I have noticed that as the Covid-19 crisis has continued, many parents have sought advice as to whether the lock down and restriction of movement means parenting orders no longer need to be complied with. 

In some case I have seen parents use Covid 19 as an excuse to breach orders in circumstances that in my view represents a clear breach. I currently have instructions to file proceedings on one such matter. 

Unfortunately, there is never an easy answer to whether a decision to breach an order amounts to a “reasonable excuse” and Covid 19 is not something we have seen before. 

Helpfully the Family Court and Federal Circuit Court of Australia have released a statement from the Honourable Will Alstergren, Chief Justice and Chief Judge of those courts, to assist the public and provide guidance.

Are the courts closed during Covid-19?

No. The courts are open and hearing cases. Most courts have however modified their procedures to decrease the necessity for personal contact. This means more court appearances being heard by electronic means (telephone or video). 

There are also procedures to increase the use of electronic documents (discussed in my previous blog on this topic) and since then a move away from requiring signatures on Affidavits (see Joint Practice Direction 2:JPD 2 of 2020 – Special measures in response to Covid-19).

The Attorney General Department has also classified legal services as “essential” and thus family lawyers and courts are available to assist people in need for the duration of the crisis.

General guidance for parents during Covid-19

Every family is different, every situation involving children is different so no written statement can ever substitute for advice from a Brisbane Family Lawyer or Gold Coast Family Lawyer.

His Honour however has penned 14 points which I will paraphrase here, that are very helpful in guiding people to make the best choices at this difficult time. 

  1. Act in the best interests of your children, particularly with regard to safety and wellbeing. Courts make orders in the best interests of children but day to day decisions are the responsibility of parents.
  2. Consistent with best interests is continuing to comply with Orders for time and communication.
  3. Situations may arise that make compliance impossible i.e. if a Contact Centre is closed. Other situations may raise an immediate safety risk – such as where a parent or person close to them has Covid 19. These situations may amount to a “reasonable excuse” not to comply. However, a in such a situation a Judge would need to agree with you on a contravention application. 
  4. As a first step, parents should communicate with each other (if it is safe to do so). This ought to be conducted “reasonably and sensibly” and aimed at achieving a practical solution to the issue. 
  5. If there is going to be a change to arrangements, even for a short time, they should be reduced to writing so everyone understands the agreement. 
  6. If people need guidance with an agreement, there are services such as the Family Relationship Advice line (1800 050 321) that can provide assistance and family dispute resolution services. 
  7. Lawyers such as Hooper Family Lawyers can also assist with mediation service and helping negotiate an agreement. 
  8. If necessary, Consent Orders can be filed electronically.
  9. If parents can’t agree or it is unsafe to negotiate, and there are real concerns, the parents may approach the court electronically for a variation to orders.
  10. Where there is no agreement, parents should keep the children safe until the dispute can be resolved. Further, if time is stopped there should be some contact between the other parent and children.
  11. Act reasonably. Section 70NAE Family Law Act 1975 makes “reasonable excuse” a defence to a contravention and therefore a matter relevant to the court.
  12. If the strict letter of the orders cannot be adhered to, parents should ensure the purpose or spirit of the orders is respected.
  13. If there is some immediate danger to a child contact the police.
  14. Perpetration or threats of family violence is never in a child’s best interests.

His Honour went on to clarify that the community can be assured the court will continue to perform their duties during the Covid-19 crisis.

Family Dispute Resolution (such as mediation) during Covid-19

It remains the case that Section 60I Family Law Act 1975 must be complied with requiring that before commencing court proceedings (unless one of the matters in Section 60I(9) applies) parents must attend mediation before filing proceedings in a court for a parenting order.

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.

We are certainly approaching unprecedented and concerning times. While most people would agree that the health of the community and limiting the spread of the virus is paramount, it is also critically important that regular life carries on despite this pandemic.

There is no doubt that over the next few months we will need to adapt in different ways, and within the legal profession this has started to occur with respect to the way lawyers and the Courts will carry on delivering our services.

Parenting Orders during the Covid 19 Pandemic 

There is no doubt heightened anxiety, and fear for children transitioning out of a parent’s home in the current climate. However, the crisis doesn’t mean that Parenting Orders don’t need to be followed. 

There are penalties for noncompliance with Orders without a “reasonable excuse” and increased cost and conflict inevitably results from a Contravention of Parenting Orders. 

I don’t intend to examine the law surrounding Contravention Applications here, but I would recommend that if you think you have a reasonable excuse to contravene a Parenting Order, that you obtain advice from an Accredited Specialist Family Lawyer before you take any such action. Similarly, if you believe there has been a contravention without reasonable excuse, obtaining timely advice is important.

