With Christmas approaching and the world seemingly getting back to normal after Covid 19, many people will be thinking of taking a well-earned break to end 2020, either domestically or perhaps overseas.

Some people have family overseas and they may wish to take advantage of the holidays for a visit and to be reunited with loved ones. This is not at all an uncommon scenario with Australia hosting people from many diverse backgrounds, and unsurprisingly children from separated families may have grandparents or other extended family living in other countries.

Travel within Australia for separated families 

Separated parents will be faced with decisions for their children (their own and the other parent’s decisions) that may not have been an issue when they were together. In my experience, quite a common decision where disputes can arise is when one parent may want to take children on an interstate holiday. The reasons why this is an issue can be complex ranging from lack of trust post separation, concerns as to the capacity of the travelling parent to care for the child responsibly – to a parent feeling uncomfortable about a child being far away etc. 

The family law system recognises that making decisions for children is part of the responsibilities of parenthood. Further, where there is “equal shared parental responsibility”, section 65DAC Family Law Act 1975 (“the Act”) requires that parents consult with each other, make a genuine effort to make a joint decision, and that a decision is made jointly. This applies to decisions relating to “major long terms issues” defined in sections 4 of the Act as including things such as religion, health, change of name, living arrangements that would make a parent’s time significantly more difficult and education. 

An interstate holiday is not likely to be a major long-term issue. Section 65DAE of the Act provides that decisions that are not major long-term decisions don’t need to be made jointly and therefore an interstate holiday doesn’t need to be agreed to by the other parent. If there is an order, it would need to be taken during the travelling parent’s time – if children are at school it should be during school holiday time.

When an interstate holiday arises as an issue, sometimes a parent will seek a specific order regulating or preventing interstate travel. 

The Federal Circuit Court, Family Court or a State Court exercising jurisdiction under the Act has power to make this type of order in relation to a child. Section 64B(2)(i) allows the Court to make orders about “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. Further power is contained within section 68B to restrain a person from entering or remaining in a specific area.

An order pursuant to section 64B requires that the Court treat the “best interests of the child” as the paramount consideration for the Judge exercising his or her discretion. Thus, a parent seeking to restrict the travel would need to establish why the order sought is in the best interests of the child. 

For an injunction pursuant to section 68B the Court would have regard to best interests and whether the order was appropriate for the welfare of the child. 

International travel for separated families 

In this context I’m talking about an overseas holiday and not a decision to relocate overseas. An international relocation would be a major long-term issue and required to be made jointly where there is equal shared parental responsibility.

If a proceeding is before the Court, or a parenting order has been made, a party is not permitted to remove a child from Australia without permission. Section 65Y and Section 65Z make it an offence punishable by up to 3 years imprisonment to remove the child from Australia without the written consent of the other parties.

If you are in the process of negotiating a parenting order, and you would like to take a child on a holiday overseas, permission of the other party ought to be obtained and recorded in the parenting order. This can be done on an interim or final basis. If you already have a final order and missed including an international travel clause, you will need written permission to go. 

Usually conditions will be agreed to/placed on the travel such as sufficient notice before travelling, restrictions on what country having regard to Government travel information such as Smart Traveller, a copy of the itinerary being provided to the other party, and contact details while overseas.

If no agreement is reached by the parents, then once again the Court has power to make an order allowing the overseas travel on an interim or final basis (the same power as for interstate travel).

The Court will treat the best interests of the child as paramount once again in making the order. Typically, in this situation the Court will be balancing the benefit to the child in experiencing the travel against any risk that a parent may not return the children to Australia. This is not a legal requirement, but it is the most common reason in my experience why a parent raises an objection to travel. Like with any Court application, evidence would be required to demonstrate why there is a risk a parent won’t return to Australia.

If a parent has concerns and wants to prevent a child’s international travel, they can take steps to place the name of the child on the Family Law Watchlist through the Federal Police. This would prevent a child being removed pending an application to the Court being made with respect to the child. 

If a child’s name is placed on the Family Law Watchlist and later orders are made for travel, it is important to make sure that the child’s name has been taken off the Watchlist before travelling and take a copy of the sealed order to the airport with you.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

Separation is a very difficult time for many people which is not surprising given that typically it combines some form of loss with fear and uncertainty as to the future. 

Family lawyers are not counsellors but a good family lawyer ought to be able to empathise with the situation clients find themselves in; and provide some guidance as to what the best course of action will be in their circumstances.

The best solution for separation is reconciliation provided that underlying issues are addressed. The Family Law Act 1975 section 12C and 12E create obligations on legal practitioners to provide separating people with information regarding reconciliation services that may assist them. 

Often however once people have made the decision to attend the lawyer’s office, they have already explored every option to save the relationship and have arrived at their point of no return.

Everyone’s circumstances are different but, in my experience, the following tips can help make the process less stressful, costly and timelier.

What to do when you have just recently separated?

The very first thing in my view is to get family law advice. You can typically do this in an attendance at a lawyer’s office for a “first meeting” with a lawyer. 

The difficult part for clients is knowing which lawyer to choose, which can also be the most important part. 

For some people budget will make a difference. Many lawyers offer free initial consultations, some give a 20-minute free phone consultation and there are community legal centres available. The thing to remember here is “you get what you pay for”. 

My view is that the initial attendance is of critical importance in providing information that can affect the entire process or outcome of a client’s case. 

Because everyone has different situations and circumstances, I don’t believe a lawyer can be adequately assess a client’s needs, provide advice as to the law, process, evidence and costs within 20 minutes or just “over the phone”. But because lawyers sell their time, it must be costs effective for the lawyer to take the time and manage the client’s budget. 

We overcome this by placing no strict limit on the time a client attends upon us for the advice, while charging a “fixed fee”. Thus, the client doesn’t have to worry about looking at their watch and is free to explore all the questions they may have in an unrushed environment. In my experience at this first meeting, with a well-managed meeting, typically within 1 to 2 hours (at an average of 1 hour 30 minutes) most client’s report leaving our office “feeling better”, with an understanding of what they need to do moving forward. We also offer an after-interview phone call if there is something unclear or if a further question arises.

