money cases and the doctrine of special contributions [8.620] A particularly difficult problem in relation to “special contributions” has arisen in the so-called big money cases. There are not many of these, but, in a sense, they are relevant to any case in which one party has brought benefits to the relationship though extraordinary or unusual personal attributes. In each of the big money cases in which the issue of “special contribution” has arisen, one party has amassed a large fortune through special skills or business nous, while the other has remained throughout the relationship in the homemaking role. The problem for the court involved lies in weighing the outstanding financial contribution against the homemaking contribution (which may or may not have been outstanding in its own terms). Should the breadwinner receive a greater share of the property pool because its value accrued largely due to their unusual talent for breadwinning? In JEL v DDF (2000), a series of principles was laid down that allowed the courts a discretion to award credit for contributions “outside the normal range” to a person exercising a special talent. However, in the more recent case of Figgins and Figgins (2002), which involved an asset pool of about $22.5 million, the existence of the so-called doctrine of special contributions was questioned. Taking to heart the principle of equal value for the traditional gender roles, the court could find no reason to rate the male earner’s contribution over that of the homemaker, despite the large dollar value connected with it. Although this judgment appears to represent a more enlightened social perspective, it has been criticised as being inconsistent with the important principle established in Mallet (1984) that there can be no assumption of equality in contributions, and that each party’s contribution must be separately valued in each case. The doctrine of special contributions is debunked The so-called doctrine of special contributions has continued to be subjected to tension in recent case law: Bulleen v Bulleen (2010). In fact, in the case of Fields & Smith (2015), it was said that there was no consideration of special contributions or skills that was relevant under section 79(4).

Balancing financial and non-financial contributions [8.630] It may seem an anomaly that, after suggesting that parties should seek to establish a level playing field so far as the asset pool is concerned, the current law may then require the weighing up of such apples and oranges as financial and non-financial contributions to a relationship. This is, however, the nature of the assessment task at Step 2.

Superannuation, redundancy and long service leave payouts [8.640] Superannuation, redundancy and long service leave payouts are considered part of an employee’s remuneration arising from employment. Although each case is examined on its merits, it is likely that the non-financial contributions of the non-employee spouse or de facto party over the period of the relationship would be held by a court to match the value of these payouts that have accrued over the same period: Ferraro (1993).

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Substantial increases near or after separation [8.650] The practice of treating major financial gains as joint contributions starts to break down for gains received near, or after, separation, when the underlying partnership – the couple’s sense of joint enterprise through life – can no longer be said to exist. In Farmer and Bramley (2000), the property pool contained little but the remains of $5 million won by the husband two years after separation; the court awarded contributions to the pool in shares of 87.5 per cent to the husband and 12.5 per cent to the wife. An inheritance acquired very late in a relationship would normally be treated as an entitlement of the party who received it. The other party could not be regarded as contributing significantly to such an inheritance except in unusual circumstances: In the Marriage of Bonnici (1991).

Step 3: Needs and resources factors – sections 75(2) and 90SF(3) Needs and resources factors and maintenance [8.660] The factors listed at sections 75(2) and 90SF(3) deal with the expected future needs and resources of the parties. They have two separate applications: as a means of estimating and comparing the future financial position of the parties at Step 3 in the property settlement assessment process; and as a list of the matters to be taken into account when considering maintenance. The factors operate quite independently in each case. In this next section we consider their Step 3 application. Their application to maintenance is discussed at [8.1590] – [8.1770]. After the court has determined a fair distribution of assets on the basis of past contributions, it must then review another set of factors – this time pointing to the future – to decide whether further adjustments should be made.

The needs and resources factors [8.670] The matters referred to in sections 75(2) and 90SF(3) include: the parties’ age and health; their income, property, financial resources and capacity to work; the care of a child of the marriage or de facto relationship; the parties’ commitments to supporting themselves, or anyone they have a duty or responsibility to support; pension or superannuation entitlements; a standard of living that is reasonable in the circumstances;

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the duration of the relationship and its effect on earning capacity; “the need to protect a party who wishes to continue that party’s role as a parent”; financial circumstances relating to a party’s cohabitation with another person; child support payable for a child of the marriage or de facto relationship; any other circumstance that the court considers it just to take into account; the terms of any binding financial agreement; and other relationships of the parties.

Age and health [8.680] It is easy to see that someone’s age and state of health can have a dramatic effect on their future needs and resources. Focusing on disparity in the parties’ positions, relevant considerations include the likely duration of any state of ill-health, and its disabling effect in terms of capacity to earn, to care for children and to maintain lifestyle: see Guthrie and Guthrie (1995).

Income and earning capacity [8.690] Difference in future earning capacity is one of the most influential of the factors. In Horsley and Horsley (1991), the court referred to a vast disparity between the earning capacities of the husband and the wife, who also had to care for two children and had a lower living standard than the husband. She was allowed 25 per cent for future needs and resources factors. In Waters and Jurek (1995), the court made a substantial award at Step 3 in favour of the psychiatrist wife. She earned $74,000 a year and did not need more money, but her psychiatrist husband earned $171,000, and the court thought it just and equitable to take the major disparity into account. Earning capacity is, of course, affected by the market for a person’s skills in the area where they live. Other relevant circumstances might be an unexercised potential to earn (for example, the person could work but chooses not to), or the person’s control of income-producing assets.

Property and financial resources [8.700] Sections 75(2)(b) and 90SF(3)(b) require consideration of the parties’ property and financial resources, including future resources. Various types of financial resources have been treated under this head, including long service leave entitlements and anticipated inheritance. A future entitlement to long service leave may be regarded as a financial resource of one party, whether or not it is likely to be taken as a lump sum. If the evidence shows that during a period of long service leave a party is likely to undertake other temporary employment, re-train, or commence a business while being paid a normal salary, this may “give a party such an economic advantage which can be properly categorised as a financial resource”. If there is evidence that the person is going to take time off (that is, use the leave), the entitlement may not be held to be a future resource case: Gould and Gould (1996). A future inheritance must be reasonably certain and quantifiable, and the death of the testator imminent, if it is to be treated as a financial resource at Step 3: White and Tulloch v White (1995).

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Responsibility for the care of children [8.710] Some parents feel aggrieved that the cost of the other parent’s child-raising is counted against them in the property settlement process in Step 3 when they already make child support payments. But in Clauson and Clauson (1995), the court’s position on this issue was clearly put: payment of child support in no way compensates the custodial parent for loss of career opportunity, lack of employment mobility, and the restriction on an independent lifestyle which the obligation to care for children usually entails. That is, consideration of the effect of children in the property settlement process – in this Step at least – is less about their day-to-day expenses and more about their total effect on the parent’s financial position. Sections 75(2)(c) and 90SF(3) recognise that a parent may require more resources to provide a home for the children than a share of the property pool based only on contributions: In the Marriage of Pastrikos (1980). The impact of children on both earning capacity and lifestyle may be recognised. The differing needs of children, and their ages, are relevant.

Self-support and supporting others [8.720] Under this head, a party’s obligation to support new and previous families (indeed, to support anyone), and also to meet their own needs in terms of accommodation, food and other reasonable expenses, may be considered.

A reasonable standard of living [8.730] The difference between the parties’ post-separation living standards, with additional reference to the standard of living that applied during the marriage, will be considered when the court determines what is “reasonable in the circumstances”: see Horsley and Horsley (1991).

Cohabitation with a new partner [8.740] The income of someone a party is living with, or may soon live with, may be taken into account when the court is formulating a picture of their likely future financial position.

Child support [8.750] The child support obligations of a parent for a child of the marriage or de facto relationship are specifically recognised. The court may take into account: the amount being paid; the period for which it is likely to be paid; and the history of payments. A poor payment history will not strongly suggest the likelihood of future continued payments, despite the legal obligations involved. This may have a negative impact for the defaulting party in the Step 3 assessment of a property settlement in which they are involved.

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“Any other relevant fact or circumstance” [8.760] Sections 75(2)(o) and 90SF(3)(r) are one of several catch-all provisions in the Family Law Act which allow the court to consider issues relating to the circumstances of particular cases, relevant factors that the lawmakers may not have foreseen, or factors that become established in other cases. Since the case of Kennon (1997), for example, domestic violence or other poor conduct by a party, may, in exceptional cases, be taken into account under these sections “in the interests of justice”.

Other relationships [8.770] New factors inserted into sections 75 and 90SF in the 2008 amendments include the need for the court to take into account any property settlement orders already made, or to be made, in relation to another marriage or de facto relationship that involves a party to the property settlement in dispute.

Binding financial agreements [8.780] The court is also required to consider the effect of any binding financial agreements that relate to the couple involved in the property settlement dispute. This includes not only binding financial agreements between the parties themselves, but also any binding financial agreements between one of the parties and another former or current spouse or de facto partner.

Other needs and resources factors [8.790] Other needs and resources factors that the court must consider when assessing the contributions of the parties arise not from sections 75(2) and 90SF(3) but from the property settlement sections 79 and 90SM themselves, and include: the effect of any proposed order on the earning capacity of either party (sections 79(4)(d) and 90SM(4)(d); this applies especially when a major asset affected by the property settlement relates to a party’s capacity to earn a living: Lee Steere and Lee Steere (1995); any other family law order affecting a party or a child of the marriage (sections 79(4)(f) and 90SM(4)(f)); and liability to pay child support (sections 79(4)(g) and 90SM(4)(g)).

What to call these factors [8.800] This book sometimes refers to the section 75(2) and 90SF(3) factors as the future needs and resources factors. Self-represented litigants should note, however, that the courts don’t really approve of reducing this comprehensive set of considerations about a person’s financial position to such a simple handle. In court, it is better to refer to them as either “the section 75(2) factors” (for a marriage) or “the section 90SF(3) factors” (for a de facto relationship).

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How the factors are assessed [8.810] Unlike the contributions factors, which may be assessed one by one (although not necessarily with dollar-value accuracy), the needs and resources factors are almost always assessed as a group, the result being a percentage adjustment to the Step 2 split. The essential task at Step 3 is to assess each party’s long-term financial position, then adjust the settlement as assessed at Step 2 in an attempt to provide for any significant disparity between them: Waters and Jurek (1995). There is no requirement to identify financial need as such (although in most sets of post-separation financial affairs, financial need is not hard to find). You should examine each of the factors and try to foresee how a court might build up a picture of the likely differences in your future financial circumstances. The intrinsic problem is that the estimation of future needs and resources is essentially an exercise in crystal ball-gazing, and therefore, necessarily, inexact.

Quantifying the factors? [8.820] Allowance for the future needs and resource factors is usually expressed in percentage terms, although the court in Clauson and Clauson (1995) recommended that an estimate of the real money effect should be attempted if possible. This does not mean that the court will seek to compensate the likely-to-be-poorer party on a dollar-for-dollar basis from the property settlement. Most settlements are nowhere near large enough to rectify significant long-term disparity. The Step 3 adjustment should be considered, rather, as an allowance in acknowledgment of the likely difference in circumstance. In the early days of the Family Law Act, awards for needs and resources factors tended to be found in the 5–10 per cent range. Since the early 1990s, however, the 10–20 per cent range has become the focus, although the court in Clauson (1995) cautioned that this range should not in any sense be regarded as fixed. In that case, the court awarded 25 per cent for needs and resources factors to a wife with four children and a much reduced earning capacity compared with her businessman husband. As a function of the current trend towards 50–50 residential arrangements for children, however, it is possible that the range might in the future skew back towards the 5–10 per cent mark. Where a property pool is small, a court is more likely to estimate future requirements in dollar, rather than percentage, terms. In Best and Best (1993), for example, there were few assets, but the husband had an exceptionally high income. The court awarded the entire property pool to the wife, who had limited earning capacity and four children, on the basis that she needed every dollar available (and more).

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The court's discretion in estimating future needs [8.830] A court exercises discretion across the whole of the property settlement process, but this is particularly noticeable in the assessment of future needs. A wide range of results is possible. As the court said in Brandt and Brandt (1997), the judicial discretion has “a generous ambit within which reasonable disagreement is possible”. This comment underlines the lack of certainty about the likely results of any litigated property settlement, particularly at Step 3. The area of risk associated with the court’s exercise of the discretion can involve many thousands of dollars, without any possibility of appeal on the decision arising. Parties advised that they are negotiating within the range of this discretion should reconsider settlement sooner rather than later.

The relationship between maintenance and property settlement [8.840] Applications for property settlement orders may be preceded by, closely followed by, or heard together with, an application for maintenance. Both types of applications involve consideration of whatever section 75(2) or 90SF(3) factors are relevant to the case, and confusion sometimes arises. To distinguish between them in basic terms: the maintenance process relates to financial needs in the short term, while the Step 3 process relates to the long-term picture of the parties’ needs and resources.

Difference in purposes [8.850] Step 3 consideration of the factors in a property settlement application is essentially a balancing process, intended to adjust the division of the property pool in a just and equitable direction. By contrast, the use of the needs and resources factors for deciding maintenance is about whether or not one party is unable to “support herself or himself adequately”, and whether the other party has capacity to help support the needy party.

Difference in timing [8.860] An important consideration in whether a person can support themselves or not will be the existence and effect of any property orders – these will provide the background to the financial circumstances of the parties. A final maintenance order (as opposed to an urgent interim maintenance order) can, therefore, only be made after property orders are finalised.

The overlap between property settlement and maintenance [8.870] Despite the distinctions, there is a degree of real overlap in the concepts.

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First, there is no doubt that a later application for lump sum maintenance can look very much like, and may in fact be, a surreptitious second attempt to obtain a significant additional settlement of property. Second, it can be hard for parties to understand why the difference in, say, their incomes cannot be satisfactorily dealt with, and provided for, in Step 3 of the property settlement process, rather than in a subsequent maintenance application – unforeseen developments aside. The distinction may be easier to see in practical terms. Many maintenance applications are calculated by reference to a short-term period of adjustment after separation – while retraining takes place, for example, or until a child begins school and the parent can go to work. Besides, the Step 3 future needs and resources assessment may not be detailed enough to reveal a significant shortfall in one party’s capacity to support themselves in the short term.

Step 4: Testing for justice and equity overall [8.880] The original formulation for deciding a property settlement, encapsulated in Clauson and Clauson (1995), was for a three-stepped process of assessment. More recent cases have re-focused on the broader stage of consideration set out at sub-section 79(2) (and its mirror for de factos, sub-section 90SM(3)), which states that: the court shall not make an order … unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Stepping back from lists of prescribed factors to an overall perspective may reveal additional relevant considerations in the particular case. In Woollas and Woollas (2004), for example, the Family Court of Western Australia applied the “just and equitable in all the circumstances” step, and discovered considerable unfairness in the proposed split – the husband was left holding all his share in the form of superannuation, which would not be available for a very long time. The settlement was adjusted accordingly. But application of the “fourth step” does not require adjustment of the result reached after the first three steps but rather only that the court should stand back to check for fairness overall: Norman & Norman (2010). An adjustment might be indicated particularly where the facts involved low asset value or low income-earning capacity: Teal & Teal (2010).

Pre-settlement property issues Pre-action dispute resolution requirements [8.890] You must engage in a form of dispute resolution in an effort to resolve property settlement disputes before filing an application for orders in the Family Court (see page 89). There is no specific requirement for pre-action dispute resolution for property cases in the Federal Circuit Court, although it is strongly encouraged.

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Disclosure requirements [8.900] Before applying to the court for orders, parties must make full and frank disclosure to each other of the details of their financial affairs, including: earnings and other financial resources; interests in property; income earned or property held by a legal entity (such as a company or business) owned or controlled by them; any trust in which they have a significant role; any sale or disposal of property, or use of funds, since separation, or within 12 months before separation; and debts and continuing liabilities. See Family Law Rule 13.04 and Federal Circuit Court Rule 24.03. Failure to disclose can lead to costs penalties and harsh treatment by the courts in regard to assets that a party cannot account for, or is found to be deliberately hiding. The consequences can include the setting aside of property orders and financial agreements: Grant & Grant-Lovett (2010).

Urgent maintenance orders [8.910] An acute shortage of cash is a common experience for newly separated couples as they struggle to duplicate households and revise their financial arrangements. Most people share the financial pain as well as they can during this difficult time, agreeing on interim arrangements to access joint funds and meet existing liabilities, such as credit card debt and mortgages. Occasionally, however, by accident or otherwise, one party desperately needs income they do not have and cannot obtain from the other. In such cases (“where the party is in immediate need of financial assistance”) the court can order the urgent payment of maintenance – either on a periodic short-term basis or as a lump sum – pending the final settlement. The need for urgent maintenance may be established independently, or in addition to an entitlement to child support.

Exclusive occupation orders [8.920] A court may make an order giving one party sole use and occupancy of the former joint home, and requiring the other party to leave. A party can apply for such an order while both are still in the home, or after one has left and is seeking to return. An exclusive occupation order takes the form of an injunction (which restrains a person from doing something – in this case, entering the home), and may be granted, in relation to married parties, under sub-section 114(1) of the Family Law Act and, in relation to de facto parties, under sub-section 114(2A)(a).

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What the court will consider [8.930] The court will look at a range of factors before granting an exclusive occupation order. No criteria are set out in the Act, but cases suggest that the court will consider: actual violence, and also fear of violence; the availability of alternative housing and funds to pay for it; and risk to the physical and emotional well-being of children. See Merryman (1994).

Applying for an exclusive occupation order [8.940] To apply for an exclusive occupation order under section 114 at the same time as final property or maintenance orders, you need to include details of the orders sought under “Interim or procedural orders sought” in your Initiating Application. If interim orders are necessary, you should note this in the same section and file an affidavit. If proceedings are already on foot, the order must be sought on an Application in a Case (with an affidavit).

The affidavit [8.950] An affidavit accompanying an application for an exclusive occupation order should address the history of the case and the criteria for exclusive occupation described at [8.980]. Supporting affidavits from a teacher, medical person or neighbour may also be useful. A sample exclusive occupation order is set out at [8.1920].

Urgent or ex parte orders [8.960] An application for exclusive occupation orders may be made ex parte – in the absence of, and without notice to, the party to be excluded from the home. Be aware, however, that such an order is unlikely to be granted in other than exceptional circumstances. But the court may be prepared to reduce the ordinary notice period to a few days to give the other party an opportunity to be present in court. This should be expressly applied for. See “Applying for ex parte and urgent injunctions” at [8.1000].

Responding to an application for an exclusive occupation order [8.970] You should respond to an application for exclusive occupation orders with a Response and an affidavit. An affidavit opposing an application for exclusive occupation will seek to demonstrate that: there is no real risk of violence or risk to children’s well-being; alternative accommodation is not available, is too costly or is otherwise impracticable; or

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the order would result in injustice.

Other courses of action If safety is an issue [8.980] An exclusive occupation order under the Family Law Act restrains a party from living in or entering the former family home – and this is all it does. If your safety or your children’s safety is a concern, consider also applying for orders for personal protection. These are available under both the Family Law Act (married parties only) and State and Territory domestic violence legislation (see [1.250]). Injunctions under section 68B If the welfare of a child is involved in the need to exclude a person from the home, an injunction may be obtained under section 68B. This provision is available to de facto as well as married parents, and does not require that a parenting or any other family law case be on foot. Sole occupation and use orders Sole occupation and use orders may be part of a maintenance order or an adjunct to property settlement proceedings. See Carson and Carson (1999), in which the court ordered the wife’s sole occupation of the home as part of interim arrangements until the husband’s superannuation fell due and settlement could be finalised.

Injunctions preventing dealings with property Property injunctions [8.990] Occasionally, one party becomes aware that the other is planning to sell or otherwise dispose of an asset before the final property settlement. Orders may be sought under sub-sections 114(1)(e) or 90SS to prevent a party from selling, mortgaging or otherwise dealing with property, shares, companies, trusts and other assets (only if there is an application for final property orders under section 79 or section 90SM already in court). The evidence (affidavit and attachments) filed with the application must support the task of the court to determine overall a just and convenient result: Mullen v De Bry (2006). Relevant factors would include: there is a “real danger” that a property claim will not be capable of being satisfied unless the injunction is granted (Stowe and Stowe (1981)); there is an “objective risk of disposal” – not just apprehension but evidence of intention or even action in that direction (Waugh v Waugh (2000)); there would be no unfair disadvantage to third parties if the injunction were granted (Martiniello and Martiniello (1981)); and the party affected would not be restrained from ordinary business dealings by the injunction (unless this is absolutely necessary) (Martiniello).

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It may be necessary for the party seeking the injunction to sign an undertaking that they will bear any loss arising from its issue: Blueseas Investments Pty Ltd v Mitchell and McGillvray (1999). Refer to Family Law Rule 14 for other requirements in an application for a property injunction. An effective injunction may be difficult and expensive to obtain. A party considering applying for an injunction should weigh the anticipated effort and cost involved against the value (to them) of the property, and the likelihood of its disposal.

Applying for ex parte and urgent injunctions [8.1000] Usually, an element of surprise is necessary for an ex parte injunction to be effective. If the other party has notice of a hearing on the issue, they may take action to dispose of the assets beforehand. Injunctions to prevent the disposal of assets are often applied for on an ex parte or urgent basis. An ex parte order will not be granted unless you can establish by affidavit (or orally, by permission of the court) the matters set out at Family Law Rule 5.12 in Family Court cases, or Federal Circuit Court Rule 5.03 in Federal Circuit Court cases. If the court will not grant the orders without notice to the other party, it may still be possible to arrange the hearing on an urgent basis. Include an order requesting the court to deal with the matter urgently in your application. See [8.1870] for a sample order.

Orders affecting third party rights [8.1010] The court can make orders and injunctions that have the effect of altering the “rights, liabilities or property interests” of a party other than the parties to the relationship, regardless of the provisions of any other law or anything in a trust deed or other document (such as a contract). See “Third party interests in property settlement” at [8.1450].

“Anton Piller” orders [8.1020] The court may grant an “Anton Piller” order allowing entrance onto property, search and the seizure of material the applicant believes would otherwise be removed, destroyed or altered, causing them some sort of harm (Family Law Rule 14.04). Such applications are uncommon in family law.

Interim property orders [8.1030] It had previously been considered that an interim or partial property order would be made only in exceptional circumstances, where the case for doing so is “compelling”; for example: where it is necessary to do so to avoid an asset being eroded or lost in the intervening period [before trial], and cases (beyond the maintenance power) where an order in

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favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children: Harris and Harris (1993). However in the case of Strahan and Strahan (2009), the Family Court signalled a departure from this position, stating that there is no requirement under the law to establish “compelling” exceptional circumstances. Instead, it is necessary only that an interim order is appropriate in the overall interests of justice, subject to a requirement to ensure that such an order does not prevent the proper exercise of the power to make a single, final order under section 79. Alternatively, property may be transferred from one party to another under a maintenance order if the threshold tests at section 72 (or section 90SF), and the particular need for the asset, can be demonstrated.

Preventing disposal without court action [8.1040] There are ways to deal with anticipated pre-settlement property disposal without going to court. Written advice to third parties If you have information suggesting that a sale is in progress, you can write to the third party (perhaps a creditor, mortgagee or prospective purchaser) who you believe is transacting with your former partner or spouse, and: give notice that particular assets are subject to a current family law claim; ask the third party to refrain from action that might frustrate that claim; and ask them to advise you if they have any notice of proposed dealings with the property. Caveats If you fear that real estate not in your name may be sold, you might investigate the possibility of placing a caveat on the title. A caveat prevents the registration of any transactions in relation to the property (such as a transfer of title) that are in conflict with the interest claimed by the caveator. You should seek legal advice before doing this, to confirm that you have a “caveatable interest”. If you do not have a caveatable interest, the person with control of the property can have the caveat removed, and may apply to the court to have the costs of removal borne by you.

Final property distribution [8.1050] After applying the four-step process, the parties and/or the court are likely to be left with a property pool of a certain value and a certain percentage split (if the global method has been used). There are three remaining tasks. The first is the set of decisions about which assets will go to which party to make up the shares of value decided in the four-step process. The second

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involves the formalisation of the agreed (or ordered) property settlement arrangements. The third is the activation of settlement (physical distribution and change of ownership of the pool assets).

Time limit for property settlement applications [8.1060] Bear in mind that if you are unable to achieve private settlement of property and/or maintenance issues and will need the court to decide, the application must be filed within one year from the date that the divorce came into effect unless both parties agree or the special permission of the court is obtained. The permission of the court to file an application outside the one year period will not be granted unless there are circumstances of hardship to either a party or a child of the parties: section 44. See also Sharp & Sharp (2011).

Private property settlements [8.1070] Many couples make their own arrangements for dividing their property. They agree on values, agree on the split, distribute the assets, alter title and account names, and don’t look back. This is much more likely to happen – and may only be advisable – if the property pool is small. Private property settlements may or may not be in writing. They may be negotiated between the parties privately, or with the assistance of counsellors, mediators or lawyers.

Pros and cons of private property settlement [8.1080] Private property settlements may be much cheaper, quicker to finalise, and less stressful for the parties than litigated property proceedings. On the other hand, private agreements not subsequently formalised suffer from the serious disadvantage that they are not legally enforceable. A party who becomes dissatisfied with a private agreement can apply to the court for orders altering the entire arrangement as much as 12 months after a divorce, or two years after the end of a de facto relationship: see section 44. Even later applications are possible with permission of the court. This time limit provides some security for continuance of private agreements after the 12 months has passed. But if the property division under the agreement is plainly unfair and causing hardship, the court’s permission to re-open the matter, even though the application is “out of time”, may not be difficult to obtain. There may also be significant additional cost to the parties, as the capital gains tax and stamp duty concessions available to parties who file consent orders, get a court-ordered property settlement, or make a binding financial agreement, are not available to parties who settle privately and informally.

Basis for private settlement [8.1090] As previously suggested, you may choose to adopt the four-step process ([8.130] – [8.880]) as a fair basis for negotiation – even if you do not wish to take the matter to court. However, you are not bound to use any particular criteria for your agreement, although the court will apply some scrutiny if consent orders are sought.

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If you use the global, rather than the asset-by-asset, approach to the four-step process, you may find that a schedule of possible settlement outcomes is a useful tool for your negotiations (after values have been agreed). See [8.1960] for a sample.

Negotiating the settlement [8.1100] There are innumerable law books, and armies of counsellors, mediators, solicitors, court staff and judges, to direct and assist you from one end of the property settlement process to the other. It is eminently possible, however, and frequently achieved, for two people to work through the entire process themselves and emerge with a fair and sustainable settlement. How is it done? As usual, there are many ways to get from A to B. One way of approaching the task is described at [8.1120]. Remember – you are trying to convince the other party to come across to your point of view. Bludgeoning and ultimatums don’t result in a sustainable settlement. See [4.300] – [4.650] for information about negotiation skills.

The effect of consent orders [8.1110] Consent orders make the property settlement reached between the parties legally enforceable. Thus they combine the benefits of private negotiation with the certainty and relative finality of a court-ordered settlement. Consent orders about property division may be negotiated and filed with the court before any litigation commences, or they may be the result of a dispute resolution process used after a case has commenced. A binding financial agreement under section 90B, 90C or 90D (or section 90UB, 90UC or 90UD for de facto parties) may be a useful alternative to consent orders in some circumstances (see [4.1020] – [4.1140]).

Step-by-step to private settlement [8.1120] 1

Review your financial affairs. Look at your property and financial environment as a whole (not just the house and car), and make an initial list of all the assets and liabilities subject to the property settlement. Don’t forget household goods and furniture.

2

Understand your legal entitlements. Read this book and other information about family law. Try to grasp the four-step process used by the courts in deciding property settlements. Look carefully at the legislative factors set out at sections 79(4) and 75(2) (or sections 90SM(4) and 90SF(3) for de facto parties) of the Family Law Act, and consider which apply to your situation. Then see a solicitor for a professional assessment of your entitlements.

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3

Agree on the global pool of assets and liabilities. Together, you need to agree on a list of assets and liabilities for division, with a value for each item and a total value at the bottom. See [8.1950] for an example of a schedule of assets and liabilities with values agreed. Where you disagree about the value of a particular asset, note down both your views for the time being. Try to avoid discussion at this stage about who should get what, and why. Take action to resolve disputes about value, such as obtaining valuations or exchanging documentation. If you cannot agree on a particular value, agree instead on a method of establishing a value you will both accept. For the sake of continuing negotiations in the meantime, agree a working value (perhaps the mid-point between your positions), or just leave it as a question mark, and move on in a businesslike way to the next item. Add up the values of the assets and subtract the values of the liabilities to find the total value of the pool for distribution.

4

Negotiate and agree the value split. You should now be in a position to formulate a negotiating range for yourself, and commence negotiations. Keep track of the process with a new list of assets and liabilities – the Distribution List. This one should have three columns – the first for the assets, and the other two for the values of assets agreed to be allocated to each of you. Exchange proposals, either on an asset-by-asset basis (see [8.100]), or using the global approach (see [8.110]). Explain each successive negotiation position to the other party in terms of the contributions factor ([8.390] – [7.650]), and the needs and resources factor ([8.660] – [8.870]). Write down every decision agreed. The task is to exchange progressively compromising proposals for the allocation of all of the value of the pool until an agreed position on the whole of it – that is, settlement – is reached.

5

Package the shares and complete the agreement. If you are using the global approach, when you reach agreement on the split in terms of value, negotiate the allocation of all the assets and liabilities into one of the two party columns in the Distribution List. You are aiming to ensure that the value of each column, expressed as a percentage of the total value of the pool, equals what you agreed at Step 4. You may need help from a financially talented person if the calculations become too difficult. For example: Agreed split 60 per cent to wife, 40 per cent to husband. Total value of pool = $120,000 Total value of wife’s Distribution List column = $72,000 Total value of husband’s Distribution List column = $48,000 If you are negotiating asset-by-asset, the allocation of each item on the Distribution List may seem straightforward enough but you will still need to keep an eye on the value at the bottom of each party’s column and the relation it bears to the total pool value. Write down the allocation of assets in the Distribution List. Also write down the action required to give effect to the distribution, such as selling assets, changing titles or changing

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account names. Explicitly agree on who is going to do what, and by when. These descriptions will form the bulk of a new document that you can call your terms of settlement, draft consent orders, or whatever you prefer. Discuss the possibility of including other terms such as catch-all provisions and indemnities in the terms of settlement (see “Drafting terms of settlement or consent orders” below). Each party should sign, date and take a copy of the terms as a sign of good faith and concluded agreement, while understanding that this action in itself is not sufficient to make a legally enforceable agreement. 6

Formalise the agreement. Discuss whether and to what extent you wish to formalise your terms of settlement, as consent orders or otherwise. It is a good idea for each of you to see a solicitor again at this point, with your agreement in hand. Be ready to emphasise to the solicitor that you regard the deal as done.

