Law Updates

PPP500 – to deal with separating couples whose combined assets are less than $5000,000. These are dealt with in short form within the Family Court.
Discrete Property List – where parties are most often referred to Mediation as the size of the financial pool is less than $500,000. If unsuccessful then the Dispute will be referred to the Family Court as required.
Lighthouse Project – to be introduced in 2021. A process to triage cases, using a DOORS into levels of risk before referring them to the most appropriate jurisdiction.

1. Evatt List – for the highest need cases where there maybe safety concerns which are immediately referred to the Federal Circuit Court
2. Magellan List – for the highest need cases where there maybe safety concerns which are referred to the Family Court

Statement from the Hon Will Alstergren – Parenting Orders and COVID-19 March 26 2020

The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) are acutely aware that the current pandemic is having an enormous impact on families and the Australian community.

Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will affect their lives. Part of that concern in family law proceedings can extend to a parent’s or carer’s ability to comply with parenting orders and what should be properly expected of them by the Courts in these unprecedented times.

The purpose of this statement is to clarify that the Courts remain open to assist parties, and to provide parents with some general guidance. However, it is understood that every family’s circumstances are different.

It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current court orders very difficult, if not, impossible.
As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties.
If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other.
If you feel that you need further guidance, the Family Relationships Advice Line can provide information, advice and telephone-based Family Dispute Resolution services to assist parents and carers to discuss any issues that arise and help them come to an agreement. The Family Relationships Advice Line can be contacted on 1800 050 321 or visit the website.
Parents and carers can also mediate their differences through lawyers. Electronic mediation services are available from the Courts and through local Bar Associations and Law Societies during these restricted times. Visit their websites for more information.
If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.
If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.
Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975 (Cth)).
It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.
The Courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, the Courts advise that if you or your child is in immediate danger, please contact your local police and seek medical advice if required.

In the meantime, the community should be assured that the Courts will continue to perform their duties during this time of crisis. Whilst changes to the Courts’ operations have been implemented in accordance with the necessary restrictions placed on our community by the Commonwealth Government, the Courts remain open to assist Australian families in these challenging times.

Judges, Registrars and staff are committed to providing access to justice when called upon to do so. This includes conducting hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.

There will be, in exceptional circumstances, a small number of face-to-face in-court hearings. For the safety of all concerned, these will only be granted when absolutely necessary. Those hearings will be conducted in strict accordance with the Face-to-Face in-Court Protocol issued by the Courts. As in any other interaction, social distancing requirements will be strictly be followed. Similarly, face to face interviews by family consultants will only take place in exceptional circumstances.

The Registries are still open for telephone appointments, electronic filing and the listing of urgent cases. Family Consultants will also continue their vital work through these electronic mediums as best they can.

Family Dispute Resolution

The law requires separating families who have a dispute about children to make a genuine effort to try to sort it out through family dispute resolution (FDR) before filing an application for parenting orders in court.

This requirement applies to anyone wanting to file an application with a family law court. It also includes those seeking changes to an existing parenting order. There are a few exceptions to this requirement, such as cases involving family violence, child abuse or urgency.

Unless an exemption applies, parties seeking to have a parenting matter determined by a family law court will need to electronically file a certificate from an accredited FDR practitioner. The certificate is issued under Section 60I of the Family Law Act 1975 and is commonly known as a Section 60I Certificate.

An FDR practitioner is an independent person who can help people discuss issues, look at options and work out how best to reach agreement in disputes about children. You can search for an accredited FDR practitioner who has consented to be on the Family Dispute Resolution Register website. Top

The Family Law Act

The Family Law Act covers all aspects of the law pertaining to Families. The Act stipulates that the care, welfare and development of the children are of paramount consideration. The Court makes Orders which it considers are in the best interests of the children even though these may appear to be in conflict with the wishes or the interests of the parents. Of course if mediation is used, the decisions are made solely by the parents. Top

Law Updates June 2012

Changes to Family Law will take effect that will place children and their safety front and centre in family law matters

The Australian Government strongly supports happy, healthy relationships between children and their parents and supports shared care where this is safe for the child.

Unfortunately, more than half of the parenting cases that come to courts involve allegations by one or both parties that the other has been violent.

Family violence and child abuse cannot be tolerated under any circumstances. This is why from 7 June 2012 the Australian Government has amended the Family Law Act to:

Prioritise the safety of children in parenting matters by giving greater weight to the protection from harm when determining what is in a child’s best interests.
Change the definition of ‘family violence’ and’ abuse’ to reflect a contemporary understanding of what family violence and abuse is by clearly setting out what behaviour is unacceptable, including physical and emotional abuse and the exposure of children to family violence.
Better target what a court can consider in relation to family violence orders as part of considering a child’s best interests.
Strengthen advisers obligations by requiring family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to prioritise the safety of children.
Ensure the courts have better access to evidence of family violence and abuse by improving reporting requirements.
Make it easier for state and territory child protection authorities to participate in family law proceedings.

These changes will help people within the family law system to better understand, disclose and act where there are family violence and child abuse concerns.

Family courts will be able to access better information on which to assess risk to families and the best interests of children, helping to improve the appropriateness of parenting orders.

