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

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

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

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

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

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

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

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

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

Why a family lawyer is necessary?

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

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

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

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

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

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

First family law appointment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more

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

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

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

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

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

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

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

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

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

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

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

When is cross examination necessary?

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

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

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

 

 

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

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

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

Family Court and Federal Circuit Court pre-action procedures

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

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

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

Explore Mediation and Family Law Dispute Resolution

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

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

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

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

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

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

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

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

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

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

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

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

When pre-action procedures may not be appropriate

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

Exceptions to needing a Section 60I Certificate

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

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

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

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

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

Other issues before going to the Family Law Court

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

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


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

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

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

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

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

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

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

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

[13] Family Law Rules 2004 r1.05.

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

 

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

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

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

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

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

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

  • Parenting Plan;
  • Consent Order.

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


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

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

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

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

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

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

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

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

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

[24] Family Law Act 1975 Section 63C.

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

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

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

[25] Family Law Act 1975 Section 65DAB.

[26] Family Law Act 1975 Section 60CA.

I have set out some common concerns and questions I’ve heard from people repeatedly over the years, and I plan on doing this in a number of separate articles.

It is impossible in an article such as this to provide definitive answers to every question, and everyone’s situation is different. However, I hope what follows might be a useful guide for obtaining preliminary information.

Affordable Family Lawyers

Legal services can be expensive and often people are afraid to get advice or approach a lawyer due to fear of costs.

Sometimes however poor advice or no advice can cost you more. Here are my best tips to minimise Family Law costs:

  • Have a discussion about costs up front. Ask the lawyer how they charge and what the rate will be. It is open for you to negotiate the rate or how the charges will be levied, for example, time costing or fixed fee. We find fixed fees for consent orders, pre-nuptial agreements and Divorce applications very popular with our Brisbane and Coolangatta clients.
  • If you are being time costed make sure you understand what work needs to be done in advance, and that you are “kept in the loop” with estimates for the cost of the work to be done. Lawyers are required to provide you with an estimate of costs at certain times and upon request.
  • Ask what you can do to reduce costs. One of the simple ways to reduce costs is present your instructions to the lawyer in an easily understood format. To assist our clients we have template documents, and detailed assistance to help our clients complete these documents themselves. We settle the final draft and the effect is a lot of our time, and your money, is saved.
  • Make sure your lawyer knows what they’re doing. Inexperienced lawyers can take a lot longer to complete a task and unfortunately you even get charged more with time costing. Bad advice can be devastating in terms of costs. Family law is a very complex area of practice and a specialist family lawyer can end up saving you a lot of money.

Of course, one of the absolutely best ways to save costs is to settle early, and minimise conflict, by taking a business-like approach to your separation, and following expert legal advice.

What if I have no available cash for legal fees?

This is not an uncommon scenario where one party may control the marital finances or be a primary income earner. The other party may have much less access to resources.

I have written a detailed article on what lawyers call a “Hogan” or “Barrow” Order on my site, situated at the following link:

https://www.hooperfamilylawyers.com.au/applications-for-litigation-expenses-aka-hogan-orders/

These Orders allow for legal costs to be met by the other spouse.

Other options include the following:

  • Deferred fee agreements. This is where the family lawyer accepts payment in full after the matter is concluded. It is important to understand this is not usually “no win, no fee” for family law matters. The fee will be payable at the end and sometimes firms will charge a higher rate to reflect their risk, and impact upon the cash flow of their practice. It remains important to consider the ways to reduce costs discussed above, to ask for estimates as to what the costs are, and to ask where the account is at regularly.
  • Legal Aid preferred suppliers. If you meet the asset and income criteria, and your matter meets Legal Aid criteria, you may receive a grant of aid. Most commonly this is for parenting matters and you need to re-apply for the next grant of aid after each step is completed. Typically, the grant commences with a Legal Aid Conference (mediation) being conducted.
  • Litigation lending. This is another option where some lenders will provide funding for your matter. The down side here is interest and changes that can apply.

Like each aspect of your matter you need advice. When booking in for an initial attendance with your family lawyer costs should form an important part of the discussion and advice.

Who pays the mortgage after separation?

This is often an issue when one party moves out and suddenly has to meet their own rental costs. The reality is the home loan secured by mortgage is between the parties and the bank or lender.

The bank or lender won’t consider the separation should affect their rights, and if the bank/lender doesn’t get paid they can exercise their right of foreclosure and sell the property (usually at a lesser price).

The Family Law Act 1975 does allow for Orders to be made directing a party to continue to meet mortgage expenses, and this can occur in a number of ways such as Spousal Maintenance or as on Interim Property Order, however, you need to file an Application in Court before this can occur. Also, the evidence would need to establish why the Court should make the Order you are seeking.