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Activate the agreement. Do your best to meet your terms of settlement obligations, and/or take action to make the agreement legally binding, as early as possible. The likelihood that a settled arrangement will fall apart increases for every day that it remains unexecuted.

Drafting terms of settlement or consent orders Whether terms of settlement are to be embodied in consent orders or a binding financial agreement, or simply constitute a private agreement between the parties, certain issues should be addressed. Deal with the entire property pool Having established what assets and liabilities are in the pool, and their value, decide the fate of each. In most cases, the whole pool will be distributed (continuing joint ownership may be a useful option in a few situations). Large assets and groups of smaller assets can be dealt with individually, but a final catch-all phrase may be useful for gathering up and disposing of miscellaneous assets and liabilities. See [8.1910] for samples. Refer explicitly to liabilities

Describe how mortgages, loans, credit cards, tax liabilities and so on are to be paid out or allocated between the parties. Consider using indemnities

An indemnity is a promise that one party will, if necessary, make good certain losses suffered by another. Indemnities are particularly useful over the period between the time when it is agreed or ordered that a party will be solely responsible for a payment or expense, and the time when the obligation, in joint-name terms, is finally discharged. Also, parties often grant each other an ongoing indemnity against loss in relation to future liabilities entered into in the parties’ sole names.

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Agree explicitly to execute documents and undertake formalities

Some transfers involve administrative processes. Finalising a settlement can be delayed if a party won’t cooperate in this. Don’t make provisions about property that go on indefinitely

If ongoing payments are to be made, they are better expressed in terms of maintenance than long-term property orders. Include dates

For example, if a party is to pay cash in return for the transfer of interest in an asset, when are the cash and the formal transfer to be provided? Refer to the method of valuation

If you have not agreed on the actual value of a major asset at the time of settlement but have agreed on a method of valuation (or of determining a sale price), the details of this method should be set out. Agree on the allocation of costs

There are costs associated with the sale of some assets, such as real estate. The method by which these costs are allocated should be expressly agreed.

Applying for property orders [8.1130] Applications for property settlement orders should be made on an Initiating Application (Family Law). Sample orders that may be included are at [8.1780] – [8.1970]. In the Family Court, a Financial Statement must be filed at the same time as an application starting a financial case, unless the application is for consent orders. If the Financial Statement does not enable the filing party to disclose all relevant information, a separate affidavit should also be filed: Family Law Rule 13.05. The do-it-yourself Family Court Financial Kit is available from the court registry or the website. In the Federal Circuit Court, the applicant may file either a Financial Statement or an affidavit with full details of the party’s financial position with their initiating application: Federal Circuit Court Rule 24.02. You can use the Financial Statement from the Family Court Financial Kit.

Responding to an application for property orders [8.1140] A respondent to an application for property orders must also file a Financial Statement and/or affidavit of financial circumstances with their Response: Family Law Rule 13.05; Federal Circuit Court Rule 24.02.

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Progress of a property case in the Family Court [8.1150] See chapter 4 for details of pre-action procedures that apply to property and financial cases. The following procedure applies only after documentation commencing a case has been accepted for filing and the court has allocated a case number.

After filing: the case assessment conference [8.1160] It is likely that the first court date of a property case in the Family Court after commencing documents have been filed, will be a case assessment conference before a Registrar. At least two days before the first court date, parties must exchange the documents listed in Family Law Rule 12.02 (if they have not done so already). At the case assessment conference, the Registrar will attempt to assist the parties to resolve the case, or parts of it, by agreement. If this is not possible, the Registrar will make procedural orders mapping out how the case will proceed. This may include a requirement that the parties attend a conciliation conference. At the case assessment conference, under Family Law Rule 12.03, parties should be ready to: identify the issues that are agreed and the issues that are not; nominate other people who may be entitled to become a party to the case; nominate the items to be included on the balance sheet of the global pool; and seek procedural orders if they are needed.

After case assessment [8.1170] Within 21 days after the case assessment, each party must file a Financial Questionnaire. Within 28 days, the applicant must prepare a Balance Sheet in the approved form, completing values for each item in the pool of assets, according to the applicant and send it to the respondent. The respondent has 21 days then to add their estimated values, and any additional items and send it back to the applicant. The applicant must file the completed Balance Sheet in court within 14 days of receiving it. See Family Law Rule 12.06 for further details.

Before and during the conciliation conference [8.1180] Before attending the conciliation conference, parties must ensure they have exchanged the documents listed at Family Law Rule 12.02 and any other documents ordered to be exchanged at the case assessment conference. At the conciliation conference the court will again attempt to assist the parties to reach agreement, this time with all of the relevant figures to hand. The Rules require that each party make a genuine effort to reach agreement: Family Law Rule 12.07.

Procedural hearing to decide arrangements for trial [8.1190] If a case isn’t resolved by agreement at the conciliation conference, there will be a hearing held straight after it to allocate the first date for a hearing before a judge, clarify disputed issues in the balance sheet and financial questionnaire, and to decide other procedural issues: Family Law Rule 12.08.

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For procedure from this point, in judge-managed hearings, see chapter 9.

Progress of a property case in the Federal Circuit Court [8.1200] Parties to a maintenance application should ensure that they bring the documents listed at Federal Circuit Court Rule 24.05 to court with them on the first court date. At the first court date on other types of property cases in the Federal Circuit Court, the court will examine the possibilities for early settlement of the case, and may order the parties’ attendance at dispute resolution events. In any event, procedural orders will be made. Parties are required to exchange financial documentation, in accordance with Federal Circuit Court Rule 24.04. This may take place at the first court date but must take place within 14 days after it.

Variation of orders [8.1210] Property settlements made by court orders, including consent orders, are intended to be final. The courts uphold a clean break principle – people need certainty and finality to move ahead with their lives. Furthermore, the court’s exhaustive assessment in the property settlement process would be meaningless if parties could keep coming back to apply for further adjustments. There are some grounds, however, for the future variation or setting aside of property orders (sections 79A or, for de facto parties, section 90SN). This may occur when a court is satisfied that: there has been a miscarriage of justice (due to fraud, duress, suppression of evidence or false evidence, not a party’s poor judgment or poor timing); it has become impracticable to carry out the orders; a person has defaulted in carrying out an earlier order, making it just and equitable to make a different order; or there are new and exceptional circumstances relating to the welfare of a child, or a person with the care of a child would suffer hardship without a variation.

Lump sum maintenance awards after a property award [8.1220] Although it is more common to apply for periodic maintenance (by regular instalments) immediately after, or with, a property settlement, parties sometimes use a lump sum maintenance application – made as an application to vary an existing periodic order later on – as a way around the clean break principle. This may be possible, for example, if there is a low-value property pool at settlement, subsequent high earnings by one party, and a significant difference in post-separation living standards between the parties: see Vautin and Vautin (1998).

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Future significant change in financial circumstances? [8.1230] A court may grant an adjournment in a property case if there is a foreseeable significant change in the parties’ financial circumstances – for example, the imminent vesting of superannuation benefits – and waiting is more likely to result in justice than is making an immediate order.

Enforcement of property (and maintenance) orders Applying for an enforcement hearing [8.1240] A party wishing to have an order to pay money enforced against a defaulting party can file an “Application in a Case” in the Family Court or an “Enforcement Summons” in the Federal Circuit Court requiring the defaulting party to answer questions at an enforcement hearing, and to produce certain documents. If the defaulting party fails to comply, they are liable to be fined; in fact, if they do not attend at court a warrant may be issued for their arrest: Family Law Rule 21.16. The purpose of the enforcement hearing is to enable the necessary information to be placed before the court so that it can decide whether to make an enforcement order and, if so, what order to make.

Applying for an enforcement order [8.1250] An application for an enforcement order may be filed together with or separately from the application for an enforcement hearing. All applications for enforcement orders should be made on an Application in a Case in the Family Court, or an Application in the Federal Circuit Court, with an affidavit addressing the matters set out at Family Law Rule 20.06.

Types of enforcement order If a party refuses to pay money under property or maintenance orders [8.1260] The options open to the court in this case include: issuing an enforcement warrant, under which an enforcement officer may enter premises to seize and/or sell property of the defaulting party until the full amount is paid (Family Law Rules Part 20.3); issuing a third party debt notice, a form of garnishee order requiring third parties such as employers or banks to make payments (such as salary or the contents of a bank account) to a nominated payee (Family Law Rules Part 20.4); issuing an order for sequestration of property, under which an enforcement officer can collect all a party’s income obtained from property, including rent, profit and business takings (Family Law Rules Part 20.5); and

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issuing an order for receivership (Family Law Rule 20.6), under which a receiver may be appointed for all the income and property of the defaulting party.

If a party refuses to sign a document [8.1270] If a person refuses to sign a document after having been ordered to do so by the court, the court may direct that the document be signed by another person, whose signature then has the same effect: section 106A.

If a party refuses to vacate property [8.1280] A party entitled to sole possession of land or a dwelling may apply for a warrant for possession of real property if the other party refuses to leave. Under the warrant, an enforcement officer enters the property and delivers possession to the person entitled: Family Law Rule 20.54.

If a party refuses to deliver personal property [8.1290] A warrant may be issued for the seizure and delivery of items of personal property to the party entitled to their possession under orders: Family Law Rule 20.55.

General warrant for the seizure and detention of property [8.1300] A person entitled to enforce an order may obtain a warrant authorising an enforcement officer to seize and detain all of a defaulting party’s property: Family Law Rule 20.56.

Specialised family law property issues Superannuation [8.1310] Prior to major changes to the Family Law Act effective in 2002, superannuation could not be treated as property eligible for distribution in proceedings under the Act. Instead the court tried to deal with superannuation as a financial resource in Step 3 (the future needs and resources stage). Now superannuation is treated as property in family law proceedings. The court must take superannuation into account when making property settlement orders.

Applying the four-step process to superannuation [8.1320] Orders in relation to superannuation, like other property, must be just and equitable. The case law applying to the four-step process described previously for other forms of property also applies to superannuation. Depending on the “nature, form and characteristics” of the superannuation interest, superannuation may be assessed not in the one global pool with all the other assets but in a separate pool. Since the case of Coghlan v Coghlan (2005), the two-pools approach for dealing with superannuation has been accepted as the preferred approach of the court in many a case.

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This is because superannuation interests are of several types, may be difficult to quantify, are not available immediately for settlement and yet may form a very large proportion of total assets, and because they involve other uncertainties, such as the fact that the member party often has choices about the form and timing of payment. It is likely, then, that the one-pool approach would be used only if the amount of the superannuation can be clearly identified, and is to become available soon after the property settlement or, alternatively, if there is only a small amount of superannuation involved. The way the four-step process will be applied to an independent superannuation pool will depend on specific aspects of the interest and the intentions of the member. These complexities highlight the importance of getting legal advice in relation to significant superannuation assets.

Step 1: Valuation [8.1330] Superannuation is valued under a code contained in the Family Law Act and the Family Law (Superannuation) Regulations 2001. Most superannuation interests are in accumulation funds, and these are given the value assigned to them in the member information statement: Regulation 31(2). Interests in a defined benefit fund are valued in accordance with a complex staged formula: Regulation 29.

Step 2: Assessment of contributions [8.1340] Direct financial contributions to superannuation will obviously be made by or on behalf of the member spouse. The non-member spouse may be able to claim to have made an indirect financial contribution to the superannuation, perhaps by participating in joint investment activities through a self-managed fund or through a salary sacrifice arrangement. More often, however, non-member spouses claim a non-financial contribution to the welfare of the family – that is, their domestic contribution has allowed the other spouse to go out and not only earn a living but also accrue superannuation as a nest-egg for their joint future: Hauff and Hauff (1986).

Step 3: Future needs and resources assessment [8.1350] A party might be assessed as having made no contribution to the other party’s pre-existing superannuation interest – in an extremely short marriage, perhaps – but still be entitled to a share based on Step 3 factors (for example, the care of a child conceived during the short marriage).

Step 4: The “just and equitable” test [8.1360] The court will be concerned that the split of assets and liabilities is fair overall. This criterion may not be met if, for example, superannuation is the major asset in the property pool and, under the proposed distribution, one party can realise no benefit from the settlement for many years: Woollas and Woollas (2004).

Superannuation orders [8.1370] There are two basic types of order a court can make to alter interests in superannuation:

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a splitting order, where the trustee of the superannuation fund is ordered to pay a dollar value or a percentage share to the non-member when the superannuation becomes payable (section 90MT); and a flagging order, where the trustee is required to advise the court of the next occasion that a splittable payment is due, but is prohibited from actually making the payment without a further court order. This is the method usually chosen when the superannuation interest is of a type where precise valuation is only possible on the release of the interest, and the release – say by reason of retirement – is imminent (section 90MU).

Multiple splitting orders [8.1380] The 2008 amendments to the Family Law Act contained new provisions for the splitting of a superannuation interest between two or more relationships: section 90MX. Under these amendments, the splittable amount payable in relation to a particular settlement is the total splittable payment less the amount that former spouses or de facto partners are entitled to under any earlier settlements. Let’s assume Bert has orders for a 50-50 split in the property settlement with his first partner June, and then in the proceedings for settlement with his second partner Anne, is awarded 90 per cent in the split. It turns out that the total amount of the splittable superannuation payment is $100. Under section 90MX, June will get $50, Anne will get $5 (10 per cent of the remaining $50 from the earlier settlement) and Bert will get $45 (his 90 per cent of the remaining amount).

Consent orders and superannuation agreements [8.1390] Both splitting and flagging orders can be made by consent orders or included in a binding financial agreement (see [4.1020] – [4.1140]). The part of a binding financial agreement that relates to superannuation is called a superannuation agreement. In contrast to court-ordered settlements, however, in a private superannuation agreement the parties can agree on a value for the superannuation after seeking expert advice, which, unlike the mandatory valuation procedures, can take individual circumstances (such as imminent resignation) into account.

Discovering the type and value of a superannuation interest [8.1400] The people entitled to be given valuation and other information about a superannuation interest from the trustee of the superannuation fund include: the fund member; their spouse; or anyone negotiating a Superannuation Agreement with the member. To obtain information about a superannuation entitlement (provided you are one of these people) post a completed Family Court Form 6 “Declaration to Accompany Application to Trustee”, along with a blank“Superannuation Information Form”, to the trustee of the fund. These forms appear together in the Family Court “Superannuation Information Kit”. The trustee

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will send back the completed “Superannuation Information Form” stating the type of superannuation interest held by the member, and its value. To protect the parties’ personal safety, the trustee will not disclose the address of the fund member to the applicant, or the fact of the application to the member.

Preparing to apply for superannuation orders [8.1410] If a relevant superannuation interest exists, the “Superannuation Information Form” must be attached to and used in the preparation of a “Financial Statement” filed in a financial case. This is relatively straightforward. Not so easy is the formulation of appropriate superannuation orders in the application for property settlement. These will vary depending on a large number of factors, including: the type of superannuation interest – 100 per cent accumulation, partially-vested accumulation, defined benefit interests, self-managed superannuation interests, and other rare species; whether the interest is in the growth phase or payment phase; how long it will be before the superannuation is released; whether a payment is or will be lump sum or periodic; taxation effects; and whether the settlement is calculated on an asset-by-asset or global basis (see [8.100]–[8.110]). A detailed discussion of these complex matters is beyond the scope of this book. In any case, however, given the magnitude of the possible negative effect on entitlements that might arise from failure to apply an appropriate strategy, or to fully understand the Act’s complex superannuation provisions, it would be unwise to apply for a superannuation order without the advice and drafting assistance of a legal or accounting professional.

Fairness to the trustee [8.1420] The trustee of the superannuation fund holds legal title to the superannuation interest for the benefit of the member. The trustee is not bound to do anything with that interest or act in any particular way unless they are afforded procedural fairness. This means that once the applicant has decided on the orders, they must write to the trustee: advising that orders are being sought in relation to the superannuation, and by whom; giving the details of the orders sought; and inviting the trustee to indicate their objections (if any) to the proposed orders, allowing them enough time to decide whether they wish to intervene in the case.

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Applying for superannuation orders [8.1430] With a completed Superannuation Information Form in hand, and a Financial Statement and/or affidavit of financial circumstances prepared, a party may apply for the superannuation orders on an Initiating Application (Family Law) or on an Application for Consent Orders in the Family Court. In all cases the applicant should file a separate affidavit detailing their efforts to afford procedural fairness to the trustee, and the trustee’s response. A copy of the filed application for orders with the date for hearing noted should also be served on the trustee.

After final superannuation orders have been made [8.1440] After superannuation orders have been made in the property settlement process, the applicant non-member must notify the trustee of the details contained at regulation 72 of the Regulations. The applicant will need to consider whether to: ask the trustee to form a new superannuation interest held by the trustee on the applicant’s behalf; roll-over the interest; or request a lump sum, if conditions for payment exist (permanent incapacity, retirement or whatever).

Third party interests in property settlement [8.1450] A couple’s property is rarely held by them in complete independence. The ownership rights of third parties – such as banks and other creditors, companies, trusts, grandparents, and de facto partners – frequently become enmeshed in property settlement disputes. There has long been tension between the rights of spouses and those of creditors – unsecured creditors in particular – to the often limited funds in a property pool. For many years, the Family Law Act provided that third parties might intervene in marital property proceedings by applying to set aside orders where there has been a “miscarriage of justice”, or by consent (because, for example, a deal has been done with the creditor): section 79A. But the legislation now gives the court sweeping powers to re-arrange property holdings and liability for debt (see [8.1500]). The 2008 amendments under Division 3 of Part VIIIAB of the Act provide de facto parties with access to equivalent powers of the court to set aside property orders on the application of third parties, and to order the re-arrangement of ownership rights and liability for debt. The amendments also make new provisions applying to both married and de facto parties requiring the disputing parties to provide notice to certain third parties, including those from previous or current relationships, if they are applying for a property settlement order.

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Property of the spouse or a third party? [8.1460] A party to a marriage or de facto relationship may choose to transfer property to a company or trust for many reasons – to minimise tax liability, as an investment, for estate planning purposes, or, sometimes, to keep it out of the reach of the other party. If the required level of involvement linking the trust to one of the parties cannot be proven, the property cannot form part of the property pool, though any benefit returning to the party may be factored as a resource in Step 3. In disputes involving such property, the court must give due regard to the rights of legitimate third party entities. When a company is effectively controlled by a party, or a party has legal or de facto control of a discretionary trust, the court can deal with the assets of the “puppet” entity as if they were assets of the party: Harris and Harris (1991). See also the important High Court case of Spry v Kennon (2008).

Secured and unsecured debts [8.1470] In putting the property pool together, the courts have developed the practice of assessing the value of encumbered assets (that is, assets that are security for a loan) at their net value – the value of the asset less the outstanding liability. Unsecured debts are generally deducted in total from the total value of assets. It very occasionally occurs that certain unsecured liabilities are dropped off the list of obligations to be met from the settlement under the final court orders. In the case of Biltoft v Biltoft (1995), the appeal court clarified that the court can discount – or not take into account at all – an unsecured liability in certain circumstances. These circumstances were said to include, but not be limited to, where the debt is vague or uncertain, and where the debt was unreasonably incurred or not likely to be enforced. Importantly, it was also stated in Biltoft that there is no prescribed rule of priority putting the rights of an unsecured creditor above those of the non-debtor spouse; that, rather, they must be balanced against each other.

Third party applications to set aside orders [8.1480] Under section 79A (or, for de facto parties, section 90SN), a third party may apply to the Family Court to have a section 79 order (or section 90SM order) varied or set aside if: there has been a miscarriage of justice – due, for example, to fraud, duress, or suppression of evidence; it has become impracticable for the order to be carried out; a party has defaulted in meeting an obligation imposed by the order, and, as a result, it would be fair for the order to be varied; a child or their carer – the third party – would suffer hardship if the order was not varied or set aside; or a proceeds of crime order has been made involving the parties or their property.

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The section can be used by a creditor who cannot recover a debt from a party who cannot pay it because of a section 79 property settlement: section 79A(4) or section 90SN(7).

Property transactions designed to defeat a spouse's claims [8.1490] Section 106B empowers the court to set aside any transaction that can be shown to have been made for the purpose of frustrating an existing or anticipated property order.

Orders altering the rights of third parties to property [8.1500] Under Part VIIIAA (for married parties), the court can make orders to alter the “rights, liabilities or property interests of a third party”, notwithstanding the provisions of any other law or anything in a trust deed or other document (such as a contract). Part VIIIAA applies also to de facto parties through the action of section 90TA. The scheme includes the following far-reaching provisions. A debt owed by a party to the relationship is “to be treated as property”: section 90AD. The court can order that a creditor must substitute one party for the other (or one party for both parties, or both parties for one party) in relation to responsibility for a debt: section 90AE(1). The creditor may also be ordered to hold the parties liable for proportions of the total debt that are different from the proportions for which each was liable before the order was made. A director of a company may be ordered to register a share transfer from one party to the name of the other: section 90AE(1)(d). A third party may be directed to “do a thing” in relation to property (section 90AE(2)) – there are no apparent restrictions on what might be ordered, although the circumstances in which the orders can be made are restricted under sections 90AE(3) and 90AK (see next point). The court may exercise its powers under section 90AE(1) and (2) only if: – the order is “reasonably necessary”, or “reasonably appropriate and adapted” to effect the division of property of the parties; – in relation to a debt, it is not foreseeable that the order would result in the debt not being paid; – the third party has been accorded procedural fairness; – the order is just and equitable in the circumstances; and – considerations such as tax effects, social security effects, administrative costs, the capacity of a party to repay, the capacity of the third party to comply, any other matter raised by the third party, or any other relevant matter have been taken into account: section 90AE(3). The court may not make orders that would result in the acquisition of property from a person otherwise than on just terms: section 90AK. Though the powers of the court under section 90AE are undeniably wide, the courts have taken a conservative view, stating that the discretion to make orders under the section is significantly framedby the requirement that there be substantial connection between the

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proposed orders and the principal task of a family law court, being to decide an appropriate property distribution at the end of a relationship: Hunt v Hunt (2006). Section 90AF mirrors section 90AE to the extent that it enables the court to make orders binding third parties in the course of injunction proceedings.

Third parties becoming part of the case [8.1510] When an application is made for orders, including consent orders, that involve the exercise of the new powers at sections 90AE and 90AF, the third party must be named as an additional respondent to the application. The third party then formally becomes a full party in the case: Family Law Rules 6.02(1). A new rule in 2004 requires parties to notify certain creditors and other third parties of their right to join the case: rule 14.07. There is some concern arising in the case law, however, that the requirement apparent in the Rules that a third party must be included, in these circumstances, as a party in a case is not set up more substantively in the Act itself: see Samootin v Wagner & Anor (2006).

Multiple relationships [8.1520] The 2008 amendments created a duty on any party applying for property settlement orders to send a written notice to any additional current or former de facto or married partner of the either of the original parties, who may have a viable property settlement claim, advising them that they may be eligible to become an additional party in the case. See Family Law Rule 14.07 and sections 79(10) and 90SM(10) of the Act. It is clear that this new law effectively allows for multiple claims against the one party to be joined and heard at the same time. Notably, however, it does not provide any guidelines for determining the respective entitlements of multiple claiming partners. A new party in a multi-party property case may make applications and responses in the case just like the original parties, and the same four-step procedure will apply. Alternatively, the new party may seek only to have their needs and interests recognised in the four-step process used to decide the property settlement between the original two parties.

Third parties affected by consent orders [8.1530] When a third party would be affected by proposed consent orders, you must obtain the third party’s signature on the application before it is filed. The facts relied on in satisfaction of the matters set out at section 90AE(3) and (4) and section 90AF(3) and (4), if applicable, should be set out in a separate affidavit. The third party is required to file an affidavit in the form of Parts N and O of the mandatory Application for Consent Orders.

Applying for orders binding on third parties [8.1540] The multi-party laws give the courts more flexibility to arrange property distributions that are fair, equitable and workable for all concerned. For example, the court can order a finance company to change the account name on leased property from one spouse to the other. (Previously, a third party’s refusal to allow a transfer or change responsibility for a debt hampered plans designed to give the fairest property split.)

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If you wish to apply for an order binding a third party to treat debt in a certain way, do your best to describe the effect you wish to achieve in the form of draft orders. Then take the draft orders to a lawyer for advice on the appropriate wording and the effect of the orders you seek. Note that orders binding a third party will not be made unless the court is confident that their effect in the wide range of matters listed at section 90AE(3) has been taken into account.

Bankruptcy and property settlement [8.1550] Family law and bankruptcy law, as areas of federal jurisdiction with equal authority, have never worked particularly well together. The Bankruptcy Act 1966 provides for certain exceptions from the effect of vesting in a trustee all the property owned or acquired by a bankrupt during the bankruptcy period, for ultimate division among creditors. It does not, however, recognise the effect of the Family Law Act to alter property rights. There is an underlying tension between the rights of innocent, non-debtor spouses, and those of creditors, to the limited assets available.

Exceptions to the trustee's power under the Bankruptcy Act [8.1560] A party has the right to take a transfer of property under a maintenance agreement, or under maintenance orders, and remain protected from any claims to the property by the trustee in bankruptcy. This is the maintenance exception at section 123 of the Bankruptcy Act. See also the settlements exception at section 120.

Applications for property orders when one spouse is bankrupt The old law [8.1570] Before March 2005, transfers made under property orders to an innocent spouse within the six months before a debtor spouse’s “act of bankruptcy” could be set aside, as against the right to the property vested in the bankruptcy trustee. Unless a case could be established under the maintenance or settlements exceptions in the Bankruptcy Act (see above), a spouse wishing to claim from a bankrupt estate had to argue for their rights to property as a creditor in the bankruptcy case, alongside the bankrupt’s other creditors. Only financial contributions can be assessed in the bankruptcy jurisdiction – it has no capacity to recognise non-economic contributions as, say, a homemaker and parent, or section 75(2) needs and resources factors.

Since the amendments [8.1580] Since the commencement of the Bankruptcy and Family Law Legislation Amendment Act 2005, which amended the Bankruptcy Act, the rights of creditors in a bankrupt estate are assessed in the jurisdiction of the Family Law Act alongside the rights of spouses and former de facto parties, with all the considerations of the four-step process (see [8.130] – [8.880]) applying. In theory, the rights of creditors and those of spouses making only non-financial contributions will be held in appropriate balance under the new arrangements. The case law about how the

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insufficient assets of a bankrupt estate will be allocated between these competing interests is slowly developing, although the principles for the necessary balancing remain unclear. See Trustee of the Property of Lemnos & Lemnos and Anor (2009) in which judgment of the Full Court of the Family Court on appeal showed that creditors will not be preferred to a non-bankrupt spouse, and may remain unsatisfied notwithstanding a large settlement in favour of the non-bankrupt spouse.

Maintenance [8.1590] Under section 72 of the Family Law Act: A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage or de facto relationship under 18 years; (b)

by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2). The matters covered in section 75(2) are mentioned at [8.660]. One of the matters covered is “the eligibility of either party for a pension, allowance or benefit”: section 75(2)(f). Under section 75(3), however, entitlement to an income-tested pension or benefit will not be considered in assessing a person’s needs for spouse maintenance purposes. The court may make any order for spouse maintenance that it considers “proper”: section 74. The order may provide for the payment of regular amounts (periodic maintenance), or a lump sum. It can also require the transfer of an interest in property. See section 80(1) for the full list of the possible types of maintenance orders.

Maintenance for de facto partners [8.1600] The 2008 amendments provide for maintenance for parties to de facto relationships in substantially the same terms as those described above for married parties. The central provisions are sections 90SE, under which a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship, and 90SF, which lists matters to be taken into account in deciding what order is proper (and is essentially equivalent to section 72 and section 75(2) in relation to married couples). Urgent maintenance is addressed at section 90SG. The major difference in the maintenance provisions for married and de facto relationships is that a former de facto party can only apply for maintenance after the end of a de facto relationship (whereas spouses can apply while the marriage is still on foot).

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Ability to pay [8.1610] The courts will only order maintenance if it can be shown that the paying party can afford it. The court examines the living standards of the parties, and the other section 75(2) and section 90SF(3) factors, to assess the party’s capacity to pay. It is not necessary to show that the party who would be receiving the maintenance would otherwise be poor. It is a question of the difference in living standards – between the parties’ current circumstances, and also between each party’s before separation and after separation circumstances. A person could be living in quite comfortable circumstances – although considerably less comfortable than before separation – and still be eligible for maintenance.

Private agreements for maintenance [8.1620] If you have reached agreement on arrangements for maintenance you may also be able to agree to convert the arrangements into consent orders, giving them the authority and enforceability of an order of the court (see [4.1160] for how to do this).

Applying for maintenance [8.1630] You can apply for a maintenance order independently of, or in addition to, final property orders.

Timing [8.1640] You must apply for maintenance within 12 months of your divorce becoming final or within two years of the end of your de facto relationship. After this you will need to be able to convince the court that there are special circumstances before you will be permitted to proceed with an application for maintenance.

Pre-action dispute resolution procedures [8.1650] Before you approach a court you are required to make a genuine effort to resolve your dispute in accordance with the pre-action procedures prescribed in Schedule 1 to the Family Court Rules (see [4.660]).

Filing the application or response [8.1660] Apply to the court for maintenance on an Initiating Application (Family Law) for Final Orders. You can respond on a Response form. In all cases, file a completed Financial Statement and/or an affidavit detailing your financial circumstances with the application or response.

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The first court date set down for a maintenance application will be a case assessment conference where the effort will be focused on resolving the dispute. If the case proceeds, parties should be prepared at the next court date with all the documentation listed at Family Law Rule 4.15 and 13.04.