The information that we impart at this meeting covers issues such as:

  1. A summary of the law and how it applies to the client’s situation.
  2. An explanation of the processes available to resolve the matter by consent and processes if an agreement is not readily forthcoming.
  3. Provide a case strategy.
  4. Provide a strategy to get to an agreement with the other party, how to communicate and the steps most likely to maintain or promote amicable discussions.
  5. What to do and not to do in terms of proposed actions.
  6. Referral if necessary, to other information or service that may assist.
  7. As accurately as possible longer-term costs estimates, estimated costs for different outcomes/strategies, advice as to how to reduce legal costs, examining strategy and outcomes in the context of budget.

In essence, most legal services are about providing “damage control” for a client. “Cost exposure” is a necessary element of damage control, and also important in terms of the information a client needs to make commercial decisions.  

Equally important is expertise. You need to have confidence in the advice you are receiving because, frankly, you’re dealing with your life savings and your children in many family law matters. 

Family lawyers like anyone have different levels of experience and ability. Once thing that can help differentiate between lawyers is whether they are a “family law accredited specialist”. An accredited specialist has been through very rigorous further study, academic examinations, practical examinations and has had a minimum of 5 years’ experience.  Looking at a lawyer’s bio on their firm’s website can be helpful as well.

Some general tips to assist post separation 

From a practical perspective, after receiving initial advice and making contact with a lawyer, negotiations can commence. A negotiated outcome is by far the best outcome that can be achieved in family law. The quicker this can occur is better (and cheaper) still.

My view is that without some information and guidance from a lawyer you shouldn’t really start negotiations. The reason I say this is because unless you understand family law, you’re likely to get into an “information dispute” with the other party. Different people have different ideas about how the system works and if a clash arises, conflict which is counterproductive to negotiation, can result. 

Another reason is a party can become “positioned”. This means something discussed is agreed to or misunderstood, and it can be difficult to move away from later on (say after getting advice). If both parties get advice there should be a fair degree of overlap in terms of expected outcomes, making an agreement more likely.

Maintaining good communication is another tip. I’m not sure if this is ever easy post separation. If you are able to keep things as amicable as possible it will make resolution much more likely. I normally recommend for to people to keep communication “businesslike”, if possible, to negotiate in writing and to avoid “mirroring” if someone says something you don’t like. Mirroring is where someone says something irritating and the other person does the same in return, usually leading to an escalation in conflict.

It is most important though to remember that everyone’s case is different, and strategy should be tailored to your situation. There is no one size fits all in family law. 

Family law advice

If you have any queries in relation to family violence or parenting orders, my firm Hooper Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

It is not uncommon in family law parenting matters for issues of domestic violence to arise. Family violence is relevant evidence for the court to consider in determining what parenting order will be in the best interests of children. 

At the same time, a party to the parenting orders may have obtained a domestic violence order against the other party (or both parties may have orders) and often the children the subject of a parenting order will be named on a domestic violence order.

In my experience this can create confusion for people uncertain whether they can still interact with their children or the other party while an exclusion provision under a domestic violence order (such as not coming within 100 metres of a party or child’s school or residence), is in place,

What is the difference between Domestic Violence and Parenting Orders?

One difference between domestic violence orders and parenting orders is jurisdiction. Domestic violence orders are created under State legislation while parenting orders come under Commonwealth jurisdiction conveyed by the Family Law Act 1975.

Thus, different States have different law and names for these orders. The different State and Territory names are:

  • Queensland – Protection Orders. 
  • NSW – Apprehended Violence Orders.
  • ACT – Family Violence Order.
  • Victoria – Family Violence Intervention Order.
  • Tasmania – Family Violence Order or Police Family Violence Order.
  • South Australia – Intervention Order.
  • Western Australia – Restraining Order.
  • Northern Territory – Domestic Violence Order.

While the names are different, they all serve the same purpose which is to impose conditions on the Respondent to the order to do, or refrain from doing things such as:

  • Be of “good behaviour” and not commit domestic violence towards a person.
  • Not contact or approach a person or within a certain distance of a person.
  • Not approach within a certain distance of where a person works or lives. 
  • Other conditions that are authorised by the State legislation.

These orders are civil not criminal order, but a breach of an order is a criminal offense. 

Parenting orders typically regulate who children live with, how parents are to cooperate in making decisions for their children, and when and how a person spends time and communicates with their children. There is also power in the Family Law Act 1975 to make personal protection injunctions similar to the conditions in domestic violence orders. 

Obviously when one order is saying, for example, a person is not to come within 100 metres of a child or school, but a parenting order provides, that person is to collect the child from school at a certain time, conflict between the orders would appear to arise.

Resolving conflict between Domestic Violence Order and Parenting Orders

A situation similar to the above example recently arose in Tasmania in PQR v Sundram [2020] TASSC 21 where a Magistrate convicted a father of breaching a Police Protection Order when the father attended a school at various times to either speak to the principal and/or visit his daughter. 

The Magistrate dismissed some of the charges, but found him guilty on others, with the above case concerning a review of the charges he was convicted of. 

The issue was an earlier parenting order allowed the father to spend time with his daughter for certain periods of a fortnightly cycle, and that he collect her from school. The subsequent domestic violence order provided that the not come within 50 metres of his daughter or the school. 

Some of the charges related to times when the father was authorised by the parenting order to collect and spend time with the daughter; while other charges related to times not covered by the parenting order. 

The father argued that section 33 of the Tasmanian Family Violence Act 2004 provides, “…[a domestic violence order] operates subject to any Family Court order…” Also, the order with respect to coming within 50 metres of his child was expressed to be “except in accordance with an order of a court of competent jurisdiction…”. Not surprisingly he wasn’t convicted on the charges where he was authorised by the parenting order to spend time.

However, the domestic violence order preventing him from attending the school was not expressed to be “except in accordance with an order of a court of competent jurisdiction”. Therefore, the question was whether it was capable of co-existing with the parenting order. 