What is invariably best for your children (and your wallet) however is some common sense, flexibility and good communication. You can always negotiate outside of the Orders and come to an agreement in unusual situations. 

The Family Law Section of the Law Council of Australia has put out a 10-point Guide to help separated parents during Covid 19. These are:

  1. Keep yourself and your children healthy – Follow advice and guidelines such as social distancing, hygiene i.e. hand washing, coughing into your elbow etc. Inform your children how and why these things are important. Communicate what you’re doing to the other parent and try to establish a routine between the two households.
  2. Consider that your children don’t process these events in the same way as adults and they may be very anxious. You can be certain they are hearing a lot of what is going on in news reports and they will have received information via schools. Some kids may have had important events they were looking forward to being cancelled, and they may be missing their school friends.
  3. Meet your Parenting Order obligations. If challenges arise (travel restrictions or quarantine) there may be a reasonable excuse but communicate and look for other options.
  4. Try other methods such as FaceTime etc to keep children in contact with their friends, other family members etc. Adapt your routines and activities.
  5. As difficult as it might be, do your best to be on the same page as the other parent especially around the things you will do to limit the potential for exposure to the virus. Be open about your concerns and raise them in a non-accusatory, open, businesslike manner.
  6. Be flexible and mutual. If you are asking the other parent for a concession in the best interests of the children, make a concession as well. What I mean by this is allow “make up time” for example.
  7. Show compassion. Not everyone will react to the crisis the same way. Try to remain calm even when your ex-partner is not.
  8. When disagreements arise look for solutions and compromise. Emotions are high and Courts will have increasingly limited availability (discussed below), as will other dispute resolution services.
  9. Try to work together. Some parents may be out of work, while other parents may work in essential service during time when schools are closed. Can you help each other out? As much as possible your children will benefit greatly by not just having you work together; but by seeing you work together.
  10. Staying positive especially when your children are watching. They take their cues from you. This will end and we will get back to normal.

What if I need Family Law advice during the Pandemic?

Hooper Family Lawyers will be fully operational during the Covid 19 crisis. 

Our practice management (and client file management) has been electronic for 10 years and our system is cloud based. We can view your complete file from a mobile phone or other computer or device. 

During this time we can take our instructions, including initial instructions, over the phone. 

We regularly represent people in mediations electronically and appear in Court electronically. 

Many businesses will need to adapt to the crisis, but we are fortunate in that our practice has embraced remote technology for many years. This means minimal disruption to us delivering our services to you.  

Will the Courts be shut down? Should I bother with this now?

The Courts (Commonwealth and State) have issued a number of Practice Directions with respect to the way the crisis will be managed. I only intend to focus on Courts relevant to my clients here.

Southport Magistrates Court – Guideline 1 of 2020 (Made under Practice Direction 2 of 2020):

In Domestic Violence Matters appearances by legally represented parties are excused and all parties may appear by phone.

For the filing of Protection Order Applications, this can be done by post of it is not urgent. In urgent matters the Police can be contacted to obtain an urgent Temporary Order. Similar process for appearance in the Southport Magistrates Court sitting as the Children’s Court.

Family Court and Federal Circuit Court Listing Arrangements:

Each registry may adopt their own operational requirements however the following are generally being implemented:

For first Court dates, mentions, interim hearings and directions, telephone procedure will be:

  1. The Court will contact the parties to indicate matters will be heard by phone.
  2. After being notified a party may approach the Court to seeking that the matter does not proceed by phone if, a. it is not practicable to do so; or, b. the matter is urgent and requires “face to face” hearing.
  3. If “face to face” is required, the parties should contact the chambers of the presiding judge by email and provide a brief outline as to why the matter is urgent and/or requires “face to face”. 
  4. If telephone is not practicable, and the matter is not urgent, it may be adjourned to a future date to be advised.
  5. Otherwise the Court should have the contact details (i.e. telephone) at least 2 days prior to the hearing.
  6. If the parties can agree on Interim Orders or Directions in advance and not require a hearing, they can simply be emailed to the Associate for Orders to be made by consent. 

In some ways the above may be a blessing in disguise. I have long believed that telephone duty lists before Registrars for Directions and Consent Orders would be a good idea. Primarily because this would save litigants a lot of money in legal costs. 

When your lawyer can sit in the office, do other work, and then take a call to appear and represent you, you are saving money because your lawyer is not out of office for half a day travelling and waiting to appear.