The draft orders [8.1670] Make sure that the draft orders contained in your application provide the following details: the name of the person or authority to whom the maintenance should be paid; the date for payment, if the maintenance is to be paid as a lump sum; the date of the first payment, and the intervals at which subsequent instalments should be paid, if the maintenance is to be paid by instalments; if necessary, the method by which payment should be made (by deposit to a specified account number, for example); and the total period for payment of the maintenance.

Urgent maintenance orders [8.1680] Normally, an application for final property orders is heard and determined before an application for maintenance. Sometimes, however, financial hardship develops for one party as the property proceedings drag on, especially if the parties are hostile, uncooperative or not communicating. Under sections 77 and 90SG of the Family Law Act, a court may order the payment of urgent “temporary” maintenance for a period pending the resolution of an application for property orders, if it can be shown that a party is in “immediate need of financial assistance”. Apply for maintenance on an Application in a Case and file it with a Financial Statement and an affidavit providing evidence that you are, at the date of the application, in immediate need of financial assistance, addressing section 75(2) or 90SF(3) matters relevant to the immediate need.

Varying maintenance orders [8.1690] Maintenance orders may be varied – up or down – or discharged completely, if the applicant can show that the court would be justified in ordering this because: the circumstances of either party have changed since the last order; the maintenance amount contained in a consent order is not proper or adequate; the cost of living has changed to an extent that requires the variation; or material facts were withheld from the court when it made the previous order. See section 83 or section 90SI.

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Maintenance orders and final property orders [8.1700] In the past, Australian courts were reluctant to make orders for maintenance. Instead they encouraged the use of the property settlement process, which has the effect of finalising financial matters between the parties (the “clean break principle”). Now, however, the courts recognise that post-separation differences in the living standards of the two parties can indeed be unfair, particularly in the period immediately after separation. This may be because of a difference between the parties’ capacity to earn, because one party has retained most of the household goods, or for many other reasons. Final property orders made under section 79 or section 90SM of the Family Law Act include a future needs and resources element – which has also been referred to as the maintenance element. The future needs and resources criteria are similar to those a court considers when making a maintenance order under section 74 or 90SE (the criteria are listed in sections 75(2) and 90SF(3) – see [8.660]). But although there is a degree of overlap between maintenance orders and the maintenance element of property orders, in practice maintenance orders tend to focus on the short-term period after separation, on cash in specific amounts, and on regular payments. Property orders are final, and involve broader methods of assessment. The maintenance element of a property order is not taken into account in assessment for an income-tested Centrelink pension or benefit. Income obtained under a maintenance order may be assessable.

The effect of a maintenance order on final property orders [8.1710] If maintenance has been paid, the court will take this into account when calculating shares in the distribution of the property of the relationship – although not necessarily on a dollar-for-dollar basis (see [8.810]).

Lump sum maintenance orders [8.1720] Maintenance paid as a lump sum may be more appropriate than periodic maintenance for a variety of reasons, but often because a larger sum is needed for the large and exceptional (but reasonable!) expenses of a party who would otherwise have no capacity to meet them. A lump sum maintenance application, made as an application to vary a periodic order at a later date, may be a useful approach in cases where the disparity between the parties’ circumstances appears to increase over time (see “Lump sum maintenance that looks like a property order” at [8.1740]).

The effect of remarriage [8.1730] Apart from the criteria set out for the possible discharge of a maintenance order under section 83 and section 90SI, maintenance orders cease on the remarriage of the maintained party unless the court orders otherwise in special circumstances: section 82(4) and section 90SJ(2).

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There is provision for recovery of amounts paid in maintenance if periodic payments continue after remarriage: section 82(7) and section 90SJ(4). These do not apply to orders for lump sum maintenance: Evans and Spicer (1992).

Lump sum maintenance that looks like a property order [8.1740] In Vautin and Vautin (1998), a high-earning husband was ordered to pay an additional $136,000 in lump sum maintenance eight years after a property order and an award for periodic maintenance had been made. Part of the award was for unspecified “future vicissitudes of life”. The court appeared to be particularly influenced by the fact that the wife lived in modest circumstances compared with the husband and was not employable due to ill-health’ that she was still supporting two children in tertiary education, and that the husband had come into wealth since the property settlement. This award was only possible at such a late stage as a variation to the original order for periodic maintenance.

Enforcement of a maintenance order Through Child Support [8.1750] A maintenance order can become a “registrable maintenance liability” by application to Child Support at the Department of Human Services. Once the order is registered, the agency can assist in collection and enforcement if regularity of payments becomes an issue.

By enforcement provisions under the Family Law Act [8.1760] Defaulting payers can be dealt with under powerful provisions for seizure and sale, sequestration and receivership (see [8.1240] – [8.1300]).

Maintenance of new mothers who are not in a marriage [8.1770] Through a little known provision of the Family Law Act (section 67B), where a child’s parents are not married to each other, the child’s father must contribute to the mother’s expenses for at least two months before the birth and three months afterwards. The costs that can be covered include the mother’s general living expenses; furniture, clothing and nappies for the baby; and hospital, pharmaceutical and medical expenses for both. If the father does not meet this obligation willingly, the mother can apply to the court for an order under section 67B. The court will consider the capacity of the father to pay.

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Order drafting and sample orders Using the sample orders Language [8.1780] For the sake of clarity, the sample orders are expressed to refer arbitrarily to either the “Husband” or the “Wife”. No particular meaning should be taken from the use of one word or the other in a particular example. The terms used are interchangeable in all cases and alternative terms such as “Party 1 and Party 2”, or names, may be used instead.

Put in your own details [8.1790] Details included in the sample orders such as amounts, dates and times are by way of illustration or example only. They are not intended to set out any “normal” or “expected” order of the type, although they do reflect common types of arrangements.

Vary the orders [8.1800] There is an infinite number of possible property orders. The samples are not intended to be exhaustive but rather indicative of what it is possible to address, and how. The sample orders may be varied and extended to suit individual circumstances.

Order the orders [8.1810] Consider the effect of the wording of one order on another. Orders that conflict, cancel each other out, or don’t make sense in the order submitted will not be granted on the terms sought.

Define “the property” [8.1820] If the family home is the only item of real estate referred to in the order, identify it comprehensively at the first reference, giving it the label “the property”, for example: in the property known as 16 March Place, Inglewood, Folio identifier 5/705582 (“the property”) In subsequent references to that property, the words “the property” are sufficient. If there is more than one piece of real estate, identify each fully in the first reference and allocate distinctive labels (for example, “the Berridale property”, “the Kingston flat”) for clarity in future references.

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Get your orders professionally reviewed [8.1830] Serious and undesirable effects can result from inexperienced order drafting. Obtaining the services of an independent legal practitioner to check, explain or draft orders before filing an application or response to an application – including an application for consent orders – is strongly recommended.

Samples for consent orders [8.1840] The draft orders used in an application for consent orders are not generally different from the orders used in an application in a disputed matter. Except for the injunction samples, all the property orders set out below may be agreed between the parties and included in a joint application for consent orders.

Samples for use in private agreements [8.1850] Most of the sample orders below can be used in private agreements for the distribution of property – for example, agreements arising out of family dispute resolution. Reference to “these orders” should be changed to read “this Agreement” or “these Terms of Settlement”, and the individual terms should be referred to as “clauses” rather than “Orders”. Keep in mind that private agreements are not legally enforceable. Private property distribution agreements should not therefore purport to alter property interests “on their face” in the way a property order can. In a private agreement, for example, there is no validity in the declaration: the Husband and Wife are henceforth entitled to the property in the following shares: … The parties may privately agree, instead, that: the Husband and Wife intend to distribute the property between them in the following shares: … The guidelines in drafting terms of settlement or consent orders at [8.1120], including indemnities and catch-all provisions, apply equally to private agreements. Note the comments at [8.40], [8.50] in relation to the benefits and pitfalls of private property arrangements.

Injunctions Ex parte orders [8.1860] Include the following as the first order in an application for any injunction sought to be made without notice to the other party: That the Wife be granted leave to proceed ex parte.

Urgent injunctions [8.1870] If there are grounds for obtaining the cooperation of the court in dealing with a case faster than it ordinarily would, request an order to the following effect:

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That the case be deemed urgent, its progress expedited and leave for short service granted.

Sample real estate orders Multi-stage settlement [8.1880] 1

Within 14 days of the date of these Orders, the Wife shall transfer to the Husband all her right title and interest in the property known as 16 March Place, Inglewood (Folio identifier 5/705582) (“the property”).

2

Within 30 days of the Husband’s receipt of a signed Transfer of the property in registrable form, the Husband shall pay to the Wife the sum of $250,000.

Single-stage settlement 1

Within 28 days of the date of these Orders, the Wife shall provide an executed Transfer of all her right title and interest in the property at 16 March Place, Inglewood (Folio identifier 5/705582) (“the property”) and the Husband shall pay to the Wife the sum of $250,000.

2

The settlement referred to in Order 1 shall take place at the offices of the Commonwealth Bank of Australia in Sydney within the stated period, and at a time and on a date which is convenient to both parties.

3

If any of the events referred to in Order 1 do not occur, each party shall take all necessary steps … [to effect sale of the property].

Sale of real estate by private sale That each party shall take all necessary steps and execute all necessary documents to cause the property known as 16 March Place, Inglewood (Folio identifier 5/705582) (“the property”) to be

sold by private sale at the earliest possible date at a price to be agreed on between the parties or, failing such agreement, at a price to be determined by the President of [the professional association of real estate agents in the State or Territory] or his/her nominee and that the proceeds of sale be paid as follows: (a) payment of agent’s commission, valuer’s fees, advertising expenses and legal expenses of the sale;

(b)

discharge of the mortgage to the National Bank of Australia; and

(c)

the balance to be divided as to 65% to the Wife and 35% to the Husband. That in the event that the property fails to be sold privately within a period of 3 months of the date of these orders/terms of settlement, then each party … [see Sale of real estate by auction below].

Sale of real estate by auction That each party shall take all necessary steps and execute all necessary documents to cause the property known as 16 March Place, Inglewood (Folio identifier 5/705582) (“the property”) to be

sold at auction at the earliest possible date at a reserve price to be agreed upon by the parties and failing such agreement to be determined by the President of [the professional association of real estate agents in the State or Territory] or his/her nominee and that the proceeds of sale be paid as follows: (a) payment of agent’s commission, valuer’s fees, advertising expenses and legal expenses of the sale;

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(b)

discharge of the mortgage to the National Bank of Australia; and

(c)

the balance to be divided as to 65% to the Wife and 35% to the Husband.

Keeping a property in saleable condition That the Husband keep the home in good repair and clean and tidy pending sale and make the home reasonably available for inspection by agents and prospective buyers.

Sample orders: Other assets Creation of sole interest [8.1890] That the Husband be declared to have sole right title and interest in the contents of the house located at 16 March Street, Inglewood, the 2003 Honda Accord (registration number IYD 645) and the 2010 Ford Explorer (registration number TYU 789). Formalities of title change: Motor vehicle That the Wife sign and give to the Husband a transfer of registration form to enable the registration of the Honda Accord by the Husband.

Distribution of furniture and household effects: The two-list method (a)

That within 21 days of these Orders, the parties agree to distribute between them the furniture and other items listed in the attached Schedule.

(b)

If the parties are unable to agree on the distribution then within a further period of 14 days the Wife will make and deliver to the Husband two lists, labelled List A and List B, containing between them all of the items contained on the list. The Husband will, within a further 14 days, select and notify the other party in writing of the list he selects.

(c)

The property set out in the list selected by the Husband will be the property of the Husband (as against the Wife). The property on the other list will be the property of the Wife.

Sample liability and indemnity provisions For property-related liabilities [8.1900] 1

That the Wife pay, as they fall due, all regular instalments in respect of the mortgage (registered no. XXXX), council rates, water rates, and household insurance in respect of the property, and to pay any arrears in respect of those instalments.

2

That from the date of these orders, the Wife indemnifies the Husband against all payments and liability pursuant to: (a)

(b)

the mortgage, council rates, and household insurance; and

in relation to repairs and improvements and any other sums due or accruing, in respect of the property. That should the Wife default in making any payment or payments pursuant to Order 1, whereupon the Husband is called upon to pay or becomes liable to make any payment or payments in respect

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of which the Wife has given an indemnity as at Order 2, then the Husband shall be entitled to a first charge over equity in the property to the extent of such payment or payments and such charge shall entitle the Husband to lodge a caveat on the title of the property.

Sample catch-all provisions [8.1910] The following provisions support the parties’ usual intentions of making a clean and total break in their financial affairs from the date of the orders or agreement onwards. The paragraphs may be used individually, or as a group with necessary subtractions as the case requires. Note particularly that the references to superannuation in paragraphs (a) and (b) must be removed in the many cases in which superannuation is factored into the property settlement as an independent item. Note also that a “chose-in-action” is a right of action to recover a debt. That unless otherwise specified in these orders and except for the purposes of enforcing payment of any money due under these or subsequent orders: (a)

each party shall be solely entitled to the exclusion of the other to all other property including choses-in-action and as well as superannuation, pensions, entitlements, long service leave, employment benefits and insurance policies in the possession of or to the entitlement or benefit of such party at the date of these orders;

(b)

for the purposes of these Orders, superannuation entitlements, pensions, insurance policies and entitlements of a like nature relating to or belonging to each party shall remain the property and/or the entitlement of that party without splitting and/or flagging;

(c)

each party shall be solely liable for and indemnify each other against any liability in the sole name of such party;

(d)

any joint tenancy of the parties in any real or personal estate is hereby expressly severed;

(e)

each party shall pay his or her own costs of or incidental to these proceedings.

Sample orders: Injunction for exclusive occupation [8.1920] 1.

That the Wife be granted sole and exclusive use and occupancy of the property known as 23 Grey Place, Kingston, ACT registered at folio identifier 6/789023 (“the matrimonial property”).

2.

That the Husband vacate the matrimonial property within 24 hours of the time and date of service of these orders.

3.

That the Husband be restrained from further entering or remaining upon the matrimonial property.

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Sample orders: Injunction for personal protection (marriages only) [8.1930] That the Wife be restrained from entering upon or from being within 100 metres of the property known as 23 Grey Place, Kingston, ACT registered at folio identifier 6/789023 (“the matrimonial property”) or any other premises at which the Husband may from time to time reside or at which

from time to time he may be employed. That the Wife be restrained from assaulting, molesting, harassing or in any way interfering with the Husband [section 114 and section 68B injunction] or the children [section 68B only] namely – Emily Black, born 16 March 2012; and Hamish Black, born 2 March 2013.

Sample orders for maintenance Periodic maintenance [8.1940] That the Wife pay to the Husband the sum of $500 per week/fortnight/ month by way of the maintenance of the Husband. That payments of maintenance commence within 7 days of the date of these orders and be made directly to the Husband by way of cheque/bank deposit to [account]/cash.

Maintenance “in kind” By way of maintenance, that the Husband meet all regular payment obligations in respect of the mortgage, council rates, water rates, and home and contents insurance of the matrimonial home as they fall due, and further that the Husband pay within 7 days any arrears accrued in respect of these payment obligations.

Lump sum maintenance That the Wife pay to the Husband the sum of $185,000 within 21 days, being a lump sum payment of maintenance for the Husband.

Sample initial listing of assets and liabilities in a property pool [8.1950] Asset/Liability

Value $

House at 16 March Place, Inglewood (net of mortgage) Furniture and household effects Honda motorcycle Ford Explorer 1999 (net of lease payout) Telstra Shares 1,000 @ $4.75/share Commonwealth joint account

500,000 11,600 1,500 1,000 4,750 2,500

Held by husband $ 250,000

Held by wife $

2,600 1,500 1,000

9,000

1,250

250,000

4,750 1,250

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Asset/Liability

Value $

Less balance Westpac Mastercard Less balance American Express Gold Card Value of total pool

(10,000) (8,000) 503,350

Held by husband $ (10,000) 246,350

Held by wife $

(8,000) 257,000

Schedule of options for property division – global analysis of the property pool Based on the pool in the previous sample: [8.1960] Proportion of pool to each party @ 30% to H – 70% to W @ 40% to H – 60% to W @ 45% to H – 55% to W @ 50% to both parties @ 55% to H – 45% to W @ 60% to H – 40% to W @ 65% to H – 35% to W @ 70% to H – 30% to W

Husband’s total entitlement $ 151,005 201,340 226,508 251,675 279,843 320,010 327,178 352,345

Husband to transfer to wife $ 95,345 45,010 19,842

Wife to transfer to husband $

5,325 30,493 73,660 80,828 105,995

Sample proposal for property distribution Property distribution of 70% to the wife, 30% to the husband: [8.1970] Husband to receive $

Wife to receive $

Property 2003 Holden Commodore 2007 Ford Explorer Furniture Cash – IMF savings A/C Shares – Execucorp Life Insurance – Federal Yacht Share of proceeds of sale – 12 Harp Street, Attica Sub-total

11,500 120,000 174,875

280,000 305,375

Liabilities Mortgage – 12 Harp Street (to be discharged on sale)

50,000

50,000

5,000 15,000 10,000 12,375 6,000

10,000 5,375 5,000

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Wife to receive $

Car loan – Ford Explorer Visa Sub-total

Husband to receive $ 12,000 6,000 68,000

NET VALUE RECEIVED

106,875

249,375

6,000 56,000

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9 Hearings [9.20]

Two litigation tracks........................................................................................ 396

[9.60]

Hearings and trials .......................................................................................... 397

[9.140]

Preparation for the final trial or hearing .......................................................... 399

[9.230]

Going to court ................................................................................................. 401

[9.350]

The first day before the judge .......................................................................... 405

[9.430]

Interim hearings and other interlocutory proceedings ...................................... 406

[9.480]

Gathering documentation ................................................................................ 408

[9.580]

Analysing your case ......................................................................................... 410

[9.630]

More preparation strategies............................................................................. 415

[9.730]

Stages of a final trial or hearing ....................................................................... 420

[9.780]

Strategies for the trial ...................................................................................... 423

[9.1110]

Judgment, costs, appeals.................................................................................. 435

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[9.10] This chapter explains what happens at hearings, and offers some strategies for preparing and running your case effectively.

Two litigation tracks The Less Adversarial Trial (LAT) [9.20] The 2006 amendments to the Family Law Act heralded a new approach to the conduct of family law proceedings in Australia. The approach is summarised in the set of principles at section 69ZN of the Act. They require the court to actively direct proceedings in a way that promotes cooperative parenting, supports the needs of the child and protects parties and children from violence and abuse. New court procedures to support these principles are outlined in Division 12A of Part VII of the Act. Proceedings conducted under the new approach may simply be referred to as “Division 12A” or “child-related” proceedings. The Family Court has chosen to characterise them specifically under the umbrella term “Less Adversarial Trial” (or “LAT”). The term has not been formally adopted in the Federal Circuit Court nor in Local or Magistrates Courts. For ease of reference, however, in this chapter all “Division 12A proceedings” will be referred to as LAT proceedings. Although the approach was specifically developed to apply to, and is mandatory for, parenting cases, parties to the financial cases have the option to consent to their case being heard by LAT. The intention for a LAT is that it should be conducted informally, with as little legal technicality as possible. Many of the usual rules of evidence are suspended (section 69ZT), and the judge has special powers to control the way the hearing is run: section 69ZX. The judge can make directions, orders and determinations at any time: section 69ZR.

The LAT experience [9.30] The LAT process represents a departure from the legal traditions that have guided the development of civil law process in common law jurisdictions. The basis of this system has been that the parties are responsible for the definition of issues, and for crafting the exposition and attack of evidence in support of their respective arguments. The LAT, instead, is modelled on the European inquisitorial system where the court itself takes an active role in defining the case. Rather than listening mutely whilst the parties bring forward whatever they deem to be relevant to the matter, the judge, in a LAT, determines the issues to be decided, what evidence is given and how the trial proceeds. There is more focus on participation of the parties themselves and less on the role of their lawyers in the courtroom. The procedure is flexible and relatively informal. If the new approach works as expected, future legislative reform may extend its use to all family law matters. Policy-makers may decide to use it in other areas of Australian law.

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Traditional approach to litigation [9.40] For the time being, both the new and the traditional mode of litigation are to coexist in the family law system. The traditional form of litigation is still available for property, financial and other matters in the family law jurisdiction.

The LAT and financial cases [9.50] Because of the likely cost and time benefits, it may be a sensible course of action in more straightforward property cases for parties to elect for the application of the Division 12A LAT approach to the hearing of their case. For more complex property cases – which now potentially involve multiple parties – the LAT’s looser framework of procedure, and for evidence, may not be suitable.

Hearings and trials [9.60] In Family Court litigation, the word “trial” refers to the final court event (which, in itself, may be spread over a number of dates) at which the application for final orders is heard and tested before a judge. Many family law cases also involve hearings of various sorts before the final trial – perhaps for a decision on a procedural question, an injunction, or an application for interim orders. A Family Court hearing on such matters is like a trial, in the order of the proceedings at least, but on a much smaller scale. Some different rules of evidence and procedure apply. In the Federal Circuit Court, the final court event is called a final hearing. (There are no separate rules for an “Application in a Case” in the Federal Circuit Court.)

Law about procedure in trials and hearings [9.80] The LAT principles described at Division 12A apply to any type of hearing or trial, in any type of court, in a parenting case, or if parties to a financial case agree that Division 12A should apply. With the exception of detail in relation to interim and interlocutory proceedings (described in this chapter at [9.430]), the stages and procedures in a family law case up to the point that a date is set for the commencement of the final hearing or trial, are described in chapter 5.

Cases in the Family Court [9.90] Chapter 16 of the Family Law Rules sets out the trial process after the case has been allocated to its first day before a judge. Part 16.3 describes proceedings before a judge in a parenting case (where the LAT approach is always employed) or a financial case where the parties have consented to the LAT approach applying. The powers of the court in managing a LAT are set out at rule 16.04.

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Procedure for the final trial in a financial case is described at Part 16.4 of the Family Law Rules, and at Part 19.5 for a combined parenting and financial case. Procedure for the hearing of interim and procedural applications is set out at Chapter 5 of the Family Law Rules.

Cases in the Federal Circuit Court [9.100] There are very few specific rules about procedure for hearings in the Federal Circuit Court Rules (see Part 10, “How to conduct proceedings”). Procedural requirements in Federal Circuit Court cases are usually communicated to the parties in the form of directions and orders arising from earlier court events.

Procedure in practice [9.110] Even in traditional litigation, judges, and magistrates have wide discretion to vary rules about procedure and evidence. Every judicial officer has a preferred way of doing things. Every Family Court registry has a different set of procedures. This calls for some flexibility on the part of the litigant. Procedural steps that you expect may simply not appear. Certain rules may not be enforced. (For example, it is quite likely that you will be able to file and rely upon a late and additional affidavit, notwithstanding the “one affidavit per party” rule.) Describing the usual practice in courtrooms around the country is beyond the scope of this book. Especially if you are representing yourself, it is recommended that you try diligently to follow the standard procedure. A judge, lawyer or registry officer will let you know “we do it this way” if you are doing more, or less, than what is required.

For self-represented litigants [9.120] Family law is a complex and constantly changing field of law. It takes years for a practising family lawyer to become a really effective advocate. A lay person has little chance of being able to find, absorb and then put into practice, in a single case, all the necessary knowledge and skill. Most lay litigants are ready to admit and accept that they are unlikely to perform as well as a trained and experienced lawyer in a family law case. Most would not be representing themselves at all unless they could see no other way forward. This does not mean, however, that success is impossible or even unlikely for a self-represented litigant – even against a professionally represented party. Selfrepresentation is common and many self-represented people do succeed. Success in self-representation is achieved by hard work, organisational skill, painstaking research, intelligent guesswork, an amount of bravery, and by engaging the support and assistance of helpers like law librarians, court staff, community legal centres, and friendly lawyers.

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Law about the subject of the case: “substantive” law [9.130] The substantive law is the law that relates not to procedures and documents but to the substance of your parenting, property or financial case. It includes both the relevant legislation – the provisions of the Family Law Act or other laws that apply to your case – and relevant case law – previously decided cases that contain similar facts, or relevant legal principles. It is very important to understand that, while procedure and the conduct of cases have been made less complex under the LAT principles, the substantive law has not. In fact, the substantive law in child-related proceedings has become considerably more complex with the passing of the 2006 amendments. Judges must apply the substantive law with the same rigour in both child-related and other family law proceedings. A self-represented party in any family law case must understand the factual and legal issues in their case, and be prepared to provide evidence to convince the court of their point of view.

Preparation for the final trial or hearing Compliance with formal requirements [9.140] The costs of organising, preparing for and undertaking a family law trial – to the court, the parties, their families, witnesses and society in general – are high. The system does not encourage people to take their cases through to trial. But if parties cannot settle their dispute and so require a court decision at public cost, the courts insist that they comply with all the relevant procedural law and orders.

Consequences of non-compliance [9.150] If you fail to comply with a procedural step ordered by the court, or contained in the rules of court, the court may dismiss your case, or make other orders about the conduct of the case. (For example, the date for hearing may not be set or may be vacated.) Failure to comply includes failing to take a procedural step, such as filing a certain document, within the time specified: Federal Circuit Court Rule 13.03B and Family Law Rule 11.02.

Procedural orders before trial [9.160] In the Family Court, if a case does not settle by agreement: in dispute resolution conducted at the first court event; at the conciliation conference; or if, after parents attend the Child Responsive Program, a procedural hearing is held directly after the event. At the procedural hearing, which may be held electronically, orders are made for the conduct of the remainder of the case. Issues that have arisen in relation to financial documents will be

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clarified. In a parenting matter, parties may be referred for counselling or family dispute resolution. An independent children’s lawyer may be appointed. Undertakings about the parties disclosing documents to each other (in accordance with Family Law Rule 13.15) may be made. The date for the first day of hearing will be set and the hearing fee paid. A date will also be set for a compliance check about three weeks prior to the hearing date: Family Law Rules 12.08 and 12.09. In the Federal Circuit Court, the hearing date may be set on the first appearance of the parties at court. On that first appearance various procedural orders will be made, however, which may include referral of the parties to dispute resolution, and to attendance at a conciliation conference. If the hearing date is not set, arrangements for determining the hearing date will be made. For example, the parties may be asked to arrange a hearing date with the Registrar, who will seek to determine when the case is ready for hearing. See Federal Circuit Court Rules 10.01 to 10.03.

Compliance check in the Family Court [9.170] In the Family Court, the parties or their representatives must attend a compliance check with a Registrar to confirm their readiness for trial and to clarify any issues that have arisen since the procedural hearing. The compliance check occurs about three weeks before trial. Further procedural orders, including varying the date for trial, may be made at the compliance check. The compliance check conference is likely to be held electronically: Family Law Rule 16.02.

Other procedural steps before the first day before the judge [9.180] The amendments to the Family Law Rules in 2009 abolished much of the old procedure recognised formally in the Rules in relation to preparation for trial even for non-LAT cases. As further procedural orders are made on and from the first day of appearance before the judge in both financial and parenting cases, the period after the compliance check and before the first date before the judge is largely spent in preparation. The following procedural processes are still formally recognised in the Rules. (Additional processes may be specifically ordered, and the parties may choose to follow other procedural conventions.)

Request for list of documents [9.190] After a case has been allocated to the first day before a judge, one party can write to the other and request provision of a list of the documents to which that party’s duty of disclosure applies (see [5.970] for details about the duty of disclosure). The list must be provided within 21 days of request. The requesting party can then ask the other party for access to the documents either by inspection (allowing copying) or by provision of a copy of the documents: Family Law Rules 13.20 and 13.21. Access must ordinarily be allowed within 14 days. If the parties cannot resolve issues between them about provision of documents forming part of the list a party can also apply for orders in relation to disclosure of the documents. This might happen orally at a court event or by filing an Application in a Case with accompanying affidavit: Family Law Rule 13.22.

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Specific questions [9.200] After the allocation of the date for first appearance before the judge, a party can serve on the other a list of questions (maximum 20) in relation to the case. The answers to the questions must be returned by the other party either within 21 days of the written request or at the time of expiry of the period allowed for provision of the list of documents (if this has been requested) under rule 13.20. The answers must be provided in affidavit form. See Family Law Rule 13.27.

Notice to Produce [9.210] You may send a written Notice to Produce to the other party requiring that party to bring a specified document along to the trial. In the Family Court, the notice must be served within 28 days of the first day of the trial. See [5.1130] for more details about Notices to Produce.

Parenting questionnaire [9.220] In a parenting case, both parties must file a parenting questionnaire at least 28 days before the first day before the judge: Family Law Rule 15.77. The approved form is found under “Questionnaire – Parenting” in the Forms Section of the Family Court website.

Going to court [9.230] Appearing in court is, admittedly, a daunting and sometimes unpleasant experience. When you’re feeling particularly bad about it, try to remind yourself that: You have a right to be there and to be heard, whether you are represented or not. Everyone, including the lawyers, finds the system complex and difficult to deal with. Everyone makes mistakes from time to time. An impatient judicial officer may simply be having a bad day. The way you manage the longer-term future matters much more than the result of a short-term court battle.

Preparation and arriving at court Visit the court beforehand [9.240] Family law hearings are usually open to the public. Unless a case has been closed for some particular reason, you are entitled to sit in the back of the court (even if there is no one else there) and watch. To get a feel for the situation it is a good idea to spend a few hours observing other matters (preferably on the morning of a call-over) before your own day in court.

Prepare your documentation [9.250] Collate into separate piles (securing each with a bulldog-clip for easy access):

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the court documents filed by you and the other party; any documents you are required to disclose to the other side; reports or information provided by third parties; and all other documentation (correspondence with the other parties, your notes and calculations, and so on). Put the documents in each pile in date order, and bring it all along to court in a folder. Don’t go overboard with binding and plastic pockets and such – you need to be able to get your documents out quickly. If you have a lot of documents, make an index and tag each document. Don’t forget to bring extra paper and a pen.

