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.

The Covid 19 pandemic has created chaos for the lives of many people and industries. Within the Family Law and wider legal industry, the effects have largely been to cause lawyers to adapt to new ways of practice and for Courts to modify how they operate. Obviously, the thrust of these changes is to remove/reduce physical contact and interactions.

For Gold Coast Family Lawyers with clients in Border Zones there are increased challenges in parenting matters when Orders are in place, but children live at different times on both sides of the border. 

I live in a Northern New South Wales in a border zone and commute to my Gold Coast and Victoria Point law practices, and thus do a cross border commute each day. Having lived with this situation for some time, and having clients regularly asking me how the border rules work, I thought it might be a good topic to write about this week.

Border Restrictions Direction 12 

At the moment, Border Restrictions Direction 12 is in effect from 1.00 am Thursday 20 August 2020 until 2 October 2020 unless it is extended by regulation (and my money is on it being extended). 

The restrictions are made under the Public Health Act 2005, when on 29 January 2020 the Minister for Health and Minister for Ambulance Services made an order declaring a public health emergency in relation to COVID 19.

The direction requires that all people who come into Queensland practice “social distancing” which means staying within 1.5 metres of another person and regularly washing hands.

Entering Queensland 

A person entering Queensland from New South Wales must obtain a Queensland Border Declaration Pass and provide an undertaking to present for a COVID 19 test if they develop COVID 19 symptoms. 

To obtain a Border Declaration Pass you must declare via the website the following information regarding the last 14 days:

  • Whether you have been overseas.
  • Have you been to COVID 19 “hotspot” or been in contact with an infected person?
  • Whether you have COVID 19 (entry will be denied).

The information required on the declaration is:

  • Name, date of birth, phone number, address and email address.
  • Evidence of identity such as a driver’s license or Medicare care card.
  • For a border resident, state the post code to establish that the person if from a border zone. A “border zone” is one of the post codes set out in the schedule of the 

The Border Declaration Pass is valid for the following periods:

  • Expires after 7 days from the day the declaration is made; or
  • If any of the person’s circumstances have changed since making the declaration.

There are some people who are not required to provide a border declaration pass. These people are:

  • Someone responding to an emergency in Queensland and performing an essential activity related to national or state security, police, health or emergency services.
  • A maritime crew under the Protocol for Maritime Crew approved by the Chief Health Officer.
  • A prisoner remanded in custody subject to an extradition order who is required to enter Queensland to comply with a court order or assist with an investigation at the direction of the law enforcement agency.

Quarantine is necessary if a person entering Queensland:

  • Has travelled overseas in the prior 14 days.
  • Has had contact with a person who is a confirmed case of COVID 19,
  • Has been in a COVID 19 hotspot.
  • Has had symptoms consistent with COVID 19.
  • Is a border zone resident who is a Queensland resident who traveled outside the border zone in New South Wales.

Conflict between Parenting Order and the COVID 19 restrictions 

People are required to meet their obligations under Parenting Orders unless either the parent or the child is restricted by the COVID 19 rules. Thus, if the children cannot travel interstate because of restrictions this would likely be determined to be a “reasonable excuse” and a defense to a breach of a Parenting Order. As with any Contravention Application ultimately each case is decided on its particular facts.

For this reason, before a parent decides to breach an Order because of COVID 19, it would be prudent to look closely at the current state of the border restrictions and make sure that the information or understanding being acted upon is up to date and correct. Given that the rules can change swiftly this needs to be reviewed from time to time.

If a parent’s time cannot occur, alternative contact should be negotiated. Ultimately it is children who have the right to contact with their parents and coming up with a creative solution is a “child focused” response when COVID 19 gets in the way.

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’s not unusual in many areas of law to apply time limits to the performance of a task or making a claim. Typically, time limits are something that lawyers are very mindful of when first meeting with, and advising a client, because if time limits are missed, the family lawyer could potentially be liable if a client suffers loss.

Sometimes “timing” is important to a client as well. I have often been asked “should I wait to do my divorce before I finalise property settlement?” or with respect to relocating children “should I wait before going to Court”? These types of situations fall into the strategy of a case and there are many more examples where timing is important for a satisfactory outcome.

The following are some (not all) of the important references to time that occur when you’re involved in a Family Law matter.