The Magistrate found that the father could collect the child from school without approaching within 50 metres of it. It was acknowledged this wasn’t ideal and might present other consequences, but it wasn’t inconsistent. The father was convicted with respect to the counts where he attended the school.

However on review Chief Justice Blow determined the order not to approach the school was “adjunct” to the order not to approach within 50 metres of the children, and neither operated during times that the father was to spend time pursuant to the parenting order.

This left one charge where the father attended the school outside of parenting order times. An argument was raised by counsel for the father that one of the parenting orders allowed for “equal shared parental responsibility”. Parental responsibility means “all the duties, powers, responsibilities and authority which by law parents have in relation to children”, and it was argued this also meant attending a school to speak with teachers. The Chief Justice determined that while the domestic violence order was an impediment to parental responsibility it was not inconsistent.

Queensland Domestic Violence Law

The relevant domestic violence legislation in Queensland is the Domestic and Family Violence Protection Act 2012. There are several sections of this legislation that refer to the interaction of family law orders and Protection Orders:

  • Section 5 and the dictionary schedule define “family law order”.
  • Section 78 requires the State court to “consider” a family law order.
  • Section 79 an applicant must disclose any family law order. 
  • Section 107D requires that a police officer issuing a Police Protection Notice ask about any family law order and not make a condition inconsistent with a family law order or apply to a Magistrate to have a proposed inconsistent condition made.

Within the Family Law Act 1975 section 68R empowers a State Magistrates Court in a domestic violence proceeding to revive, vary, discharge or suspend an existing order, injunction or arrangement under the Family Law Act.

Tips for Domestic Violence matters involving children

If you find yourself as the Respondent to a domestic violence proceeding, I recommend the following:

  • Get legal advice at an early stage. It is important that you speak to someone to give you some orientation and understanding of the laws, system and process you find yourself in. Legal services are expensive however most lawyers, my firm included, only charge a relatively modest fee for initial advice.
  • Make sure you participate in the court process. If you fail to attend court, you will have no control over the conditions on the Protection Order and a final order could be made in your absence. If you’re anxious about court, you can hire a family law solicitor to appear for you or sometimes a “duty lawyer” may be available to assist. In some circumstances you can seek Legal Aid assistance.
  • Tell the court about any family law orders or parenting plans that you have. Depending on the seriousness of the domestic violence allegations most Magistrates will want to ensure children’s rights to have contact with parents is advanced, provided it is consistent with their safety. 
  • If possible, have your lawyer negotiate on your behalf with the aggrieved. Most family violence orders will make exception for things such as communication via lawyers, attending other court or mediation or spending time and communicating with children. Make sure your orders contain these conditions.
  • Make sure you have read and understood the Protection Order conditions. If in doubt, ask your lawyer (or even the Magistrate) what the conditions mean. 
  • Abide by the conditions. Breaching a Protection Order is a criminal offence. 

Of the above my view is the first point and the last point are the most important. Get information early and make sure you don’t breach the order.

Family law advice

If you have any queries in relation to family violence or parenting orders, my firm Hooper Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

The vast majority of Family Lawyers will do everything they can to keep their client’s out of Court and try to settle the cases they run amicably (if possible) and as early on as possible to reduce legal costs. 

A good lawyer achieves this through making sure their clients are well advised as to the range of potential outcomes, has identified issues that may affect the range of outcomes, has worked to resolve information disputes by obtaining valuations and disclosure and provided their client with as accurate as possible costs estimates. This information allows a client to make an informed assessment of risk and weigh the cost/benefit of settling early.

Early settlements are also achieved by maintaining a respectful and non-confrontational communication style with the lawyer representing the other party or self-represented litigant. Third parties such as mediators are also of enormous assistance in resolving disputes at the early stages.

However, despite the best efforts of lawyers and parties sometimes it is necessary to file a proceeding in Court in order to move it forward or resolve a dispute that is intractable. 

To be frank, in any civilised society there is only two options to resolve a dispute, and they are by an agreement reached between the parties or by a Court making an order. 

What does it mean to go to Court?

For Family Law disputes there are three Courts that most often exercise the jurisdiction conferred by the Family Law Act 1975. These are:

  • State Magistrates Court exercising jurisdiction under the Family Law Act 1975. It is not often that a Family Law proceeding would be filed in a State Magistrates Court. Typically, a State Magistrate Court would only be involved to make a “Consent Order” and not hear a disputed matter.
  • The Family Court which is the “higher Court” exercising jurisdiction under the Family Law Act 1975. The Family Court typically hears matters that are more complex such as complex property matters, matters where serious allegation of risk towards children are made and other particular matters such as adoption or disputed medical procedures for children.
  • The Federal Circuit Court is the “workhorse” Court in Family Law matters. This Court is likely where your matter will be commenced, and this Court handles the majority of the “usual” property and parenting disputes.

Many people think that once their matter “goes to Court” it will be heard by the Judge at the first date and resolved. This is not the case. Once a matter is filed in Court a process commences that may take many Court appearances before a resolution can occur.

Why are there numerous Court appearance before a Judge can make a decision?

This is necessary because the reality is matters in dispute are numerous, Judges are few and Court time is expensive for the taxpayer. 

Once a matter is started in Court by filing an Application, the basic process is for the Court to make directions for evidence to be gathered before a “hearing” can occur and for the parties to make further attempts at negotiation or mediation.

The Court process is formal and must be fair to both parties so there are rules that must apply to how the matter is conducted and how the Court receives evidence. Thus, Court appearances have different designations as to what is to occur on a particular day. Again, agreements between the parties are encouraged and almost any agreement can be made, and the matter finalised, regardless of what the purpose of the day is.