Prepare your case [9.260] If you don’t understand what your call-over or other procedural date is all about, try to find out beforehand from the registry. With a precise goal in mind, along with a clear understanding of the purpose of the day, write out, or make notes of, the points you wish to make to the court, and what it is you are asking the court to do. These are called your submissions. They are what you plan to say to the court. Whether you are self-represented or not, you should review your list of outstanding issues before every court date. What exactly are you arguing about? What exactly are you trying to achieve? Consider possible new angles for settlement. Every single court date provides an opportunity to finish your case altogether by coming to agreement with the other party.

Attending court [9.270] Dress well on the day. Arrive at court at least ten minutes early. If you are sure about the court your case will be heard in, go directly to that court and wait to identify and announce yourself to the court officer before the case begins. In administering the list of cases for the day, the officer needs to know in advance who is present and who isn’t. The court officer is the assistant in court to the judicial officer on the bench. The court officer may be in the courtroom when you first arrive – they move in and out of the courtroom regularly. If you are not sure about what courtroom to go to, check in at the registry first. Don’t leave the vicinity of the courtroom. You can go inside to watch if you want, but don’t disappear even if there is a delay. The court officer will call your case in a loud voice, but if you don’t hear because you are too far away your case may proceed without you.

Tour the court and learn about court etiquette – on YouTube [9.275] See www.youtube.com/familycourtAU or www.youtube.com/federalcircuitcourt for links to all YouTube videos.

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In the courtroom [9.280] Make sure your phone is switched off before you enter the courtroom. If you are a party in the case, whether you are represented or not, you will sit at the big table in the middle of the courtroom (the bar table). Applicants usually sit on the right of the bar table facing the bench, and respondents sit on the left (with their solicitor if they have one). Neither you, nor any support people you bring in with you, should chat while in court.

Standing, sitting, staying, coming and going … [9.290] Everybody stands when the judicial officer (the judge, federal magistrate, magistrate, registrar or whoever) enters and leaves the courtroom. Always stand when you are speaking or being directly spoken to by the judicial officer. Sit when your lawyer or the other party is speaking. You may find that you stand up and sit down many times over short periods! Don’t leave your position behind the bar table until your case is finished for the day. If there are papers you wish to hand up in court, say “I seek permission to hand up [name of document]” and hold it out. If permission is granted, the court officer will approach the bar table to collect it. Lawyers and officers of the court are bound by professional protocol to acknowledge the authority and seniority of the judicial officer by bowing their head in the direction of the bench as they enter the courtroom, and just before leaving. You do not have the same obligation, but you may also wish to indicate respect in this way as you enter and leave the room.

Speaking [9.300] Never speak over or interrupt the judicial officer. You are best to avoid this also with the other party (although many lawyers interrupt and talk over the top of each other all the time). Address a judge, judicial registrar, federal magistrate or magistrate as “your Honour”. Address a registrar or deputy registrar as “registrar” or “deputy registrar”.

Presenting your case [9.310] If you are the applicant and you are self-represented, you should stand as soon as your papers are organised, and be ready to speak first. When the judge looks at you in a ready-to-go fashion, or announces the matter, say: “Your Honour, I am the applicant and represent myself in this case”, and sit down. The respondent, or the respondent’s lawyer, should then stand, say something similarly brief to announce themselves, and sit. The applicant (or their representative) should immediately stand again and, very briefly, state the purpose of the court date, perhaps with a short update on relevant events that have occurred

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since the last court date. The court should then be ready to hear the submissions of the day, with the applicant going first unless the judicial officer states otherwise. The judicial officer will often ask the parties questions in the course of their submissions. They may actually interrupt, or say they don’t need to hear any more. If this happens, try not to be offended. The questioning is to enable the judicial officer to understand your case as and when they ask the question. Try to answer the question fully and immediately (rather than saying “I’m getting to that, your Honour”). Time is of the essence. Be as concise as you possibly can. If you are too longwinded for the occasion, you may simply be cut off, and not permitted to make the rest of your submissions. See “Strategies for the trial” at [9.780] – [9.1110] for details of presenting your case at the final hearing or trial.

Bringing a support person [9.320] See “Using a support person in court” at [9.710] for a full discussion.

Writing down the orders … [9.330] It is extremely important (and sometimes, strangely, difficult even for professional representatives) to remember to make a written note of all of the suggestions and orders the judicial officer makes at the end of – and throughout – a court event. It may be some time before you can get a copy of the printed orders. You don’t want to leave court unsure about what the court has ordered you or the other party to do. If you don’t properly hear or understand an order or instruction the first time it is made, politely ask the judicial officer to repeat it or explain further.

Work to make a good overall impression [9.340] Family law litigants, including self-represented litigants, come in all shades in terms of the attitudes they display and the amount of inconvenience they cause in the courts. You want to be perceived from the start as one of the good people. There is no doubt that creating a strongly negative or positive impression on the court can affect the level of assistance you receive, and perhaps even the results of your case. If you don’t want to damage your prospects, particularly if you are self-represented, do everything you can to be polite to everyone in and around the courtroom, try to keep your emotions under wraps, and show the greatest respect for the judicial officer when in court, and for the seriousness of the proceedings generally.

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The first day before the judge First hearing day in a parenting case (or financial case held by Less Adversarial Trial) [9.350] The first day of trial or hearing in a parenting case may also be the last. Many child-related proceedings are concluded, by one means or another, after a single day of hearing.

Speaking about your case [9.360] On the first day of hearing, the judge will probably hear directly from the parties themselves about the case. If you are self-represented, it will help both the court and your case greatly if you have done some analysis of the relevant facts and legal issues, the applicable substantive law, and the evidence you plan to present to support your own position on the facts and issues.

Dispute resolution with judicial encouragement [9.370] The judge will also hear from the family consultant (if there is one) about the background and progress of the case to date. In discussion, then, with the parties, the family consultant, and the parties’ lawyers, the judge may make suggestions on how the parties might resolve the issues themselves without requiring a court decision.

Family violence issues at the final hearing [9.380] Amendments to the Family Law Act effective in 2012 require that a court enquire of each of the parties in a LAT proceeding whether the party considers that a child involved in the case has been, or is at risk of being, subjected or exposed to abuse, neglect or family violence; and whether the party themselves considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence: sub-section 69ZQ(1)(aa). (You should be familiar with the definitions of family violence and child abuse under the Act even if you don’t believe them to be relevant to your case.) Furthermore the Family Violence Best Practice Principles suggest that a judge will consider, on the first hearing day, whether or not the court will hear evidence on any disputed allegations of family violence or risk of violence or abuse, and then make a finding about those allegations.

Evidence [9.390] The court may consider evidence on one or more issues on the first day if both parties are ready to present it. Both parties may be sworn in as witnesses on the first day, as may the family consultant. The judge will speak to the parties about the issues and the evidence they would like to bring to court. In the end, however, the judge will decide what evidence will be brought and how it is

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provided. There may be orders determining the identity and number of witnesses that will be allowed in relation to particular issues, and permission granted for the issue of certain subpoenas. A plan is outlined on the first day for the balance of the trial. Any remaining interim or procedural applications will be heard – or arrangements made for their hearing. You should be ready with as much of your case as possible prepared for presentation on the first day.

Resolving issues in dispute [9.400] The judge will summarise the facts and legal issues that have been settled or are agreed between the parties, and also the facts and issues that remain in dispute. By special LAT powers conferred under section 69ZR of the Act, the judge may make an order or determination that has the effect of deciding one or more of the disputed facts or issues at any stage of proceedings. So, in contrast to traditional litigation, where all of the judgment is given at the end of the trial, the decisions in a LAT case may come progressively, perhaps over several court dates, or in the course of a single day. The case may be adjourned to further subsequent dates until all of the issues are resolved.

First day before a judge in a non-LAT financial case In the Family Court [9.410] Where the first day of the final court event in a LAT case is formally the first day of the trial, the first day before a judge in a non-LAT financial case is essentially a procedural hearing. As in a LAT case, the judge will review the issues and discuss and identify the orders sought in discussion with the parties through their legal representatives. Any remaining interlocutory or interim applications will either be heard, or have arrangements made for their hearing. The balance sheet will be reviewed. Dates will be allocated for the trial and other procedural orders made if necessary: Family Law Rule 16.11. There will be no evidence heard on first appearance before the judge in a non-LAT financial case.

In the Federal Circuit Court [9.420] As in the Family Court, the judge hearing the final court event in a non-LAT financial case in the Federal Circuit Court may give procedural orders and address interim and interlocutory applications. The hearing actually commences on the first day of appearance before the judge and parties should be ready to present their cases from that day.

Interim hearings and other interlocutory proceedings [9.430] There are many possible applications that may be made in the course of a matter that, if made and heard, would not conclude the case overall. They include, for example, applications for interim orders, injunctions, exclusion orders, protection orders, and recovery orders.

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These applications are sometimes described as interlocutory. If the proposed orders contained in an interlocutory application are disputed by the other party, a form of mini-hearing must take place on the issues arising under that application alone. A hearing on an interlocutory application in the Family Court, Federal Circuit Court, or in the Local or Magistrates Court will be held in accordance with the rules and procedure of those courts. If the case is a child-related matter, or a financial case to be heard under Part VII Division 12A of the Act, the LAT principles will be observed within the framework of the relevant set of court rules and procedures in hearing the matter.

Procedural applications [9.440] If the interlocutory matter is only a question of procedure or law (such as in relation to the admissibility of a document), the court may simply hear the points of view of the two parties in the form of oral argument (submissions). Normally, in presenting an interlocutory application to the court, the applicant briefly explains the background to the application, and makes submissions first – hopefully without interruption. The respondent then makes submissions. After this there may be some relatively free exchange between the bench and the parties. The judicial officer may ask questions, and the parties may engage in argument on the issue. Parties may seek leave (permission) to hand up documents to the bench to assist the judicial officer, but these documents are not formally received into evidence. After the judicial officer has heard enough to understand the basic arguments, the interchange with the parties will be concluded and orders made.

Interim orders Applying for interim orders [9.450] Applications for interim orders, such as orders about the person a child should live with, or urgent maintenance orders, can be made alongside the application for final orders on the Initiating Application that commences the case. This application is supported in both the Family Court and Federal Circuit Court. Additionally, once a case has been commenced, you can apply for an interim order on the approved Application in a Case form. Applications for interim orders must be filed with an affidavit that addresses the reasons the interim orders are sought and states the evidence to support the making of the proposed orders.

Interim hearings [9.460] The hearing of an application for interim orders takes basically the same shape as a trial. There are, however, some differences in the way the law is applied in interim hearings, both in the substantive law governing the issues, and the rules about evidence. Notably, hearsay evidence is allowable even for non-LAT financial cases, although the source of the hearsay must be identified (see [6.360]).

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Interim hearings are usually short. By Family Law Rule 5.10(1), they must be less than two hours, and usually they are a lot shorter than this. It has even been suggested that parties need to be prepared to make their submissions in interim proceedings “in seven and a half seconds”! This is clearly an exaggeration, but the point is made. Interim hearings are often set down in crowded court lists. The judicial officer may need to cut you off, or give you a time limit, if you speak for too long. It is also important that affidavit evidence prepared for an interim hearing is short, and contains nothing that is not relevant to the issue for the interim hearing. Interim hearings in the Family Court may involve cross-examination only in exceptional circumstances: rule 5.10(2).

Urgent applications [9.470] There is procedure in both the Family Court and the Federal Circuit Court for the urgent interim application of one party to be heard by the court without notice being provided to the other party. The circumstances in which this can occur, and the matters which must be addressed in the accompanying affidavit (or, with the court’s permission, orally) in support of the application are set out at Family Law Rule 5.12 and Part 5 of the Federal Circuit Court Rules.

Gathering documentation Affidavits When you can file [9.480] The rules of both the Family Court and Federal Circuit Court require that an affidavit must be filed in a number of circumstances. The Family Law Rules make it clear that it is only in these circumstances that affidavits can be filed without the permission of the court: rule 15.05. If you wish to file additional affidavits, you will need to seek leave of the court during a court event. Remember that affidavits don’t become evidence merely by their filing. They have to be formally accepted into evidence during a court event. Quite apart from issues about its admissibility, in a LAT there are no guarantees that the judge will permit a filed affidavit to be admitted to evidence.

Affidavit-in-reply? [9.490] At an early point in your preparation for the trial, you should consider whether an affidavit-in-reply is necessary to contradict evidence contained in an affidavit from the other side. If you don’t file an affidavit-in-reply, you may be left with only cross-examination at the trial or hearing to bring evidence of your position on the issue. This is a rather more limited option.

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Updating an affidavit [9.500] It should be possible – with the court’s permission – to update an existing affidavit if additional facts have come to light since it was filed. The revised affidavit would be filed under the heading “Amended Affidavit”. It will contain the original material and any deletions (ruled through) and additions (underlined) clearly shown. Check for the proper procedure with the judicial officer at a court event.

Check for admissibility [9.510] Don’t forget to check the admissibility of the documents annexed to the affidavits you have filed, particularly if the case is a non-LAT financial matter. Is the witness in a position to establish the authenticity of the document attached? If not, it might be hearsay attached to that particular witness’s affidavit. Check through the section on admissibility in chapter 6 (and note the usefulness of the business records exception to the hearsay rule).

Amended application or response [9.520] By the time a case nears trial, the parties will probably want different orders from those in their original application and response. To amend an initiating application or response near to trial you will need to obtain the permission of the court. This should be readily obtained if the procedure would assist in clarifying the real issues in the case. See Division 11.2.2 of the Family Law Rules and Division 7.1 of the Federal Circuit Court Rules.

Subpoenas and Notices to Produce [9.530] It is important to consider carefully, and early, any written evidence you don’t have that might assist your case if it could be obtained. Subpoenas are used to obtain documents from third parties, and, sometimes, from the other party in the case. Failure to comply with a subpoena may lead to the criminal charge of contempt of court (see [5.1210]). The court may make orders during a procedural hearing, or during a LAT, authorising the issue of subpoenas, and specifying the last day on which subpoenaed documents may be produced (the return date), and arrangements for inspection of the documents. Be aware that it can take many weeks – months even – to obtain documents on subpoena from some government agencies and businesses, notwithstanding an early return date. A Notice to Produce simply requires the other party to physically bring the documents identified in it to the trial (see [5.1130] – [5.1200]). The party issuing the notice can then call for the documents during the trial (see “Evidence-in-chief: Documents” at [9.840]).

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Gathering witnesses [9.540] Remember that most of the evidence tendered at the hearing will be in affidavit form. Only witnesses required for cross-examination or to give oral evidence for a particular reason will need to attend court. In a LAT case, the judge decides who may and may not be cross-examined. Notwithstanding this, all witnesses who have given affidavit evidence should at least be on call to appear if necessary at the trial.

Witnesses required to appear in person [9.550] Consider requesting permission to issue a Subpoena to Appear to any of your witnesses who are required for cross-examination but have no interest in the outcome of the case, or are otherwise a no-show risk. Be aware, however, that many people feel confronted, frightened or angered by being served with a subpoena. This response may create difficulties for you in court. Remember that all witnesses subpoenaed are entitled to conduct money and witness fees (see [5.1100]), and that these costs can be substantial. Any witnesses appearing in person should be warned not to discuss the trial or hearing with each other, either before the trial or while waiting to appear. Witnesses are expected to provide evidence untainted by the influence of others or the circumstances of the case.

Deciding on a list of witnesses [9.560] You may need to reconsider your list of proposed witnesses after you have completed the analysis of your case. Remember that you need to have evidence for all the facts in your chain of argument. In a non-LAT financial case, you also need to have witnesses through whom you can tender all documents without objections about admissibility. You may need new affidavits and/or documents to plug the holes you discover in your case during analysis. On the other hand, your reconsideration may also show that you don’t need to tender some of the affidavits you have filed.

Notice to attend for cross-examination [9.570] If you wish to cross-examine a witness for the other party, you should notify the other party in writing, naming the witness, at least 14 days before the trial. That party should ensure, by subpoena if necessary, that the witness attends – otherwise the court may refuse to allow them to use the witness’s affidavit: Family Law Rule 15.14.

Analysing your case Make a timeline [9.580] Facts in dispute in a case often include issues arising from different views of the history of a case, or, more particularly, of events in the past affecting the family or relationship. A

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summary of relevant dates and events, in the form of a table, is useful preparation for trial, in that it may help you identify facts still in dispute. It may also be handy in court when it is all too easy to get confused about dates. Include in your chronology all dates relevant in the dispute; for example, the dates of: the birth of the parties; the marriage or commencement of the relationship; separation; the birth of children; the acquisition of items of property; job and salary changes for both parties; relocations; inheritances; changes in parenting roles; courses of study started and finished; changes in school arrangements and children’s dependency; and relevant changes in post-separation parenting arrangements.

Financial case analysis [9.590] Prior to the changes to the Family Law Rules in 2009, the Family Court required the filing of a “Summary of Argument” document before trial. This document was useful for marshalling the asserted facts of a party’s case in terms of the applicable law, and because it forced a reality check on the workability of the particular orders proposed by the party. In the more streamlined new Rules the standardised requirement for this particular procedural step has been dropped. It remains a very useful, if not vital activity, for any party intending to succeed in a financial case at trial, whether the trial is to proceed as a LAT or not. For a property settlement case, a party’s case analysis before trial should follow the structure of the four-step property settlement process described at [8.130] – [8.880] (although it may be assumed that Step 1 of the process has been properly covered in the Balance Sheet that has been filed). For a maintenance case, the analysis should address the law at sections 72 and 75(2) (or 90SE and 90SF(3) for de factos) of the Act. In both types of case, if jurisdictional issues such as the date of separation or the eligibility of the de facto relationship under the Act are known to be live issues in a case, the law and the facts in relation to these matters should be addressed in the analysis also. The relevant information may be compiled in any number of ways. Much of the material will be present in the form in the Financial Questionnaire you have already filed. It does help, however, to look again at the actual words used in the relevant law and to consider, precisely, how your facts fit. A well-formed case analysis should prepare you for the submissions you will make to the court.

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Basic analysis of a property settlement case [9.600] Head page 1 “Factors relevant to Contribution Entitlement”. Make a four-column table (Table A). Head the columns, from left to right, “Legal factors”, “Relevant facts”, “Cases” and “Evidence” (see Table A below). Reproduce each of paragraphs (a), (b) and (c) of either section 79(4) or section 90SM(4) (whichever is applicable) in the far-left column, and then in the next column record the facts you assert to be true and relevant to each factor. (One or more of the factors may not be relevant at all. Refer to [8.420] – [8.650] for discussion.) If you are not a lawyer, don’t be too concerned about the “Cases” column. If you have done some research and know that there are some principles from the case law that are relevant to your particular facts, note them here. In the last column put a reference (such as the paragraph number) to the part of the report, affidavit or other item of evidence on which you rely to prove the truth of your version of the facts (that you have listed in the second column). Legal factors Is it “just and equitable” for property orders to be made? […section 79(4) para (b)] […section 79(4) para (a)] “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”: section 79(4) para (c)

Relevant facts …

Cases Stanford (2012) Bevan (2014)

…

…

…

…

The husband was Waters and Jurek (1995) absent from the family home on sales travel for approximately 2 weeks in every 6 weeks. The wife cared for and raised the couple’s three sons almost singlehandedly since their births. The wife was responsible for all cleaning, cooking and household maintenance during the marriage.

Evidence

para 6 of P. White’s affidavit filed 12/6/09

para 10 of A. Grey’s affidavit of 10/5/09

par 18 of A. Grey’s affidavit of 10/5/09.

[9.610]

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Underneath the table, record the percentage of total net assets that you propose should be allocated to each party, having regard only to the contributions factors you have listed. For example: “50% of total net assets to the husband and 50% to the wife.” You may wish to allocate separate percentages to initial contributions, contributions in the course of the relationship, and contributions since separation, if those independent elements are particularly important to your case. Make sure, however, that you consider how they should be combined to provide a total. Head the next page “Future Needs and Resources”. On this page, make another four-columned table. Head the far-left column “Legal Factors”. In this, reproduce the legal provisions from either sub-sections 79(4)(d), (e) and (f) or subsections 90SM(4)(d), (e) and (f), as applicable. You will note that sub-sections 79(4)(e) and 90SM(4)(e) refer directly to the maintenance factors set out at sub-sections 75(2) and 90SF(3). Each relevant paragraph of section 75(2) and 90SF(3) then, should also be placed into the Legal Factors column. Now list all the facts of your case that relate to each legal factor, and that you assert to be true, in the second column. If you can, and wish to, list relevant cases in the third column and make precise reference to your evidence in the fourth. After your Future Needs and Resources Table note the percentage adjustment to the contributions entitlement that you claim should be made to account for the facts identified in the Table. For example: “An additional 15% of total net assets to the wife.” Head the next page “Effect of orders sought”. This part of the analysis relates to Step 4 of the property settlement process. Summarise the property orders you are seeking – how you propose, for example, that the percentage entitlements be made up in terms of transfer of assets and allocation of liabilities – then try to describe, in general terms, how a property settlement ordered on the basis proposed would alter the financial position of each party.

Analysing a child-related case [9.610] The Parenting Questionnaire which is required to be filed at an earlier stage in the case addresses much of the information that the court will need in order to apply the law. It does help a party to apply the law themselves, however, and so case analysis for a self-represented party particularly is an important step for preparation before a final hearing or trial.

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One possible format for case analysis of a parenting case is outlined below. Remember that the aim is to state your case not in the terms that matter particularly to you, but through the lens of the law that the court must apply in deciding your case.

Parenting case analysis [9.620] On the first page, under a heading of “Proposals for the children”, summarise the list of orders you seek in relation to where the child lives, arrangements for spending time and communicating with each parent, parental responsibility and so forth. On the second page, headed “Reasons”, make a table with four columns. Head the left-hand column “Legal factors”, the second column “Relevant facts”, the third, “Relevant cases” and the fourth, “Evidence”. Legal factors The first legal issue in a parenting case is the application of the presumption of equal, shared parental responsibility. As noted at [7.200] the presumption does not apply in certain circumstances (sub-section 61DA(2) and the definition at section 4AB) and can be rebutted (disproved with evidence) in others: sub-section 61DA (4). In the far left-hand column, type these provisions in. Then underneath record all the best interests factors at section 60CC(1)–(4) that you consider relevant, noting the paragraph reference for each (see [7.260] – [7.640] for discussion about each of the factors). If an order for equal shared parental responsibility is likely and the court will need to consider whether equal time or substantial and significant time with each parent is reasonably practicable and in the best interests of the children. If this is the case, include under “Legal factors” the reasonable practicability factors set out at section 65DAA(5). You may also wish to list the objects, principles or rights of the child set out at section 60B that are relevant to your case. Relevant facts In column 2, list all the facts of your case that are relevant to each of the legal factors in column 1 that you will be asking the court to accept in support of the orders you seek. Keep the statements short. Relevant cases Put in cases that have helped you understand the law, and that are relevant in applying a fact in column 2 to a legal factor in column 1.

[9.630]

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Evidence In column 4 put a reference (such as the paragraph number) to the part of the report, affidavit or other item of evidence on which you rely to prove the truth of your version of the facts (as listed in column 2). For example: Legal factors “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”: section 60CC(3)(a)

[list other relevant factors below]

Relevant facts Relevant cases The child is 12 years old and male. The child has told C and C (2003) his father that he strongly wishes to live with him. The child expressed this wish to the family consultant. The child has above-average intelligence and maturity for his age.

Evidence Birth certificate

Para 8 of Affidavit of P. Black filed 1/2/09. Para 2 of the report of P. Byrne (family consultant) dated 3/2/09. Para 6 of family consultant’s report dated 3/2/06.

Not your whole case? There are bound to be additional legal issues – in relation to, say, the way in which the evidence in relation to competing best interests considerations should be weighed. Your case analysis should address each of the issues that will be argued in court. For each issue, find and understand the relevant the law, list your facts and evidence. See “More preparation strategies” below.

More preparation strategies Strategy 1: Develop a positive character for your case [9.630] Winning a family law case does not come from saying “best interests of the child” over and over again, dredging up evidence about every bad thing a person ever did, or a long-odds bet on a particular percentage split in a property dispute. Neither does success come from throwing masses of information at the court, hoping that some of it might stick.

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Your case needs shape and character. Generalities, like the best interests phrase, won’t help on their own. Ignoring the law won’t help. Detail – in the facts, in the way the facts are applied to the legislation, in the arguments – is key. Consider the aspects of your case that make it distinctive. Your case is unique. Try to express why. It may help to develop a profile of yourself – as a party, a client (albeit, your own). Reread the facts you assert and the orders you seek. Who is this character – you – in this particular story? How have they contributed? What is their future like? What sort of parent have they been, will they be? This may seem difficult, but the exercise will become easier as you begin to appreciate that your case is not magically going to turn on what is just and fair in terms of some independent, objective truth. The court cannot know precisely what the truth is and every party’s truth is different. Rather, the outcome of a family law case turns on a judicially decided set of facts about people and events, selected from information presented to the court, largely in documents. This is not to suggest that you should invent your story, or yourself. You need evidence for your story, and the court is highly skilled in choosing the version of evidence most likely to represent the truth. It should be possible to craft a cohesive, characterful case that can be recognised and adopted by the court, without departing from what you hold to be the truth. But exactly the same real-life situation could alternatively be presented as a jumble of accusations and assertions that sound either pathetic or vindictive. The difference might simply be a matter of presentation and narrative cohesion.

Strategy 2: Reconsider the final orders you seek [9.640] Like many litigants, you may have started your case with a complicated wishlist of proposals for particular assets, or an application for parenting orders containing 32 specific allocations of decision-making responsibility on top of a full set of conditions about the child spending time and communicating with each parent. You may find it a better use of the time and tolerance of the court, and of your own energies, particularly as a self-represented litigant, to reduce your final claims to a bare minimum – concentrating, perhaps, on the two or three most important items. If you decide to do this, you may need to file and serve an amended application within the time allowed. You may need to seek the court’s or the other side’s consent first. In your orders, consider that you are requesting the court to provide an appropriate ending for the particular story you have asked it to accept.

Strategy 3: Know what you have to prove [9.650] The case analysis process described at [9.580] – [9.620] is an important pre-trial activity. To further progress your understanding of the case as a whole and your prospects of success, you might want to try constructing a case analysis for the other party as well, based on the affidavits and other information you have about their case. (Talk to the lawyer on the other side if you are still not sure why they think their case is particularly strong.)

[9.660]

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Keep your (possibly revised) final orders firmly in mind when preparing your case analysis. There is no need to list factors and facts that are not wholly relevant to your new slimmed-down aims. If you do, you are blurring your story for the court, and complicating your task at the trial. The issues, in any case, are the points at which the two parties’ views of the facts, or their views of the application of the relevant law to the facts, conflict. Try to identify and list all of these outstanding issues. If you haven’t already done so, it is useful to carefully consider the material in the column headed “Evidence” in your case analysis. (Add one of these also to your Issues page, if you’ve made one.) In this column, you should have noted the evidence you need to present in a document that has been filed, or extract under cross-examination, to prove each fact you assert. The court won’t simply assume the truth of even basic facts about your case – such as the fact of your marriage. Note the location of specific items of evidence in affidavits with paragraph and sentence numbers, if possible. You will need evidence for each fact in your chain of argument. You will also be trying to ensure that the totality of your evidence on each issue is more convincing than the totality of the other side’s evidence on that issue. In a LAT case, it will be difficult, if not impossible, to complete all of the various types of analysis before the first day of the trial as it will not be certain what issues will be tested in the trial, and what evidence will be allowed until the judge rules on these issues. It should be possible, however, to continue analysis on a progressive basis through the trial as these matters unfold. Remember that the fact that a case is being treated on a LAT basis does not lessen the requirement that facts must be proven and the substantive law applied.

Strategy 4: Choose evidence to prove necessary facts [9.660] After performing your case preparation you will probably discover that you have both more and less evidence than you need. Precisely what you do about this may depend on whether you are engaged in a LAT or non-LAT case. In any event, don’t seek to tender an affidavit as evidence in court unless it contains evidence that your analysis has shown to be necessary. On the other hand you will need to take action to plug gaps or shore up weaknesses in your evidence – for example, by finding new witnesses or documents, or planning to obtain new evidence in cross-examination, or discrediting the evidence of the other party’s witnesses, or challenging the admissibility of their evidence. In a LAT case, or if you want to file new affidavits, you will need to obtain the permission of the court first. In a LAT case, you may be prevented from challenging the admissibility of the other party’s evidence, but you may instead be able to argue that the court should not give any or much weight to evidence that, for good reasons, would have been inadmissible if the case were being heard in the traditional manner. You may also be able to argue that certain rules of evidence normally excluded from application in a LAT should be applied in relation to the case or issue. See section 69ZT(3) of the Act. If you are involved in a non-LAT case, consider carefully how you may admissibly tender the documents you want the court to see through a witness (see [9.860]).

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[9.670]

Strategy 5: Use a Notice to Admit for facts not in dispute [9.670] Your analysis should also reveal the facts and documents that are not in dispute between the parties. These facts must still be proven – or admitted by the other side. Admissions are a valuable short-cut. Family Law Rule 11.07 and Federal Circuit Court Rule 15.31 provide that one party may ask the other to admit that a fact is true, or a document is genuine, by serving on them a “Notice to Admit”. The notice should list the facts proposed for admission and, if possible, have the relevant documents attached. The party receiving the notice must return a “Notice of Disputed Fact” within 14 days, listing the facts they disagree with. The first party then must bring evidence to prove those facts – though if the court finds in the first party’s favour on that fact, the disputing party may be liable for the legal costs of providing the proof. If the receiving party doesn’t respond with a Notice of Disputed Fact within 14 days, they will be taken to agree with the facts contained in the Notice to Admit and/or the authenticity of the documents, and will not be permitted to tender evidence to the contrary in court. There are no prescribed forms for the Notice to Admit and the Notice of Disputed Fact in the Family Court. There is a Federal Circuit Court Notice to Admit available at the registry or the court’s website. Use this format in the Family Court if you wish to as well.

Strategy 6: Research your case (if you can) [9.680] You need a clear understanding of the legislation involved in the issues in your case. You may also find it useful at the trial to cite cases that either give legal principles furthering your argument, or have facts similar to those of your own case, and were decided in the direction that you want. Textbooks and looseleaf family law services can help you with your search. You could also ask for assistance from the staff at a law library, or even hire a law student to research your case, summarise the principles and copy the case materials for you. On the other hand, you can feel confident that a judge will not expect a self-represented litigant to have a strong grasp of the case law. It is more important overall to focus on links between the facts of your story and the relevant legislation.