The Family Law Act will continue to promote a child’s right to a meaningful relationship with both parents where this is safe for the child. Top

Law Updates March 2009 – Defacto Relationships

From 1 March 2009 the Family Law Act defines a Defacto Relationship as, ‘the relationship of a couple living together on a genuine domestic basis’. The legislation sets out an extensive list of indicators as to what can be considered by the Court in determining a “genuine domestic” relationship, including duration of relationship, sexual relations, degree of financial support, care of children, public aspects of the relationship etc.

The legislation includes opposite and same gender couples.

The Court can only make a financial order for a defacto couple if the Court is satisfied that:

the period of the defacto relationship is at least 2 years; or
there is a child of the defacto relationship; or
failure to make a property order would result in serious injustice to one of the spouses

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New Court Procedures from 1 July 2007

If parents are not able to agree on parenting arrangements for their children following separation, then the Court can order the parents to abide by set parenting arrangements as determined by the Court. However, the Court will adopt a less formal way of dealing with parenting cases than in the past, by focusing on the issues specifically identified by the parents as important to them. Before ordering the parents to do anything, the Court will consider the terms of their most recent parenting arrangements. Parents will also be able to change Court Orders themselves, by creating a subsequent Parenting Plan. This means that creating a Parenting Plan is an important step and should be carefully considered.

From 1 July 2007, separating couples with children will be required to attend a Family Dispute Resolution Meeting before making a Court application. The only exceptions will be circumstances of abuse or risk of abuse, and family violence or risk of family violence. These Family Dispute Resolution meetings can be conducted at Northern Beaches Mediation. Top

The Family Law Amendment Act July 2006

On 1 July 2006, some major changes to the family law system came into effect. The Family Law Amendment (Shared Parental Responsibility) Act 2006 marks a major cultural shift in the family law system and places an increased focus on the rights of children to have a meaningful relationship with both of their parents and to be protected from harm. These new amendments encourage parents to share equal, responsibility for their children, after separation.

To help individuals with these changes the Government is introducing a range of services designed to help families to deal co-operatively and practically with relationship difficulties and separations. In particular, Family Relationship Centres will be established across Australia to provide advice and assistance on managing family relationships. Privately managed Mediation Centres, such as Northern Beaches Mediation, are also assisting people in their separation and are recognized by the Attorney General’s Department as able to offer this service. Top

The Law prior to June 2006

Prior to 11 June 1996 Orders in relation to children were framed in terms of Guardianship, Custody and Access. The Family Law Reform Act 1996 replaced those with new terms: Residence, Contact and Specific Issues.

If you have an Order in the old terms please note:

A Guardianship Order is about decisions in relation to long term care, welfare and development of children:.
A Custody Order involves two things:
(i) What was later called Residence insofar as it relates to where the child/ren will live, and(ii) What was later referred to as the Right and Responsibility to make decisions about the day to day care, welfare and development of children.
An old Access Order came to be known as a Contact Order in 1996 where:
(i) A Residence Order is an Order which says who a child will live with(ii) Contact is the time that a child spends with the other parent.

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New Terminology from 2006

From 2006, orders and agreements in relation to children will refer to who a child ‘lives with’, ‘spends time with’ and ‘communicates with.’ Collectively, all these types of orders will be referred to as ‘Parenting Orders.’ Top

Equal Shared Parental Responsibility 2006

The new law makes the starting point for determining ‘what is in a child’s best interests’ the concept that both parents should have ‘equal shared parental responsibility’ for the child. In other words, the law recognises that after separation, both parents should jointly make major decisions about their child’s care and important issues that affect their child’s life, such as their living arrangements, education or religious and cultural upbringing. This concept of ‘equal shared parental responsibility’ applies to parents making decisions about their child. It does not mean that the child must spend equal amounts of time with each parent – the law considers this separately. Top

Focus on Children Knowing Both Parents

Whilst the right of children to know both parents is not new, the government has clearly emphasised it as a foundation of the Family Law Reforms. The changes emphasise the concept that children benefit from a meaningful relationship with both of their parents, provided this does not put children at risk of harm. The new law specifically requires parents and courts to consider the children spending as much time as possible with each parent. Top

Mediation Before Court

Separating parents are now being encouraged to participate in Mediation now known as ‘Family Dispute Resolution’ to help them reach agreement about future parenting arrangements for their children. From 1 July 2007, it was made compulsory for most parents to undertake mediation before they are allowed to make an application to the Court for Parenting Orders. Top

Parenting Plans

The new law also encourages separating parents to develop a ‘Parenting Plan’ that details what their parenting arrangements will be and how they will care for their child/ren. A Parenting Plan can cover any issue about which parents have reached agreement, including who the child/ren will live with and who they will spend time with. It may also include how the parents will communicate with each other so they can make decisions about major issues in relation to their child/ren and so they can change the Parenting Plan in the future if this is necessary.

A Parenting Plan is not legally enforceable, unless registered with the Court, but if both parents agree to it and abide by it, then it provides guidance and may avoid the need to go to Court. Top

NB: The information contained here is a guide only. For more comprehensive advice you should contact your Mediator or Lawyer or go to familycourt.gov.au for more information and search for law updates. Alternatively go to familyrelationships.gov.au for more general information.

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Recent Initiatives by the Family Court of Australia December 2020