The types of Court days are:

  • Mention or Directions – A “mention” is a Court date when the Judge will be informed as to what the matter is about, what the issues are, and what “directions” may need to be made for the collection of evidence or further Court dates. The first date after the Application and Response is filed is usually a mention unless there is some urgency to making an “interim” decision. In the vast majority of cases interim orders for children and what needs to occur by way of directions will be negotiated and agreed at the first Court date. 
  • Interim Application – This is a Court date when the Court must make a decision on a particular issue before the main hearing. Interim hearings are a short process of up to 2 hours duration only. This would occur for example where the interim parenting orders could not be agreed or in a property matter where assets needed to be protected, a party wanted to exclude another party from living at the home or a party needed maintenance or access to some funds. An interim hearing is conducted by affidavits without cross examination and therefore the Court cannot determine any disputed facts. 
  • Callover – This is when the Court will allocate a trial date if the matter is ready to proceed. Trial time is valuable so before allocating this time to a matter the Judge will want to know how many witnesses, how long the matter might take, whether any issues have been resolved etc.
  • Trial – This is likely the last Court date. A trial is where the parties are cross examined on their affidavit, lawyers make submissions and the Judge will make “finding of fact”. This means that after hearing the evidence the Judge will determine what evidence is found to be true. The Judge will then apply the relevant law to those facts.

There are other Court dates that can occur such as “Conciliation Conference” which are similar to mediation or Appeals if a party believes a Judge made an error. 

The good news is that most matters don’t make it all the way to a trial. Most matters settle at some point along the way once the benefit of further evidence is obtained, the Judge may focus attention on a particular issue, costs increase and as other issues are resolved creating motivation for closure.

What should you do when you’re in Court?

The Judge sitting in Court represents the authority of the State to determine a dispute. 

The origin of which date back to the early Norman Kings in England (who had the “divine right of Kings” i.e. said to be appointed by God) and allowed subjects to come before the King to determine disputes. This had a stabilising influence on society by establishing a “rule of law”. I said earlier there are two ways to determine a dispute in a “civilised” society i.e. an agreement or an order from the Court. Without the Court there would be agreements …or whoever was able to use force to get what they want. 

Thus, the Courts are imperative to maintaining a civilised society and it is very important the authority of the Court is respected.

Respect for the Court today means that while you’re in Court:

  • Bow to the Judge if the Judge is sitting at the bench when you enter or leave the Court room.
  • Do not wear any hat or have sunglasses on your head. Dress appropriately. You don’t have to wear a suit or tie if you’re not a lawyer but dressing appropriately communicates to the Court you respect the process you’re involved in. 
  • If you are speaking to the Judge the proper address is “your Honour”.
  • Do not speak to the person next to you in the gallery unless it is absolutely necessary. Sometimes lawyers will whisper to each other with last minute negotiations before their matter is called but this ought to be avoided. The Judge is focused on the matter before them and typically they don’t appreciate being distracted. 
  • Often when you are in Court and supporting a friend, or if it is your matter, you will hear something you don’t like or don’t agree with. In this situation keep your poker face. Don’t smile, roll your eyes, stare at someone, shake your head etc. Don’t be argumentative or rude – especially with the Judge.
  • If you’re self-represented or addressed by the Judge directly focus on listening and not on speaking. It is natural that you’ll want to tell the Judge all of your concerns however this is rarely appropriate unless you’re making submissions at a trial or interim hearing. More often than not this goes badly for the person speaking. The Judge might want specific information so to give that information and don’t try to qualify it or give context. There will be time for that later. The same applies if you’re being cross examined. It’s an exercise in listening and not speaking. Cross examination is where the other party is scoring their points. Your points are in your affidavit so just answer the questions as honestly and succinctly as possible, and if you don’t understand ask the question be repeated and/or say if you don’t understand.

There are fewer physical appearances while Covid 19 is upon us but the same rules apply if you’re appearing by video or phone.

Going to Court is stressful, especially if you find yourself in a trial. It is also expensive and time consuming and it is much preferred that a negotiated settlement can be reached. Before deciding to go to Court you should have a good reason why. You should know what the impediment to settlement is, what will the costs be financially and emotionally, and you need to have confidence in your Family Lawyer providing the advice you are relying on to make these decisions.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. 

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

It is permissible to adopt your partner’s child in Queensland, provided the process prescribed by law is followed. 

In Queensland the governing legislation is the state Adoption Act 2009 (Qld) (“AA”) and the Commonwealth Family Law Act 1975 (Cth) (“FLA”). The adoption process is conducted in the Family Court of Australia, a Queensland Magistrates Court (“Children’s Court”) and via the government department, Adoption Service Queensland – Department of Communities, Child Safety and Disability Services (“DOCS”).

The effect of step-parent adoption is a person assumes parental responsibility and becomes a parent for the child of their married or de facto partner, while the biological parent ceases being a parent and ceases to have parental responsibility under the FLA. Any parenting orders that previously existed cease to be in force.

What is the adoption process?

The adoption process starts with an application filed in the Family Court for leave (i.e. permission) to enter your name in the expression of interest registrar with DOCS to adopt the subject child, and then make an application to the State Magistrates Court.

Section 60G FLA provides:

Family Court may grant leave for adoption proceedings by prescribed adopting parent:

  1. Subject to subsection (2)…the Family Court… may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.
  2. In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.

The requirements of this section were examined by Murphy J in Lowe and Anor & Clayton [2011] FamCA 1024. In this case the application was heard ex parte as the subject child’s biological father couldn’t be located. His Honour noted of the process, “It is somewhat odd that it is necessary to apply to one court for leave to apply to another court for an exercise of the latter’s ordinary jurisdiction. Nevertheless, that is the consequence of the provisions of the Family Law Act 1975.

1. FLA section 60HA(3)(a) and 60F(4)(a)
2. FLA section 61E
3.  FLA section 65J

4.  Lowe and Anor & Clayton [2011] FamCA 1024 at 3

In dealing with the ex parte application His Honour considered evidence from the mother as to the biological father’s whereabouts, her efforts to contact him, past history of significant family violence, his history of psychiatric illness and made an Order dispensing with the requirement for service. 

What are the requirements for leave to adopt a step child?

