FAMILY LAW PRACTICE MANUAL (FIFTH
EDITION) - UPDATE 3 - August 2006
The Manual is now up to date
By Stephen Winspear and Peter
Szabo
Note - these
changes are automatically incorporated into the
Internet Edition of the Family Court Practice Manual. You can view those
changes in context (green text) in the first five chapters. You should
also refer to Comments
on Update 3
Shared Parental Responsibility
Legislation
Set out below this commentary is a summary
of the main changes since the introduction of the Family Law Amendment (Shared
Parental Responsibility) Act 2006. Changes impacting directly on the Manual,
with page references are:
Chapter 2 Page 9 - Changes to Pre Action
Procedures
Delete the bottom paragraph and insert:
“The amendments to Part VII of the Family Law
Act which commenced on 1 July 2006 made significant changes to children’s cases.
The dispute resolution provisions of the
Family Law Rules now apply in any Court in which it is proposed to issue an
application for parenting orders (Family Court, Federal Magistrates Court or
State Magistrates or Local Court) - Section
60I(3).
From 1 July 2007, prior to commencing
proceedings for a parenting order, it will be compulsory to obtain a
certificate from a family dispute resolution practitioner (for the definition,
see Section
10G) as to their attendance upon the practitioner with or without the other
party and as to whether the parties have made a genuine effort to resolve the
issue or issues - Section
60I(7) & (8). The family relationship centres
will be high on the list of popular family dispute resolution practitioners,
and some of them commenced operating on 3 July 2006 for non-mandated services.
(Unless otherwise mentioned, the Rules
referred to in this chapter are the Family Law Rules).”
Chapter 2 Page 10 -
Changes to Pre Action Procedures
Delete everything
appearing before the section titled ‘Exceptions’.
Chapter 2 Page 14 –
Insert reference to Parenting Plans
At the end of the last
paragraph, insert:
“Alternatively, refer to chapter 14 for a
discussion on parenting plans.”
Chapter 3 Page 16 –
Change to Jurisdictional Limit of FMC
Delete the third last paragraph
and insert:
“From 1 July 2006, all property matters can be
commenced in the Federal
Magistrates Court, regardless of the value of the
relevant assets. Prior to that the technical limit was $700,000.00 gross value
(although by consent of the parties the Court could deal with a matter
involving more money).”
Chapter 3 Page 17 –
Change in time to reach hearing
Delete first line of
the second paragraph and substitute:
“Time delays for Federal Magistrates Court final hearings in Melbourne is now less than one year.”
Point
3 under the heading ‘Family Court of Australia’, delete and substitute:
“Complex cases which will run for well over 2
days.”
Chapter 4 Page 22 –
Delivery of pre-action procedure documents
Insert after the end
of fifth new paragraph:
“From 1 July 2006 the Rules requiring the delivery of pre-action
procedure documents to the other side prior to commencing proceedings also
apply in the Federal
Magistrates Court in children’s matters – Section
60I(3).”
Chapter 4 Page 26 –
Relaxation of rules of evidence
Insert at the bottom
of the page:
“Applicable rules of evidence: For some proceedings, the rules of
evidence have now been substantially modified by virtue of the new Division 12A
of the Family Law Act which applies to proceedings under Part VII (Children’s
Proceedings). The new Rules apply to any matter commenced by an application
filed from 1 July 2006. They also apply to earlier proceedings by consent of
the parties and the leave of the Court.
The new Rules also apply to adult child
maintenance proceedings, applications for the payment of child bearing
expenses, parentage testing proceedings and the like and proceedings to vary or
relating to State family violence Orders – see Section
69ZM for the definition of “child-related proceedings”.
Sections 55
and 56
of the Commonwealth Evidence Act importantly still apply. These effectively
mean that any evidence which is relevant is admissible. Basically the Court is
given the power to decide what evidence to allow in and even what matters
require investigation - Section
69ZQ(1). The Court also has much
more control over the trial process, being able to prescribe the length of
submissions, restrict the time for cross-examination, limit
oral argument etc –Section 69ZX
.
The rules of
evidence and the provisions in the Evidence Act which are now excluded included
rules about hearsay and opinion, to mention perhaps the twomost
important categories.