For Hearings (i.e. Final Hearing or Trial) the process will be:

  1. Callovers for each matter will be conducted by each Judge by telephone over April 2020 and May 2020. 
  2. The Judge will want to know the urgency and status of each matter to prioritise Hearings and whether Hearing by telephone could occur.
  3. Cases that are of lower priority may be referred to FDR (Family Dispute Resolution). Cases of high priority will be listed and be heard in accordance with the “face to face” protocol (discussed below).

Face to Face in Court Protocol 

There are several protocols for Court Hearings designed to limit the risk of infection to the public, Court Staff and Judges. These are:

  1. As stated above. Urgent matters will receive listings. Listings will be staggered so that people can maintain social distancing and not have to congregate in Court foyers. To reduce the length of hearings written submissions etc will be permitted. 
  2. No more than 8 people will be allowed in the Court room (excluding the Judge and Associate). Solicitors, Counsel and parties will have designated areas to maintain distance. Parties are required to exit the Court room and building immediately after the Hearing. 
  3. Additional Court room cleaning. Hearings will occur for not more than 1.5 hours at a time and will be closed for cleaning afterwards. 
  4. Security screening will be staggered for social distance to be maintained. The Court is looking into obtaining contactless thermometers to allow for non-invasive temperature measurement.  If anyone at Court displays symptoms, they need to immediately notify and leave the Court (hopefully this won’t occur during intense cross examination…).

Practice Direction PD2 of 2020 – Electronic filing annexures to Affidavits and viewing of subpoenas

All documents are now permitted to be filed electronically. If the documents can’t be filed on the Commcourts Portal, they can be emailed to the Registry to be filed. Hard copies should not be posted or delivered to the Registry except in limited circumstances (such as where a party is self-represented and has no email).

Unless total annexures are more than 2 centimetres, they should be attached to the Affidavit when it is filed electronically. If the documents is more than 2 centimetres an Application should be made to the Registry Case Coordinator who may liaise with the Duty Registrar and Docket Judge.

If the Application is successful, the documents can be emailed to the Court for filing.

Practice Direction PD3 of 2020 – Electronic filing and viewing of subpoenas:

Subpoena viewing appointments should only be made if there is a Hearing within the next 4 weeks or the matter is urgent.

Do I need a lawyer now or should I wait for the Covid 19 crisis to end?

If you are in a Family Law dispute it is always a good idea to get advice. In most situations a good Family Lawyer can assist you to find a fast and amicable solution.

If the fast and amicable solution cannot be found, there are options for FDR such as mediation or arbitration that can be utilised at this time when Court availability is restricted.

If you need a Court option, there will be delays. But bear in mind the Court system was experiencing delays (largely due to lack of funding) before Covid 19 reared its ugly head. This means when Covid 19 goes away it will be busy, and it is a fair assumption that non urgent matters will be prioritised “first in time”. 

Financial uncertainty is another factor in preventing people seeking help. At Hooper Family Lawyers we can explore options such as deferred fees, Legal Aid and fixed fees to assist with the financial burden. 

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.

The Federal Circuit Court has issued Practice Direction No2 of 2020 which sets out more streamlined procedures for dealing with matrimonial property settlement matters. 

The new procedures apply to cases with a total net value of property less than $500,000 (called PPP500 cases i.e. Priority Property Pool cases) and apply to family law property settlements in Brisbane filed after 1 March 2020.

The purpose of the Practice Direction is expressed to achieve “just, efficient and timely resolution” of cases with less than $500,000 net property for distribution. In order to achieve this the [practice direction requires:

  • The parties attend mediation or some other alternative dispute resolution at the earliest possible opportunity; and 
  • If alternate dispute resolution isn’t successful, to provide for a less adversarial hearing or a hearing “in chambers” without the need for witnesses and cross examination.

The process is being trialled in the Brisbane Family Court Registry (and in Paramatta, Adelaide and Melbourne), and is available if an initiating application has been filed for a matrimonial property or de facto property settlement after 1 March 2020.

To be eligible a matter, as stated above, must have total assets and super less than $500,000 and there must be no entities such as companies, SMSF or trusts requiring valuation or other expert evidence to determine issues such as control. If the criteria are met the Court may declare the matter is a PPP500 case. 

There are specific exclusions to the pilot program for any matters involving parenting applications (including where parenting and property issues are relevant), contravention applications, child support or child maintenance issues or spousal maintenance issues. 

Bringing a PPP 500 Application

Pursuant to Rule 2.04 Federal Circuit Court Rules 2001 (“the Rules”) a new for called the Financial Summary form has been approved.