Section 60G requires that the court consider granting leave only if it is in the best interests of the child to do so, and having regard to:

  • In considering leave for the adoption proceedings to be commenced, best interests must be looked at in light of the fact the child will cease to be a child of the marriage for the purposes the FLA Section 4 FLA defines “child of the marriage” by reference to section 60F(1) to (4) as children to which children the FLA applies. The effect of this is a biological parent is effectively removed from being a person with standing (i.e. a person who is able) to bring an application in relation to the child for a parenting order This also applies to children of de facto relationships.
  • The court must consider that parental responsibility will be re allocated to another person.
  • The Court must consider the effect of existing parenting orders no longer being in effect after adoption.
  • The note to the section makes it clear that “best interests” is determined by reference to the matters that are typically considered by the court exercising jurisdiction pursuant to Part VII FLA in making a parenting order. 

In the decision referred to above Murphy J went on to hold that as an application pursuant to section 60G was “a child related proceeding”, Division 12A FLA also applied, which allows the judge to determine whether strict rules of evidence apply in conducting the hearing. Further, His Honour observed that also these applications are child related proceedings that section 96ZN ought to apply, which requires the court to consider the impact of the conduct of the proceeding on the child, and that the court actively direct and manage the proceeding to avoid undue delay, technicality and form. 

While the Family Court is not required to consider the matters to be determined by the Sate Magistrates Court these matters do bear upon whether the decision to grant leave is in the best interests of the child. 

Her Honour Hogan J said in Hurst and Anor & Chapman [2014] FamCA 506 that in considering section 208 AA the Family Court should not grant leave if appeared proceedings in a State court were doomed to fail because of non-compliance with mandatory prerequisites.

Another requirement of the AA section 16 and 175 is that the biological parent consents to the adoption. In the two cases referred to consent was not available because in one the biological parent was deceased, and in the other couldn’t be located. 

After leave to adopt has been granted

Once leave has been granted the process commences with the adopting parent’s name being entered in the expression of interest registrar with DOCS – Adoption Services Queensland.

This commences a process which culminates in a “suitability report” being produced which is put before the Children’s Court in ultimately determining the final adoption application. An approved form, known as a Form 7 commences this process.

5. Lowe and Anor & Clayton [2011] FamCA 1024 at 32
6. FLA section 60F(4)(a)
7.  However, section 65C(c) may allow a person with an interest in the care, welfare or development of a child standing to bring an application.
8. FLA section 60HA(3)(a)
9.  FLA section 61E
10.  FLA section65J
11.  Lowe and Anor & Clayton [2011] FamCA 1024 at 15
12. Lowe and Anor & Clayton [2011] FamCA 1024 at 16
13.  AA section 208
14. Lowe and Anor & Clayton [2011] FamCA 1024 at 20 to 22
15. Hurst and Anor & Chapman [2014] FamCA 506 at 8
16. AA sections 138 and 203
17.  AA sections 92 and 93

To be eligible to adopt the following must be established:

  • The applicant is a spouse (or de facto spouse) of a parent of the child.
  • The applicant has lived with the spouse parent and the child for a continuous period of at least 3 years.
  • Leave has been granted by the Family Court (as above).
  • The applicant is an adult and resident or domiciled within Australia.
  • The applicant and spouse are Australian citizens.
  • The subject child is agreed between 5 years and 17 years (an application for a child who is 17 can be made if the process can be completed before the child turns 18 and the grounds for the adoption are likely to exist.)

Consent of the biological parent

The general position is that the child’s parents must consent before the adoption can take place in Queensland. The AA provides for counselling to take place as part of this process.

In some circumstances the requirements for consent can be dispensed with, such as:

  • Applicant can’t establish the identity of the parent.
  • The applicant cannot locate the parent after all reasonable enquiries.
  • The parent is a lineal relative of the mother.
  • The conception was as a result of an offence by the relevant parent.
  • There would be unacceptable risk of harm to the child or mother if the relevant parent were made aware of the birth or proposed adoption.
  • Other special circumstances for giving dispensation. 

The term “exceptional circumstances” is referred to in section 208(f) (requirements for making a final Order) and the example given is “a parent of the child has died or cannot be located after making all reasonable enquiries.” 

18. 18.  AA section 92
19. AA section 16 and 175
20.  AA section 36(4)

Children’s Court

After the permission from the Family Court is granted to commence the adoption and all of the assessments have been made, an Application is filed in the Queensland Magistrates Court (sitting as the Children’s Court) for a final Order.

The final Order is made pursuant to section 208 AA and the requirements are:

  • The child is present in Queensland.
  • The step-parent is an adult resident or domiciled in Queensland.
  • The step-parent or their spouse is an Australia Citizen.
  • The suitability matters (referred to above) are satisfied.
  • An Order for the adoption would promote the child’s well being and best interests other than could be achieved via a Parenting Order made pursuant to the Family law Act 1975.
  • There are exceptional circumstances that warrant making an Order (such as death of the biological parent).

If you are considering adopting a step-child Hooper Family Lawyers can guide you through the process and requirements.

Peter Hooper – Hooper Family Lawyers Gold Coast and Brisbane – We are Family Law specialists, providing Expert Family Law advice and representation. 

The Federal government has enacted changes to the Family Law Act 1975 (FLA) that will prohibit the cross examination by self-represented parties in proceedings where there are family violence issues.

Family violence in the FLA means violent, threatening or other behaviours that coerces or controls a family member or causes them to be fearful.

The changes will apply when family violence is alleged in child custody, property settlement or spousal maintenance proceedings, and any one of the following situations also occur:

  • One of the party’s has been convicted or charged with an offence involving violence, or threatening violence to the other party. Typically, this would be a situation when a party has breached a domestic or family violence order or committed assault and has been charged or convicted.
  • A domestic or family violence order has been made under State legislation (such as a DVO, AVO or Protection Order – the terminology differs between States) and applies to both of the parties i.e. they are the aggrieved and respondent. While the new rules apply to family law matters which are under Commonwealth jurisdiction, domestic or family violence orders come under the powers of the States. Temporary orders aren’t relevant here, only a final order.
  • An injunction under Section 68B or 114 of the Family Law Act 1975 for the personal protection of either party has been made. This is effectively the Commonwealth version of a State domestic or family violence order.
  • The Court determines that cross examination by self-represented parties should not occur in the particular facts of the case. Thus, the Judge can decide the parties shouldn’t be permitted to cross examine each other.