Fundamentally,
“the Court may give such weight (if any) as it thinks fit to evidence admitted
as a consequence of a provision of the Evidence Act not applying” – Section
69ZT(2). It is suggested that legal common sense needs to be applied. In other
words, for example, if your client offers you a hearsay account telling you the
observations of a third party, it is likely to have more weight with the court
if you actually produce the third party to give original evidence. If there is
a credible reason for not producing the original evidence then it may well be
appropriate to rely on the hearsay.”
Chapter 7B
Page 129 – Change to Jurisdictional limit of FMC
Delete the
second paragraph and substitute:
“Property
matters must be transferred to the Family Court if the trial is likely to take
more than two days (rule
8.02(4)(f) of the FMC rules). As previously
mentioned the monetary limit on cases in the Federal
Magistrates Court has been removed.”
Chapter 8A
Page 151 – Changes to procedure in Children’s cases
Delete the
first three paragraphs and substitute:
“In a sense,
there are three models for handling children’s matters – the old, the
transitional and the new. The old model is a traditional Court process which is
similar to the process followed by property proceedings but overlaid by
requirements for counselling / mediation and welfare
reports. It is the model described in the first four Editions of this Practice
Manual and in the original version of the 5th Edition of the Practice Manual.
The
transitional model has been called the “Children’s Cases Program”. It started
as a pilot program in Sydney and Parramatta
and subsequently came to Melbourne. It has been confined to the Family
Court and the Federal
Magistrates Court continues to follow the
“traditional” procedure. It is closer to the European inquisitorial model than
the traditional model. At the first hearing date a single (continuing) Judge is
allocated to the case. The parties are sworn in and are invited to be actively
involved. Everything they say is treated as evidence (potentially). From then
on the Judge is actively involved in deciding what evidence should
be allowed in, what subpoenas should be issued etc. The Court time can in
practice flow between mediation, discussion and adjudication without the Judge
being disqualified from subsequent hearings.
From 1 July
2006 the Family Law Act has been substantially amended for all children’s cases
so that they look much like the Children’s Cases Program
in their processes. The important thing is that the procedural amendments are
in the Family Law Act rather than in the Rules and hence they clearly apply to
children’s proceedings in all Courts – Family, Federal Magistrates and State
Magistrates or Local Courts.
The new
procedures compulsorily govern all children’s Applications commenced after 1
July 2006 as well as other children’s matters in which the parties consent to
the Application of the new procedures – Section
69ZM. Importantly, if you have a children’s matter which also has property
issues involved, you can consent to the new procedures governing financial
issues. If you do not, then there may be two trials on the children and property
issues following different procedures. Seek counsel’s advice before consenting
to the new procedures which are, of course, untested. The ramifications may be
potentially disastrous. Suffice to say, tread cautiously.
It follows
that children’s cases commenced before 1 July 2006 which are
not in the Children’s Cases Program will continue to follow the traditional
procedure unless the parties consent to a change to the new process. Hence the
original version of this Chapter of the 5th Edition of the Manual is still very
relevant.
It is
expected that matters in the Children’s Cases Program will be governed by the
new procedures since the new procedures are virtually a codification of the
Children’s Cases Program although with more discretion as to the processes
being specifically given to the presiding Judge.
It is hard to
see how the Federal
Magistrates Court process will look dramatically
different under the new procedures. Traditionally in the Federal
Magistrates Court, there has been a specific
Magistrate allocated to a case at the outset, which is one of the strengths of
the Federal Magistrates
Court and ensures continuity of adjudication.
However, the Federal
Magistrates Court will often have 30, 40 or 50
matters listed on a first return date and it would seem to be inconceivable
that Magistrates can be very actively involved in many cases at least on the
first date. It is thought that most of the work on the first return date will
continue to be done by the lawyers negotiating in a corridor and obtaining
procedural directions or consent orders for part or entire settlements.
Having said
that by way of introduction, it is still considered that most children’s
matters should be issued in the Federal Magistrates Court for the simple reason
that the estimated time to final hearing is less than half (with variations in
each Registry) as compared with the Family Court. See Chapter 3 for further
discussion regarding Choice of Court and Chapter 8B for the Federal
Magistrates Court process in more detail.”
