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

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

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

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

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

What does it mean to go to Court?

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

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

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

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

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

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

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

The types of Court days are:

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

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

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

What should you do when you’re in Court?

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

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

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

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

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

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

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

Family law advice

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

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

It’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.

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

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

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

What is the adoption process?

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

Section 60G FLA provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After leave to adopt has been granted

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

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

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

To be eligible to adopt the following must be established:

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

Consent of the biological parent

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

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

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

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

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

Children’s Court

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

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

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

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

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

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.

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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.