Therefore, in family violence matters as set out above, the parties will need their own family law advice and divorce lawyer to conduct the cross examination for them.

We specialise in family law matters and can assist parties from Lismore to the Sunshine Coast, throughout Greater Brisbane, Northern NSW, Tweed and the Gold Coast with court representation and advice. Get in contact today and in an initial consultation we can give you guidance as to your options, likely outcomes and costs.

What if a party can’t afford legal advice or legal representation?

In these circumstances a party may apply to the Commonwealth Family Violence and Cross Examination of Parties Scheme, to have a family lawyer and barrister appointed for them to conduct the cross examination.

Applying for a lawyer will be done via the state Legal Aid offices, is not merit or means tested and the application must be made at least 12 weeks before the final hearing.

This means that regardless of your financial circumstances you will be able to have the lawyer represent you for the cross examination.

We are Legal Aid Queensland panel solicitors and can assist you with applying for Legal Aid as well as Legally Aided court representation.

When is cross examination necessary?

Cross examination of a witness in family law cases usually only occurs at a final hearing.

Therefore, if you have reached an agreement via mediation or through consent orders or parenting plan, then cross examination won’t be necessary.

If your matter is going to court and you need assistance, contact Hooper Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Family Lawyers Coolangatta on (07) 5599 3026.

 

 

Working with accountants – Family trusts and separation

“Family trusts” are a common structure through which people may operate a business or hold assets.

There are various reasons why people may choose to place assets within a trust structure, but how are these structures (and other trust structures) regarded in the event of separation, divorce and family law proceedings? Do they offer any protection from a claim by an ex-spouse with respect to assets held by the trust?  And what issues arise in the family law context?

What is a family trust?                          

A family trust is typically a discretionary trust generally set up by a family member with other family members being the beneficiaries of the trust.

Primarily family trusts are established to achieve tax minimisation in the manner by which trust income and capital is distributed to the beneficiaries; and to provide protection to the assets of the trust. Protection of assets occurs because the legal interest in the assets is held by the trustee for the benefit of the beneficiaries.

Thus, trust asset protection can be achieved as assets are kept separate from the claims of the creditors of any individual beneficiary.

But do trusts protect trust property from a spouse of a person who may be a beneficiary or trustee of a trust?

What is property in the family law context?                                 

For the purposes of the Family Law Act 1975 the term “property” has a very broad definition. The Full Court has said:

“The word “property” is the most comprehensive of all the terms which can be used, in as much as it is indicative and descriptive of every possible interest a party can have.”[i]

Property can be real or personal and has been held to encompass interests including shares in Pty Ltd companies, partnership interests, contractual rights, rights under trade licences, beneficial interests in administered estates and rights with respect to property held in trusts.

Therefore, in being called upon to determine whether trust assets ought to be regarded as property for family law purposes, Judges will take a broad approach to answering that question.

In determining whether the assets of a trust ought to be included as property of the parties available for distribution between them, Courts exercising jurisdiction pursuant to the Family Law Act 1975 will examine what “influence and control” a party may exert over the trust.

The types of factors that the Court will look for include:

  • What position or role within the trust do the parties have within the trust structure? (i.e. settlor, appointer, trustee and beneficiary)
  • What distributions have occurred in the past?
  • Are there debit or credit loans/accounts?
  • What benefits have the parties received in terms of payment of expenses or salaries etc?

The High Court has held that in a situation where neither the husband or wife is a beneficiary of the Trust, the assets of the trust can be available for the “matrimonial property pool” based on factors such as the assets having been built up by the contributions of the parties over a long period.[ii]

In Kelly and Kelly (No2) the husband had no interest in the trust however the Court determined control based on his relationship with those who had an interest and that he received indirect financial advances. In this case the directors of the corporate trustee were the husband’s accountant, brother and wife. The husband was not a settlor, appointer or beneficiary.

Where the Court does not consider that the assets of the trust ought to be treated as property of the parties (such as where a party has a beneficial interest in a discretionary trust), it may be still be relevant to consider whether the interest is a mere expectancy (and irrelevant) or a financial resource of a party leading to an adjustment of the percentages of the overall matrimonial property pool each party receives.[iii] This is a situation where the history of distributions will be important evidence in firstly determining whether there is a financial resource, and secondly the weight to be applied (i.e. the level of percentage adjustment).

Other issues for Gold Coast family law solicitors and accountants?

There are a number of practical issues that arise in terms of proving a party’s case with respect to the trust and its assets, and with respect to how property may be distributed from a trust to a party to the marriage.

 

Family Law Disclosure

To determine the question of control, determine what interests the parties hold, and/or gain an understanding of what assets the trust holds, documents and information will be required. Often these documents will be held by a party’s accountant, and it is not uncommon for a spouse to lack access to documents, information or an understanding as to how the family financial affairs are structured.

The Family Court and Federal Circuit Court Rules require parties make “full and frank” disclosure.[iv]

The types of documents family law solicitors will typically request from a party or their accountant are:

  • Tax returns with attached financials to determine what is the financial position of the trust;
  • Trust deeds (including deeds of variation) to determine the structure and issues of control;
  • For any corporate trustee a copy of the corporate constitution;
  • Bank statements and any credit card statements for trust accounts evidencing transactions;
  • Minutes of trustee meetings relevant to control and history of dealings;
  • Register of assets and/or register of distributions;
  • Loan agreements with respect to loan accounts;
  • If the trust is operating a business (as is commonly the case), disclosure of relevant business records to determine value, assets and financial dealings.

The above is not exhaustive, and disclosure will be required depending on the circumstances and relevance.

If a party refuses to disclose, it can impact negatively upon their case and cause the Court to draw adverse inferences in some situations.

Further, trustees have obligations under State and Territory legislation to maintain certain records which beneficiary have a right to inspect. Subpoenas are also an available remedy to compel a recalcitrant party (or a third party such as an accountant) to provide documents or give evidence.