Where litigants consider that the PPP500 ought to apply, they may commence proceedings by filing the Initiating Application along with the Financial Summary form. 

In situations where proceedings have been commenced in the regular manner (with an Initiating Application, Affidavit in support and Financial Statement), the court may subsequently designate the matter as being a PPP500 matter and direct the filing of a Financial Summary form.

When the matter is commenced by way of the streamlined process, aspects of the Rules such as the filing of Affidavits or Financial Statement are suspended until directions provide otherwise. For example, if mediation is unsuccessful and the matter requires a decision by a Judge, direction for Affidavit and Financial Statement will likely be made. 

The Financial Summary form

The Financial Summary form requires information similar to that which would be included in an Affidavit in a property settlement matter. However, with the information being provided in question and answer style, it is likely to make the form easier for self-represented litigant to complete and directs attention to what is relevant.

The form has 11 parts covering information about the parties, any alternative dispute resolution they have attended, information about any existing agreements (parenting or property), a series of questions towards financial factual matters, personal circumstances, income, debts and expenses, children and parenting arrangements, changes to property and a balance sheet of the relationship (i.e. a list of assets, liabilities and superannuation).

The Process in a nutshell

The process can be summarised as comprising 6 steps in the PPP500 procedure. These are:

  1. Once the Application and Financial Summary is filed, or the case has been designated as PPP500, a Registrar of the Court can make directions in chambers for certain things to be done before the first Court date. These could include valuations conducted, disclosure of bank statements, tax records, payslips etc.
  2. At the second stage the parties and their legal representatives appear before a Registrar in Court to make sure that the matter is ready for alternative dispute resolution to occur. This would require making sure there is an agreed balance sheet, disclosure has been completed and prior directions complied with. Cost penalties could apply to any party who has failed to comply with directions. If an interim decision is required on an issue, the matter could also be referred to a Judge to determine the interim issue.
  3. The third stage is attendance at alternative dispute resolution. This would likely be a Registrar run Conciliation Conference in the majority of cases, but it could be an external mediation, Legal Aid Conference or even arbitration.
  4. If the matter is not resolved at alternative dispute resolution it will return before the Registrar for the second Court date. At this stage it is anticipated valuations and disclosure will be complete, offers exchanged and balance sheet ready to be finalised. Further negotiation may take place and the mater may be stood down for this to occur and if the matter is close to resolution it may be obtain a further Court date before referral to the Judge. A Registrar may discuss the merits of each party’s case and provide information about less adversarial process and for the matter to be heard “on the papers” i.e. by a Judge in chambers – not open Court. In a typical case this would be the last of the Registrar’s involvement before the matter is referred to a Judge for case management.
  5. Once the matter is before the Judge the Judge will finalise the balance sheet, identify evidentiary issues and make directions for the final hearing – such as for Affidavits and Financial Statement to be filed.
  6. The last step being the hearing whether it occur in chambers, as a less adversarial trial (i.e. one where Division 12A Family Law Act 1975 applies and the rules of evidence do not apply – unless the Court decides otherwise) or as a traditional trial. 

It is envisaged that at any time during the process if the parties are able to reach a final agreement, Orders could be made in chambers by a Registrar. 

This would occur with a signed and dated agreement being emailed to the Registrar, a clean Word copy of the Minute of Order, evidence of procedural fairness for a superannuation split and a letter addressing matters of “justice and equity”.

It is hoped that these measures will lead to timelier and less expensive resolution of smaller property matters, with the Registrar led part of the process being envisaged as being completed inside 90 days. 

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

While Christmas is a time for bringing families together, unfortunately it is also a time when family disputes can occur. 

As a family lawyer of some 18 years experience I have long noted the seasonal nature of family law work, and in particular that there is an increase in family law enquiries over, or just after, the Christmas season. I imagine it has something to do with people having increased time together, the high expectation to make the holiday “special”, financial concerns and an abundance of alcohol, creating issues for some families. 

Given it is also the end of the new year perhaps it is a time for “new beginnings” and moving on with a new chapter of people’s lives and deciding to make a change.

For people who are already in dispute, Christmas can be a source of loneliness, anxiety and conflict over children’s arrangements.  Christmas holiday time and uncertainty in terms of the future can make this time of year very difficult for some people when it seems as though the rest of the world is celebrating.

What can you do to make the best out of separated parenting at Christmas?

The best answer is come to an agreement, and if you’re already in a dispute in the lead up to Christmas make sure you leave plenty of time to negotiate. Court dates can be hard to obtain in the lead up to Christmas. 