Divorce

Since 1975 there has only been one ground for Divorce in Australia. That is “irretrievable breakdown of the marriage”. This is evidenced by a 12-month continuous period of separation. However, to promote the opportunity for reconciliation, married couples can get back together for up to 3 months without “resetting the clock”.

For example, if I’m separated for 3 months and get back together for up to another 3 months and then separate again, the first 3 months is counted as part of the 12-month continuous period of separation. If I get back with my husband or wife for 4 months though, the 12 months would need to start again. 

Also, if I’m only married for 2 years there is an additional requirement for a “counselling certificate” and counselling before the Divorce can be filed. Again, this is designed to “give love a second chance” and see whether the marriage can be saved. 

Limitation periods for property claims

There are restrictions on when a claim for property settlement can be brought which are slightly different for married or de facto relationship couples. Lawyers call these time limits “Limitation Periods”.

The time limits are:

  • For married couples within 1 year of the date of a Divorce.
  • For de facto couples within 2 years of separation. 

For married couples the time limit will not commence until a Divorce occurs. Many people think of the Divorce as covering all of the property and children’s issues however this is not the case. 

A Divorce is only the termination of the marriage. People can resolve parenting issues and property settlement without ever being Divorced. Conversely, people can be Divorced and not resolve property issues.

There are some cases where people have waited long periods of time, haven’t been Divorced and seek property settlement (some more than 20 years after separation). This is not advisable as it introduces much complexity into the issues to be resolved. Without delving too far into issues of “contributions”, contributions have a different character post separation and long period of separate economic activity can be difficult to assess. In some cases, Courts have determined that after such a long period it may be no longer “just and equitable” to adjust property interests, which is a requirement of the power of the Court to Order a property settlement.

Most married people make the property settlement a priority before the Divorce and in my view this is sensible. There is no danger of the Limitation Period expiring and it makes the process simpler. In my experience complexity in legal matters typically means higher costs.

For de facto couples since 2009 (in most states) they enjoy the same processes as married couples, and the substantiative law is largely the same. However, not so regarding the Limitation Period. While married couple have 1 year it operates from the date they obtain a Divorce. De facto couples have 2 years but this time starts running from the date they separate.

In practical terms a looming Limitation Period means to protect it from expiring a Court Application must be made. Most people don’t want to go to Court and would prefer to negotiate a settlement so making sure there is sufficient time is important. Going to Court doesn’t mean you can’t negotiate a resolution, but it adds to stress and costs.

What if the Limitation Period does expire?

If the Limitation Period does expire it doesn’t necessarily mean you can’t proceed with a claim. 

However before making the claim the other party would need to consent to it proceeding or permission of the Court (known as leave of the Court), would need to be obtained.

Leave of the Court will be granted if the Applicant can successfully establish “hardship” to a party or a child.

There are numerous cases with respect to hardship, some of the main points are as follows:

  • Hardship is akin to hardness, severity, privation, that which is hard to bear or a substantial detriment (Whitford [1979] FamCA 3).
  • Weight ought to be given to the intention of the limitation periods (Whitford [1979] FamCA 3).
  • Matters such as the length of the delay, reasons for the delay, prejudice to the respondent occasioned by the delay, the strength of the applicant’s case and the degree of hardship… are to be give weight. (Sharp [2011] FamCAF 150 citing Whitford).
  • The application ought to have a prima facie case worth pursuing not the mere loss of a cause of action. (Sharp [2011] FamCAF 150).
  • “Prejudice” to the respondent includes where a party is faced with a cause of action, he or she had no reason to expect or had been led to believe would not be brought.” (Frost & Nicholson [1981] FamCA 45).

If the other party requires the Applicant to obtain leave apart from the risk of the Court denying the Application, costs will be significantly increased.

The moral of the story is (in my opinion) there is no substitute for early advice from a specialist family lawyer for advice, including with respect to issues such as timing.

Other Family Law time considerations

Your family lawyer will be able to advise you with respect to timing issues from time under the Federal Circuit Court Rules 2001 or Family Law Rules 2004 to take certain steps, or the need to respond to a time limit imposed by a family law solicitor acting for your ex-partner. 

Being experienced lawyers, we know the tactical considerations that ought to be borne in mind. With parenting matters this can be critical to your case because a change in a child’s circumstances can be material to the outcome.

The bottom-line is don’t procrastinate, be proactive and find out where you stand early following separation.

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 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