Some simple tips for addressing this issue are:

  • Consider what will be the long-term option i.e. will the party remaining in the home retain it and refinance? Will it need to be sold? Looking at the long term might help in working out what the short-term arrangements will be. For example, if the party remaining at the home wants to keep it, it may make sense that they meet the mortgage costs.
  • Come to an agreement with the other party as to what should occur. After considering the potential long-term arrangements, make an agreement as to the mechanics of when payments will be made, what account they will come from and if a sale is necessary, how will that occur (agents, marketing plans etc). A property can be sold before a final property settlement occurs. In my experience when there is a pool of cash to be divided often parties are motivated to reach an agreement. The only issue here I would flag is to make sure that the proceeds of sale are held in a solicitor’s trust account, for both parties, pending final agreement. Once money is distributed it can be difficult to claw back. If the parties need to access some cash to re-establish it can be agreed that each party receives a similar small amount.
  • For difficult partners or people who stay at the home and will not/cannot contribute to expenses, you may need creative solutions or a Court. If there are children at the home with the partner living there, a creative solution may be to agree to mortgage repayments being made in lieu of child support. Provided there are no domestic violence issues, the ousted party moving back in may be an option. If there is no cooperation with reaching agreement or progressing to final settlement, then Court intervention may be warranted.

How the Court regards a party’s post separation payments to the mortgage is by way of “post separation contributions”. What this means is that these payments can be recognised by the Judge in determining how much of the property pool each party gets.

Similarly, if a party causes loss by negligently, recklessly or wantonly refusing to pay the mortgage (and for example a foreclosure occurs), the Court may penalise that party in the final settlement.

Should I move out of the family home, or be separated under one roof?

Usually family lawyers will say don’t move out.

The reasons why include some of the issues referred to above in relation to mortgage costs and incurring additional rental costs.

Also, you can lose control of maintaining the asset in a saleable condition, if a sale is necessary.

If there is a situation where the other party is difficult, sitting in the home comfortably having the mortgage paid, Court application may become more likely. In my experience these situations can stifle settlement and lead to Family Court or Federal Circuit Court proceedings.

Separation under one roof is usually less than ideal, and uncomfortable for both parties, which can be a good motivator for a speedy settlement.

The big caveat on the above is domestic violence and personal safety. These always come first and if you, children or pets are in danger you should immediately leave to a place of safety.

Hopefully the above answers some question but it is no substitute for proper advice tailored to your situation.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Brisbane office on 3207 7663 or our Coolangatta office on 5599 3026 for an appointment.

 

Need more answers? Read our blogs;

https://www.hooperfamilylawyers.com.au/going-to-court-what-to-expect/

https://www.hooperfamilylawyers.com.au/relevant-family-law-fault-relationship-breakdown/

It is not uncommon for people meeting with their family lawyer for the first time to raise issues of fault, wrong doing or poor conduct by the other party.

Many people automatically assume these are the types of issues that will be most relevant in the event that going to Court becomes necessary.

In my experience, if a party is suffering from the loss of the relationship, betrayal associated with an extra-marital affair or fear of change, retribution and validation of those feelings can also drive a client’s perception as to what is relevant or important. Again, in my experience, this often manifests as an aggressive approach to litigation, intractable positions, and allegations being raised in correspondence and court documents and in some cases harassing behaviour or family violence.

 

In general terms, what does the Family Law say about fault or conduct?

Prior to the Family Law reforms in 1975, there were 14 grounds for Divorce, the majority of which were fault based. This included conduct such as habitual drunkenness, physical cruelty, desertion, adultery, imprisonment etc.

The Matrimonial Causes Act 1959 was repealed in 1975 to remove the 14 grounds and introduce one ground, that is, “irretrievable breakdown of the marital relationship”.

Whilst proving fault under the 14 grounds was difficult and often unsavoury (imagine private investigators spying on people to prove an affair, or taking photographs etc), proving the irretrievable breakdown ground only requires a 12-month period of separation.

The general flavour of the reform across the wider areas of parenting orders, property settlement and spousal maintenance, was also to recognise the undesirability of “fault” paying a part and to move away from evidence relating to bad conduct being raised in proceedings.

 

Does fault pay any part now then?

The answer is yes.

In some circumstances fault still does play a role. Not with respect to divorce but in relation to certain aspects of parenting, property and spousal maintenance.

 

Parenting orders

As I have discussed elsewhere on this site, Family Court and Federal Circuit Court judges have a broad discretion to make Parenting Orders subject to the best interests of children being the paramount consideration, and considering the Objects and Principles underpinning the Family Law Act 1975 relating to children’s cases.

Often fault or conduct will be relevant in determining whether children are at an unacceptable risk of harm, whether a parent has capacity to properly care for children, maturity and lifestyle of the parents, family violence and other conduct depending on the circumstances.