In negotiating arrangements, it is important to think in a way that promotes what is best for the children. To use a lawyer phrase, maintain “child focus”. 

This means that both parents should consider what the holiday means from the children’s perspective, when they might like to see the other parent, what are their practical needs around the holiday, and are there any safety considerations. 

Christmas is about creating memories for children, so in my view it is important in making these arrangements to think about how the children may remember the particular Christmas. 

It is also likely that the separation is something the children are coming to terms with, and thus an amicable agreement at Christmas time is going to allow them to be a bit more relaxed, reassured and enjoy their Christmas holiday time.

If you are in a situation where your ex-partner is difficult or unreasonable, early planning, good legal advice, child focus and staying calm will assist you to negotiate your way through the difficult time. 

Planning and good legal advice assists you to stay calm, knowing that there is “light at the end of the tunnel” in terms of an outcome being worked towards. 

Conversely, staying calm and child focused facilitates outcomes being achieved that are favourable for you and your children.

What about separating during the Christmas break?

Even more stressful is relationship breakdown during the holiday period. Most lawyers take time off over this period and Court dates can be difficult to obtain in all but the most urgent of matters.

Again, the recommendation is to stay as calm as possible, stay child focused and get some advice as soon as you can. As said above, advice provides you with direction and reassurance which can help you stay calm. Also, be careful what you say, text or email if there is alcohol around.

During the Christmas and New Year period in 2019 we are closed from 24 December 2019 until Monday, 6 January 2020. But …while we are closed we are never too far away and if you desperately need some assistance for family law on the Gold Coast or in Brisbane we can be contacted via email to assist at peter.hooper@hooperfamilylawyers.com.au

Stay safe and have a happy Christmas.

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.

In the last 12 months Shaun Mill of our office has completed two very significant milestones in his career as a Brisbane family lawyer.

First, Shaun graduated from his Masters degree in Applied Family Law in 2018; and second, Shaun has successfully completed Accredited Specialisation – Family Law in November 2019.

Most, if not all, Australian lawyers would be familiar with the Specialist Accreditation program overseen by the various State Law Societies.

The purpose of the program is to signal to the public utilising legal services that a practitioner has a higher level of experience and knowledge within the area of specialisation. On the Queensland Law Society website, the Society says of the program:

The program provides practitioners with an opportunity to be formally recognised for their high level of competence and knowledge in their particular area of expertise… [and provides] … the public, and the legal profession, with a link to practitioners who are leaders in their field. Accredited specialists have successfully completed an advanced, peer reviewed assessment program specific to their area of expertise. The Specialist Accreditation Logo and post nominals, are a nationally recognised “mark of excellence”.”

In completing his assessment Shaun has undergone rigorous practical and written examinations, been required to provide peer references, and he has met the minimum 5 years of practice predominately within the field (in Shaun’s case almost 7 years exclusively in Family Law at the time of writing this).

Shaun grew up in the Redlands and started his career at Hooper Family Lawyers doing some work experience and accompanying me to Court in his 4rd year at uni of his 5 year double degree. Just prior to completing his degree in 5th year he came to work for us full time and completed his PLT graduate diploma (practical legal training) while working with us.

In the years following Shaun has gone from strength to strength and has established himself as an excellent practitioner with a very bright career ahead of him. I am very proud to have had the opportunity to mentor Shaun and to have him as part of my firm.

During all of this hard work Shaun has also managed to travel to Europe, the USA and Maldives on separate occasions, get married to his lovely wife and become a father to his beautiful daughter… congratulations Shaun.

Why a family lawyer is necessary?

Once the dust settles from the immediate emotional aspects of a separation, for many people thoughts will turn towards how and what is the best course of action to facilitate a swift, clean and lest costly relationship breakup.

From a myriad of concerns, things such as financial support and obligations, entitlement to a property settlement, child custody and child support often feature prominently in terms of the information people require.

What can also be complicating for people is misinformation. Misinformation can come from well-intentioned family and friends reciting “back yard barbeque advice” and anecdotes about a guy they know who had a divorce, through to the large quantity of information available on the internet, often lacking context, explanation and/or completeness.

The reality is the family law in Australia is incredibly complex and nuanced. Nuanced in that remedies are often discretionary and subject to legislative requirements that have only been defined by a significant body of case law. Judges for the most part have their own style of conducting their Court and hearings.

All of this means that it is incredibly important for people experiencing a separation to obtain advice from a lawyer that is both experienced and knowledgeable in the family law system.

