Family Law-the new changes

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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 DECISIONSABOUT CHILDREN MADE?

• Informal agreement
• Informal written agreement
• Parenting plan
• Consent order made by Court
• No agreement - application to Court -gt
• 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 Childrens Lawyer

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Best Interests of the child

• Primary considerations
• The primary considerations are
• the benefit to the child of having a meaningful
• relationship with both of the childs
  parents and
• 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 childs maturity or level of
understanding) that the court thinks are relevant
to the weight it should give to the
childs views (i) the attitude to the
child, and to the responsibilities of
parenthood, demonstrated by each of the childs
parents


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Best Interests of the child

• Additional considerations (continued)
• any family violence order that applies to the
  child or a
• member of the childs 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 childs 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 -gt equal time, if not -gt 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 childs 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 persons family that causes that
or any other member of the persons 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
• childs relationship with grandparents has
• always been a relevant consideration

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Grandparents and Family Law

• What is new?
• Principles
• childs 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
• childs right to spend time with parents
• parents ability to encourage close
• relationship with other parent