Issues for family law settlements involving trusts and transfer of property from trusts to a spouse or former spouse

There are a number of issues that can arise in relation to transfer of trust assets and income at separation.

These types of issues include:

  • Capital Gains Tax (“CGT”) – where an asset pregnant with CGT is transferred from the trust to a spouse (or de facto spouse). In this situation the spouse takes the asset pregnant with the CGT however the transfer from trust to spouse attracts CGT rollover relief.[v]
  • Tax issues from settlement distributions – If as part of a family law settlement a distribution from a trust is contemplated, it will be important to determine whether the intended recipient is still a beneficiary. A spouse who was a beneficiary may no longer be a beneficiary as at the date of settlement. For example, if the parties are divorced and the former spouse doesn’t fit the definition of a class of beneficiary pursuant to the deed after the marriage is dissolved. This can create issues as to how the ATO will regard and tax the payment.
  • Tax issues from past distributions – If tax hasn’t been assessed on past financial years distributions, the tax needs to be considered in determining the overall pool available for distribution and whether the liable party will pay, or if the other party will be responsible for the tax. Sometimes it is an issue that tax on prior years distributions is payable, but that spouse party hasn’t received the distribution (income splitting between spouses). In this situation however, the beneficiary can enforce the actual payment of the distribution.
  • Division 7A Income Tax Assessment Act 1936 – In some circumstances where distributions have been made to a private company, but not paid (present unpaid entitlements or UPE), Div 7A tax may be payable.

It is important for family lawyers drafting orders to consider all the potential issues arising from the proposed transfers, and where applicable, ensure that clients obtain accounting advice before finalising property settlement orders.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice.

We are family lawyers servicing all areas in Brisbane and on the Gold Coast.

[i] In the Marriage of Duff (1977) 29 FLR 46 – approving the statement by Lord Langdale MR in Jones v Skinner 5 LJ Ch. 87.
[ii] Kennon v Spry (2008) FLC 93-388 – in this case the trust was set up by an expert on the law of trusts likely for the purposes of placing assets beyond the reach of the wife.
[iii] Kelly and Kelly (No2) FLC 91-108.
[iv] Family Court Rules 2004 R13.04 and Federal Circuit Court Rules 2001 R20.04.
[v] S 126-5 Income Tax Assessment Act 1997.

It’s that time of year again and things can become a little tense as holiday, Christmas Day and New Year plans for separated families are negotiated or implemented.

Separation is never easy; and special occasions like Christmas can often be very difficult, highlighting the reality of the changed living arrangements post separation. This can be the case for parents who have “custody of children” as well as for the parents who have arrangements traditionally thought of as “access”, “contact” or “spends time and communicates”.

The important thing to remember in any post separation parenting situation is negotiations occur “in the shadow of the law”.

This means both disputing parents ought to consider how the law might apply to their circumstances when they are engaging in negotiations.

The law empowers judges to exercise “discretion” to make parenting orders, and the process by which this occurs is complex.

However, two very important propositions bear heavily in the mind of a judge being called upon to make a parenting order. These are:

  1. Children have rights; while parents have responsibilities;
  2. Parenting arrangements ought to be in the best interests of the children.

From a practical perspective the best thing for both parents to do is remain “child focused”. This means try to consider what arrangements will place the best interests of the children, ahead of their own interests or feelings.

In my experience as a Brisbane Family Lawyer, some of the things that may be relevant for you to think about, or ask yourself, in making parenting arrangements at Christmas:

  • Making Christmas time a happy childhood memory. One of the most important issues for children’s mental health is to not be exposed to disputes between their parents. Studies have shown witnessing family violence generates similar response in children as having violence directed towards them; and some writers argue “exposing a child to domestic violence is a form of abuse in itself, regardless of whether the child is the target of such violence or not.”
  • Would the children be excited to see both of their parents, grandparents and other people who are important to them on Christmas Day? Is splitting Christmas Day in half what the children would likely prefer? Or would they be happier not to travel on Christmas Day; instead spending Christmas with one parent one year, and with the other the next;
  • If one parent has issues affecting the children’s safety, such as drug or alcohol problems, is there someone trusted who might supervise the time?
  • Will you let them take some of the gifts to the other parents home? Sometimes an item can represent a connection to the home they are not in;
  • Can they give a gift to the other parent?
  • Have you made planned holiday activities and outings, and taken time off work etc.

These are adult issues and it’s not a good idea to question your children directly as to what they want. Hopefully you know your children well enough to have an instinctive knowledge of what parenting arrangements they would prefer.

One of the most child focused post separation steps you can take for your children is to be “business like” in your dealings with the other parent, even in difficult circumstances, or when Court proceedings have commenced.

If you are dealing with a difficult or litigious ex-partner in a parenting matter, conducting yourself in a manner consistent with the above will be important evidence that you are child focused.

Judges make Orders they think will promote children’s rights and best interests. In my experience it is usually very obvious to the Judge whether one party (or both) is not behaving in a child focused way. If it’s not obvious immediately, it will usually become obvious as the litigation proceeds.

If you need the assistance of the Court to spend time with your children at Christmas, remember this is traditionally a busy period, and it is a good idea to get advice as earlier in the year. Rule 5.01A Family Law Rules 2004 provides the application must be filed before 4.00 pm on the second Friday in November of the application year if it relates to Parenting Orders during the Christmas School holiday period.

Ref: Flood and Fergus 2008 referred to in Morgan A and Chadwick H (2009) “Key Issues in Domestic Violence” Australian Institute in Criminology, Summary Paper No 7, at 8.

 

Since the 2006 Howard Government amendments to the Family Law Act 1975 the idea of equal time or shared care has gained greater prominence. This has occurred as a result of introducing two sections, the effect of which places the concept of equal time or shared care, at the forefront of the Judge’s reasoning.

In addition to these amendments, inaccurate media reporting has in my view contributed to a higher awareness among litigants as to the availability of equal time and shared care, and more application or consent orders for equal time or shared care.