Bad advice and bad decisions early on can go a long way towards making separation more painful, drawn out and expensive.

First family law appointment

The first appointment or initial attendance is very important for most clients. Typically, clients will have many questions, they will be anxious about their financial future or parenting after separation; and they may be struggling with emotional aspects of the separation. If they haven’t dealt with lawyers before this may also be a source of stress.

While information and guidance is important, it is also important for the client to get a feel for their lawyer as a person, and determine whether they have confidence in the lawyer and can develop a rapport.

An essential skill for a good family lawyer is the ability to listen to a client. Listening is more than just recording the client’s story. It is about picking up on the subtext and non-verbal cues that allow the lawyer to understand their client and their client’s case. Asking the right questions of a client is also important for the lawyer in gathering information. If the lawyer doesn’t understand your case, they cannot properly advise you or advocate for it in Court.

Once a client has explained their situation and needs, the lawyer can provide information and guidance. As well as information regarding the relevant law and procedure from a theoretical and practical perspective, information also covers:

  • Other services that may be required such reconciliation counselling, accounting and financial advice, mortgage brokers, family violence services, parenting courses, mediators etc;
  • Strategy both long and short term to best manage the pathway to resolving the matter as swiftly and cost effectively as possible. This can include mediation where relevant or going to court, what to expect at court or representation in court;
  • Guidance with respect to dealing with an ex-partner such as managing behaviour and how to respond to the difficult ex-partner;
  • The importance and nature of evidence as it is used in negotiations or within the formal court environment;
  • Your responsibilities under the law including as a separated parent and to make full and frank disclosure of financial matters;
  • How to manage your legal costs and avoid excessive legal fees.

I consider the initial attendance sufficiently important that Hooper Family Lawyers does two things that many other family lawyers don’t do.

Firstly, we don’t put a limit on the time we spend with a person at the initial attendance. We consider that the above is sufficiently important to warrant spending as much time as is necessary to ensure the lawyer has a complete understanding of the client’s needs; and the client has their questions answered; and understands the lawyer’s advice and recommendations.

Secondly, we don’t time cost for an initial attendance. We charge fixed fee ensuring people do not feel rushed by time costing.

One of the most rewarding moments for me as a family lawyer is the feedback I get at the conclusion of an initial attendance. The most common response is “I feel so much better now”. It’s not just the words, but the change in demeanour and expression from when a person walks into the office, to when they are walking out with clear short- and long-term guidance.

What do I need to do or bring if I want to see a family lawyer?

A phone call or email and a booking is the first step.

If you can bring information regarding relevant dates such as birthdays, de facto cohabitation or marriage dates, separation dates etc this is helpful. In property matters it is also helpful if you can provide a list of what you and your partner or ex-partner own and owe (including superannuation or other interests).

At the end of the day though if you don’t have this information, we can still help you, and for us family law problems have solutions.

If you would like to meet with us contact Hooper Family Lawyers at Victoria Point on (07) 3207 7663; or Hooper Family Lawyers Coolangatta on (07) 5599 3026.

Separation and divorce are unfortunate and significant life events that many people go through.

For people separating while there is the obvious grief, anger and pain over the loss of a relationship, these feelings are often compounded by fear of an uncertain future, financial concerns and child custody issues.

Read more

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.

 

 

Most people following marriage breakdown and separation wish to avoid having to go to court and want to resolve property settlement as quickly and as cost effectively as possible.

Separation is an emotional time and it is not uncommon for family law solicitors to encounter situations where poor communication and troubled relationships impede the party’s ability to resolve the dispute.

While people usually think of lawyers and Court, they think of court hearing and family law litigation, however when emotions are high, family lawyers and the Court Rules and procedures can assist in resolving the property settlement.

Family Court and Federal Circuit Court pre-action procedures

In the Family Court of Australia, there are strict pre-action procedures that have to be followed prior to commencing property settlement proceedings.

There are no such strict requirements in the Federal Circuit Court, however parties are encouraged to make a genuine effort to resolve the matter by Family Dispute Resolution prior to commencing proceedings.

Most Family Law matters would be filed in the Federal Circuit Court; however, it is helpful if the pre-action procedures are followed in all matters.

Explore Mediation and Family Law Dispute Resolution

Once you see your lawyer and get some advice as to where you stand it can be helpful to make contact with the other party and provide a copy of the pre-action procedures brochure produced by the Family Court and invite the other party to participate in a dispute resolution process. This can include a mediation, arbitration and/or negotiation through solicitors.

If the other party refuses to engage in negotiation, attend dispute resolution or attends but it is unsuccessful, then a written notice of intention to commence proceedings can be forwarded to the other party.

Family Law Rules 2004 r1.05.
Federal Circuit Court Rules 2001 r1.03
Family Law Rules 2004 Schedule 1 Part 1 (1)(a).

Family Law Rules 2004 Schedule 1 Part 3 (4).

This notice sets out the issues in dispute, the orders being sought and a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).

The other party should respond with his or her position. If no response is received proceedings could be commence if the party desires. The advantages of this are:

  • Extensive efforts are made in a structured way before the “last resort option” of going to court is commenced;
  • If you end up in Court most Judges will want to see that parties have made every effort to resolve the dispute before commencing family law proceedings. In some situations, there may even be costs orders made against a party who has unreasonably refused to participate in alternate dispute resolution such as mediation or refused to accept a reasonable offer of settlement; and
  • Following these procedures can make subsequent Family Court proceedings less expensive and more quickly resolved. This is because in conducting settlement negotiations the parties would have usually narrowed the issues in dispute and collected much of the information necessary for resolution.

Other steps to assist in resolving family law property settlement faster with less expense

Each party has a duty to make full and frank disclosure of all information and documents relevant to the dispute. This should occur when the negotiations are taking place and should include a schedule of assets and liabilities and supporting documents. It should also include income (i.e. tax returns) and details of any property disposed of or purchased since separation.

The best way forward is to produce a list of the documents you have for disclosure and provide the list to the other party. The other party should disclose documents relevant to the dispute that are within his/her possession or if he has the power to obtain them. However until a Judge Orders disclosure, there is no way to enforce the obligation. By providing your disclosure contemporaneously with a request the other party is more likely to comply and be less suspicious of the process. We generally recommend to self-represented people who are unsure about obligations to make disclosure to seek independent legal advice.

If a party refuses to make disclosure, Court action can become necessary to compel compliance. Thus, making timely disclosure makes commencing proceedings less likely to be necessary.

If no disclosure is ongoing there can be substantial consequences for non-disclosure, including that a party may not be able to rely on the document as evidence, client may face a costs order or be guilty of contempt or the court.

When pre-action procedures may not be appropriate

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute. If the matter does not fall under one of the exceptions parties and lawyers should follow the procedures.

Family Law Rules 2004 Schedule 1 Part 3 (6).
Family Law Rules 2004 Schedule 1 Part 3 (5).
Family Law Rules 2004 r 13.01; Family Law Rules 2004 Schedule 1 Part 4 (1).
Family Law Rules 2004 r 13.01 (2); Family Law Rules 2004 Schedule 1 Part 4 (2)
Family Law Rules 2004 Schedule 1 Part 4 (2)(a).
Family Law Rules 2004 r 13.04.
Family Law Rules 2004 Schedule 1 Part 5 (b).
Family Law Rules 2004 r 13.07.

 

How is a child custody dispute resolved in Queensland without going to Court?

Firstly, parenting disputes in Queensland are dealt with in the same way as for the majority of the Country.

This is because since most States referred their power over children’s matters back to the Commonwealth. Thus, the law concerning parenting after separation, parental responsibility, child support and custody come under Federal Legislation and Courts i.e. the Family Law Act 1975, Child Support Assessment Act 1989 and the Family Court and Federal Circuit Court of Australia.

Under the Family Law Act 1975 the focus is very much towards assisting parents to resolve parenting cases themselves, with the necessity of a Judge determining who children will live with and spend time with being a last resort.

The first step in Parenting Matters – Family Dispute Resolution and the Section 60I Certificate

Prior to commencing parenting proceedings,it is necessary to attend Family Dispute Resolution or FDR. This is in effect a Mediation where an independent mediator trained as a Family Dispute Resolution Practitioner (FDRP) assists the parties to make a parenting agreement, usually recorded in a Parenting Plan.

After the parties attend this mediation, the Registered Family Dispute Resolution Practitioner is required to produce a “mediation certificate” if requested by a party.[1]These certificates are commonly referred to as section 60I certificates and can be issued on any of the following grounds:

  • The client did not attend FDR due to the other party’s refusal or failure to attend;[2]
  • The client did not attend FDR or began attending FDR but the practitioner considered that it would not be appropriate to conduct or continue the FDR in the circumstances;[3]
  • That the client attended FDR and made a genuine effort to resolve the issues;[4] or
  • The client attended FDR but did not make a genuine effort to resolve the issues.[5]

[1]Family Law Act 1975 (Cth) s60I (7).

