Update on Family Court and Federal Circuit Court reform

In May 2018 Peter Hooper’s blog referred to the Federal Government’s announcement of a significant shake up of the Australian Family Law Courts system.

The changes were due to occur on 1 January 2019 however delays have been encountered and at the current date the changes haven’t come into effect.

This article outlines the current structure and difference between the courts exercising jurisdiction pursuant to the Family Law Act 1975.

The current Family Law Courts structure

The Federal Circuit Court and Family Court are two separate divisions of the same court that operate under the Family Law Act. For example, applications for Parenting Orders can be made to both courts,[1] however there are guidelines as what type of parenting matters are filed in which court.

Family Court

A Protocol for the division of work between the two courts was released in April 2013. This protocol is not binding but it offers guidance to solicitors and judicial officers.[2]Using the example for parenting matters, this protocol advised that parenting matters involving the following issues should be filed in the Family Court of Australia or transferred to the Family Court of Australia (where the matter had already been filed).[3]

  1. International Child Abduction;
  2. International Relocation;
  3. Dispute as to whether the matter should be heard in Australia;
  4. Special Medical Procedures (e.g. gender reassignment);
  5. Where are party has contravened Family Court of Australia Orders and the contravention was within 12 months of the Orders being made.

    [1]Family Law Act 1975 (Cth) s 69H.
    [2]Morris &Rosetti [2017] FamCA 249.
    [3]Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court – 12 April 2013.

  6. Serious allegations of sexual abuse of a child, serious allegations of physical abuse of a child or serious controlling family violence;
  7. Complex questions of jurisdiction or law; and
  8. If the matter is likely to take in excess of four days of hearing time if the matter was to be heard.

In addition to the above, the Family Court of Australia has exclusive jurisdiction in relation to adoption.[4]

Further, if there are allegations of sexual abuse or physical abuse, the matter may be placed in the Magellan List. This is a list that is designed to fast-track proceedings that involve these allegations in accordance with the requirements of the Family Law Act.[5]

Transfer of Proceedings

If the matter has been filed in the Federal Circuit Court, the court has the power to transfer the proceedings to the Family Court.[6] In deciding whether to transfer the proceedings the court has regard to the following:

  1. Whether the matter involves questions of general importance, such that it would be desirable for there to be a decision of the Family Court on one or more points in issue;[7]
  2. Whether the matter is likely to be heard and determined at less cost and more convenience to the parties than if the proceedings were not transferred (including whether the proceedings would be heard earlier);[8]
  3. The wishes of the parties.[9]

The court can transfer the proceedings of its own initiative or by the request of one of the parties (made by application and supporting affidavit).[10]

The Federal Circuit Court is responsible for the bulk of cases while the Family Court hears more complex cases and is responsible for Appeals.


[4]Family Law Act 1975 (Cth) s 69H (4).
[5]Family Law Act 1975 (Cth) s 67ZBB.
[6]Federal Circuit Court of Australia Act 1999 (Cth) s 39 (1); Morris & Rosetti [2017] FamCA 249.
[7] Federal Circuit Court Rules 2001 r 8.02 (4) (a).
[8] Federal Circuit Court Rules 2001 r 8.02 (4) (b) and (c).
[9] Federal Circuit Court Rules 2001 r 8.02 (4) (e).
[10] Federal Circuit Court Rules 2001 r 8.02 (1) and (3).

The reform

It is envisaged the new Federal Circuit and Family Court of Australia will be one Court with two Divisions, and the shared registry will continue for both divisions. Basically, division one will be what was the Federal Circuit Court and Division two will be made up of the Family Court Judges. Appeals will be sent to an appeal division of the Federal Court of Australia.

One set of Court Rules will apply obviating the necessity for situation currently with theFederal Circuit Court Rules 2001 and the Family Court Rules 2004 both operating.

Current progress of the reform

The third reading of the Federal Circuit Court and Family Court of Australia Bill 2018 in the House of Representatives was agreed to on 27 November 2018 with the second reading moved in the Senate on 3 December 2018.

How the new structure will operate in practice is still “wait and see” however it is hoped the reform will assist Families navigating their way through parenting matters and family law property settlement matters to obtain faster and more cost effective family law outcomes.

Shaun Mill

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 on the Gold Coast on (07) 5599 3026.

With divorce comes property settlement, the two go hand-in-hand. This procedure is stereotyped as a long, bitter feud between the parties over money, furniture, and other assets. But it doesn’t need to be this way.

 

What’s a property settlement?

A settlement occurs after a couple separates and begins divorce proceedings. Assets like properties, bank accounts, cars, and the like come under scrutiny. A settlement is possible without court involvement if the former partners can come to an agreement. To make the agreement legally binding, the family lawyer can put in an application for a court order.

 

How is property divided?

Property settlement and issues surrounding it fall under the Family Law Act. If there’s a dispute and it proceeds to court the following steps are taken:

 

  1. Identifying and valuing all property from the marriage/partnership
  2. Identifying and valuing the contributions each person has made to the property through income, homemaking, inheritances, etc.
  3. Factors about each party are considered. This includes their level of personal responsibility, their ability to look after others (particularly children), their ability to earn, their age and state of health
  4. A ruling is made

 

The idea that property is divided equally between former partners is a myth, one that your family lawyer will quickly dispel. As stated above, how much of the property settlement a party is entitled to depends on their overall contribution during the marriage and other factors post-divorce.

 

Is it possible to settle without involving the courts?

Your family lawyer will encourage it. If mediation is a possibility it’s the better option to take. Property settlement is easier when both sides, though separated, still have a good relationship. Issues like child custody, and deciding who gets the home and inheritances settle faster through mediation. Going through the courts takes time and money.

 

What if we weren’t married?