Strategy 7: Make a plan for the trial [9.690] In a non-LAT case, you will need to decide the most logical order in which to tender your evidence. In a LAT case, this is likely to be decided for you by a determination of the court. All evidence, including documents, must be tendered by or through a witness – either by affidavit or orally. You cannot simply assume that because an affidavit, for example, is on the court file the judge will read it or take it into account as evidence. The party is usually the first witness for their own side, but it might help to keep the structure of the final legal analysis in mind in planning the order of your other witnesses. For example, it would be logical to address disputed issues of valuation before you present evidence on contributions or needs and resources.

[9.710]

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Make a list of issues to cover in cross-examining each of the other side’s witnesses.

Strategy 8: Collate your materials [9.700] Make an indexed collection of all the documents – applications, orders, lists and notices served, affidavits, reports, correspondence and so on – that you plan to use in your case. Keep them in order – under your index – in a tabbed, lever arch file or secured with large bulldog-clips. Make sure you have the original and one copy, or two unmarked photocopies, of any document you plan to tender. (One for the other side as well.) Close to the top of your collection keep your case analysis, timeline, trial plan, lists of questions and issues for various witnesses, and point-form summaries of what you plan to say in your opening and closing addresses. Under separate tabs or in files, collate: copies of all the documents that have been filed and served by you that you plan to rely on in the trial; documents that have been filed and served on you by other parties; documents that you don’t currently plan to use, and all the extraneous correspondence between yourself and the court or the other side; all the documents in your possession that you are required to disclose to the other party (make sure you have ready access to any document for which you have been subpoenaed or served with a Notice to Produce); and copies of legislation and any cases you plan to refer to in the trial.

Using a support person in court [9.710] It is accepted practice in Australian law that a self-represented person may appear at a trial or hearing with “reasonable assistance”. The practice commenced from a family law case called McKenzie v McKenzie (1970). Thus a support person who sits at the bar table with a self-represented litigant at court has become known as a McKenzie friend. You should ask the court’s permission for your support person to sit at the bar table with you. Do this immediately after introducing yourself in court. In child-related proceedings there should be no need to request permission as such, although you may want to introduce the person to the court. A McKenzie friend must be careful not to become too much of a participant once the trial starts, although a support person in child-related proceedings is sometimes permitted to speak to the court. Occasional whispers and notes are acceptable, but constant involvement may irritate the court. Usually, the person is a close friend or relative. A good candidate is a person who is sensible, loyal, organised, educated, good with written English and, definitely, not a witness.

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A McKenzie friend cannot be seen to be providing legal advice.

What a McKenzie friend can do [9.720] A McKenzie friend can help by: taking notes; whispering hints, indicating documents or passing a note to the party from time to time; helping a party with literacy or language difficulties; providing feedback and assistance with preparations for trial; helping with the running around on the day of the trial (parking, getting food, fetching documents, finding witnesses …); finding documents at the bar table; monitoring the timetable; watching the judge’s body language; reporting to you objectively about how things are going during adjournments; and providing emotional support.

Stages of a final trial or hearing [9.730] In a traditional trial, the stages are typically as follows: The judge takes objections, and considers the admissibility of evidence. The applicant gives their opening address (sometimes the judge asks the respondent to give their opening address immediately after this). The applicant gives their evidence-in-chief – their affidavit evidence plus any oral evidence allowed by the judge (this is the applicant’s main evidence). The applicant may be cross-examined by the other party, who asks questions about the evidence they have given. The applicant clarifies matters raised in the cross-examination in re-examination (no new matters may be raised; re-examination is confined to matters “arising out of cross-examination”). Evidence-in-chief, cross-examination and re-examination are repeated for each of the applicant’s witnesses (usually deponents of the affidavits filed, but sometimes witnesses who have been subpoenaed to give oral evidence). This normally closes the applicant’s case. The process is repeated for the respondent, who, however, gives evidence-in-reply rather than evidence-in-chief. This normally closes the respondent’s case. The applicant may wish to bring a case-in-reply (to the respondent’s case), but no new issues may be raised.

[9.760]

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The respondent, then the applicant, give a closing address in which they summarise their evidence and the relevant law to demonstrate why the court should make the orders sought. The order of proceedings in a LAT case is decided by the court, and may differ significantly from the traditional procedure.

Objections to the admissibility of evidence [9.740] In LAT proceedings, much of the usual scope for objection to the admissibility of evidence is removed by the operation of section 69ZT(1) of the Act. In a non-LAT financial case, the usual rules of evidence apply. The court will try to ensure that disputes about the admissibility of affidavit evidence are resolved by correspondence between the parties, prior to the commencement of the trial. If there are issues remaining on the day of the trial they may be dealt with by the judge before the trial is commenced. The other party’s evidence will usually be available in plenty of time before the trial to determine objections to admissibility. Exceptional situations, which you need to be ready to object to in court, are where: subpoenaed documents with a return date that is the date of the trial are sought to be tendered as evidence by the other side; the other party’s witness gives oral evidence in re-examination, or oral evidence is permitted in addition to or instead of the affidavit evidence; and evidence is taken from your witnesses under cross-examination. See [6.240] – [6.500] for a brief description of the major rules about admissibility. Evidence proposed to be tendered is liable for objection, and a ruling of inadmissibility, if it breaches any of these rules. Remember, however, that the judge has some discretion to vary the application of the rules – to allow or disallow any part of the evidence tendered. It is important to understand the limits of this discretion (so that you can perhaps call on it if you need to). See section 190 of the Commonwealth Evidence Act, the court’s discretion to waive the laws of evidence at [6.500], and non-compliance with the formalities at [6.740].

Claiming privilege [9.750] The law of privilege is as important as the law on admissibility in relation to documents subpoenaed from third parties, and other documents obtained from you under the requirement for disclosure. It applies in LAT as well as non-LAT proceedings. See [6.510] – [6.670] for a discussion of the law of privilege.

Oral objections [9.760] The law on admissibility and privilege provides the basis for much of the oral objecting you may need to do in court. But there are a number of other grounds for objection that may arise in a hearing (including in a child-related proceeding).

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Before these are outlined, however, it should be understood that there is a fine line between too much and too little objecting. Particularly if the case is a non-LAT financial case and all the rules of evidence are in force, there may be a great deal of material to object to – especially, but not only, if the other party is self-represented. Failing to make enough objections to admissibility could damage your prospects. On the other hand, a great mass of objections may irritate the judge, especially if most of them are overruled. Think about whether the information you want to object to would hurt your case. If it relates to or creates an issue of fact – that is, it is in conflict with a fact you are trying to prove – you will almost certainly want it out. But if it only serves as a link in the chain of reasoning for the other side, or it is simply irrelevant, it may be better left alone. You may notice that a barrister may use objections to unsettle a witness for the other side, or to interrupt the smooth roll-out of the other party’s case. You can object to the improper nature of a question put to a witness. You can object to an answer because it does not answer the question, because it speculates about the future or other matters about which the witness could have no knowledge, or (in a non-LAT case) because it is an opinion or hearsay – but not because you think it is untrue. If you do think an answer is untrue, or that it conflicts with other evidence, it is important to make that clear to the witness during cross-examination (see “The rule in Browne v Dunn: Giving the witness a chance to explain” at [9.940]). In a LAT case, if you will not be permitted to cross-examine the witness, make a note to refer to your disagreement in relation to the matter to the court at the next suitable opportunity. As soon as the objectionability of a question or answer arises, you should stand and say: “Your Honour, I object” (and not worry about interrupting the other side). Stop briefly before launching into an explanation (your point might be upheld by the judge without one). If you are participating as an advocate in a non-LAT financial case, you should have a good understanding of the exceptions to the hearsay rule and opinion evidence so that you can be ready to argue if an objection is taken against you.

Common objections In non-LAT financial cases only [9.770] You may object to a question if it is, or calls for an answer that is: hearsay; an opinion, and the witness is not qualified to give an expert opinion on this point; about the tendency of a person to act in a particular way; about the impossibility of coincidence; an inadmissible attack on credibility; a guess about the future; or a summary or conclusion.

[9.780]

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The rules of evidence establishing these grounds for objection do not usually apply in LAT proceedings, but see section 69ZT(3) – the court in child-related proceedings can re-engage the relevant rules in certain circumstances. In all cases You may object to a question if it is, or calls for an answer that is: irrelevant to an issue in the case; too lengthy; oppressive; scandalous; insulting; argumentative; humiliating; offensive; repetitive; abusive; hectoring; misleading; vague; confusing; ambiguous; unfairly prejudicial; an inaccurate restatement cross-examination);

of

previous

evidence

(particularly

in

a leading question; or in re-examination, not arising from the cross-examination.

Strategies for the trial [9.780] The strategies discussed here apply principally to the traditional form of family court litigation – in contemporary terms, to a non-LAT financial case but they will frequently be relevant in a LAT proceeding as well (subject to any rules, directions or orders that the court makes about the conduct of the case).

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The opening address [9.790] Ease yourself in with a short and general statement describing the case such as: “your Honour, this is a case about [one or two sentences]”. Don’t launch into a long story about the facts as you see them. Then make a summary of the orders sought: “I propose that [proposals for the children; proposed maintenance; overall property split based in x per cent for the wife/husband based on contributions and an additional y per cent for other factors; or whatever].” Give the briefest possible outline of your case, based on the material in your case analysis and timeline. This requires: a brief statement of the background to the case (including chronology); a summary of the case so far – applications filed, interim orders made and so forth, and their dates; a description of the issues in dispute; an outline of the rules of law (legislative factors and any cases you know about) that apply to the issues in dispute; and a summary of the evidence to be tendered by you linked to the law on the issues in dispute (“In relation to the factor at section 6OCC(3)(a), the affidavit of Mary Black sworn on … and filed … will show that …”). You will need to do all this in about ten minutes or less. The key concept is summary. The judge may order either that the opening addresses of the parties be heard one after the other, or that each party give their opening address before the commencement of their evidence-in-chief.

Evidence-in-chief: Witnesses [9.800] Evidence-in-chief is evidence tendered in your own case. It is distinguished from evidence you may obtain in cross-examining a witness put forward by the other party. Most of the evidence-in-chief is presented by affidavit. Oral evidence from a witness may also be given, with the court’s permission: to update or correct their affidavit; to allow them to give evidence about material in another witness’s affidavit; to examine a family consultant or expert witness (see [6.880]) (leave is not required for this); to examine a witness subpoenaed to give evidence at the trial, with or without documents; or to obtain evidence when the witness has refused to swear an affidavit.

Tendering affidavit evidence and calling a witness [9.810] Affidavit evidence does not have any effect in a case if it is not formally tendered and taken as read in court. (The mere presence of an affidavit on the court file does not make it part of your case.)

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If a witness is not in court, say: “Your Honour, I tender the affidavit of John Black sworn on 16 February 2009 and filed on 17 February 2009.” If the witness is present in court and/or additional oral evidence is needed, say: “I call John Black.” The court officer will call for and then lead the witness to the witness stand and swear them in. When the witness is settled, you say: “Please tell the court your name and occupation.” Then refer the witness to their affidavit and ask them if its contents are true and correct. If you wish to ask the witness any further questions for one of the reasons set out above, ask for the judge’s permission first. See “Documents tendered by consent” at [9.850] for further detail on tendering affidavits.

Asking questions in examination-in-chief [9.820] Parties will not usually need to ask questions in court of their own witnesses in a family law case. There are some techniques you can use, however, if it becomes necessary. The challenge is to steer the witness to orally deliver the evidence you need without asking them leading questions (which are not allowed in this context). A leading question is a question that contains or suggests the evidence to be given: “Did Mary then go into the boatshed with you?” “Has John ever called you ‘obese’?” Design your questioning to match the natural flow of the story the witness has to tell. It is difficult for a witness to jump backwards and forwards in time. Let the witness know before you begin what area you will start with and what you will move to next. Keep the witness updated (“yes, that is an important topic and I intend to deal with that shortly, but …”) throughout the testimony. Keep the witness on track with where they are up to in their overall story (“you were telling us about an incident at the boat shed”). Use subject-labelling to avoid asking leading questions and to keep the witness on track. You are not permitted to ask leading questions of your own witnesses. You may, however, identify and label subjects, incidents and even objects in the story and build these prompts and guides into the questioning: “Let’s return to the boatshed incident”; “Did anything happen then in or around the boatshed?” “Has John ever made any comments to you about your appearance?” Try hard not to ask “did anything else happen?” If the answer is “no”, you may be stopped from questioning on that subject again. On the other hand, “What happened next?” is a good stand-by when you can’t think of a way of avoiding a leading question.

Jones v Dunkel: The consequences of failing to call an expected witness [9.830] By an important legal principle known as the rule in Jones v Dunkel, if a party might have been expected to call a particular witness on an issue and has not done so, the court may assume that that witness’s missing evidence would not have helped the party.

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The Jones v Dunkel inference will not be made if an acceptable explanation of the failure to call the witness is tendered, such as evidence from a family member that the person is sick and in hospital. See [6.940] – [6.990].

Evidence-in-chief: Documents [9.840] There are many documents that may be useful, or necessary, in a family law trial – payslips, bank statements, letters, records of employment, government records (such as tax returns and Centrelink statements), school reports, medical records, contracts, trust deeds, credit card statements, receipts, valuations, reports of various types. The whole of an accountant’s file on a particular transaction may be subpoenaed and anything in it tendered. A loan application subpoenaed from a bank may reveal assets and resources not declared in a tax return. Except in relation to business records (see [9.880]), most documents must be tendered into evidence through a witness (either as an attachment to their affidavit or orally in court) who can authenticate them, unless they are tendered by consent between the parties. (This rule does not usually apply in a child-related proceeding.) The rules of admissibility (non-LAT cases only) and privilege (LAT and non-LAT cases) apply to annexed documents, and to documents you wish to tender in court through a witness. What follows in relation to documents will not apply in a LAT case unless the exceptional circumstances provision at sub-section 69ZT(3) is invoked.

Documents tendered by consent [9.850] In the traditional form of litigation, documents that the other side has agreed to tender by consent can be tendered directly to the court – they don’t have to be tendered through a witness. (“Your Honour, I tender Aidan’s 2005 school report with the consent of the respondent.”) You should negotiate with the other side about documents to be tendered this way prior to the trial. Hand the document to the court officer, and a copy to the other side. Make sure you retain a copy yourself. Documents tendered into evidence without an affidavit will be given an Exhibit number. Write the number against the name of the document in a trial document index that you will continue to update through proceedings. Use the Exhibit number if you need to refer to it again in court.

Tendering a document through a witness's affidavit [9.860] A document that is not covered under the statutory business records exception and not tendered by consent must, before it can enter into evidence, be qualified as authentic by a witness who has first-hand knowledge of it.

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Thus, if you want a letter received by a witness to be put into evidence by way of attachment to the witness’s affidavit, the witness should refer in the affidavit to the circumstances of receiving the letter, to their belief that the signature on the letter is genuine, and to their belief that the document attached is a true copy. An affidavit attaching a letter sent by a witness should refer to the fact that the witness wrote, signed, addressed and posted the letter, and that the document attached is a true copy. The essence of the requirement is authentication.

Tendering a document (not business records) through a witness in court [9.870] You may need to tender a document through a witness in court (for example, when a witness is subpoenaed to both give evidence and produce documents). The ordinary rule is that the document’s authenticity must be proved by a witness who has first-hand knowledge of it before it can be tendered. (This does not apply to documents tendered under the business records exception to the hearsay rule – see below.) When you have a witness on the stand who can authenticate the letter or other non-business document, say: “I wish the witness to be shown this document.” The court officer will take the document from you and hand it to the witness. Then ask the witness a series of questions that establishes what the witness knows about the document and the circumstances of their first-hand contact with it. Once this is done, say: “I tender [name or description of document].” If you have a spare copy, hand it to the other party. If you don’t have a copy, ask the court officer to show them the document. The other party then has an opportunity to object to its admission into evidence. If they do object, you will have a chance to explain to the court why you think it is admissible, and the judge will make a ruling. If they don’t object, the court officer will take the document to the judge. The document is formally received into evidence by the allocation of an Exhibit number. Note the Exhibit number in your document index. If you need to show the document to the witness again, ask the court officer to show the witness Exhibit Number X from the court file. (You should have your own copy to refer to in your files. Write the Exhibit number on this copy.)

Tendering business records [9.880] Section 69 of the Commonwealth Evidence Act provides that, as an exception to the hearsay rule, business records are admissible as evidence of the facts they contain – if the records have been prepared: by a person who has, or might reasonably be supposed to have, personal knowledge of the facts contained in them; or on the basis of information supplied by such a person; and

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for the purposes of the business. A document satisfying this requirement, unlike other documents such as personal letters, does not need to be authenticated by a witness with first-hand knowledge of it. It is, in fact, unlikely that even the more relaxed requirement of section 69 could be satisfied unless the document has demonstrably been produced by the business of which it is claimed to be a record. It would probably not be sufficient, for example, for a business record to be tendered through the affidavit of a person who has nothing to do with the business. It might, on the other hand, be possible to tender the record into evidence without a witness if it has been properly produced under a subpoena served on the organisation that created it, and this fact is noted to the court at the time you seek to tender it. The definition of “business” in the Evidence Act includes any organisation, for profit or otherwise, and any government body.

Admissible if not objected to [9.890] It is not a good idea to put up large amounts of patently inadmissible evidence. Nevertheless, admissibility only really becomes a problem if and when the other side decides to object to particular evidence (and if you have no admissible alternative to fill the gap). If the admissibility of a document is borderline, technically, or its authenticity is not seriously questionable, the other side may not object to its being entered into evidence, notwithstanding that it might, strictly, be hearsay.

Copies OK? [9.900] Whether or not an original document is available, you can tender a copy made by a photocopier or other document-copying device as evidence of its contents: Evidence Act section 48. Note the special requirements in the section for public documents.

Documents included on a Notice to Produce [9.910] You may wish to tender a document included on a Notice to Produce previously served on the other party. When you are ready to do so, say “I call for [document]” and refer the court to the details of the notice. If the other party doesn’t produce the document, you may tender other evidence (secondary evidence) of its contents – such as the oral or affidavit evidence of a witness who has read it – without challenge.

Cross-examination [9.920] In a non-LAT financial case, at the conclusion of a witness’s evidence-in-chief, the party who did not call the witness has an opportunity to cross- examine them. Remember that there are prior notice requirements for cross-examination at Family Law Rule 15.14.

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In a LAT case, the court may direct that no cross-examination, or limited cross-examination, will take place in relation to a particular witness. Cross-examining the other party may be one of the more personally challenging aspects of a trial for a self-represented party. It is vital, however, to challenge evidence that contradicts a fact you need to prove on one of the issues in the case. If you don’t challenge it, and you don’t have contradictory evidence in your affidavits, the court might assume that you agree with it. Prepare a list of questions or topics you want to cover beforehand.

Aims of cross-examination [9.930] The purposes of cross-examination are: to obtain further evidence that contradicts or counteracts evidence the witness gave under examination-in-chief that is contrary to your version of the facts; and to damage the credibility of the witness (that is, the court’s belief in their capacity to tell the real story).

The rule in Browne v Dunn: Giving the witness a chance to explain [9.940] If a witness for the other side gives evidence (in their affidavit or orally) that contradicts your case on a relevant issue, you must put the contrary allegation – your different version of events – to the witness in cross-examination. The rule in Browne v Dunn requires that a witness be given an opportunity to answer your suggestion, in an affidavit or otherwise, that they should not be believed on a certain point. If the witness is not given this opportunity, the court may not allow you to tender evidence of your version of events. Make a checklist of all the issues where your case differs from the evidence given by the witness. You can cover Browne v Dunn issues throughout your questioning, or cover a number of them together as a series of questions at either end of your questioning. Try to ask the Browne v Dunn questions in a way that allows only a yes or no answer; for example “You stated in your affidavit that you were at the movies at 10:00 pm on Friday the 13th of October [their version], but you were actually back in the pub by that time [your version], weren’t you?”

During cross-examination of your witnesses [9.950] Make notes on any evidence you want to contradict – these are issues you need to cover with this witness, or another witness, in re-examination. Be alert for grounds for objection when the other party is questioning your witnesses. If there is an adjournment in the course of the cross-examination of your witness it is best if you do not speak to them at all.

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Contents of cross-examination [9.960] You don’t have to stick to the content, or subject matter, of a witness’s affidavit or oral evidence in cross-examination. A witness can be cross-examined on any issue relevant to the specific facts of the case, the considerations the judicial officer has to take into account or to his or her credibility (believability). Leading questions may be used in cross-examination, unless the judge exercises a special discretion to disallow them: Evidence Act section 42. So questions such as: “You pushed me around a bit that night, didn’t you?” are acceptable. It is still necessary to ask questions only, and try to obtain answers to questions of fact. Cross-examination is not simply another opportunity for you to put forward evidence in the form of your own statements, or to give the other side a hard time.

Using documents in cross-examination [9.970] You can use documents in cross-examination to show that the evidence given by a witness is untrue. If they are not already in evidence, you may tender them into evidence before finishing cross-examination, or you can ask the court to have them marked for identification then, and later tender them in your own case or in the case-in-reply.

Cross-examination do's and don'ts [9.980] Don’t cross-examine a witness at all unless you really need to. It is easy to sink your own ship with unnecessary questioning. Focus on detail that tends to discredit the witness. This does not mean abusing or criticising them – rather it is about asking questions and getting answers that suggest the witness’s evidence should not be trusted. Don’t give the witness an opportunity to restate their evidence. Only ask questions about areas in which your version of events differs, or matters tending to demonstrate to the court that the witness should be disbelieved, or not seriously considered. Keep cross-examination short. Keep questions short. Ask questions that require short answers. Cut off an answer with a brief “thank you”, or start another question after the witness has made a short answer. Don’t ask questions to which you don’t know the answer. When you have done enough to raise significant doubt about a point in a witness’s evidence – stop. If you try to force the witness into an outright admission that they were wrong, you might extract instead a very good and totally unhelpful excuse for their position on the issue. Check affidavits for statements the witness wouldn’t make. Where an affidavit has a distinctly lawyer-ish tone to it, look for the most unnatural sounding material and ask the witness about it. You may be able to capitalise on differences in meaning between the language constructed for

[9.1000]

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the purpose by the lawyer, and purportedly used by the witness in their affidavit, and the language used by the witness on the stand. Be polite and unemotional. Stop cross-examination, or ask for a moment or even a short adjournment if you feel your control slipping. Get the most possible mileage out of an uncovered lie. Refer to it in future questions to the witness. Refer to it in your final submissions.

How to attack credibility [9.985] It’s not always necessary to suggest that a cross-examined witness has been untruthful to successfully attack their credibility. Age, health, mental state, failing memory, misunderstanding, and physical aspects of the environment can also affect the accuracy of a witness’s perceptions. Ask questions suggesting the physical impossibility of the witness accurately seeing or hearing an event (time of day, bad lighting, position, noise, distance, distractions, physical or mental incapacity, age …) Show that the witness has said something different previously. The previous statement must be on an issue that is relevant in the present case, and put to the witness in cross-examination word-for-word. The witness must be given an opportunity to deny or admit making the earlier statement. It is difficult to get a witness to admit that the evidence they have given is wrong. If you know a witness is lying about a fact – for example, that they were stranded with a broken-down car – you might try dissecting the story into tiny pieces and asking many questions about it (What time did the car break down? Where were you exactly? What did the car do? How did the car get to the service station?). This approach forces the witness to fabricate and re-fabricate on the spot, a tiring and difficult performance over the course of many questions. At a certain point, the details may not match up and you will be able to point out discrepancies. Or the witness might eventually volunteer that they could have been mistaken. Don’t try to prove that the person is a habitual liar. Do try to get the witness to contradict themself.

Challenging an expert (including the family consultant) [9.990] The conclusions in a family consultant’s report, or a report prepared by a single expert witness, are likely to disappoint at least one party. Family and other expert reports have significant evidentiary power. If a report doesn’t aid your case, you need to review it carefully for any possible basis for challenge.

Engaging another expert [9.1000] The overuse of experts in litigation has been an issue for the courts in recent times, and the control of expert evidence is a particular feature of child-related proceedings. But if a problematic report is available for review early enough, it may be possible to get the court’s permission to obtain a report or adduce evidence from another expert witness on the same issue.

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You will need good grounds. The court must be convinced that: there is a “substantial body of opinion contrary” to an opinion given by the expert; another expert knows of matters not known to the first expert; or there are other special reasons (Family Law Rule 15.49). If permission is granted, the new expert’s report can be tendered in evidence to contradict the original report, subject to any court directions.

Expert reports: Beware (again!) the rule in Jones v Dunkel [9.1010] The rule in Jones v Dunkel (see [9.830]) may be engaged if you have applied for and received permission to adduce evidence from an expert and then do not tender that expert’s report at the trial.

Cross-examining an expert witness [9.1020] You may successfully challenge an expert in cross-examination without bringing in another expert. The first ground that often springs to a cross-examining party’s mind in reviewing a report is bias on the part of the expert. In fact, an expert does have a duty to the court to provide unbiased evidence: Family Law Rule 15.59; Federal Circuit Court Rule 15.07. However, bias is difficult to prove. Issues on which an expert may be more productively cross-examined, and/or dealt with by adducing additional evidence, include: Qualifications and expertise – Does a question or issue fall outside the witness’s particular skill or expertise? The witness is required to declare the fact if this is the case, but you may want to check. Methodology used to draw the conclusion – This could be difficult to attack without the assistance of another expert, but there may be something obvious. The accuracy of the expert’s facts – A family consultant, for example, may place considerable reliance on the statements of various extended family members. You may dispute the facts contained in the statements by leading contradictory evidence. The completeness of the expert’s facts – Perhaps the expert did not have the full picture. Literature, findings or other external research used in the report – Is there better, more recognised, or more recent research? It is inadvisable to challenge an expert in general terms, or on matters that are not central to the case.

Know the rules [9.1030] There are detailed rules about experts and expert evidence in Part 15.5 of the Family Law Rules and Division 15.2 of the Federal Circuit Court Rules. A self-represented party, and advocates dealing with expert evidence in a family law hearing, should have a comprehensive grasp of these rules.

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Re-examination [9.1040] In traditional litigation procedure, after your witnesses have been cross-examined by the other party, you are provided with an opportunity to re-examine them in order to: clarify or correct evidence given in cross examination; and obtain more complete evidence on an issue than the witness was permitted to give under cross-examination. If you try to introduce a new line of questioning – that is, one not pursued during the cross-examination – you are likely to draw an objection from the other party. If the matter is highly relevant, the judge may permit you to continue, subject to the other party being permitted to cross-examine on the topic. It is more likely that you will be told to stop in that line of questioning. You must not ask leading questions in re-examination. You can, however, refer to and summarise evidence previously given by the witness in their evidence-in-chief or their crossexamination, to position them to appropriately answer your non-leading question.

The case-in-reply [9.1050] The evidence-in-chief of the respondent may raise new issues or bring out new evidence that cannot be adequately addressed by the applicant in cross-examination. The applicant may have the option, after the examination and cross-examination of the respondent’s witnesses, to bring on further evidence to answer issues and evidence in the respondent’s case that were not addressed in the applicant’s original evidence-in-chief. You cannot raise new issues in the case-in-reply.

The independent children's lawyer [9.1060] An independent children’s lawyer is effectively a third party in a child-related proceeding (see Family Law Act sections 68L and 68LA). All documents required to be served on the applicant or respondent should also be served on the independent children’s lawyer. The independent children’s lawyer, if there is one, will usually give evidence-inchief last, after the applicant and respondent, and cross-examine witnesses after the applicant or respondent – subject, of course, to the particular orders made by the court in the case. The reverse order may apply to the closing addresses, with the independent children’s lawyer going first, followed by the respondent, then the applicant.

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The closing addresses [9.1070] After all the evidence has been heard, each party usually sums up their case for the court. Up to this point, the opposing cases may have sounded like a jumble of conflicting facts and allegations. In the closing address, all the threads must be drawn together. Over and through it all, try to convey your chosen theme – what makes your story unique, the overall justice, fairness or best interests point that you want the court to take. See “Strategies for the closing address” at [9.1090].

Written or oral submissions? [9.1080] Although the closing address is normally given orally, the judge may be happy to allow you to present your final submission to the court in writing, as long as it is reasonably short, and clear. In a LAT proceeding, the court may make orders about this beforehand.

Strategies for the closing address [9.1090] There is no magic formula for presenting an effective closing address. One way or another, however, you must ensure that the relevant law, the facts you want the court to believe, and the evidence you have put for those facts, are drawn together to justify the orders you seek. Some suggestions: Make a short introduction. This should be the only general statement you make. Describe the central issue, and make an assertive statement about the main strength in your case and the main weakness in the other party’s case. Outline the law. Even as a self-represented litigant you will be expected to know and understand the relevant legislation (although not necessarily all the relevant cases). Summarise the steps required in the legislation. For example, in a parenting case, start with sections 65D and 60CA. Move on to the factors at sections 60CC and 60B. (You may need to detour through the parental responsibility provisions at sections 61DA and 65DAA first.) In a property settlement case, you may want to refer to the four-step process, then move to the first part of the process where there is a disputed issue. Show that you understand what the relevant law is. Give the law, facts and evidence for each issue. Once you have considered factors and steps, you can deal with the issues one by one. For each issue in dispute, summarise your relevant facts and describe how you have proved them in your evidence. Summarise the other party’s version of the facts and tell the court why it should prefer yours. Summarise the findings you want. Outline what you see as the appropriate finding on the disputed issues of fact, and how the various facts should be weighed against each other (in terms of the applicable law, not your own views).

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Be specific about the orders you now seek. At the end of the closing address, state exactly what orders you want, and hand up any new Minute of Orders you have drafted. State how the orders properly reflect the findings of fact you have asked the court to make.