Chapter 8A
Page 152 - Shared Parental Responsibility presumption
Insert at the
end of the first paragraph:
“Note however
that this does not establish a presumption to be applied by the Court when
making a parenting order – see note 2 to Section
61C(1). Under Section
61DA(1) there is a presumption that it is in
the best interests of the child for their parents to have equal shared parental
responsibility. This presumption does not apply if there is abuse or family
violence – Section
61DA(2).”
Delete reference in
point 2 to s. 65E and substitute 60CA and 65AA
Delete final paragraph.
Chapter 8A
Page 153 - Shares Parental Responsibility changes
Insert before
the section “Making an application for final residence/contact orders”:
“TRANSITIONAL
PROVISIONS FOR EXISTING COURT PROCEEDINGS
Practice
Direction No.1 of 2006 makes it clear that where people have old
proceedings still on foot after 1 July 2006, they need to file Amended Applicationsand Responses with the Court
setting out the Orders sought in words which comply with the new legislation.
If the matter has already been listed for Trial, the Applicant must file an
amended Application at least 28 days prior to Trial or as otherwise directed
and each Respondent must file an Amended Response at least 21 days prior to
Trial or as otherwise directed.
In all cases
commenced prior to 1 July, the parties should file further Affidavits limited
to dealing with any new issues under the new Legislation.
DRAFTING
PARENTING ORDERS
Shared
Responsibility
When making
orders under the new legislation there is a presumption of equal shared
parental responsibility - section
61DA.
An
appropriate and normal type of court order would be:
That the
parties have equal shared parental responsibility for the children of the
marriage Jim John Bloggs born 1 January 1995 and Jane Jenny Bloggs
born 2 July 1999 .
Section 65DAC specifies
what the effect of a shared parental responsibility order is. In the absence of
a court order to the contrary, if a decision is to be made which is about a “major
long-term issue” then a decision is required to be made jointly (sub-section
2). Each person is required to consult the other person with responsibility and
“to make a genuine effort to come to a joint decision” (sub-section 3).
The note to
sub-section 2 makes it clear that decisions about issues that are not major
long term issues are made by the person with whom the child is spending time
and without a need to consult the other person. This is reinforced by section 65DAE. In practice
this means that when a person has a child with them they can make whatever
decisions they like for the care of the child as long as there is no court
order to the contrary and as long as it does not involve a “major long-term
issue”. Such major issues include (but are not limited to) issues about:
(a) the child’s education;
(b) the child’s religious and cultural upbringing;
(c) the child’s health (on its face this requires consultation
even about the most minor health issues which is of concern);
(d) the child’s name;
(e) any living arrangements for the child which make it
significantly more difficult for the child to spend time with a parent.
The upshot of
this is that there is no need for what used to be called a short-term care, welfare
and development order because short-term decision making is implicit in and
flows from the living arrangement of the child at the time. On occasions there
will be sole parental responsibility orders made along the following lines:
That the wife
have sole parental responsibility for the children of the marriage Jim John
Smith born the 1 January 1995 and Jane Jenny Smith born 1 July 1999.
Living
Arrangements
The
legislation refers to parenting orders including orders as to:
(a) the person or persons with whom a child is to live;
(b) the time the child is to spend with another person or other
persons - Section
64B(2).
The
legislation tries to elevate the rights of third parties including grandparents
and other relatives who would generally be most likely to have modest amounts
of time with a child. It seems that the thrust or implication of the
legislation is that if a party has substantial time with a child then that
should be phrased as a “lives with” order. If the time is very modest then it
can be phrased as a “spends time with” order. It is recommended that in the
average husband/wife case, the orders should be framed on the basis that the
child “lives with” the respective parents during the defined times.
(Please note
that in this Manual there remains occasional usage of the old jargon of
“contact” to discuss the “minority” parent’s time with the children, since this
is grammatically much easier than referring to their “spends time with time”!)
Suggested
orders could be one or more of the following :
1.
That the
children live with the husband and the wife in alternate weeks with change over
to take place each Monday morning.
2.
That the
children live with the wife.
3.