Thus, conduct such as family violence, alcohol/substance dependency issues and poor lifestyle choices (for example surrounding neglect) can clearly be understood as being relevant in a child custody case.

In my experience however, it sometimes occurs that people will want to place greater restrictions on the other parent’s time as “punishment” for bad behaviour, such as extramarital affairs or re-partnering, and this is not something relevant to who children live with or spend time with.

Indeed, this type of anger can often backfire, with the party’s who’s conduct is creating high conflict being examined as a potential source of risk of emotional harm to children.

This is where a good family lawyer can help, by determining the relevant from the irrelevant and assessing the evidence which is the currency of any court.

 

Property settlement

In my view there is less scope for fault or conduct to be relevant in a property matter.

Again, anger over affairs, re-partnering, loss of a life partner etc is not directly relevant but it can certainly drive a dispute. Family lawyers can assist in filtering some emotion from communications and how your evidence is presented.

Mediators assist by diagnosing the underlying causes of a dispute and using interventions such as reframing to provide a more neutral or positive interpretation of events.

Some examples of the type of conduct that can be relevant is as follows:

  • Losses from reckless, wanton or negligent conduct. This would include deliberately destroying an asset, things such as gambling losses or behaviour such as removing or hiding property without sufficient explanation. The conduct would be relevant, but the judge retains a broad discretion as to how the conduct will affect distribution of assets.
  • Family violence in some limited circumstances can be regarded. Lawyers often call these cases Kennon cases”. In these situations, one party’s violence has made the other party’s contributions to the property pool, or welfare of the family, more onerous. From a practical perspective evidence may be difficult to obtain to establish the “special burden” and the weight this evidence will be afforded is at the judge’s discretion.
  • Generally, a Court will consider you take your partner as they are i.e. a spend thrift or a saver, however in some circumstances it may be possible to argue “negative contribution” due to excessive habits or poor judgement with money. While cases often interpret this type of behaviour differently it will usually come down to a question of degree in the context of the amount of property available for distribution.

 

How Hooper Family Lawyers Gold Coast and Brisbane can help?

The Family Law jurisdiction is complex and often judges have broad discretion to weigh and interpret evidence. As experienced, specialist family law solicitors we can identify for you what is relevant, tell you how we think a Court will interpret the evidence you present us with, provide a filter for emotion or anger and move towards a faster resolution.

As identified above, sometimes placing evidence of irrelevant conduct or the making allegations of misconduct without sufficient evidence can back fire for your case and put you in a worse position. Thus, your choice of solicitor is an important one.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost-effective manner. Please contact our Coolangatta office on 5599 3026 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://www.hooperfamilylawyers.com.au/

 

1 – Section 60CC(3)(m) refers to any other fact or circumstance that the court thinks is relevant. Thus, there is a potential for almost any other form of conduct to be raised if it’s is relevant.

2 – In the marriage of Kennon [1997]F.L.C.92-757

On 30 May 2018 the Federal Government announced a significant shake up of the Australian Family Law Courts system.

Currently the Courts primarily exercising jurisdiction pursuant to the Family Law Act 1975 are the Federal Circuit Court (formerly the Federal Magistrates Court) and Family Court.

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

It is envisaged these two Courts will merge into one new Court, namely, the Federal Circuit and Family Court of Australia.

 

Court structure

Currently the Family Court and Federal Circuit Court share a registry, and this will effectively continue with the new Court having its own registry for all matters to be commenced in.

There will however be two divisions for the Court, with Division one consisting of the Federal Circuit Court judges; and Division two being made up of the Judges from the Family Court. A new Family Law Appeal division will be created within the Federal Court of Australia.

The details are not yet available however we can expect to see proposed legislation shortly.

One aspect that Family Lawyers will no doubt appreciate is moving towards one set of Court Rules as opposed to the current system operating under the Federal Circuit Court Rules 2001 and the Family Court Rules 2004.

 

What this means for our clients

Hopefully this means a timelier resolution of Family Law matters and giving greater identification and consideration to complex issues cases.

The attorney Generals Department Fact Sheet states the aim is:

“…will create a consistent pathway for Australian Families in having their Family Law disputes dealt with in the first instance. The reforms are designed to maximise the use of highly trained and skilled judicial officers…to significantly improve access to justice for Australian families…improve efficiency…remove back log…drive faster, cheaper and more consistent resolution of disputes…”

Hopefully these aims can be achieved, and as many of our clients (or people currently in the Family Law system) would know, there have been lengthy delays in many registries including Brisbane, Lismore and Southport.