Writing a closing submission [9.1100] If you do use a written submission, don’t cut and paste large amounts of law from cases and legislation. It is acceptable to use short quotes from cases, but more important to understand and paraphrase the main legal principle or relevance of the case, and to link this to your argument. Include the full case reference (see the table of cases for the full citation for cases mentioned in this book). Use grammatical, correctly spelled sentences rather than point form. Use headings, and be as concise in your argument as possible. An overly long written submission will not impress the judge. Written submissions may be a useful option for self-represented litigants who communicate more effectively in writing. The problem with written submissions is that much usually happens in the trial itself that should be addressed. Prepared submissions are likely to be inadequate for comprehensively summarising your case. An alternative may be to present partly in writing and partly orally. You may wish to hand up a list of the points you want to deal with, for example, then speak about each of them in turn.

Judgment, costs, appeals Judgment [9.1110] In a LAT case, orders that finalise specific issues in the case may be made at any time in the case. Traditionally, in less complex hearings, the judge announces the final orders at the end of the court event. This is called an ex tempore judgment. The reasons for an ex tempore judgment are not usually given in writing, so it is important to take detailed notes while the judge is giving the decision. In many final hearings or trials in the family law jurisdiction, however, the judge will take some time to review the documentation and think about the decision. This is called a reserved judgment. A reserved judgment may be held over to a court event on a specified day (perhaps weeks or months in the future). It will be in writing, and will include reasons. Sometimes, for example in urgent cases, the judge will make the orders at the end of the trial and give reasons later.

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Costs [9.1120] The court may make an order about who should pay legal costs immediately after the decision is made. You will be given an opportunity to make submissions to the court about who you think should pay, and for what. See “Legal costs” at [5.1330].

Appealing the decision [9.1130] See “Appeals” at [5.360].

Contacts and Resources [CR.1]

Child welfare authorities ACT Community Services Directorate GPO Box 158, Canberra City ACT 2601 To report child abuse call

mandated reporters 1300 556 728 general public 1300 556 729 After hours crisis services

1300 556 729 www.dhcs.act.gov.au/home/contact_us

New South Wales Department of Family & Community Services Locked Bag 4028, Ashfield NSW 2131 Ph: (02) 9716 2222 http://www.community.nsw.gov.au/about-us/contact-us To report child abuse

Ph: 132 111 (24 hours) TTY: 1800 212 936 (hearing impaired)

Victoria Child Protection & Juvenile Justice Branch, Department of Human Services 50 Lonsdale St, Melbourne VIC 3000 Ph: (03) 9096 0000 or 1300 650 172

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www.dhs.vic.gov.au/about-the-department/contact-us To report child abuse call the Child Protection Crisis Service

131 278 (24 hours)

Queensland Department of Child Safety GPO Box 806, Brisbane QLD 4001 Ph: (07) 3224 8045 or 1800 811 810 www.communities.qld.gov.au/childsafety/about-us/contact-us To report child abuse call

(07) 3235 9999 or 1800 177 135

South Australia Children, Youth and Family Services, Department for Families & Communities Level 7, 108 North Terrace, Adelaide SA 5000 Ph: (08) 8124 4185 www.dcsi.sa.gov.au/pub To report child abuse call

131 478 (24 hours)

Western Australia Department for Child Protection and Family Support PO Box 6334, East Perth WA 6892 Ph: (08) 9222 2555 TTY: (08) 9325 1232 https://www.dcp.wa.gov.au/Organisation/ContactUs/Pages/ContactUs.aspx To report child abuse call

(08) 9222 2555 or 1800 199 008 After hours: (08) 9223 1111

Tasmania Commissioner for Children Level 1, 119 Macquarie St, Hobart TAS 7000 Ph: (03) 6233 4520 or 1300 362 065 www.childcomm.tas.gov.au

[CR.1]

[CR.1]

chapter Contacts and Resources

To report child abuse call Child and Family Services

1300 737 639

Northern Territory Family & Children’s Services, Department of Health and Community Services PO Box 40596, Casuarina NT 0810 Ph: (08) 8922 7111 http://www.childrenandfamilies.nt.gov.au/Contacts/index.aspx To report child abuse call

1800 700 250 (24 hours)

Courts Family Court of Australia National Enquiry Centre GPO Box 9991, Parramatta NSW 2150 Ph: 1300 352 000 (except WA) In WA Ph: (08) 9224 8222 or 1800 199 228 Email: [email protected] Family Court of Australia website

www.familycourt.gov.au

Family Court of Western Australia 150 Terrace Rd (cnr Victoria Ave), Perth WA 6000 ph: (08) 9224 8222 or 1800 199 228 www.familycourt.wa.gov.au Family Relationship Advice Line

1800 050 321

Federal Circuit Court of Australia Ph: 1300 352 000 Email: [email protected] www.federalcircuitcourt.gov.au

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State and territory metropolitan offices Call the number given for your state or territory, or check the Federal Magistrates Court website to find contact details for rural and regional registries throughout Australia. ACT Nigel Bowen Commonwealth Law Courts Building Cnr University Ave & Childers St, Canberra City ACT 2600 Ph: 1300 352 000 NSW 97–99 Goulburn St, Sydney NSW 2000 Ph: 1300 352 000 Northern Territory Darwin Supreme Court Building 5 Smith St, Darwin NT 0800 Ph: 1300 352 000 Queensland Harry Gibbs Commonwealth Law Courts Building 119 North Quay, Brisbane QLD 4000 Ph: 1300 352 000 South Australia Roma Mitchell Commonwealth Law Courts Building 3 Angas St, Adelaide SA 5000 Ph: 1300 352 000 Tasmania Edward Braddon Commonwealth Law Courts Building 39–41 Davey St, Hobart TAS 7000 Ph: 1300 352 000 Victoria Owen Dixon Commonwealth Law Courts Building 305 William St, Melbourne VIC 3000 Ph: 1300 352 000

[CR.1]

chapter Contacts and Resources

Local and Magistrates Courts State and territory metropolitan offices Call the number or check the website given for your state or territory to find contact details for other metropolitan, rural and regional Local or Magistrates Courts throughout Australia. ACT Magistrates Court Registry ACT Magistrates Court Building 4 Knowles Place, Canberra City ACT 2601 (GPO Box 370, Canberra City ACT 2601) Ph: (02) 6207 1728 www.courts.act.gov.au/magistrates NSW Local Courts: Criminal and general cases Level 4, Downing Centre 143–147 Liverpool St, Sydney (PO Box A4, Sydney South NSW 1235) Ph: 1300 679 272 www.localcourt.justice.nsw.gov.au NSW Local Courts: Civil cases Level 4, John Maddison Tower 86 Goulburn St, Sydney (PO Box K1026, Haymarket NSW 2000) Ph: 1300 679 272 www.localcourt.justice.nsw.gov.au Northern Territory Magistrates Court Darwin Court Contacts Nichols Place, Cnr Cavenagh & Bennett Sts, Darwin NT 0800 (GPO Box 1281, Darwin NT 0801) Ph: (08) 8999 6225 www.nt.gov.au/justice/ntmc Queensland Magistrates Court Law Courts Complex 363 George St, Brisbane QLD 4001 (GPO Box 1649, Brisbane QLD 4001)

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Ph: (07) 3247 5598 www.courts.qld.gov.au/courts/magistrates-court Magistrates Court of Tasmania 23–25 Liverpool St, Hobart TAS 7000 (GPO Box 354, Hobart TAS 7001) Ph: (03) 6165 7136 www.magistratescourt.tas.gov.au Magistrates Court of Victoria 233 William Street, Melbourne VIC 3000 (GPO Box 882, Melbourne 3001) ph: (03) 9628 7777 www.magistratescourt.vic.gov.au Western Australia (See Family Court of Western Australia under Courts)

Legal Aid The telephone number (and the address and postal address) for the main metropolitan office in each state and territory is given. Call this number for contact details for your nearest regional or suburban office, or look them up on the relevant website.

ACT Legal Aid ACT 2 Allsop St, Canberra City ACT 2601 (GPO Box 512, Canberra ACT 2601) Ph: (02) 6243 3411 or 1300 654 314 www.legalaidact.org.au

New South Wales Legal Aid NSW 323 Castlereagh St, Haymarket NSW 2000 (PO Box K847, Haymarket NSW 1238) Ph: (02) 9219 5000 or 1300 888 529 TTY: (02) 9219 5126

[CR.1]

www.legalaid.nsw.gov.au

Northern Territory Northern Territory Legal Aid Commission 6th floor, 9–11 Cavenagh St, Darwin NT 0800 (Locked Bag 11, Darwin NT 0801) Ph: (08) 8999 3000 or 1800 019 343 www.ntlac.nt.gov.au

Queensland Legal Aid Queensland 44 Herschel St, Brisbane QLD 4000 (GPO Box 2449, Brisbane QLD 4001) Ph: 1300 65 11 88 or (07) 3238 3500 TTY: (07) 3238 3023 www.legalaid.qld.gov.au

South Australia Legal Services Commission of South Australia 159 Gawler Pl, Adelaide SA 5000 (GPO Box 1718, Adelaide SA 5001) Ph: (08) 8111 5555 or 1300 366 424 TTY: 133 677 www.lsc.sa.gov.au

Tasmania Legal Aid Commission of Tasmania 158 Liverpool St, Hobart TAS 7000 (GPO Box 1422, Hobart TAS 7001) Ph: (03) 6236 3800 or 1300 366 611 www.legalaid.tas.gov.au

Victoria Victoria Legal Aid 350 Queen St, Melbourne VIC 3000 (GPO Box 4380, Melbourne VIC 3001)

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Ph: 1300 792 387 www.legalaid.vic.gov.au

Western Australia Legal Aid Western Australia 55 St George Tce, Perth WA 6000 (PO Box L916, Perth WA 6842) Ph: (08) 9261 6222 or 1300 650 579 www.legalaid.wa.gov.au

Counselling, dispute resolution and parenting programs Counselling and dispute resolution services, post-separation parenting programs and programs for children are provided by Family Relationship Centres and many community-based organisations across Australia. For more information about the services nearest to you, contact:

Family Relationship Advice Line ph: 1800 050 321

National Relay Service (for people with a speech or hearing impairment) 1800 555 677 www.familyrelationships.gov.au

Internet Australian Law Online www.australia.gov.au/topics/law-and-justice Law- and justice-related information and services from all levels of government. Australasian Legal Information Institute (AustLII) www.austlii.edu.au Primary legal materials (legislation and court decisions), and secondary materials such as royal commission reports. Federal Register of Legislation www.legislation.gov.au Run by the federal Attorney-General’s Department – community access to the law.

[CR.1]

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GovRAP (Recent Australian Government Publications) http://www.nla.gov.au/librariesaustralia/services/rap/govrap/ A monthly listing of Australia’s recent government publishing output. These records are derived from the Australian National Bibliographic Database and include works publiched by a government department of agency during the current year or the previous two years. Parliamentary Library www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library Links to Australasian law resources.

Legal library services NSW, Queensland, South Australia, Tasmania and Victoria have public legal library services. In other states and territories you may be able to use university law libraries. Many public libraries also have a collection of legal resources.

NSW Legal Information Access Centre (LIAC) State Library of New South Wales Macquarie St, Sydney 2000 Ph: (02) 9273 1414 www.legalanswers.sl.nsw.gov.au Information is available online, through the NSW State Library and through NSW public libraries.

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South Australia Courts Administration Service of South Australia Court Library Service 1 Gouger St, Adelaide SA 5000 (GPO Box 1361, Adelaide SA 5001)

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Ph: (08) 8204 0488 www.courts.sa.gov.au/Library

Tasmania Integrated Law Library Service (ILLS) Andrew Inglis Clark Law Library Lower ground floor, Supreme Court Building 1 Salamanca Pl, Hobart 7000 (PO Box 825, Hobart TAS 7001) Ph: (03) 6165 7412 www.lawlibrary.tas.gov.au

Victoria Public Law Library (through Victoria Legal Aid) 350 Queen St, Melbourne VIC 3000 Ph: 1300 792 387 http://www.legalaid.vic.gov.au/about-us/our-law-library

[CR.1]

Cases A

C

A v A [1998] FLC 92-800 A v A: Relocation approach [2000] FLC 93-035 AB and VEOHRC and Separate Representative of J (unreported, County Court of Victoria, Case No AD-10-003, Pullen J, 6 August 2010) AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Adame v Adame [2014] FCCA 42 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421; 42 Fam LR 369 Aleksovski v Aleksovski [1996] FamCA 111 Ames v Ames [2009] 42 Fam LR 95; [2009] FAMCA 825 Ascot Investments Pty Ltd v Harper and Harper [1981] FLC 91-000

C & C [2005] FamCA 429 C and C (1998) FamCA 143 Campbell and Kuskey [1998] 92-802 Carson and Carson [1999] FamCA 53 Chang v Wu [2002] FLC 93-117 Chapman and Palmer (1978) FLC 90-510 Cilento and Cilento [1980] FLC 90-847 Clauson and Clauson [1995] FLC 92-595 Coghlan v Coghlan (2005) 193 FLR 9; 33 Fam LR 414; [2005] FLC 93-220; [2005] FamCA 429 Commonwealth v Australian Capital Territory [2013] HCA 55 Commonwealth v Milledge [1953] 90 CLR 157 Cowling and Cowling [1998] FLC 92-801

B B and B [1993] FLC 92-357 B and B: Family Law Reform Act 1995 [1997] FLC 92-755 Baker & Landon (2010) 238 FLR 210 Bainrot and Bainrot [1976] FLC 90-003 Banks & Banks [2015] FamCAFC 36 Bass & Bass [2008] FamCAFC 67 Baumgartner v Baumgartner [1988] FLC 95-058 Beach and Stemmler (1979) FLC 90-692 Best and Best [1993] FLC 92-418 Bevan & Bevan [2014] FamCAFC 19 Biltoft v Biltoft [1995] FLC 92-614 Black & Black [2008] FamCAFC 7 Blanch v Blanch and Crawford [1999] FLC 92-837 Blueseas Investments Pty Ltd v Mitchell and Mc Gillvrey [1999] FLC 92-856 Bourke and Bourke (1993) FLC 92-356 Brandt and Brandt [1997] 22 Fam LR 97 Bremner and Bremner (1995) FLC 92-560 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown and Pedersen [1992] FLC 92-271 Bulleen v Bulleen [2010] FamCA 187 Burton and Burton [1979] FLC 90-622

D DKI and OBI [1979] FLC 90-661 DT v JT (1999) FLC 90-661 Dundas & Blake [2013] FamCAFC 133 Dylan & Dylan [2007] FamCA 842 E Eaby& Speelman [2015] FamCAFC 104 Elgabri & Elgabri [2009] FamCA 227 Erdem & Ozsoy [2012] FMCAfam 1323 Evans and Spicer [1992] FLC 92-320 F Farmer and Bramley [2000] Fam CA 1615 Farnell v Farnell [1996] 20 FLC 92-861 Fields & Smith [2015] FamCA 688 Figgins and Figgins [2002] FamCA 688 Filipovic v Filipovic [1977] 90-266 G G v H [1993] FLC 92-380 Garret and Garret [1984] FLC 91-539 Godfrey v Saunders [2008] FLR 287 Goode v Goode [2006] Fam CA 1346 Gould and Gould [1996] FLC 92-657

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Grant & Grant-Lovett [2010] FMCAfam 162 (19 March 2010) Griffin & Trueman [2014] FamCA 596 (1 August 2014) Griffiths and Griffiths [1981] FLC 91-064 Gronow v Gronow [1979] FLC 90-716 Guthrie and Guthrie [1995] 19 Fam LR 781 H H and H [1994] 19 Fam LR H and H [2003] FLC 93-163 Harper [1981] FLC 91-000 Harris and Harris [1991] FLC 92-254 Harris and Harris [1993] FLC 92-378 Hauff and Hauff [1986] FLC 91-747 Hepburn & Noble [2010] FamCAFC 111 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395 Horsley and Horsley [1991] FLC 92-205 Hoult & Hoult (2013) FamCAFC 109 Hughes and Hughes [1980] FLC 90-869 Hunt v Hunt (2006) 36 Fam LR 64 I In re Majory [1955] Ch 600 In the Marriage of Ashton and Davidson [1991] FLC 92-197 In the Marriage of Bonnici [1991] 105 FLR 102 In the Marriage of Bremner [1995] FLC 92-560 In the Marriage of F and R [1992] FLC 92-300 In the Marriage of Falk [1977] FLC 90-247 In the Marriage of Guillesser [1976] FLC 90-127 In the Marriage of Kemsley (1984) 10 Fam LR 125 In the Marriage of Langham [1981] FLC 90-014 In the Marriage of Pastrikos [1980] FLC 90-897 In the Marriage of Pavey [1976] FLC 90-051 In the Marriage of Stein [1986] FLC 91-779 In the Marriage of Whiteley [1992] FLC 92-304 J JEL v DDF [2001] FLC 93-075 JG v BG [1994] FLC 92-515 Jackson v Macek [2015] FamCAFC 114 Johnson v Johnson [1997] FLC 92-764 Jonah & White [2011] FamCA 221 Jones v Dunkel [1959] 101 CLR 298

K K v K [1989] 15 Fam LR 285 K v Z [1997] FLC 92-783 Kardos v Sarbutt [2006] NSWCA 11 Keaton & Aldridge (2009) 223 FLR 158; [2009] FMCAfam 92 Keaton and Keaton [1986] FLC 91-745 Kennon [1997] FLC 92-757 Kessey and Kessey [1994] FLC 92-495 King and Finneran [2001] FLC 93-079 Kowaliw and Kowaliw [1981] FLC 91-092 L Lamereaux and Noirot (2008) FLC 93-364 Lansa & Clovelly [2010] FamCA 80 Litchfield and Litchfield [1987] FLC 91-840 Little and Little [1990] FLC 92-147 Logan & Logan [2013] FamCAFC 151 M M and L (Aboriginal Culture) (2007) FLC 93–320 M v M [1988] 166 CLR 69 MRR v GR [2010] HCA 4 (3 March 2010) Mabart & Haselden [2012] FamCA 793 (18 September 2012) Maday [1985] FLC 91-636 Mallet v Mallet [1984] FLC 91-507 Mann v Carnell [1999] HCA 66 Marsden and Winch (No. 3) [2007] FamCA 1364 Martiniello and Martiniello [1981] FLC 91-050 Marvel & Marvel (No 2) [2010] FamCAFC 101 Mauldera & Orbel (2014) FLC 93-602 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall and Clark [2009] FamCAFC 92 McGillvray [1999] FLC 92-856 McKenzie v McKenzie [1970] 3 WLR 368 Merryman [1994] FLC 92-497 Miller & Harrington [2008] FamCAFC 150 Mills and Mills [1978] FLC 90-404 Mitchell & Keener [2013] FCCA 705 Morrison and Morrison [1995] FLC 92-573 Mullen v De Bry [2006] FLC 93-293 Mulvany & Lane [2009] FamCAFC 76 Murphy and Smith [1986] FLC 91-24 N N and N [1981] FLC 91-111 NHC and RCH [2004] FamCA 633 Norman & Norman [2010] FamCAFC 66

Cases

O Obrenovic and McCauley (1985) FLC 91-655, 80,273 Omacini and Omacini (2005) FLC 93-218 P P and P [2003] FLC 93-161 Parker & Parker [2010] FamCA 664 Partington & Cade (No 2) [2009] FamCAFC 230; (2009) FLC 93-422; 42 Fam LR 401 Pettit v Pettit [1969] 2 WLR 966 Pierce and Pierce [1999] FLC 92-844 Polonius & York [2010] FamCAFC 228 R R and R: Children’s Wishes [2000] FLC 93-000 R v Leung [2012] NSWSC 1451 Raby and Raby [1976] FLC 90-104 Re David [1997] FLC 92-776 Re Evelyn [1998] FLC 92-807 Re G: Children’s Schooling (2000) 26 Fam LR 143 Re Hodak [1993] FLC 92-421 Re K [1994] FLC 92-461 Re L [1983] FLC 91-353 Re Mark: an application relating to parental responsibilities [2003] FamCA 822 Redman & Redman FamCAFC 183 Renard & Geach [2013] FCCA 617 Rice and Asplund [1979] FLC 90-725 Rice v Miller [1993] FLC 92-415 Rosa & Rosa [2009] FamCAFC 81 (15 May 2009) Rosati v Rosati [1998] FLC 92-804 S S & B [2009] FMCAfam 1017 Samootin v Wagner & Anor [2006] FLC 93-265 Sealey & Archer [2008] FamCAFC 142 Sharp & Sharp [2011] FamCAFC 150 (14 July 2011) Shea-Frost & Frost [2013] FamCA 363 Shivas & Darby [2010] FamCA 1149 (2 October 2014) Simpson & Brockman [2010] FamCAFC 37 Smith and Swain [1978] FLC 90-400 Sokolowskyj v The Queen [2014] NSWCCA 55 Spiteri (2005) FLC 93-214

Spry v Kennon [2008] HCA 56 Spry v Spry [1977] FLC 90-271 Stanford & Stanford [2012] HCA 52 Starr & Duggan [2009] FamCAFC 115 Stowe and Stowe [1981] FLC 91-027 Strahan & Strahan [2009] FamCAFC 166 T TKR and CPW [2006] FamCA 72 Tate (2000) 26 Fam LR 731 Teal & Teal [2010] FamCAFC 120 Todd & Todd [2014] FamCA 101 Tomasetti and Tomasetti (2000) FLC 93-023 Townsend and Townsend [1995] FLC 92-569 Truman and Truman (2008) FLC 93-360 Trustee of the Property of Lemnos & Lemnos and Anor (2009) FLC 93-394 U U v U [2002] FLC 93-112 V Valentine & Lacerra [2014] FamCAFC 53 Vance & Carlyle [2014] FamCA 6 Village/Nine Network v Mercantile Mutual [1999] QCA 40 W Walker Nominees Pty Ltd (in liquidation) v Branir Pty Ltd & Anor [2004] NTSC 25 Wallace & Stelzer [2011] FamCA 54 Watson & Ling [2013] FamCA 57 Watts and Watts [1976] FLC 90-046 Waugh v Waugh [2000] FamCA 1183 Wemble & Dautry (No 2) [2014] FCCA 2847 (18 December 2014) West & West [2015] FCCA 2847 (18 December 2014) Whitby & Zeller (No 2) [2014] FamCAFC 239 White & Tulloch v White (1995) FLC 92-640 Wiley & Wiley [2008] FamCAFC 153 Woollas and Woollas [2004] FCWA 32 Z Zorbas and Zorbas (1990) FLC 92-160 Zubcic [1995] FLC 92-609

449

Index A Abduction of child, [7.1730] child’s location unknown, [7.1790] finding child informally, [7.1800] location orders, [7.1820] sample, [7.2670]–[7.2680] Hague Convention on the Civil Aspects of International Child Abduction, [7.1840] child’s abduction to Hague Convention country, [7.1840] keeping child in Australia injunction, obtaining, [7.1780] police watch lists, [7.1770] kidnap spectrum, [7.1750] overseas, recovery of child taken, [7.1830] Hague Convention country, abduction to, [7.1840] police watch lists, [7.1770] recovery orders, [7.1740] application, [7.1760] contravention order or, [7.1760] sample, [7.2660] Aboriginal or Torres Strait Islander Aboriginal customary law, marriages under, [2.70] background and child’s best interests, [7.560] Admissibility admission, evidence of, [6.460] affidavit, [9.510] child-related cases, evidence in, [6.490] convictions, prior – evidence of, [6.470] credibility rule, [6.480] evidence laws, court’s discretion to waive, [6.500] evidence that may be excluded “impossibility of coincidence”, evidence of, [6.440] improperly/illegally obtained evidence, [6.450] “long, scandalous or argumentative evidence”, [6.410] offensive evidence, [6.410]

oppressive cross-examination, gained from, [6.410] person’s character/reputation/ conduct, evidence of, [6.430] prejudicial evidence, [6.420] “tendency” evidence, [6.430] hearsay, [6.270] exceptions, [6.290]–[6.360] “original evidence”, whether, [6.280] irrelevant statements, [6.260] LATs, evidence in, [6.490] objections, [9.740] common [&non-LAT], [9.770] oral, [9.760] privilege, claiming, [9.750] opinion evidence, [6.370] exceptions, [6.390]–[6.400] “original evidence”, as, [6.380] overview, [6.240], [6.250] prior convictions, evidence of, [6.470] settlement negotiations, evidence of, [6.640] Affidavits, [6.680] admissibility check, [9.510] affidavit-in-reply, [9.490] affirming, [6.720] annexures, [6.730], [6.740] consent orders application, [4.1380] contents, [6.750] child abuse or family violence cases, [3.270] draft, basic, [6.760] evidence, contradicting, [6.770] exhibits, [6.740] filing time, [6.690], [9.480] child-related proceedings, [6.700] form, physical, [6.710] formalities, [6.690]–[6.730] non-compliance, [6.740] overseas travel with child, application for order allowing, [7.1710] parenting cases, in, [7.1550] “separation under one roof” affidavit samples, [2.880]–[2.890] swearing, [6.720] updating, [9.500]

Agreement forms, [4.980] binding financial agreements — see Binding financial agreements consent orders — see Consent order private agreement, [4.990] enforceability, [4.1000] overturned, case study, [4.1010] superannuation agreements, [4.1140] Amicable separation, [1.35] Appeals, [5.360] Arbitration, [4.270] Assets — see also Liabilities — see also Property “adding back”, [8.220]–[8.260] distribution, approaches to, [8.95] agreed set of assets/liabilities/values, importance of, [8.125] asset-by-asset approach, [8.100] global approach, [8.110] sample, [8.1960] two-pool approach, [8.120] former, [8.220]–[8.260] future, [8.280]–[8.290] hidden, [8.270] identification, [8.130], [8.140] list, [2.410] sample, [8.1950] division options, [8.1960] non-tangible, [8.170]–[8.180] parties’ contributions — see Parties’ contributions sample orders, [8.1890] self-assessment, [2.400] third parties, held by, [8.150] valuation, [8.130], [8.330] assessment of value, [8.360]–[8.380] company, [8.410] court’s action if value not agreed, [8.340] obtaining, [8.390] superannuation, [8.400] time, [8.350]

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B Best interests of the child, [3.320]–[3.330], [7.260] Aboriginal or Torres Strait Islander background, [7.560] abuse and violence, positive/negative findings, [3.340] abuse neither proven nor excluded, [3.350] adviser’s advice, mandatory content, [4.900] capacity of parents/other significant people, [7.540] characteristics of child/parents, [7.550] child’s views — see views of child below court’s determination method, [7.290] current arrangements, [7.490] beginning, [7.510] change’s effect on child, [7.520] significance, [7.500] demonstrated willingness to be responsible parent, [7.480] difficulty/expense of spending time/communication, [7.530] equal time, presumption in favour of, [7.640] factors, [7.300] two tiers, [7.310] Family Law Act, objects, [7.100] family violence, [3.360] orders, [3.360] finality likelihood, [7.600] meaningful relationship with both parents, [7.330] mothers, presumption in favour of, [7.640] parenting order contravention, [7.2100] parents attitude to parenting responsibilities, [7.570] capacity of parents/other significant people, [7.540] characteristics, [7.550] effect on, [7.280] relationship with, [7.440] meaningful relationship with both parents, [7.330] responsible parent, demonstrated willingness to be, [7.480] right to spend time/communicate with children, [7.640] sexuality, [7.620] primary considerations, [7.320] protection of the child from harm, [7.340]–[7.350]

relationships with parents, grandparents etc, [7.440]–[7.470] grandparents, [7.460] parents, relationship with, [7.440] siblings, splitting, [7.450] significant relationships, other, [7.470] relevant facts, other, [7.610], [7.630] sexuality, [7.620] responsible parent, demonstrated willingness to be, [7.480] sexuality, [7.620] siblings, splitting, [7.450] simple idea, whether, [7.270] status quo, [7.490] beginning, [7.510] change’s effect on child, [7.520] significance, [7.500] Torres Strait Islander or Aboriginal background, [7.560] “twin pillars”, [7.320] 2012, changes in, [1.740], [7.360] abuse and violence, positive/negative findings, [7.370] abuse neither proven nor excluded, [7.380] meaningful relationship with both parents, [7.330] modelling, effect of, [7.350] precedence of, [1.740], [7.360] protection of the child from harm, [7.340], [7.350] violence and abuse, positive/negative findings, [7.370] views of child, [7.390] 2006 amendments, [7.400] age of child, [7.410] weighing, [7.420] wishes and, [7.400] willingness to be responsible parent, demonstrated, [7.480] Binding financial agreements, [4.1020]–[4.1050] caution, [4.1130] de factos’ prior agreements, [4.1110] legal advice requirement, [4.1080] needs and resources factor, [8.780] reasons for, [4.1060] requirements, [4.1070] setting aside, [4.1100] superannuation agreements, [4.1140] tax implications, [4.1120]

variation, [4.1090]

C Case — see Family law cases analysis of your case — see Case analysis management — see Case management Case analysis, [6.100] child-related, [9.610] financial, [9.590] parenting, [9.620] property settlement, [9.600] timeline, [9.580] Case management case assessment conference (Family Court), [5.310] child abuse, [3.400] child-related proceedings, in, [5.220] case coordinator, [5.300] court role, [5.260] evidence rules, changes to, [5.250] family consultant’s role, [5.270] lawyers’ role, [5.290] new system applicability of, [5.230] procedures, [5.240] parties’ role, [5.280] early process, [5.310]–[5.350] Federal Magistrates Court, in, [5.320] first day, [5.330] parenting cases, [5.340] property and financial cases, [5.350] Magellan Program, [3.400] procedural hearing, initial (Family Court), [5.310] special procedures, [5.420] Changeover children’s contact services, [7.860] problems, [7.820] “neutral ground” options for safe/calm changeovers, [7.830] sample orders, [7.2490] child picked up by parent spending time, [7.2500] neutral ground, on, [7.2520] transport shared between parents, [7.2510] Child — see also Parenting abduction of — see Abduction of child abuse of — see Child abuse artificial conception procedures, children born after, [7.1890]

C Index Child — cont best interests — see Best interests of the child care of, responsibility for, [8.710] child-centred parents, [7.50], [7.70] Child Responsive Program, [7.1280] procedural hearing after, [7.1290] child support legislation, [1.240] needs and resources factor, [8.750] Child Support Agency advice booklets, [1.380] maintenance order enforcement, [8.1750] child welfare matters, informing court about, [3.200] child welfare order/investigation, [3.310] children’s care, responsibility for, [8.710] Children’s Contact Services, [1.140], [7.840]–[7.870] conflict child-centred approach, [7.50] helping children cope with, [7.40] shielding child from, [7.60] court application for temporary order, duration, [1.520] divorce and disputes related to, [2.860] family dispute resolution practitioner, child-centred, [4.230] “friendly parent” provision, repeal, [7.710] harm, protection from, [3.320] interests of, at parents’ separation, [1.80] lawyers — see Independent children’s lawyers legislation supporting, [1.240] legitimacy of, [2.80] literature on helping children cope with parents’ separation, [7.30] non-traditional families — see Step-parents, functional parents and non-traditional families parenting arrangements, [1.80] parents’ relationship breakdown, response to, [7.20] proceedings in relation to — see Child-related proceedings relationship with both parents, preserving, [7.330] relocation — see Relocation residence of, [7.1420] sample orders living principally with one parent, [7.2380]

sharing living arrangements, [7.2370] rights of, at parents’ separation, [1.80] separated parents, of community-based support services for, [1.140], [1.170] separating parents, of, [1.80] separation, arrangements for children during, [2.640] separation process, helping children to weather, [7.30] support legislation, [1.240] needs and resources factor, [8.750] Supporting Children after Separation Program, [1.170] talking to, [7.70] travel with — see Travel with children “twin pillars”, [7.320]–[7.350] views of, taking into account, [7.50] welfare matters, informing court about, [3.310] welfare order/investigation, [3.310] Child abuse, [3.10], [3.400], [4.280], [4.680], [4.910], [4.1170], [4.1450] affidavit contents, [3.270] case management, [3.400] child-related proceedings, court requirement to enquire about in, [3.290], [9.380] child welfare order/investigation, [3.310] consent orders and risk of, [3.280] draft orders, [4.1450] court obligations, [3.290] definition, new, [3.30], [3.40] examination for evidence of, [3.420] family dispute resolution, [3.60] “freeze and starve” as, [2.460] information related to, [3.300] Magellan Program, [3.400], [3.410] notification court action upon, [3.290] mandatory, [3.230]–[3.250] voluntary, [3.260] Child-related proceedings affidavit filing time, [6.700] case analysis, [9.610] case management — see Case management — see Family court process court requirement to inquire

about child abuse and family violence, [3.290], [9.380] evidence, [6.230] admissibility, [6.490] expert, restrictions on use, [6.860] Child Responsive Program, [7.1280] procedural hearing after, [7.1290] Children’s Contact Services, [1.140] parenting arrangements, [7.840] changeover, [7.860] intake procedure, [7.870] supervision, [7.850] Child’s best interests — see Best interests of the child Communication — see Spending time and communication Community-based support services, [1.110], [1.180] children, for, [1.140], [1.170] Children’s Contact Services, [1.140] contact details, [1.110] counselling, [1.120] early intervention, [1.155] family dispute resolution, [1.130] parenting arrangements for separating families in high conflict, [1.150]–[1.160] Parenting Orders Program, [1.150] Post Separation Cooperative Parenting, [1.160] Supporting Children after Separation Program, [1.170] Conciliation, [4.150] Consent order, [4.1150] application, [4.1170], [4.1350], [4.1540]–[4.1590] affidavit, [4.1380] case, during, [4.1300] documentation checklist, [4.1310] court event, during, [4.1320] draft orders — see draft orders below financial information disclosure, [4.1360] form, [4.1350], [4.1540]–[4.1590] no current case, when, [4.1340] documentation checklist, [4.1370] registry, through, [4.1330] supplement, [4.1390] timing considerations, [4.1420] case, finishing, [4.1490] changing, [4.1270]

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The Family Law Handbook Consent order, [4.1150] — cont child abuse, [3.280] costs orders, [4.1460] court, satisfying, [4.1200] definition, [4.1160] disputed case, application for variation in, [7.1200] documents, [4.1500] Application for Consent Orders, [4.1540]–[4.1590] cover sheet, [4.1510] first page, [4.1520] Minutes of Consent Orders, [4.1400], [4.1530] draft orders, [4.1400], [4.1410], [7.2300]–[7.2310] child abuse or family violence, [4.1450] costs orders, [4.1460] essential elements, [4.1430] independent children’s lawyers signing, [4.1440] effect on case, [4.1490] family dispute certificate, [4.1190] family violence, [3.280] filing, after, [4.1470]–[4.1480] maintenance, [4.1220], [4.1260] setting aside, [4.1280] Minutes of Consent Orders document — see documents — see draft orders above parenting, [4.1210], [4.1230] setting aside, [4.1280] private property settlements, effect on, [8.1110] property, [4.1220], [4.1240] sample, [8.1840] setting aside, [4.1290] superannuation, [4.1250] agreements, [8.1390] supplement, [4.1390] Terms of Settlement document — see draft orders above timing considerations, [4.1420] what they are, [4.1160] Contempt of court court order contravention, [5.1240] court orders’ obligations, relief from, [5.1250] courtroom, inside, [5.1220] courtroom, outside, [5.1230] parenting order contravention amounting to, [7.2170] punishment, [5.1260] Contributions — see Parties’ contributions Costs child, cost of spending time with, [7.880] consent orders, [4.1460] costs orders — see Costs orders court fees, [1.550], [5.1320]

disbursements, [1.580] divorce court costs, [2.750] false allegations costs penalty abolition, [1.810] family law system, participation in, [1.540]–[1.610] estimate, [1.600] information obligation, [5.1390] legal, [9.1120] costs orders — see Costs orders party pays own costs, [5.1350] solicitor and client, [5.1330] Family Court cost controls, [5.1340] legal fees, [1.560], [1.590] “loser”, paid by, [1.570] orders — see Costs orders spending time with child, of, [7.880] Costs orders, [1.570], [5.1350], [5.1360] calculation method, [5.1370] consent orders, [4.1460] grounds, newer, [5.1420] information obligation, [5.1390] lawyer, against, [5.1380] timing, [5.1410] unrepresented parties, for, [5.1400] Counselling, [4.120] counsellor, finding, [4.110] family counselling, privilege protecting statements made in, [6.610] family counsellors confidentiality, disclosure and the admissibility of statements, [4.910] information obligations, [4.900] Family Law Act, under, [4.100] joint, difficulties of, [4.210] personal, [4.90] power imbalance, [4.280] relationship, [4.80] separation, after, [1.120] Court — see Family court process — see Family court process Court appearance, [9.230] arrival at court, [9.270] courtroom behaviour, [9.280]–[9.340] first day financial case, non-LAT, [9.410]–[9.420] parenting case, [9.350]–[9.400] preparation, [9.240]–[9.260] strategies — see Preparation strategies witnesses, [9.540]–[9.560]

cross-examination, [9.570] Court of Petty Sessions, [1.490]

D De facto relationship close personal relationships (that are not de facto), [2.190] court declaration about status, [2.210] eligibility requirement not satisfied, alternative if, [1.480], [2.220] eligible, definition, [2.130] financial agreements, prior, [4.1110] “gateway” requirements, [2.130] genuine, definition, [2.140] ineligible, option for, [1.480], [2.220] legal definition, [2.20] legal status, [2.90] court declaration, [2.210] developing, [2.100] maintenance, [8.1600] marriage, despite, [2.170] multiple relationships, [2.170] property disputes, court for, [1.480] property legislation, [2.120], [8.50] different, depending on geography, [2.110] timing, [2.120] property settlement application deadlines, [8.160] same-sex, [2.180] separation, [2.150] separation case law, applicability, [2.150] Department of Human Services advice booklets, [1.380] maintenance order enforcement, [8.1750] Disclosure duty, general, [5.970] expert report, [6.850] failure to disclose consequences, [5.1050] penalties, [5.1040] financial cases, requirements for, [5.980] Financial Statement, filing/re-filing, [5.1010] first court date, around, [5.1020] hearing, before, [5.1030] non-disclosure consequences, [5.1050] penalties, [5.1040] not required, when, [5.1060] pre-application period, in, [5.1000] requirement as pre-settlement property issue, [8.900]

E Index filing, [2.760] court time, [1.510] eligibility, [2.700] family law applications, other – distinguished, [1.610] grounds, [2.710] “irretrievable breakdown of marriage” as cause for, [2.230] joint applications, advantages, [2.800]–[2.830] nullity, [2.870] opposition to application for, [2.790] overview, [2.690] proceedings, issues not included in, [1.610] remarriage as reason for early divorce, [2.850] separation date, importance of, [2.240] separation under one roof, evidence of, [2.720] service of application, [2.780] time between filing for and getting, [1.510], [2.840] will, effect on, [2.620]

Disclosure — cont time, [5.990]–[5.1030] unnecessary, [5.1060] Discovery, [5.1070] Dispute — see Family law dispute Dispute resolution arbitration, [4.270] conciliation, [4.150] counselling — see Counselling court, agreement without going to, [1.410] court action, moving to, [1.420] family — see Family dispute resolution Family Relationship Centres, [4.190] litigation, alternative to, [1.60] mediation, [4.140] negotiation, private — see Private negotiation options available to separating couples, [1.60] policy changes emphasising, [1.400] power imbalance, [4.280] pre-action dispute resolution requirements maintenance application, [8.1650] pre-settlement property issues, [8.890] private difficulties of, [4.210] power imbalance, [4.280] private negotiation — see Private negotiation sample orders, [7.2570] separating couples, options available to, [1.60] separation decisions, [1.40] settlement — see Settlement strategies available to separating couples, [1.60] Distribution — see Final property distribution District Court de facto couples’ property disputes, [1.480] Divorce — see also Separation applications, [2.760] documentation checklist, [2.770] duration, [1.510], [2.840] joint, advantages, [2.800]–[2.830] opposition, [2.790] service, [2.780] children, disputes related to, [2.860] court, [2.740] applications, [2.760] costs, [2.750] duration, [1.510], [2.840]

Domestic violence — see Family violence Draft orders — see Parenting order drafting

E Emotions — see Stress Employers information from, [5.1180] Equal, shared parental responsibility equal, shared care, [7.250] equal time, not order for, [7.210], [7.1060] “major, long-term issues”, [7.200] order, [7.1400] court, effect on, [7.210] effect types of, [7.190] parents, effect on – “major, long-term issues”, [7.200] presumption and, distinguished, [7.140] sample, [7.2330] parental responsibility, [7.120] older orders, under, [7.240] orders, [7.1400] presumption applicable, when, [7.150] inapplicable, when, [7.160] order and, distinguished, [7.140] order requirement where, [7.180] parenting order variation, [7.1170] rebuttal, [7.170]

treatment in final trial for parenting orders, [7.1590] “reasonably practicable”, what is, [7.230] “substantial and significant time”, order for, [7.220] Evidence, [6.10] admissibility — see Admissibility affidavits — see Affidavits basic task, [6.20] best evidence, [6.140] child abuse evidence, examination for, [3.420] child-related proceedings, in, [6.230] admissibility, [6.490] child-related proceedings case management evidence rules, changes to, [5.250] common law, [6.220] definition, [6.70] documentary, [6.80] Evidence Act 1995 (Cth), [6.180] evidence-in-chief, [6.680] documents, [9.840]–[9.910] witnesses, [9.800]–[9.830] expert, restrictions on use child-related proceedings, in, [6.860] proceedings not child-related, [6.870] single expert witness, [6.880] factors, facts and, [6.30] analysis of your case, [6.100] difference between (table), [6.30] factors court must consider, [6.40] facts, necessary, [9.660] hearsay — see Hearsay rule judicial discretion, [6.50] kinds, [6.80]–[6.90] law of, [6.170] common law, [6.220] court’s discretion to waive, [6.500] Evidence Act 1995 (Cth), [6.180] reason for, [6.160] State and Territory laws, [6.190] necessary facts, proof of, [9.660] opinion evidence, admissibility, [6.370] exceptions necessary opinion of layperson, [6.400] specialised knowledge, [6.390] “original evidence”, as, [6.380] “original evidence” hearsay, whether, [6.280] opinion evidence as, [6.380]

455

456

The Family Law Handbook Evidence, [6.10] — cont parenting cases — see Evidence in parenting cases proof in family law case, what constitutes, [6.60] rules, [6.200] separation under one roof, of, [2.290], [2.720] task, basic, [6.20] types, [6.80]–[6.90] Western Australia, cases in, [6.210] what is, [6.70] witness — see Witness Evidence in parenting cases 2006 changes, [7.1480] affidavits in parenting cases, [7.1550] children’s views, evidence of, [7.1500] disputed facts, [7.1580] interim hearings, evidence in, [7.1490] parentage testing orders, [7.1530] refusal to undergo, [7.1540] parenthood evidence, [7.1510] parenthood presumptions, [7.1520] parenting order decision method, equal shared parenting responsibility presumption, treatment of, [7.1590] final trial, [7.1560] interim hearing, [7.1570] “status quo” vs other considerations, [7.1550] views of children, evidence of, [7.1500] Exclusive sole occupancy orders, [2.360], [8.920] application, [8.930] affidavit, [8.940] response to, [8.970] urgent/ex parte orders, [8.960] court’s consideration before grant, [8.930] injunction sample, [8.1920] other courses of action, [8.980] Expert report — see also Family report disclosure, [6.850] expert, who is, [6.840] expert evidence, restrictions on use child-related proceedings, in, [6.860] proceedings not child-related, [6.870] single expert witness, [6.880] Jones v Dunkel, rule in, [9.1010] overview, [6.830] single expert witness

“clarifying” report, [6.890] evidence, restrictions on use, [6.880]

F Factors — see Needs and resources factors Families, non-traditional — see Step-parents, functional parents and non-traditional families Family consultants child-related proceedings, role in, [5.270] confidentiality, disclosure and the admissibility of statements, [4.920] information obligations, [4.900] parenting case, [7.1270] report of — see Family report Family counsellors — see also Counselling confidentiality, disclosure and the admissibility of statements, [4.910] family counselling, privilege protecting statements made in, [6.610] information obligations, [4.900] Family court — see also Family law litigation action, moving to, [1.420] advice line, [1.460] agreement without going to, [1.410] appearance — see Court appearance case management — see Case management child abuse allegations, court obligations, [3.290] child application, temporary order – duration, [1.520] choice of court, [5.20] consent orders — see Consent order contempt of court — see Contempt of court cost, [1.540]–[1.600] costs order, [1.570] court fees, [1.550], [5.1320] disbursements, [1.580] estimate, [1.600] legal fees, [1.560], [1.590] “loser”, paid by, [1.570] court choice, [5.20] Court of Petty Sessions, [1.490] court process — see Family court process de facto couples’ property disputes, [1.480] divorce, [2.740] applications, [2.760]

documentation checklist, [2.770] costs, [2.750] duration, [1.510] filing, [2.760] issues not included in, [1.610] duration of matters, [1.500]–[1.530] factors court must consider, [6.40] Family Court Act 1997 (WA), [1.220] Family Court of Australia, [1.430] Family Court of Western Australia, [1.470] Family Law Courts National Enquiry Centre, [1.460] family violence allegations, court obligations, [3.290] Federal Circuit Court, [1.440] final orders, time before, [1.530] frivolous and vexatious litigation — see Frivolous and vexatious litigation going to — see Court appearance legal aid, getting — see Legal Aid litigation — see Family law litigation Local Court, [1.490] Magistrates Court, [1.490] orders at separation, urgent, [2.490] orders’ obligations, relief from, [5.1250] personal protection orders domestic violence orders, State/Territory, [3.90] exclusive occupancy of family home, orders for, [2.360], [8.920] federal, [3.100] order choice, [3.130] preparation strategies — see Preparation strategies process — see Family court process property application, temporary order – duration, [1.520] regional Australia, in, [1.450] registries, [1.460] representation partial representation, [1.670] self-representation, [1.650]–[1.670] rules and procedure legislation, [1.230] self-representation avoidance necessity, [1.660] partial representation, [1.670] reasons, [1.650] urgent court orders at separation, [2.490] vexatious litigation — see Frivolous and vexatious litigation

F Index Family court — cont Western Australia, [1.220], [1.470] Family Court Act 1997 (WA), [1.220] Family court appearance — see Court appearance Family Court of Australia, [1.430] filing applications, [5.740] response, [5.760] procedural hearing, initial, [5.310] property case progress in, [8.1150]–[8.1190] regional Australia, in, [1.450] Family Court of Western Australia, [1.470], [5.40] Family court process, [5.10] abuse of process, [5.1300] repeated, [5.1310] access to documents hearings, during, [5.1130]–[5.1150], [5.1170] other that at hearing, [5.1160] affidavits — see Affidavits appeals, [5.360] call-overs, [5.370] case management — see Case management child abuse — see Child abuse contempt of court — see Contempt of court costs — see Costs court choice, [5.20] Family Court of Western Australia, [5.40] federal courts, division of cases between, [5.30] practical considerations, [5.60]–[5.130] State and Territory courts, [5.50] court date change, [5.400] check, [5.390] court fees, [5.1320] court services, [5.440] child-minding, [5.470] computers, [5.460] documents, witnessing, [5.510] duty lawyers, [5.450] interpreters, [5.480]–[5.500] photocopiers, [5.460] translation, [5.480]–[5.500] directions, [5.380] disclosure — see Disclosure discovery, [5.1070] electronic attendance, [5.410] employers, information from, [5.1180]

family report — see Family report family violence — see Family violence filing — see Filing forms, obtaining, [5.830] frivolous and vexatious litigation — see Frivolous and vexatious litigation hearings, access to documents during, [5.1130]–[5.1150], [5.1170] hearings, urgent/without notice, [5.430] legal costs — see Costs litigation process, [5.170] stages, [5.180]–[5.210] mentions, [5.370] notice to produce — see Notice to produce orders, [5.380] privilege — see Privilege report — see Family report safety at court, [5.520] special circumstances, [5.420] subpoenas — see Subpoenas transfer between courts, [5.140]–[5.160] vexatious litigation — see Frivolous and vexatious litigation witness — see Witness Family dispute resolution — see also Dispute resolution agreements, [4.200] child abuse, [3.60] child-centred practice, [4.230] community-based support services, [1.130] compulsory — see Mandatory family dispute resolution difficulties of, [4.210] engagement, facing task of, [4.320] Family Relationship Advice Line, [4.240] Family Relationship Centres, [4.190] Family Relationships Online, [4.250] family violence, [3.60] interim parenting orders, [7.1120] joint sessions, [4.180] Legal Aid Family Conferences, [4.260] mandatory — see Mandatory family dispute resolution overview, [1.130], [4.20], [4.160] parenting orders, interim, [7.1120] parenting proceedings, before commencing, [4.760]–[4.770], [7.1030] certificate requirement exceptions, [4.780] certification requirements, [7.1040]

post-separation parenting arrangement disputes, [7.900] power imbalance, [4.280] managing, [4.290] practitioner, finding, [4.220] child-centred practice, [4.230] practitioners’ information obligations, [4.900] pre-action dispute resolution requirements maintenance application, [8.1650] pre-settlement property issues, [8.890] preliminary interview, [4.170] privilege protecting statements made in, [6.610] sample orders, [7.2570] Family law, [1.190], [1.270], [3.30] advisers’ obligations to inform, [4.900] Australasian Legal Information Institute, [1.270] cases — see Family law cases child abuse child-related proceedings, court requirement to inquire about in, [3.290], [9.380] definition, new, [3.40] notification of, and court action upon, [3.290] child support legislation, [1.240] child welfare matters, informing court of, [3.200] children’s best interests, [3.320]–[3.350] adviser’s advice, new mandatory content, [4.900] court rules and procedure legislation, [1.230] de facto property legislation, [2.120], [8.50] Family Court Act 1997 (WA), [1.220] Family Law Act 1975 (Cth), [1.200] family violence child-related proceedings, court requirement to inquire about in, [3.290] definition, new, [3.290] notification of, and court action upon, [3.290] family violence legislation, [3.90] family violence orders in best interests – relevance reframed, [3.360] Federal Circuit Court of Australia Act 1999 (Cth), [1.210] “friendly parent” provision repeal, [7.710] litigation — see Family law litigation

457

458

The Family Law Handbook Family law, [1.190], [1.270], [3.30] — cont relevant, finding, [1.190] resources, [1.270] sources, [1.270] “twin pillars”, precedence of, [3.320]–[3.350] Western Australia, [1.220] Family Law Act 1975 (Cth), [1.200] maintenance order enforcement provisions, [8.1760] objects, [7.100] parents’ rights, [7.110] Family law cases, [1.290], [3.30] analysis of your case — see Case analysis consent orders finishing, [4.1490] issues, what constitute, [6.120] issues in dispute, [6.110] legal issues, identification/resolution, [6.130] management — see Case management Western Australian cases, evidence in, [6.210] Family law court — see Family court Family Law Courts National Enquiry Centre, [1.460] Family law dispute — see also Dispute — see also Family dispute resolution engagement, facing task of, [4.320] “winning” and “losing”, [1.90] worthwhile, whether, [1.90], [1.100] Family law litigation — see also Family court adversarial system, [1.680] self-representation assistance, [1.690] toolkit, [1.700] Family Relationship Advice Line, [1.350], [4.240] Family Relationship Centres, [4.190] Family Relationships Online, [1.360], [4.250] advice booklets, [1.380] Family report contents, [6.800] definition, [6.780] expert report — see Expert report importance of, [6.790] order for application, [6.820] obtaining, [6.810] reported matters, [6.800] sample, [6.820] what is, [6.780]

Family violence, [3.30]–[3.40] affidavit contents, [3.270] best practice principles, [3.410] child-related proceedings, court requirement to enquire about in, [3.290], [9.380] child’s best interests, [3.360], [7.580] consent orders and risk of, [3.280] draft orders, [4.1450] court obligations, [5.640] definition, new, [3.30] domestic violence orders, State/Territory, [3.90] family dispute resolution, [3.60] “freeze and starve” as, [2.460] information related to, [3.300] legislation, [3.30] notification court action upon, [3.290] mandatory, [3.220] orders in best interest – relevance reframed, [3.360] parenting order contradicting, [3.170] application under Family Law Act section 68R, [3.190] parenting order made first, [3.180] provisions relevant, [5.690] Federal Circuit Court, [1.440] early case management process, [5.320] first day, [5.330] parenting cases, [5.340] property and financial cases, [5.350] filing application and response, [5.770] property case progress, [8.1200] regional Australia, in, [1.450] Federal Circuit Court of Australia Act 1999 (Cth), [1.210] Feelings — see Stress Filing, [5.700] affidavit filing time, [6.690] child-related proceedings, [6.700] amending filed documents, [5.840] applications contents, [5.790] Family Court, [5.740] Federal Circuit Court, [5.770] effect, [5.710] Family Court applications, [5.740] response, [5.760] Federal Circuit Court application and response, [5.770] filed documents amending, [5.840] service, [5.860]

Financial Statement, filing/re-filing, [5.1010] how to file, [5.720] LAT, in, [5.800] maintenance application/response, [8.1660] method, [5.720] mistakes, [5.730], [5.750] parenting orders, interim/interlocutory, [7.1110] response consequences of not filing, [5.780] contents, [5.790] Family Court, [5.760] Federal Circuit Court, [5.770] sample orders – care needed, [5.810] service of filed documents, [5.860] technical requirements, [5.820] Final property distribution maintenance orders, enforcement, [8.1240]–[8.1300] property case progress Family Court, in, [8.1150]–[8.1190] Federal Circuit Court, [8.1200] property orders, application for, [8.1130] response to, [8.1140] property orders, enforcement, [8.1240]–[8.1300] property settlement applications, time limit, [8.1060] property settlements, private, [8.1070]–[8.1120] sample orders, [8.1970] variation of orders, [8.1210]–[8.1230] Final trial/hearing preparation compliance check in Family Court, [9.170] formal requirements compliance, [9.140] non-compliance consequences, [9.150] procedural orders before, [9.160] procedural steps before going before judge, [9.180]–[9.220] Final trial/hearing stages, [9.730] evidence admissibility objections, [9.740] common, [9.770] oral, [9.760] privilege, claiming, [9.750] Financial agreements — see Binding financial agreements Financial matters assessing situation, [2.400]

I Index Financial matters — cont assets list, [2.410] car, [2.560] case management in Federal Circuit Court, [5.350] Centrelink, [2.630] consent order application, financial information disclosure in, [4.1360] court orders, urgent, [2.490] credit cards, [2.580] disclosure requirements for financial cases, [5.980] electricity, [2.570] expenses list, [2.430] financial and property resources, [8.700] financial cases analysis, [9.590] LAT, [9.50] non-LAT, first day, [9.410]–[9.420] financial contributions, [8.470]–[8.520] non-financial, balancing with, [8.630]–[8.650] financial information disclosure in consent order application, [4.1360] financial situation of partner, right to ask about, [4.400] Financial Statement, filing/re-filing, [5.1010] “freeze and starve”, [2.460] government benefits, [2.630] household goods, dividing, [2.530] methods, [2.540] income list, [2.440] income support/vital assets, cut off from, [2.460] interim hearing, [9.430] joint accounts, money in, [2.550] joint loans, [2.600] LAT financial cases, [9.50] lawyer, financial information given to, [4.350] liabilities list, [2.420] life insurance, [2.610] mandatory family dispute resolution after commencement of case, [4.850]–[4.880] money in joint accounts, [2.550] mortgage, [2.590] non-LAT financial case, first day, [9.410]–[9.420] parties’ financial contributions, [8.470]–[8.520] non-financial, balancing with, [8.630]–[8.650] partner’s financial situation, right to ask about, [4.400] property and financial resources, [8.700] property disposal by one party, [2.500]

preparation strategies — see Preparation strategies procedural hearing, initial (Family Court), [5.310] procedure laws, [9.80] Family Court cases, [9.80] Federal Circuit Court cases, [9.100] procedure in practice, [9.110] self-represented litigants, [9.120] substantive law, [9.130] trial, [9.60] urgent, [5.430] without notice, [5.430]

asset gone, actions if, [2.520] injunctions to prevent, [2.510] records, [2.450] right to ask about partner’s financial situation, [4.400] telephone, [2.570] unfairness at separation, [2.460]–[2.490] urgent court orders, [2.490] utilities, [2.570] will, [2.620] Forms — see also Filing — see also Service obtaining, [5.830] Frivolous and vexatious litigation, [5.1270] abuse of process, [5.1300] frivolous applications, [5.1280] repeated, [5.1310] vexatious applications, [5.1290] Functional parents — see Step-parents, functional parents and non-traditional families

H Hague Convention on the Civil Aspects of International Child Abduction child’s abduction to Hague Convention country, [7.1840] Hearings — see also Trial affidavits — see Affidavits case subject, [9.130] costs, [9.1120] court appearance — see Court appearance disclosure before, [5.1030] document access during, [5.1130]–[5.1150], [5.1170] final judgment, [9.1110] preparation — see Final trial/hearing preparation stages — see Final trial/hearing stages going to court — see Court appearance interim/interlocutory hearings/proceedings, [9.430] interim orders, [9.450]–[9.470] procedural applications, [9.440] judgment, [9.1110] Less Adversarial Trial — see Less Adversarial Trial (LAT) overview, [9.10] parenting order contravention hearing attendees, [7.2190]

Hearsay rule, [6.270] exceptions, [6.290]–[6.360] business records, [6.330] child statement, [6.350] essential facts, [6.340] feeling and state of mind, [6.320] first-hand, [6.310] interim hearing, [6.360] personal knowledge, [6.300] Home exclusive sole occupancy orders, [2.360], [8.920] application, [8.940] affidavit, [8.950] response to, [8.970] urgent/ex parte orders, [8.960] court’s consideration before grant, [8.930] injunction sample, [8.1920] other courses of action, [8.980] household goods, dividing, [2.530] methods, [2.540] locks, changing, [2.380] mortgage, [2.590] ownership impact on staying or going after separation, [2.350] relocation costs, [2.390] returning after moving out, [2.370]

I Independent children’s lawyers draft consent orders, signing, [4.1440] Magellan Program, [3.400] parenting cases, [7.1300], [7.1310] requirements, [7.1320] role, [7.1320] trial, [9.1060] Information child abuse, related to, [3.300] employers, from, [5.1180]

459

460

The Family Law Handbook Information — cont family violence, related to, [3.300] financial information disclosure in consent order application, [4.1360] lawyer, financial information given to, [4.350]

J Jones v Dunkel, [6.940], [6.950], [9.830], [9.1010]

K Kidnapping — see Abduction of child

L LAT — see Less Adversarial Trial (LAT) Law family — see Family law overview, [1.280] Lawyer — see also Representation — see also Solicitor adversarial litigation system, as integral part of, [1.680] child-related proceedings, role in, [5.290] children’s lawyers — see Independent children’s lawyers choosing, [1.390] client legal privilege, [6.540] loss of, [6.560] self-represented litigants, for, [6.550] costs order against, [5.1380] information obligation, [5.1390] engagement during separation negotiation, [4.360] financial information given to, [4.350] independent children’s lawyers — see Independent children’s lawyers information obligation, [4.900], [5.1390] Legal Aid, [1.330] legal fees, [1.560], [1.590] negotiation with partner through, [4.300] obligation to inform, [4.900], [5.1390] Legal advice, [1.300] advice booklets, [1.380] binding financial agreements, requirement for, [4.1080] community legal centres, [1.340]