[2]Family Law Act 1975 (Cth) s60I (8) (a).

[3]Family Law Act 1975 (Cth) s60I (8) (aa) and (d).

[4]Family Law Act 1975 (Cth) s60I (8) (b).

 

Exceptions to needing a Section 60I Certificate

The following exceptions allow a party to commence proceedings without a certificate:

  • There has been abuse of the child by one of the parties;[6]
  • There is risk of abuse of the child if there was a delay in bringing the proceedings;[7]
  • There has been family violence or risk of family violence;[8]
  • The application is urgent;[9]
  • One party is unable to participate effectively in FDR;[10] or
  • One party has contravened Orders that were made within the last 12 months and the Application is in relation to that breach.[11]

What happens if you don’t have a section 60I Certificate?

The court will refuse to accept an Application for filing that does not have a certificate attached or an affidavit of non-filing of dispute resolution certificate with the appropriate exception addressed.

If a party attends FDR but does not make a genuine effort, the court may make an order requiring the parties to go to FDR again and the court might make a costs order against that party.[12]

Other issues before going to the Family Law Court

There are also strict pre-action procedures that have to be followed in the Family Court.[13] These do not exist in the Federal Circuit Court;however, it is good practice to follow them.[14]

Here a party must provide the pre-action brochure to the other party and engage in settlement discussions.[15]Also, forward a notice of intention to commence proceedings.[16] This notice must set out the issues in dispute, the orders being sought, a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).[17]


[5]Family Law Act 1975 (Cth) s60I (8) (c).

[6]Family Law Act 1975 (Cth) s60I (9) (b) (i).

[7]Family Law Act 1975 (Cth) s60I (9) (b) (ii).

[8]Family Law Act 1975 (Cth) s60I (9) (b) (iii) and(iv).

[9]Family Law Act 1975 (Cth) s60I (9) (b) (i).

[10]Family Law Act 1975 (Cth) s60I (9) (e).

[11]Family Law Act 1975 (Cth) s60I (9) (c).

[12]Family Law Act 1975 (Cth) s117.

[13] Family Law Rules 2004 r1.05.

[14] Federal Circuit Court Rules 2001 r1.03.

 

The party receiving the Notice is required to respond to this with their position[18]and hopefully this is a further incentive for the party to resolve their dispute without the Court making a decision.

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute.[19]

The pre-action procedures specifically state the parties must have regard to the following matters in relation to children:

  • The best interests of the children;[20]
  • Maintaining good co-parenting relationship;[21]
  • The potential damage to a child who is involved in the dispute;[22] and
  • Not seek orders that are not in the best interests of the children.[23]

The outcomes in custody disputes –without having to go to Court?

If an agreement can be reached between the parties in dispute there are several options for record the agreement:

  • Parenting Plan;
  • Consent Order.

A Parenting Plan is simply a written record of the agreement and only requires that the agreement be in writing, signed and dated.[24] A Parenting Plan is not enforceable, however if there is a further dispute requiring Court action the Judge will have regard to the most recent Parenting Plan when making a Parenting Order.[25]


[15] Family Law Rules 2004 Schedule 1 Part 3 (1).

[16] Family Law Rules 2004 Schedule 1 Part 3 (4).

[17] Family Law Rules 2004 Schedule 1 Part 3 (5).

[18] Family Law Rules 2004 Schedule 1 Part 3 (6).

[19] Family Law Rules 2004 Schedule 1 Part 1 (4).

[20] Family Law Rules 2004 Schedule 1 Part 1 (6) (a).

[21] Family Law Rules 2004 Schedule 1 Part 1 (6) (b).

[22] Family Law Rules 2004 Schedule 1 Part 1 (6) (c).

[23] Family Law Rules 2004 Schedule 1 Part 1 (6) (d).

[24] Family Law Act 1975 Section 63C.

A Consent Order is made with a higher degree of formality and is enforceable. Even though the Consent Order is the party’s agreement the Court can only make the Order if legislative requirements for Parenting Orders are followed, for example, the Court would only make the Order if the best interests of the subject children were the paramount consideration.[26]

For a Consent Order an appearance in court is not necessary and the Orders can be made “in chambers” with the documents being sent to the Court by post.

Hooper Family Lawyers at Victoria Point and Hooper Family Lawyers on the Gold Coast can assist parents in mediation and to resolve parenting matters before you have to go to court. Peter Hooper of our office is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner able to provide FDR to people wanting to reach their own agreements.

[25] Family Law Act 1975 Section 65DAB.

[26] Family Law Act 1975 Section 60CA.