That the
children live with the husband as follows:
1.
each
alternate weekend from after school Friday until the following Monday morning
commencing on …
2.
for one week
in each of the school term holidays;
3.
for half the
long summer school holidays;
4.
half
Christmas day each year;
5.
from 5pmon the Saturday prior to Father’s Day until the following Monday morning each year;
6.
the children
live with the wife from 5pmprior
to Mother’s Day until the following Monday morning
each year;
7.
as may otherwise be agreed between the parties from time to
time.
4. The children
live with the wife at all other times.
If a grandparent
or other person has a modest period of time with the child it would be
appropriate to have an order along the following lines:
That the
children spend time with the paternal grandmother each alternate Sunday from 2pm until 6pm .
Other
Responsibility Orders
It is
possible and appropriate in some cases to have specific orders dealing with
specific parental responsibility issues - see section 64B(2)(c). This might particularly apply to health issues. It
is suggested that a parental responsibility order could be along the following
lines:
That the
party with whom the child is living at the time the child becomes unwell have
the sole responsibility to arrange appropriate treatment for the child in all cases where the illness is minor or
routine (such as routine colds or sore throats or the like) but provided that
that party is required to inform the other parent as soon as practicable of the
details of any medical treatment received by the child.
Communication
Orders
The Act
particularly provides for orders being made about the communication a child is
to have with another person - section 64B(2)(e). A suggested order would be as follows:
That the
children communicate with the parent with whom they are not living at the time
by telephone each Wednesday evening between 7pm and 8pm.
Whether the
Application is old or new, the actual type of documentation required to be
filed is the same. Very minor amendments have been made to a number of the
forms and it is always appropriate to check your paperwork complies with the
current versions of the forms which have been published.
The new
substantive laws relating to children apply to all proceedings, although the
new procedures, as mentioned, only apply to Applications issued after
1 July 2006 unless there is consent by the parties and leave from the
court.
Dramatically,
the rules of evidence have been to a large extent done away with. Any evidence
which is relevant is admissible – Section 55 and Section 56 of the Evidence Act.
Traditional Rules relating to hearsay and opinion have been done away with. The
Court now has a very broad power to “give such weight if any as it thinks fit
to evidence admitted as a consequence of a provision of the Evidence Act 1995
not applying” - Section
69ZT(2).
The effect of
this is that your client can give evidence of what the next door neighbour told her, although it is suggested that if the neighbour’s evidence is particularly important, it would
have more credibility coming directly from the neighbour.
Furthermore,
all and sundry are entitled to give their opinion of what they think is in the
best interests of the children. Traditionally, of course, only experts could
give opinion as evidence. It is thought that this freedom should not be abused
in drafting your documents. The Court will not really be interested in the
opinion of the usual crowd of friendly supporters who may be backing up your client’scase and who will hardly be impartial. Of course,
there are qualifications to this. If the supporters have credentials as
teachers or in helping professions but are not technically experts, their
opinions may at least have some probative value.
It is
understood that in the Family Court, generally speaking, at a first return date
a Judge and family consultant (formerly called a court counsellor)
will sit in on the case. The parties can be sworn in at that stage and will
remain under oath at subsequent hearings. The Court will endeavour
to keep continuity of Judge and family consultant.
Judges are
given extensive powers, both to direct what matters should be investigated and
what to file evidence on and also as to the uses of written submissions, the
length of those submissions, limiting the time for oral argument, limiting the
time for giving evidence, limiting the time for cross-examination, limiting the
number of witnesses etc – Section
69ZX. This has the capacity to change the complexion of proceedings quite
substantially as Judges now have wide powers to control prolix litigants (not
to mention litigants with other problems in presenting their case).
Going to Court
The following
describes the traditional Court process. The Court is in a state of flux moving
over to the new procedures. It is not clear whether all registries will be
immediately able to, for resource reasons, undertake all children’s matters in
the labour intensive way intended under the new
legislation - which mirrors the procedure under the Children’s Cases Program.
In any event,
the paperwork in the traditional and new processes is the same. If interim
issues need to be decided then an interim application will need to beissued. The same paperwork will apply. The
principal difference under the new process will be that the same Judge will, if
practicable, hear the matter on aninterim
basis as has been involved previously. Under the circumstances, the detailed
discussion which follows is almost entirely directly applicable to proceedings
under the new rules, as well as proceedings issued prior to 1 July 2006.”
Delete point 6 under “Pre-Action
Procedures”.
Chapter 8A
Page 156 – Change to terminology
Insert in the
section ‘Guidelines’:
“Attachment
8AB of the hard copy of the Manual lists the traditional criteria for
appointing an ICL. The role of the ICL is codified now in Section
68LA and in brief summary the ICL must be
• impartial;
• independent;
• represent
the child’s best interests (not their instructions);
• must ensure
that a child’s views are “fully put before the Court” (subsection 5(b));
• cannot be
required to disclose to the court any communications by the child (subsection
6(b)); and
• may
disclose any communication by the child to the Court.”
Chapter 8A
Page 157 – Court’s taking account of offers to settle
Insert before
the section ‘Disclosure of documents’:
“Note however
that under Section
117C, the Court is specifically empowered in certain circumstances to take
into account offers of settlement when considering costs. Section
117C(1)(b) specifies that Section
117C does not apply to most children’s matters (with the exception of
location and recovery orders, registration of overseas orders and other odds
and ends).
This does
however leave the discretion to order costs in children’s matters theoretically
open. Section 117(2) allows the
Court to order costs if the Court “is of opinion that there are circumstances
that justify it in doing so”. (At least in theory this overrides Section 117(1) which says:
“subject to subsection (2)” each party shall bear
their own costs).”
Chapter 8B Page 170
Delete reference in
point 2 to s. 65E and substitute 60CA and 65AA
Delete final paragraph.
Chapter 8B Page
179 – Commentary on Parenting Plans
Insert at the
end of the page:
Finalising Children’s Matters:
Parenting Plans v Court Orders
“Parenting
plans” are agreements in writing, between the parents of the child, signed by
them and dated - section
63C(1). Those are the formalities – so almost any signed
document about the children can be a parenting plan! Furthermore this applies
to documents signed before 1 July 2006.
Parenting
plans can include all provisions relating to parenting matters and can also
include a non-parent as a party to the agreement (as long as both parents also
sign the agreement) - section 63C(2A).
Interestingly, you must as part of your advice to your client inform your
client that they “could consider entering into a parenting plan” – Section 63DA(1)(a).
The trouble
is that a parenting plan is not enforceable and technically not legally
binding. As a result you will usually tell your client that you recommend court
orders over parenting plans to finalise their children’s case.
Despite a
parenting plan not being enforceable, it can however override a parenting
order. A parenting order is “subject to” a later parenting plan (section
64D) and hence an application to have a person dealt with for breaching a
parenting order would be likely to be unsuccessful if a later parenting plan
justified non-compliance with the earlier order.
Parenting
plans can be very informal as long as they comply with the minimum requirements
of section 63C(1) referred to above. Section
63C(1A) interestingly provides that an agreement
is not a parenting plan unless it is made free from “any threat, duress or
coercion.” It is suggested that the word “any” makes it relatively easy to
prove that an agreement is not a parenting plan. There will obviously be
situations where a demanding party insists that another party signs and the
second one gives in for the sake of peace. That may
well constitute duress rendering the parenting plan ineffective for all
purposes.
Obviously
parenting plans are of limited utility except between parties who are
relatively civil and sensible and where you think the chances of a breach or
enforcement issue arising are pretty low.
In most
situations you will probably prefer to use parenting orders rather than
parenting plans if only because your client will be entering into consent
property orders to finalise property
matters which makes it rather simple to add in parenting orders as well.
A sample parenting plan is included in the Internet Edition as Attachment 8B.
Chapter 11 Page 215 –
Changes to formulae
Insert at the beginning:
“From 1 July 2006 modest amendments to the child support formula
commenced including the reduction of the maximum cap under which the formula is
calculated. More substantial
amendments are coming in in two further phases commencing
on 1 July 2007 and 1 July 2008. None of these changes need further discussion
here.”
Chapter 12A Page 226
– Change to pre-trial procedure
Insert in section “Procedures before filing”:
“From 1 July 2007 it will be compulsory for clients to attend a
family dispute resolution practitioner (including employees of Family
Relationship Centres) to
obtain a certificate as to
family dispute resolution attempts, before commencing legal proceedings –
Section 60I. That compulsion is not yet applicable.”