Family Relationship Advice Line, [1.350] Family Relationships Online, [1.360] free sources, [1.310]–[1.380] lawyer, choosing, [1.390] Legal Aid advice booklets, [1.380] advisory services, [1.320] duty lawyers, [1.330] negotiation idea, [4.330]–[4.340] solicitor, first free consultation with, [1.370] Legal Aid advice booklets, [1.380] advisory services, [1.320] application, [1.640] duty lawyers, [1.330] eligibility tests, [1.630] Family Conferences, [4.260] getting, [1.620] means test, [1.630] merit test, [1.630] overview, [1.620] Legislation — see Family law Less Adversarial Trial (LAT), [9.20], [9.30] admissibility of evidence, [6.490] experience, [9.30] filing, [5.800] financial cases, [9.50] judgment, [9.1110] litigation, traditional approach, [9.40] Liabilities — see Assets — see Property agreed set of assets/liabilities/values, importance of, [8.125] debt, treatment of, [8.200] future, [8.300]–[8.320] identification, [8.130], [8.140] list, [2.420] sample, [8.1950] division options, [8.1960] loan from party’s parents, [8.210] overview, [8.190] parties’ contributions — see Parties’ contributions sample liability and indemnity provisions, [8.1900] valuation, [8.130], [8.330] Litigation family law — see Family law litigation frivolous and vexatious — see Frivolous and vexatious litigation

Local Court, [1.490]

M Magellan Program, [3.400], [3.410] Magistrates Court, [1.490] Maintenance, [8.1590] agreements, private, [8.1620] application, [8.1630] draft orders, [8.1670] filing, [8.1660] pre-action dispute resolution procedures, [8.1650] response, filing, [8.1660] time, [8.1640] urgent, [8.1680] consent orders, [4.1220], [4.1260] setting aside, [4.1280] de facto partners, for, [8.1600] needs and resources — see Needs and resources factors new mothers, unmarried, [8.1770] orders draft, [8.1670] enforcement, [8.1240]–[8.1300], [8.1750]–[8.1760] final property orders and, [8.1700]–[8.1710] lump sum, [8.1720] property order, looks like, [8.1740] sample, [8.1940] urgent, [8.910], [8.1680] variation, [8.1690] payment ability, [8.1610] private agreements, [8.1620] property settlement and, relationship, [8.840]–[8.870] remarriage, effect of, [8.1730] sample, [8.1940] Mandatory family dispute resolution — see also Dispute resolution — see also Family dispute resolution commencement of case, after, [4.790] non-compulsory dispute resolution, [4.890] parenting cases, [4.800]–[4.840] property and financial cases, [4.850]–[4.880] Family Law Rules compliance, when unnecessary, [4.680] overview, [4.660] parenting proceedings, before commencing, [4.760]–[4.780], [7.1030] certificate requirement exceptions, [4.780]

N Index Mandatory family dispute resolution — cont certification requirements, [7.1040] pre-action dispute resolution requirements maintenance application, [8.1650] pre-settlement property issues, [8.890] pre-action procedures improper use, [4.685] non-compliance, [4.687] parenting cases, [4.720] parties’ behaviour, [4.715] property cases, [4.690]–[4.710] provisions applicable, [4.670] Marriage — see also Divorce — see also Separation Aboriginal customary law, under, [2.70] advantages at relationship breakdown, [2.50] brief, [2.730] children’s legitimacy, [2.80] common law, [2.100] de facto — see De facto relationship definition, [2.20] end of, not proven, [2.250] extramarital sex, [2.250] fighting, constant, [2.250] invalid, [2.870] “irretrievable breakdown of marriage”, [2.230] legal definition, [2.20] love, loss of, [2.250] marital relationship, natural indicators of, [2.260] marital relationship briefly resumed after separation, [2.310] nullity, [2.870] overseas, made, [2.60] personal protection injunction sample, [8.1930] property ownership, [2.40] property settlement application deadlines, [8.160] reconciliation, [2.730] relationship breakdown, advantages at, [2.50] remarriage early divorce, reason for, [2.850] maintenance, effect on, [8.1730] will, effect on, [2.620] same-sex, [2.20] separation, marital relationship briefly resumed after, [2.310] separation desired by both parties, necessity for, [2.270]

spousal support obligation, [2.30] two years, less than, [2.730] unmarried new mothers, maintenance for, [8.1770] what is, [2.20] will, effect on, [2.40] Mediation, [4.140] Meetings with former partner arrangements, [4.410] place, [4.430] rules, [4.460] success, preparation for, [4.450] support person, [4.440] writing, in, [4.420]

N Needs and resources factors, [8.670] age and health, [8.680] assessment method, [8.810]–[8.820] binding financial agreements, [8.780] catch-all provisions, [8.760] child support, [8.750] children’s care, responsibility for, [8.710] cohabitation with new partner, [8.740] financial and property resources, [8.700] future, [8.800] court’s estimation discretion, [8.830] health and age, [8.680] income and earning capacity, [8.690] living standard, reasonable, [8.730] maintenance and, [8.660] maintenance and property settlement, relationship, [8.840]–[8.870] other, [8.790] property and financial resources, [8.700] relationships, other, [8.770] self-support and support of others, [8.720] Negotiation and agreement, [4.10] agreement, forms of — see Agreement forms arbitration, [4.270] conciliation, [4.150] counselling — see Counselling family dispute resolution — see Family dispute resolution mediation, [4.140] negotiation hints, [4.650] power imbalance, [4.280] private negotiation — see Private negotiation private property settlements, negotiation of, [8.1100]

settlement — see Settlement Negotiation ideas agreement, building towards, [4.540] argument distinguished, [4.390] bargaining, necessity of, [4.520] everybody negotiates, [4.330] fairness and success, aim for, [4.640] financial situation of your partner, [4.400] identify issues, [4.340] interest ranges, [4.470] changing, [4.500] circumstances, effect of, [4.510] psychology, effect of, [4.510] reaching, [4.600] refining, [4.490] samples, [4.480] understanding, [4.480] issues, exploration of, [4.530] meeting arrangements, [4.410] place, [4.430] rules, [4.460] success, preparation for, [4.450] support person, [4.440] writing, in, [4.420] negotiation hints, [4.650] positions agreement, building towards, [4.540] circumstances change, [4.590] closing position, [4.600] first, choice of, [4.550] interest range, reaching, [4.600] new, putting and justifying, [4.580] parenting disputes, in, [4.570] process, moving through, [4.560] positivity retention, [4.620] pre-negotiation summary, [4.470] readiness, identifying, [4.380] success and fairness, aim for, [4.640] win–win result, package and repackage for, [4.610] Negotiation with your partner lawyer, financial information for, [4.350] lawyer, through, [4.300] lawyer engagement, [4.360] legal advice, initial, [4.340] negotiation hints, [4.650] settlement, negotiating own, [4.310] “without prejudice”, [4.630]

461

462

The Family Law Handbook Non-traditional families — see Step-parents, functional parents and non-traditional families Notice to produce, [5.1130], [9.530] drafting, [5.1200] party, issued to other, [5.1170] preparation, [5.1140] receipt of, [5.1150]

O Occupancy — see Exclusive sole occupancy orders — see Home

P Parenting — see also Child arrangements — see Post-separation parenting arrangements case — see Parenting case evidence in — see Evidence in parenting cases child-centred parents, [7.50], [7.70] child’s rights/interests, [1.80] conflict child-centred approach, [7.50] helping children cope with, [7.40] shielding child from, [7.60] consent orders, [4.1210], [4.1270] setting aside, [4.1280] disputes, positions in, [4.570] equal, shared parental responsibility — see Equal, shared parental responsibility family dispute resolution requirement, [4.760], [7.1030] certificate requirement exceptions, [4.780] certification requirements, [7.1040] Family Law Act, objects, [7.100] “friendly parent” provision, repeal, [7.710] functional parents — see Step-parents, functional parents and non-traditional families guardianship, [7.120] mandatory family dispute resolution after commencement of case, [4.800]–[4.840] non-traditional families — see Step-parents, functional parents and non-traditional families order — see Parenting order overview, [7.10]

parent, definition, [7.1870] parental responsibility, [7.120] equal, shared — see Equal, shared parental responsibility orders, [7.1400] parental responsibility sample orders, [7.2320]–[7.2360] equal, shared parental responsibility, [7.2330] general, aspects of, [7.2350] issues, specific, [7.2360] other allocations of, [7.2340] parents’ rights, [7.110] plan — see Parenting plan Post Separation Cooperative Parenting, [1.160] pre-action procedures, [4.720], [7.1030] certification requirements, [7.1040] principles, [7.80] effect, [7.90] relationship breakdown, child’s response to, [7.20] relocation — see Relocation responsibility — see parental responsibility above rights of parents, [7.110] separation process, helping children to weather, [7.40] step-parents — see Step-parents, functional parents and non-traditional families terminology, up-to-date, importance of using, [7.130] values in the law, [7.80] witnesses in parenting cases, [6.910] Parenting case affidavits, [7.1550] analysis, [9.620] case management in Federal Magistrates Court, [5.340] early stages Child Responsive Program, [7.1280] procedural hearing after, [7.1290] family consultants, [7.1270] first day in court, [7.1260] independent children’s lawyer, [7.1300], [7.1310] requirements, [7.1320] role, [7.1320] Magellan Program, [3.410] evidence in — see Evidence in parenting cases hearing, first day, [9.350]–[9.400] pre-action procedures, [4.720] family dispute resolution requirement, [4.760], [7.1030] certificate requirement exceptions, [4.780]

certification requirements, [7.1040] Parenting order, [7.1000] anti-denigration orders, [7.1440] applicant, [7.1010] child order made about, [7.1020] child’s residence, [7.1420] sample orders living principally with one parent, [7.2380] sharing living arrangements, [7.2370] consent order — see Consent order contravention of — see Parenting order contravention court decision method – final trial, [7.1570] equal shared parenting responsibility presumption, treatment of, [7.1590] “status quo” vs other considerations, [7.1580] drafting — see Parenting order drafting early stages in parenting case Child Responsive Program, [7.1280] procedural hearing after, [7.1290] family consultants, [7.1270] first day in court, [7.1260] independent children’s lawyer, [7.1300], [7.1310] requirements, [7.1320] role, [7.1320] Magellan Program, [3.410] enforcement service, [7.2180] equal shared parental responsibility, equal time, [7.1060] ex parte, [7.1130] application, [7.1140] undefended basis, made on, [7.1150] family violence order contradicting, [3.170] application under Family Law Act section 68R, [3.190] parenting order made first, [3.180] final orders, application for, [7.1080] functional parents and step-parents, [7.1920] best interests assessment, differences in, [7.1930] court orders, in absence of, [7.1980] differences, importance of, [7.1960] functional parenthood not recognised, where, [7.1950]

P Index Parenting order, [7.1000] — cont functional parents, option for, [7.1970] parental responsibility, differences related to, [7.1940] interim/interlocutory orders application for, [7.1090], [7.1100] ex parte, [7.1130] application, [7.1140] undefended basis, made on, [7.1150] family dispute resolution and, [7.1120] filing, [7.1110] issue resolution orders, [7.1430] issues addressed in, [7.980] law, summary, [7.650] no communication, order for, [7.1390] parental responsibility orders, [7.1400] aspect of, about, [7.1410] orders for equal, shared parental responsibility, [7.1400] Parenting Orders Program, [1.150] parenting plans varying, [7.960] pre-action dispute resolution requirements, [7.1030] certification requirements, [7.1040] protection of parent/child, injunction for, [3.100], [3.120] application, [3.120] residence of child, [7.1420] sample orders living principally with one parent, [7.2380] sharing living arrangements, [7.2370] sample orders — see Parenting sample orders supervised time with child, [7.1340] reasons, [7.1350] supervising party, [7.1360] supervision proposal, formulating, [7.1380] supervisor’s functions, [7.1370] types, [7.1050] undefended basis, made on, [7.1150] variation, [7.1160] consent, by, [7.1190] contravention, [7.2120] disputed case, application for consent orders’ variation in, [7.1200] presumption of equal, shared parental responsibility, [7.1170]

“substantial change” test, [7.1180] updating orders, [7.1210] who can apply for, [7.1010] Parenting order contravention, [7.2010] applications, [7.2130] contravention hearing attendees, [7.2190] method, [7.2140]–[7.2170] service, [7.2180] best interests of child, [7.2100] bonds, [7.2080] categories, [7.2030] contravention alleged, not proved, [7.2040] contravention proved, excuse found, [7.2050] less serious contravention proved, no excuse, [7.2060] more serious contravention proved, no excuse, [7.2070] excuse, reasonable, [7.2020] parenting plan’s effect on contravention allegation, [7.2110] post-separation program non-attendance, [7.2090] variation of orders, [7.2120] Parenting order drafting, [7.2200] attachments, using, [7.2210] children, identifying, [7.2220] consent orders, [7.2300] applications, [7.2310] issues, covering, [7.2230] detail amount, [7.2240] parenting plans, [7.2300] parents, identifying, [7.2220] Parenting Orders Program, [1.150] Parenting plan, [7.920] change, [7.970] child support, [7.990] drafting, [7.2300] effect, [7.950] formal requirements, [7.930] issues addressed in, [7.980] parenting order contravention allegation, plan’s effect on, [7.2110] parenting orders, varying, [7.960] registration, [7.940] requirements, formal, [7.930] termination, [7.970] variation, [7.970] Parenting sample orders, [7.2250]–[7.2290] abducted child location, [7.2670]–[7.2680] recovery, [7.2660] changeover, [7.2490] child picked up by parent spending time, [7.2500]

neutral ground, on, [7.2520] transport shared between parents, [7.2510] child’s residence living principally with one parent, [7.2380] sharing living arrangements, [7.2370] communication and consultation, [7.2560] dispute prevention and resolution, [7.2570] decision-making, [7.2580] disputes, other, [7.2590] ex parte orders, [7.2600] location of abducted child, [7.2670]–[7.2680] parental behaviour, limiting, [7.2540] parental behaviour/procedure requirement, [7.2550] parental responsibility, [7.2320] equal, shared parental responsibility, [7.2330] general, aspects of, [7.2350] issues, specific, [7.2360] other allocations of, [7.2340] recovery of abducted child, [7.2660] relocation child’s passport, surrender of, [7.2630] “in the alternative” orders, [7.2640] passport application restraint, [7.2620] permission, [7.2650] restraint, [7.2610] stop, [7.2610] spending time and communication alternative orders, [7.2410] birthday of child, [7.2470] Christmas Day, [7.2460] email communication, [7.2440] exceptional orders, [7.2410] flexible provisions, [7.2420] letter, communication by, [7.2450] obligations, reinforcing, [7.2400] orders, other, [7.2530] package, communication by, [7.2450] postal communication, [7.2450] separate orders, [7.2410] special days, incorporating, [7.2390] supervised time, [7.2480] telephone communication, [7.2430] urgent orders, [7.2600] Parties’ contributions assessment, [8.420]

463

464

The Family Law Handbook Parties’ contributions — cont contributions overall/per asset, [8.460] criteria, [8.430] equality outcome, [8.440] mathematical approach, [8.450] financial, [8.470]–[8.520] non-financial, balancing with, [8.630]–[8.650] homemaker and parent, as, [8.540], [8.560]–[8.590] initial contributions cases, [8.510] negative, [8.610] non-financial, [8.530]–[8.550] financial, balancing with, [8.630]–[8.650] post-separation, [8.600] special, [8.620] Post Separation Cooperative Parenting, [1.160] Post-separation parenting arrangements acrimonious separation, after, [1.150], [1.160] baby, spending time with, [7.760] care quality, concerns about, [7.740] change as children age, [7.800] changeover problems, [7.820] “neutral ground” options for safe/calm changeovers, [7.830] child’s relationship with each parent, parents’ legal duty to foster, [7.710] child’s wishes, relevance of, [7.790] children’s contact services, [7.840] changeover, [7.860] intake procedure, [7.870] supervision, [7.850] cost of spending time with child, [7.880] disputes, [7.890] family dispute resolution, solving, [7.900] litigation, necessity of, [7.910] “equal time”, evidence in relation to, [7.700] gaps, dealing with, [7.770] legislation, [7.680] older, children getting, [7.800] overnight time, child’s readiness for, [7.750] popular arrangements, [7.690] separating families in high conflict, for, [1.150], [1.160] separation decision, as, [1.30] sharing parenting role, concerns about, [7.720] “spending time” obligation, [7.730]

spending time with child, cost of, [7.880] “standard”/“recognised” arrangements, [7.660] successful, hallmarks of, [7.670] supervised time, [7.780] timing problems, [7.810] Pre-action procedures improper use, [4.685] non-compliance, [4.687] parenting cases, [4.720] parties’ behaviour, [4.715] property cases, [4.690]–[4.710] Pre-settlement property issues disclosure requirements, [8.900] exclusive occupation orders, [8.920]–[8.970] pre-action dispute resolution requirements, [8.890] property dealings, injunctions to prevent, [8.990]–[8.1020] property disposal prevention without court action, [8.1040] property orders, interim, [8.1030] urgent maintenance orders, [8.910] Preparation strategies collation of materials, [9.700] evidence to prove necessary facts, [9.660] final orders, reconsideration, [9.640] McKenzie friend, [9.720] Notice to Admit undisputed facts, [9.670] positive character of case, development, [9.630] prove, knowledge of what to, [9.650] research case, [9.680] support person, [9.710] trial plan, [9.690] Private negotiation “collaborative law”, [4.60] legal assistance, with, [4.50] negotiating for and by yourself, [4.70] Private property settlements, [8.40], [8.1070] basis, [8.1090] consent orders’ effect, [8.1110] negotiation of, [8.1100] pros and cons, [8.1080] steps, [8.1120] Privilege claim, [6.510] method, [6.670] client legal privilege, [6.540] loss of, [6.560] self-represented litigants, for, [6.550]

confidential communications, [6.580]–[6.590] Evidence Act, [6.530] family counselling/dispute resolution, statements made in, [6.610] journalists’ privilege, [6.570] law applicable, [6.530] professionals’ refusal to give evidence, [6.90] provisions, [6.530] religious confessions, [6.580]–[6.590] self-incrimination, privilege against, [6.620] “settlement negotiations” privilege, [6.630] evidence of negotiations, admissibility, [6.640] settlement offers, [6.650] sources, [6.520] spouses, protection of, [6.660] Process — see Family court process Production notice — see Notice to produce Property, [8.10] assets — see Assets bargaining in the “shadow of the law”, [8.20] case management in Federal Circuit Court, [5.350] case progress Family Court, in, [8.1150]–[8.1190] Federal Circuit Court, [8.1200] consent orders, [4.1220], [4.1240] setting aside, [4.1290] court application for temporary order, duration, [1.520] court’s process, [8.60]–[8.125] application to out-of-court settlements, [8.90] de facto property legislation, [2.120], [8.50] different, depending on geography, [2.110] timing, [2.120] dealings, injunctions to prevent, [8.990]–[8.1020] disposal by one party during separation, [2.500] asset gone, actions if, [2.520] injunctions to prevent, [2.510] disposal prevention without court action, [8.1040] distribution, final — see Final property distribution financial and property resources, [8.700] issues, pre-settlement — see Pre-settlement property issues liabilities — see Liabilities

S Index property order applications when one spouse bankrupt, [8.1570]–[8.1580] trustee’s power, exceptions, [8.1560] case analysis, [9.600] justice and equity overall, testing for, [8.880] maintenance and, relationship, [8.840]–[8.870] offers, compulsory, [4.950] pre-settlement property issues — see Pre-settlement property issues private — see Private property settlements separation decision, [1.30] third party interests in, [8.1450] debts, secured and unsecured, [8.1470] property transactions meant to defeat spouse’s claim, [8.1490] property transferred to third party, [8.1460] third parties’ property rights, orders altering, [8.1500]–[8.1540] third party applications to set aside orders, [8.1480]

Property, [8.10] — cont mandatory family dispute resolution after commencement of case, [4.850]–[4.880] orders — see Property orders ownership, marriage’s effect on, [2.40] parties’ contributions — see Parties’ contributions pre-action procedures, [4.690]–[4.715] pre-settlement property issues — see Pre-settlement property issues private property settlements — see Private property settlements rights and separation date, [8.160] settlement — see Property settlement “shadow of the law”, bargaining in, [8.20] third party, property transferred to, [8.1460] timeframes, important, [8.160] witness in property matter, [6.920] Property orders application for, [8.1130] bankrupt, when one spouse, [8.1570]–[8.1580] response to, [8.1140] enforcement, [8.1240]–[8.1300] final, and maintenance orders, [8.1700]–[8.1710] interim, [8.1030] lump sum maintenance order looking like, [8.1740] sample — see Property sample orders

R

Property sample orders, [8.1780]–[8.1830] asset and liabilities list, [8.1950] division options, [8.1960] assets, other, [8.1890] catch-all provisions, [8.1910] consent orders, [8.1840] ex parte orders, [8.1860] injunctions, [8.1860]–[8.1870] exclusive occupation, [8.1920] personal protection, [8.1930] liability and indemnity provisions, [8.1900] maintenance, [8.1940] private agreements, [8.1850] property distribution, [8.1970] real estate, [8.1880] use, [8.1780]–[8.1830]

Relationship breakdown, child’s response to, [7.20] close personal relationships (that are not de facto), [2.190] counselling, [4.80] de facto — see De facto relationship end, [1.10] process, [1.10] sane, keeping, [1.50] Family Relationship Centres, [4.190] marriage’s advantages at breakdown of, [2.50] negotiation and agreement, [4.10] process of ending, [1.10] separation — see Separation

Property settlement application deadlines, [8.160], [8.1060] bankruptcy and, [8.1550]

Relocation, [7.1600] cases, trends in, [7.1630] challenges, [7.1640] competing proposals, [7.1650]

Protection personal protection orders domestic violence orders, State/Territory, [3.90] exclusive occupancy of family home, orders for, [2.360], [8.920] federal, [3.100] order choice, [3.130]

interim/interlocutory order, [7.1620] legislation, [7.1610] order application, [7.1660] proposals, [7.1650], [7.1670] sample orders child’s passport, surrender of, [7.2630] “in the alternative” orders, [7.2640] passport application restraint, [7.2620] permission, [7.2650] restraint, [7.2610] stop, [7.2610] temporary order preventing/permitting, [7.1620] Representation — see also Lawyer — see also Solicitor partial, [1.670] self-representation — see Self-representation Resources — see Needs and resources factors

S Sample orders parenting — see see Parenting sample orders property — see Property sample orders Self-representation avoidance necessity, [1.660] client legal privilege, [6.550] litigation assistance, [1.690] litigation toolkit, [1.700] partial representation, [1.670] reasons, [1.650] toolkit, [1.700] Separation — see also Divorce behaviour, [1.70] children, [1.80] arrangements for, during, [2.640] helping to cope with, [7.30] date, importance of, [2.240] date, property rights and, [8.160] decision to separate not made, [1.20] decisions, [1.30], [2.320] action after deciding to leave, [2.340], [2.350] pros and cons, weighing up, [2.330] dispute resolution — see Dispute resolution domestic violence orders, State/Territory, [3.90] exclusive sole occupancy orders, [2.360] federal personal protection orders, [3.100]

465

466

The Family Law Handbook Separation — cont finances — see Financial matters during separation home — see Home “irretrievable breakdown of marriage”, [2.230] leave, after making decision to, [2.340], [2.350] legal definition, [2.10] “losing” and “winning”, [1.90] marital relationship, briefly resuming, [2.310] marital relationship’s natural indicators, end of, [2.260] marriage’s end not proven, [2.250] moving, necessity for — see Separation under one roof negotiation and agreement, [4.10] parenting arrangements, [1.30], [1.80] parties’ mutual desire for, necessity for, [2.270] period, [2.310] personal protection orders domestic violence orders, State/Territory, [3.90] exclusive occupancy of family home, orders for, [2.360], [8.920] federal, [3.100] order choice, [3.130] practical arrangements, [1.30] property — see Property relationship end, [1.10] process, [1.10] sane, keeping, [1.50] roof, under one — see Separation under one roof separation desired by both parties, necessity for, [2.270] unfairness, [2.460]–[2.490] “winning” and “losing”, [1.90] Separation under one roof, [2.280]–[2.290] affidavit samples, [2.880]–[2.890] case study, [2.300] evidence, [2.290], [2.720] Service, [5.850] additional parties, on, [5.910] addresses, [5.940] conduct money, [5.930] D-I-Y Service Kits, [5.860] divorce application, [2.780] filed documents, unnecessary for certain, [5.860] inability, [5.950] methods, [5.880] parenting order contravention application, [7.2180] parenting order enforcement, [7.2180] person, [5.890]

process server, engagement, [5.900] proof of, [2.780], [5.920] unable to serve, [5.950] unnecessary for certain filed documents, [5.860] who by, [5.890] Setting aside binding financial agreements, [4.1100] consent orders maintenance, [4.1280] parenting, [4.1280] property, [4.1290] third party applications to set aside orders, [8.1480] Settlement advantages of early, private settlement, [4.40] arbitration, [4.270] conciliation, [4.150] counselling — see Counselling court’s process, [8.60]–[8.125] application to out-of-court settlements, [8.90] early, private settlement, advantages of, [4.40] family dispute resolution — see Family dispute resolution mediation, [4.140] negotiating your own, [4.310] offers, [4.930] compulsory, [4.940]–[4.950] non-compulsory, [4.960] open, [4.970] privilege, [6.650] “without prejudice”, [4.970] options, [4.30] pre-settlement property issues — see Pre-settlement property issues private negotiation — see Private negotiation property settlement — see Property settlement “settlement negotiations” privilege, [6.630] evidence of negotiations, admissibility, [6.640] settlement offers, [6.650] techniques, [4.30] Solicitor — see also Lawyer — see also Representation client legal privilege, [6.540] loss of, [6.560] self-represented litigants, for, [6.550] legal advice, free, [1.370] legal fees, [1.560], [1.590] Spending time and communication difficulty/expense of, [7.530] parents’ right to spend time/communicate with children, [7.640]

sample orders alternative orders, [7.2410] birthday of child, [7.2470] Christmas Day, [7.2460] email communication, [7.2440] exceptional orders, [7.2410] flexible provisions, [7.2420] letter, communication by, [7.2450] obligations, reinforcing, [7.2400] orders, other, [7.2530] package, communication by, [7.2450] postal communication, [7.2450] separate orders, [7.2410] special days, incorporating, [7.2390] supervised time, [7.2480] telephone communication, [7.2430] Spouse privilege protecting, [6.660] property order applications when one spouse bankrupt, [8.1570]–[8.1580] property transactions meant to defeat spouse’s claim, [8.1490] support obligation, [2.30] Step-parents, functional parents and non-traditional families, [7.1860] adoption, [7.1990] artificial conception procedures, children born after, [7.1890] court orders, in absence of, [7.1980] functional parents, step-parents and parenting orders, [7.1920] best interests assessment, differences in, [7.1930] court orders, in absence of, [7.1980] differences, importance of, [7.1960] functional parenthood not recognised, where, [7.1950] functional parents, option for, [7.1970] parental responsibility, differences related to, [7.1940] non-parents who parent, [7.1910] parent, definition, [7.1870] same-sex parents, [7.2000] step-parent, definition, [7.1900] surrogate parent, [7.1880] Stress behaviour, [1.70]

W Index Stress — cont community-based support services, [1.110] counselling, [1.120] dispute “winning” and “losing”, [1.90] worthwhile, whether, [1.100] mental clarity, importance of, [2.320] sane, keeping, [1.50] Subpoenas, [5.1080], [9.530] conduct money, [5.1100] drafting, [5.1200] issue restrictions, [5.1090] party, issued to other, [5.1170] preparation, [5.1110] restrictions on issue, [5.1090] return, [5.1120] witness fees, [5.1100] Superannuation agreements, [4.1140] consent orders and, [8.1390] assets valuation, [8.400] consent orders, [4.1250] family law property issues, [8.1310] four-step process, application to, [8.1320]–[8.1360] interest type/value discovery, [8.1400] orders, [8.1370] application, [8.1430] preparation, [8.1410] final orders made, after, [8.1440] multiple splitting orders, [8.1380] trustee, fairness to, [8.1420] Supporting Children after Separation Program, [1.170]

application for order allowing, [7.1700] child’s passport, [7.1720] Trial — see also Hearings case subject, [9.130] costs, [9.1120] court appearance — see Court appearance final judgment, [9.1110] preparation — see Final trial/hearing preparation stages — see Final trial/hearing stages going to court — see Court appearance hearings, [9.60] initiating application/response, amending near, [9.520] judgment, [9.1110] Less Adversarial Trial — see Less Adversarial Trial (LAT) preparation strategies — see Preparation strategies procedure laws, [9.80] Family Court cases, [9.80] Federal Circuit Court cases, [9.100] procedure in practice, [9.110] self-represented litigants, [9.120] strategies, [9.780] case-in-reply, [9.1050] closing address, [9.1070]–[9.1100] cross-examination, [9.920]–[9.1030] evidence-in-chief documents, [9.840]–[9.910] witnesses, [9.800]–[9.830] independent children’s lawyer, [9.1060] opening address, [9.790] re-examination, [9.1040] substantive law, [9.130]

Supreme Court de facto couples’ property disputes, [1.480]

V

T

Vexatious litigation — see Frivolous and vexatious litigation

Travel with children interstate, [7.1680] local, [7.1680] overseas, [7.1690] affidavit, [7.1710]

Violence — see Family violence

W Western Australia evidence in cases in, [6.210]

Family Court Act 1997 (WA), [1.220] Family Court of Western Australia, [1.470], [5.40] family law, [1.220] Will divorce, [2.620] marriage, [2.40] remarriage, [2.620] Witness, [6.900] appearance at court, [9.540]–[9.560] cross-examination, [9.920], [9.950] aims, [9.930] Browne v Dunn, rule in, [9.940] contents, [9.960] credibility, on, [6.1020] “do”s and “don’t”s, [9.980] documents, use in, [9.970] expert, challenging, [9.990]–[9.1030] facts, on, [6.1000] notice to attend for, [9.570] evidence of, [6.90] gathering, [9.540]–[9.560] Jones v Dunkel, rule in, [6.940], [6.950], [9.830], [9.1010] obvious witness unable to give evidence, [6.950] parenting cases, in, [6.910] property matter, in, [6.920] re-examination, [9.1040] credibility, on, [6.1020] facts, on, [6.1010] reluctant witness, [6.960] court appearance, necessity of, [6.970] subpoena, use of, [6.980] tendering material from, methods of, [6.990] single expert witness “clarifying” report, [6.890] evidence, restrictions on use, [6.880] subpoena fees, [5.1100] testimony, desirable/undesirable, [6.930] worst-case scenario, court’s assumption of, [6.940]

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