De facto partnerships, including same-sex partnerships, still fall under the Family Law Act after amendments were made in 2009. Former couples can apply for consent orders and spousal maintenance like any married couple. You must apply for consent orders and adjustments a year after the divorce was final (two years for de facto relationships).

 

My partner is trying to sell the house/other assets. What do I do?

Get legal advice and apply for an injunction immediately. This stops any sale in its tracks. If it’s too late to stop the sale, your lawyer can at least apply for the money to be ‘frozen’ until the settlement is final.

 

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Handling divorce at Christmas with the kids

6 of the best things you can do when divorce gets emotional

Sick of crying, feeling angry and upset, or just plain tired during your divorce proceedings? That’s not unusual. Even if the split is an amicable one, you’re parting ways with somebody you once loved and shared good times with. Taking care of ourselves often falls to the side at times like these and that’s actually detrimental to our health.

During a divorce we’re going through a loss, a trauma. And while there’s plenty of support from family and friends it’s good to ‘shake things up a bit’, rather than going to their homes and meet them for coffee every other day because you can’t think of much else to do. Here’s some things you can do to ‘drive yourself to distraction’ in the best way possible.

 

  • Dust off your hobbies

You stick to your hobbies because you enjoy them. They go on the backburner more often than not because life gets busy. But if there’s ever a time to get back into painting/cooking/pottery, it’s during a divorce. Here’s some places that can help facilitate your passion:

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  • Download some podcasts

Podcasts are the new way to catch up with what’s going on in the world. There’s several for every genre; drama, news, socio-cultural and educational. These are some of the top ranked from various sites around the web.

Not everyone listens to a podcast idly; they’re  great for making time pass faster at work or on the walking trail. And that brings us to the next point.

 

juja-han-210775

 

  • Get back to the gym

Get those endorphin levels up and build those muscles! It’s true what they say, a strong body equals a strong mind. Hundreds of studies attribute a positive mindset to regular exercise. If you go to the gym already maybe try a different class instead of sticking to your regular routine. You’ll actually ‘shock’ your body when you do something new and who knows? You might actually like it.

 

  • Rewatch something you love

Everyone is guilty of binging on their favourite television show or some Netflix original series. But if it made you feel good, why not do it again? Make yourself a cup of tea and put on that Simpsons marathon.

 

  • Learn something new

MOOCs (massive open online courses) are popping up everywhere. They’re a great way to build on your old skills and learn some new ones. Most of them are free, though you can pay extra if you want a certificate. Courses are from genuine universities like RMIT, Harvard, Griffith, Australian National University, and the University of Queensland. Some of the best providers are below.

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Separation and divorce proceedings can cause strong emotional reactions such as anger, hurt, fear and anxiety about the future. When emotions are running high it can be difficult to make the best choices.

The following are some tips to assist you with the emotional aspects of marriage breakdown.

  • Consider reconciliation

Divorcing isn’t always the final solution. Ask yourself whether the relationship can be salvaged. There are relationship counselling services you can access and participate in as a couple.

The Family Law Act 1975 requires that your family law solicitor provides you with prescribed material regarding the availability of reconciliation services. Prevention is better than cure, so ultimately reconciliation may be the best outcome for your family, emotionally and financially.

  • What if the marriage or relationship cannot be saved?

Often when people are at the point of obtaining advice from a family lawyer, the reality is the relationship can’t be saved.

If you find yourself separating, there are steps you can take to make the process a bit easier on yourself.

  • Don’t forget the self-care

Taking care of yourself makes you feel better in a difficult situation.   

It’s not always easy to do but getting enough sleep, eating healthy food, exercise and getting help, or information, will improve your situation and outlook. If you are struggling with anxiety or depression a useful place to start is with your general practitioner who can refer you to psychologists or counsellors.

Your lawyer can help to demystify the legal process, and provide you with a road map for resolution leading to the next phase of your life.

Something simple, like your favourite meal, is a great form of self-care

Something simple, like your favourite meal, is a great form of self-care

  • Flexibility

If you’re negotiating property settlement or children’s time, it is important to consider keeping an open mind and not become “positioned”.

Becoming positioned is when you draw lines in the sand, create “bottom lines” and say things like “my way or the highway”.

Often in negotiations or mediation, it is more useful to consider the interests of everyone involved (including children), the costs involved in litigation (including the non-financial, emotional cost of a protracted legal fight) and the time you will spend dealing with lawyers and Courts that you could be spending getting on with your life.

  • Try not to “mirror” hostile behaviour

Often separation isn’t amicable. You may find yourself confronted with aggressive, angry and unreasonable behaviour.

If you’re also angry it can be a natural reaction to respond in kind. This situation is rarely helpful and tends to escalate conflict.  Conflict in family law matters tends to make resolutions more difficult to achieve and can be very emotionally harmful to children caught up in the middle of such a dispute between their parents.

You can’t control what your ex-partner is doing but you can control yourself, and choose not to mirror destructive behaviours. Often when one party refuses to “mirror” aggression, a de-escalation will occur. Family violence of course should not be tolerated in any context. If you or a family member is confronted by family violence or threats of family violence you should contact police or discuss options for your safety with your lawyer.

  • Get proper advice

You may find after separation you start receiving lots of advice from family and friends about your “legal rights”. While they generally mean well, be wary of the back yard or BBQ advice.

Family law is complex and while someone may know someone with a situation similar to yours, family law outcomes will depend on many different factors unique to individual circumstances. Early advice from a family law solicitor will assist you understand what you need to do, and will likely make you feel better.

In my experience, one of the most common types of remarks people make leaving my office after an initial attendance for advice is “thank you, I feel much better now”.

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RELATIVES of a couple who died at a nursing home 11 hours apart on the same day said their love story’s ending reflects their devotion over 65 years of marriage. news.com.au Article