Family Law Act 1975 – 2006 Amendments
There are two sections that primarily serve to promote the idea of equal time and shared care. They are:

1. Section 61DA – this section introduced a rebuttable presumption that equal shared parental responsibility is in the best interests of a child.

Parental responsibility is the responsibility for making long term decisions for a child, not “equal time” or “shared care”.
This may be open ended but the Family Law Act 1975 definition in section 4 provides some examples of these decisions, including education, health, religion and culture, name and location of the child’s residence that would make it significantly more difficult for a parent to spend time.

As stated above, the presumption is rebuttable (by evidence that equal shared parental responsibility is not in the best interests of a child); and won’t apply where there are reasonable grounds to believe a parent (or person living with a parent) has engaged in abuse or family violence.

Where the presumption does apply, a further section is relevant to the question of equal time or shared care. This section is:

2. Section 65DAA – this section provides for a 3 tiered pathway to be considered by the judge in making a parenting order. The steps are:

a. To consider an order for equal time; and if not reasonably practicable or in the best interests of a child;
b. To consider an order for substantial and significant time; and if not reasonably practicable or in the best interests of a child;
c. To consider what order is in the best interests of a child.

Thus the first consideration is for equal time or shared care but consideration to make this order is subject to it being in the child’s best interests (Section 60CC(2) and (3) contains the best interest factors); and for it to be reasonably practicable for such an arrangement to occur.

The requirement for “reasonably practicability” is important and covers both what is physically practicable and emotionally practicable for a child.

Prior to the above amendments there was little in the way of guidance from the court with respect to equal time or shared care because for many people co-parenting in an equal time or shared care arrangement it had been arrived at by agreement (and thus no judicial determination was warranted).

An example however of a decision prior to the amendments which I consider offers comprehensive guidance on the best interests and reasonably practicability of equal time and shared care is Federal Magistrate Ryan (at the time) in T and N [2001] FMCAfam 222. In this decision Her Honour set out the indicia of factors to be examined by a court where a person seeks equal time or shared care as follows:

  • The parties’ capacity to communicate on matters relevant to the child’s welfare.
  • The physical proximity of the two households. Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
  • The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?
  • Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
  • Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
  •  Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
  • Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
  •  Whether or not the parties respect the other party as a parent.
  • The child’s wishes and the factors that influence those wishes.
  • Where siblings live.

My view is if you’re considering seeking equal time or shared care, regard should be given to the above in formulating your proposal. Every case is different however and advice from a Brisbane Family Lawyer will assist you to determine what your best case is.

Family law advice

If you have any queries in relation to separation, divorce, de facto relationships, property settlement or child support payments, my firm Hooper Family Lawyers can assist you with practical advice. We are Brisbane Family Lawyers servicing all areas.

In the period leading up to Christmas our office routinely receives enquiries from people about “child custody”, “custody rights”, “family law custody” or “child custody laws”.

While these terms haven’t been used in the family law context since 1995[i], and given we are almost 20 years down the track; they’ve remained in the minds of some people presented with parenting issues.

There’s been a change in terminology in family law due to a shift in the context in which the court examines a parenting dispute.-In approaching the exercise of making a parenting order, the court comes from a perspective that while children have rights; parents have responsibilities.

Terms that suggest ownership or right such as “child custody rights” i.e. my right to child custody, are not relevant to the modern Family Court. Further, parents who think in these terms may be inadvertently doing a disservice to the presentation of their case.

So how should I approach Family Law child custody? And what if I don’t want to go to Court?

Whether or not you want, or need, to go to Court the best outcomes for your children (and most likely for you) will be achieved by “child-focused thinking”.

This means framing your proposal for the separated co-parenting arrangements according to the following types of considerations:

  • Is the proposal “businesslike”? Have you been able to put aside your animosity towards the ex partner when considering the proposal?
  • Has the proposal been considered in terms of what is practical for the children?
  • Is the proposal likely to be enjoyable for them?
  • Does the proposal make concessions as to what benefits they receive in the other household?
  • What are your motivations in making the proposal? i.e. are you looking to advance the children best interests?

Some of the rights children have are to enjoy spending time regularly with both parents, (consistent with what is necessary to keep them safe from harm), have meaningful relationships with both parents and extended family, receive adequate and proper parenting etc.

In my experience not many parents consulting a Brisbane family lawyer would disagree children should not have these rights or that children are “property” such as is suggested by thinking in terms of custody laws.

What about this Christmas – I don’t have parenting orders or a parenting agreement in place?

Some ex partners are difficult (believe me I know).

The best you can do is control what you’re doing. This is an area of law where two wrongs don’t make a right.

Remember you need to be child focused; and you should act “responsibly” for your children. Here are some tips for Christmas holidays negotiations:

  • Try and use email for your communications. While face to face may be best to repair a relationship, not so here. Remember your email may end up annexed to an affidavit so behave in a businesslike and child focused manner when communicating your proposal;
  • As part of being child focused think about your proposal. Cover the above points.
  • Avoid being reactive. He or she may say something stupid, insulting, threatening or abusive. Don’t react – you have it in writing;
  • During the festive season don’t drink text or email. At Christmas many people have a few drinks and emotions are running high with separation and absent children at a family time of year. Again, the focus needs to be the children and not your own pain. Things will work out long terms if you stay calm;
  • Look after yourself. Don’t overdo it and set those resolutions in place for the New Year. I often say to my clients “it’s a marathon not a sprint” which is particularly relevant when dealing with a difficult ex partner.

I hope anyone taking the time to read this has found it helpful and informative. Have a merry Christmas in 2014; and a Happy New Year in 2015.

Peter Hooper – Hooper Family Lawyers


 

[i] The Family Law Reform Act 1995 (Cth) replaced part VII of the Family Law Act 1975 (Cth) (“FLA”) and changed the terminology when dealing with children’s matters from “guardianship”, “custody” and “access” to “specific issues”, “residence” and “contact”.

The Family Law Act 1975 has most recently been amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) which commenced operation on 1 July 2006. This amending Act changes the terms “residence” and “contact” to become “living with”, “spending time” and “communicating with”.