The Attorney General’s department has issued two fact sheets with respect to the proposed reforms and the fact and figures underlying the reforms, the links appear below:

  1. https://www.familylawsection.org.au/images/documents/20180530—Court-Reform-Fact-Sheet-1—w-Diagram.pdf
  2. https://www.familylawsection.org.au/images/documents/20180530—Court-Reform-Fact-Sheet-2.pdf

 

When will this take place?

Firstly, the legislation needs to be passed, but all going well the commencement date will be 1 January 2019.

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.

Mediation is when two conflicting parties in an argument come together with an impartial mediator, whose role is to impartially facilitate discussion and negotiation. The aim is to find a resolution for their dispute and avoid costly, lengthy and emotionally taxing litigation and Court proceedings.

Family Dispute Resolution (or FDR) is defined in section 10F Family Law Act 1975 as:

“A process (other than a judicial process) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and in which the practitioner is independent of all of the parties involved in the process

A Family Dispute Resolution Practitioner (FDRP) is a mediator, accredited with the Attorney General Department after undergoing additional and specific training.

People looking at their options for mediation have lots of questions about what a mediator does and how the FDRP process works. Some of these questions are listed below.

 

  • Mediation vs divorce lawyer – What’s the difference?

Your lawyer is your advocate retained to represent your interests in a Family Law matter or Divorce proceeding. They work in your best interest to get you the best outcome possible. Your ex-partner’s Divorce lawyer will do the same for them. Lawyers are required in litigation before the Court which can be a consuming process, both emotionally and financially.

Mediation empowers separated couples to find an outcome themselves, with or without lawyers being involved. Discussions in mediation are ‘without prejudice’ and cannot be used as evidence in Court if an agreement isn’t reached.

Mediators provide a structure/process for discussions to occur. They address:

  • power imbalances between the opposing sides through interventions
  • assist the parties to better understand the interests and concerns of the other party
  • facilitate negotiation

Most importantly, the mediator is impartial while a Divorce Lawyer represents only one side in the dispute.

 

  • Are the mediation sessions confidential?

Divorce litigation, where the matter goes to court, are confidential and protected by confidentiality provisions in the Family Law Act 1975.

Mediation and FDR is also confidential, and the discussions are “without prejudice” which means the proceedings can’t be used in evidence. There are exceptions to confidentiality though, such as:

  • if a party makes threats to commit a criminal offense
  • information regarding commission of a crime comes to light
  • there’s information regarding risk to a child

The mediator or FDRP is required by the Regulations to report in the above circumstances.

 

  • I don’t feel safe, what should I do?

Mediation or FDR may not be appropriate if there’s family violence or other power imbalances that affect a party’s ability to participate effectively in the process.

Prior to mediation your mediator or FDRP will usually contact you with a series of questions as part of a screening process. The screening process will allow the mediator or FDRP to decide whether the mediation should proceed.

If there’s family violence but the mediator thinks mediation can proceed, the process can be conducted by way of ‘shuttle’ with the parties kept separately and the mediator acting as a go between.

 

  • What happens if we can’t agree?

Sometimes parties can’t resolve their differences with the assistance of mediation. Sometimes couples, despite their good intentions, just can’t agree. Hopefully some issues can be narrowed or better understood via the process and in parenting matters the Family Dispute Resolution Practitioner can issue a Section 60I Certificate allowing the parties to file in Court. The Certificate will indicate to the Court one of the following from the FDR:

  • The parties attended and made a genuine effort to resolve the dispute;
  • The parties attended but one or both did not make a genuine effort to resolve the dispute;
  • Mediation didn’t proceed because one party didn’t attend after being invited by the FDRP;
  • Mediation wasn’t appropriate.

 

  • But what happens when we do agree?

Depending on the dispute there are different potential outcomes if the parties agree.

For property settlement disputes, heads of agreement can be reached and signed which set out the basis for a Consent Order, or Binding Financial Agreement, to be produced.

In parenting disputes, a Parenting Plan will record the agreement which may or may not be made into a Consent Order at a later date. Whether there is a Consent Order, or the agreement remains as a Parenting Plan is a matter for the parties.

 

  • What will mediation do for me?

Mediation empowers the parties to make their own decisions. This tends to create a greater likelihood for satisfaction with respect to outcomes (particularly as an alternative to having a Judge impose an Order).

Experienced Family Lawyers will understand that very often neither party walks away satisfied from “having their day in Court”. Mediation can significantly reduce costs of litigation, the delays often experienced with the process and the animosity created by the opposing side.

Particularly in parenting matters where child focus is important, mediation can assist the parties to move away from entrenched positions. FDR allows them to closely explore each other’s interests and the best interests of the children in the dispute.

 

I once heard a Judge tell a mother and father, “I don’t know your children, or love your children – why do you want me to make these important decisions for them”.

 

Need more information? Read these: