family law-the new changes

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Family Law-the new Family Law-the new changeschanges

Presented by Sara BlazeyPresented by Sara Blazey

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Family Law Act 1975Family Law Act 1975

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Federal ActFederal Act Applies to all children regardless of whether Applies to all children regardless of whether

parents are or were married or living in de facto parents are or were married or living in de facto

relationshiprelationship Courts - Family Court,Federal Magistrates CourtCourts - Family Court,Federal Magistrates Court

Local CourtLocal Court 1 July 2006 - major amendments came into 1 July 2006 - major amendments came into

forceforce

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Summary of changesSummary of changes

Presumption of equal shared parental responsibility

Emphasis on equal or substantial parenting time

Parenting orders now called “live with” and “spend time with”

Mandatory family dispute resolution

Creation of Family Relationship Centres

New enforcement and breach of orders procedure

New “hands on” and less adversarial court process

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What you need to knowWhat you need to know

• Parents must consult and make joint decisions

• There is no presumption of equal shared care• Court must consider equal time • Court must consider substantial /significant time• Important provisions about family violence

• Once a fortnight and half the holidays

no longer the norm

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Objects of the ActObjects of the Act

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

s60B(1)s60B(1)

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Objects of the ActObjects of the Act

b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

s60B(2)s60B(2)

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Principles of the ActPrinciples of the Act

b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care,welfare and development (such as grandparents and other relatives)

s60B(2)s60B(2)

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Best Interests of the childBest Interests of the child

““in deciding whether to made a in deciding whether to made a particularparticular

parenting order in relation to a parenting order in relation to a child, a court must regard the best child, a court must regard the best interests of the child as the interests of the child as the paramount consideration”paramount consideration”

s60CAs60CA

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HOW ARE DECISIONSHOW ARE DECISIONSABOUT CHILDREN MADE?ABOUT CHILDREN MADE?

Informal agreementInformal agreement Informal written agreementInformal written agreement Parenting planParenting plan Consent order made by CourtConsent order made by Court No agreement - application to Court ->No agreement - application to Court ->

court order court order

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PRE-ACTION PROCEDURESPRE-ACTION PROCEDURES

Attempt Family Dispute Resolution Attempt Family Dispute Resolution Before issuing put in writingBefore issuing put in writing

- issues in dispute- issues in dispute

- orders sought- orders sought

- genuine offer to resolve dispute- genuine offer to resolve dispute

- 14 days to respond- 14 days to respond

- give a copy of pre-action procedures- give a copy of pre-action procedures Costs implications if not followedCosts implications if not followed

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MANDATORY FAMILY MANDATORY FAMILY DISPUTE RESOLUTIONDISPUTE RESOLUTION

Phased in from 1 July 2007Phased in from 1 July 2007 Certificate required stating:Certificate required stating:

- other party failed to attend- other party failed to attend- genuine effort made to resolve- genuine effort made to resolve- one party did not make genuine effort- one party did not make genuine effort

- case not appropriate for family dispute - case not appropriate for family dispute resolutionresolution

Costs implications for not making genuine effortCosts implications for not making genuine effort

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MANDATORY FAMILY MANDATORY FAMILY DISPUTE RESOLUTIONDISPUTE RESOLUTION

ExceptionsExceptions Consent applicationsConsent applications “ “reasonable grounds” there has been or is a risk of reasonable grounds” there has been or is a risk of abuse or family violenceabuse or family violence Some contravention applicationsSome contravention applications Urgent applicationsUrgent applications Unable to participate eg. disability, remote areaUnable to participate eg. disability, remote area

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PARENTING PLANSPARENTING PLANS

Voluntary written agreementVoluntary written agreement Not enforceableNot enforceable Will override previous orderWill override previous order Must be made free from threat, duress or coercionMust be made free from threat, duress or coercion No requirement to get legal adviceNo requirement to get legal advice Mandatory requirement that advisors must tell Mandatory requirement that advisors must tell clients about parenting plansclients about parenting plans FRC expected to encourage clients to enter intoFRC expected to encourage clients to enter into parenting plansparenting plans

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PARENTING PLANSPARENTING PLANS

Can include:Can include:• who the child lives withwho the child lives with• who the child spends time withwho the child spends time with• allocation of parental responsibilityallocation of parental responsibility• how to consult where equal P.R.how to consult where equal P.R.• communication child will have with parentcommunication child will have with parent• maintenance (unenforceable unless registered)maintenance (unenforceable unless registered)• how to resolve any disputes about planhow to resolve any disputes about plan• any aspect of care, welfare,developmentany aspect of care, welfare,development

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Going to CourtGoing to Court

New Court procedureNew Court procedure

Judge managedJudge managed

Strict rules of evidence abolishedStrict rules of evidence abolished

Less adversarialLess adversarial

Family ConsultantsFamily Consultants

Independent Children’s LawyerIndependent Children’s Lawyer

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Best Interests of the childBest Interests of the child

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

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Best Interests of the childBest Interests of the child

Additional considerations

(3) Additional considerations are: (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

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Best Interests of the childBest Interests of the child

Additional considerations (continued)

(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or(ii) the making of the order was contested by a

person;

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Best Interests of the childBest Interests of the child

Additional considerations (continued)

New Section (4) creates “friendly parent” considerations

Has the parent taken the opportunity to participate ?

Has the parent facilitated or failed to facilitate the other

parent ?

N.B. S (4 A) consider post separation behaviour

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Parental Responsibility Parental Responsibility

Presumption of “equal shared parental responsibility”Does not apply if -- reasonable grounds to believe there is abuse or family violence- interim order and presumption not appropriatePresumption is rebutted on grounds of best interests only

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Parental ResponsibilityParental Responsibility

If equal - must consult and agree on“major long term issues”- Education- Religious and cultural upbringing- Health- Name- Changes to child’s living arrangements

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Court OrdersCourt Orders

Parenting Orders-where the child lives-who they spend time with-allocation of parental responsibility-how parents must communicate-communication child is to have, including by email, text etc.

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Equal time or substantial and Equal time or substantial and significant timesignificant time

If equal shared parental responsibilityorder made:

-> equal time, if not

-> substantial and significant time

Must apply “reasonable practicality” test

Must apply best interest of child

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Equal time or substantial and Equal time or substantial and significant timesignificant time

Substantial and significant time defined -days that fall on weekends and holidays-days that do not fall on w/e and holidays-involves child’s daily routine-involves special occasions and events

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Equal time or substantial and Equal time or substantial and significant timesignificant time

Reasonable practicality test-how far apart do the parents live?-parents capacity to implement -parents capacity to communicate-impact on the child-any other relevant matter

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Breach of ordersBreach of orders

Court has extensive powers to deal with breachesCosts orders can be made Make up time orderedCompensation for expenses incurredVariation of order (could involve changing which parent child lives with)Serious cases - fine,imprisonment

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Family Law - abuse and Family Law - abuse and violenceviolence

Balancing exercise

Right of parent to be involved with child v right of child to be protected from violence

Now have to establish reasonable grounds

Threat of order for costs for “knowingly”making a false allegation or statement

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Family Law - abuse and Family Law - abuse and violenceviolence

New definition of family violenceNew definition of family violence

“ “..means conduct, whether actual or..means conduct, whether actual or threatened by a person towards, or towardsthreatened by a person towards, or towards the property of, a member of the person’sthe property of, a member of the person’s family that causes that or any other memberfamily that causes that or any other member of the person’s family of the person’s family reasonably to fearreasonably to fear for, for, or or reasonablyreasonably to be apprehensive about, to be apprehensive about, his or her personal wellbeing or safety”his or her personal wellbeing or safety”

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Family Law - abuse and Family Law - abuse and violenceviolence

Where does the law protect?

Objects - must protect from abuse, neglect

Best interests: Primary considerations - need to protectAdditional considerations

- family violence- family violence orders

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Family Law - abuse and Family Law - abuse and violenceviolence

Where does the law protect?

Mandatory FDR - exception

Court process - fast track abuse cases

No presumption of equal shared P.R.

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Family Law - abuse and Family Law - abuse and violenceviolence

How is abuse dealt with?Court does not punishCourt does not make a finding of guiltBest Interests is paramountFinding of “unacceptable risk”

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Family Law - abuse and Family Law - abuse and violenceviolence

Local Court power to change parenting order

S 68R - Court can vary, suspend, revoke earlier parenting order on the making ofa Family Violence Order

Must have new material not before the Court that made the order

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Family Law - abuse and Family Law - abuse and violenceviolence

Parenting order made after FVOS68P - if order will be inconsistent with FVO-Order must specify inconsistency-Give details as to how order will work-Explain order to all affected parties-Serve a copy on police, Local Court

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Grandparents and Family LawGrandparents and Family Law

Law has not changed:

-grandparents have always been able to apply for parenting orders

-child’s relationship with grandparents has always been a relevant consideration

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Grandparents and Family LawGrandparents and Family Law

What is new?

Principles child’s right to spend time with grandparents

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Grandparents and Family LawGrandparents and Family Law

What is new?Best Interests - nature of relationship with grandparents- effect of separation from grandparents- capacity of grandparents to provide for needs

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Grandparents and Family LawGrandparents and Family Law

What is new?

Orders that can be made by the Court

-parenting order can be made in favour of grandparents

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Relocation under the new lawRelocation under the new law

Previous position

Had to show:• genuine reasons for move• good proposals for contact• best interests of child

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Relocation under the new lawRelocation under the new law

Position now?

Court will have to consider:• principle of meaningful involvement• presumption of equal parental responsibility• emphasis on equal/substantial time• child’s right to spend time with parents• parent’s ability to encourage close relationship with other parent