Transcript Family Law-the new changes

Family Law-the new
changes
Presented by Sara Blazey
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Family Law Act 1975
 Federal Act
 Applies to all children regardless of whether
parents are or were married or living in de facto
relationship
 Courts - Family Court,Federal Magistrates Court
Local Court
 1 July 2006 - major amendments came into
force
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Summary of changes
Presumption of equal shared parental responsibility
Emphasis on equal or substantial parenting time
Parenting orders now called “live with” and “spend time with”
Mandatory family dispute resolution
Creation of Family Relationship Centres
New enforcement and breach of orders procedure
New “hands on” and less adversarial court process
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What you need to know
• Parents must consult and make joint decisions
• There is no presumption of equal shared care
• Court must consider equal time
• Court must consider substantial /significant time
• Important provisions about family violence
• Once a fortnight and half the holidays
no longer the norm
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Objects of the Act
s60B(1)
(a) ensuring 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;
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Objects of the Act
s60B(2)
b) protecting children from physical or
psychological harm from being subjected to,
or exposed to, abuse, neglect or family
violence; and
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Principles of the Act
s60B(2)
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)
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Best Interests of the child
s60CA
“in deciding whether to made a particular
parenting order in relation to a child, a
court must regard the best interests of
the child as the paramount
consideration”
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HOW ARE DECISIONS
ABOUT CHILDREN MADE?
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Informal agreement
Informal written agreement
Parenting plan
Consent order made by Court
No agreement - application to Court ->
court order
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PRE-ACTION PROCEDURES
Attempt Family Dispute Resolution
 Before issuing put in writing
- issues in dispute
- orders sought
- genuine offer to resolve dispute
- 14 days to respond
- give a copy of pre-action procedures
 Costs implications if not followed
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MANDATORY FAMILY
DISPUTE RESOLUTION
 Phased in from 1 July 2007
 Certificate required stating:
- other party failed to attend
- genuine effort made to resolve
- one party did not make genuine effort
- case not appropriate for family dispute
resolution
 Costs implications for not making genuine effort
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MANDATORY FAMILY
DISPUTE RESOLUTION
Exceptions
 Consent applications
 “reasonable grounds” there has been or is a risk of
abuse or family violence
 Some contravention applications
 Urgent applications
 Unable to participate eg. disability, remote area
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PARENTING PLANS
Voluntary written agreement
Not enforceable
Will override previous order
Must be made free from threat, duress or coercion
No requirement to get legal advice
Mandatory requirement that advisors must tell
clients about parenting plans
 FRC expected to encourage clients to enter into
parenting plans
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PARENTING PLANS
Can include:
• who the child lives with
• who the child spends time with
• allocation of parental responsibility
• how to consult where equal P.R.
• communication child will have with parent
• maintenance (unenforceable unless registered
• how to resolve any disputes about plan
• any aspect of care, welfare,development
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Going to Court
New Court procedure
 Judge managed
 Strict rules of evidence abolished
 Less adversarial
 Family Consultants
 Independent Children’s Lawyer
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Best Interests of the child
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful
relationship with both of the child’s parents; and
(b) the need to protect the child from physical or
psychological harm from being subjected to,
or exposed to, abuse, neglect or family violence.
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Best Interests of the child
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors
(such as the child’s maturity or level of
understanding) that the court thinks are relevant to
the weight it should give to the child’s views;
(i) the attitude to the child, and to the responsibilities of
parenthood, demonstrated by each of the child’s
parents;
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Best Interests of the child
Additional considerations (continued)
(k) any family violence order that applies to the child or a
member of the child’s family, if:
(i)
the order is a final order; or
(ii)
the making of the order was contested by a
person;
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Best Interests of the child
Additional considerations (continued)
New Section (4) creates “friendly parent” considerations
Has the parent taken the opportunity to participate ?
Has the parent facilitated or failed to facilitate the other
parent ?
N.B. S (4 A) consider post separation behaviour
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Parental Responsibility
Presumption of “equal shared parental
responsibility”
Does not apply if - reasonable grounds to believe there
is abuse or family violence
- interim order and presumption not
appropriate
Presumption is rebutted on grounds
of best interests only
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Parental Responsibility
If equal - must consult and agree on
“major long term issues”
- Education
- Religious and cultural upbringing
- Health
- Name
- Changes to child’s living arrangements
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Court Orders
Parenting Orders
-where the child lives
-who they spend time with
-allocation of parental responsibility
-how parents must communicate
-communication child is to have,
including by email, text etc.
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Equal time or substantial and
significant time
If equal shared parental responsibility
order made:
-> equal time, if not
-> substantial and significant time
Must apply “reasonable practicality” test
Must apply best interest of child
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Equal time or substantial and
significant time
Substantial and significant time defined
-days that fall on weekends and holidays
-days that do not fall on w/e and holidays
-involves child’s daily routine
-involves special occasions and events
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Equal time or substantial and
significant time
Reasonable practicality test
-how far apart do the parents live?
-parents capacity to implement
-parents capacity to communicate
-impact on the child
-any other relevant matter
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Breach of orders
Court has extensive powers to deal with
breaches
Costs orders can be made
Make up time ordered
Compensation for expenses incurred
Variation of order (could involve changing
which parent child lives with)
Serious cases - fine,imprisonment
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Family Law - abuse and
violence
Balancing exercise
Right of parent to be involved with
child v right of child to be protected from
violence
Now have to establish reasonable grounds
Threat of order for costs for “knowingly”
making a false allegation or statement
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Family Law - abuse and
violence
New definition of family violence
“..means conduct, whether actual or
threatened by a person towards, or towards
the property of, a member of the person’s
family that causes that or any other member
of the person’s family reasonably to fear
for, or reasonably to be apprehensive about,
his or her personal wellbeing or safety”
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Family Law - abuse and
violence
Where does the law protect?
Objects - must protect from abuse, neglect
Best interests:
Primary considerations - need to protect
Additional considerations
- family violence
- family violence orders
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Family Law - abuse and
violence
Where does the law protect?
Mandatory FDR - exception
Court process - fast track abuse cases
No presumption of equal shared P.R.
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Family Law - abuse and
violence
How is abuse dealt with?
Court does not punish
Court does not make a finding of guilt
Best Interests is paramount
Finding of “unacceptable risk”
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Family Law - abuse and
violence
Local Court power to change parenting
order
S 68R - Court can vary, suspend, revoke
earlier parenting order on the making of
a Family Violence Order
Must have new material not before the
Court that made the order
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Family Law - abuse and
violence
Parenting order made after FVO
S68P - if order will be inconsistent with FVO
-Order must specify inconsistency
-Give details as to how order will work
-Explain order to all affected parties
-Serve a copy on police, Local Court
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Grandparents and Family Law
Law has not changed:
-grandparents have always been able to
apply for parenting orders
-child’s relationship with grandparents has
always been a relevant consideration
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Grandparents and Family Law
What is new?
Principles
child’s right to spend time with grandparents
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Grandparents and Family Law
What is new?
Best Interests
- nature of relationship with grandparents
- effect of separation from grandparents
- capacity of grandparents to provide for needs
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Grandparents and Family Law
What is new?
Orders that can be made by the Court
-parenting order can be made in favour
of grandparents
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Relocation under the new law
Previous position
Had to show:
• genuine reasons for move
• good proposals for contact
• best interests of child
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Relocation under the new law
Position now?
Court will have to consider:
• principle of meaningful involvement
• presumption of equal parental responsibility
• emphasis on equal/substantial time
• child’s right to spend time with parents
• parent’s ability to encourage close
relationship with other parent
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