1 Family Law-the new changes Presented by Sara Blazey

2 Family Law Act  Federal 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 relationship relationship Courts - Family Court,Federal Magistrates Court Courts - Family Court,Federal Magistrates Court Local Court Local Court 1 July major amendments came into 1 July major amendments came into force force

3 Summary 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

4 What 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

5 Objects 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)

6 Objects 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)

7 Principles 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)

8 Best Interests of the child “in deciding whether to made a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration” parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration” s60CA

9 HOW ARE DECISIONS ABOUT CHILDREN MADE? Informal agreement Informal agreement Informal written agreement Informal written agreement Parenting plan Parenting plan Consent order made by Court Consent order made by Court No agreement - application to Court -> No agreement - application to Court -> court order

10 PRE-ACTION PROCEDURES Attempt Family Dispute Resolution Attempt Family Dispute Resolution Before issuing put in writing Before issuing put in writing - issues in dispute - orders sought - genuine offer to resolve dispute - 14 days to respond - give a copy of pre-action procedures Costs implications if not followed Costs implications if not followed

11 MANDATORY FAMILY DISPUTE RESOLUTION  Phased in from 1 July 2007  Certificate required stating: - other party failed to attend - genuine effort made to resolve - one party did not make genuine effort - case not appropriate for family dispute - case not appropriate for family dispute resolution resolution  Costs implications for not making genuine effort

12 MANDATORY FAMILY DISPUTE RESOLUTION Exceptions  Consent applications  “reasonable grounds” there has been or is a risk of abuse or family violence abuse or family violence  Some contravention applications  Urgent applications  Unable to participate eg. disability, remote area

13 PARENTING PLANS  Voluntary written agreement  Not enforceable  Will override previous order  Must be made free from threat, duress or coercion  No requirement to get legal advice  Mandatory requirement that advisors must tell clients about parenting plans clients about parenting plans  FRC expected to encourage clients to enter into parenting plans parenting plans

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

15 Going to Court New Court procedure  Judge managed  Strict rules of evidence abolished  Less adversarial  Family Consultants  Independent Children’s Lawyer

16 Best 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.

17 Best 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;

18 Best 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;

19 Best 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

20 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 appropriate Presumption is rebutted on grounds of best interests only

21 Parental 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

22 Court 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 , text etc.

23 Equal time or substantial and significant time If equal shared parental responsibility order made: -> equal time, if not -> substantial and significant time Must apply “reasonable practicality” test Must apply best interest of child

24 Equal time or substantial and significant 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

25 Equal time or substantial and significant 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

26 Breach of orders Court has extensive powers to deal with breaches Costs orders can be made Make up time ordered Compensation for expenses incurred Variation of order (could involve changing which parent child lives with) Serious cases - fine,imprisonment

27 Family Law - abuse and violence 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

28 Family Law - abuse and violence New definition of family violence New definition of family violence “..means conduct, whether actual or “..means conduct, whether actual or threatened by a person towards, or towards threatened by a person towards, or towards the property of, a member of the person’s the property of, a member of the person’s family that causes that or any other member family that causes that or any other member of the person’s family reasonably to fear of the person’s family reasonably to fear for, or reasonably to be apprehensive about, for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” his or her personal wellbeing or safety”

29 Family Law - abuse and violence Where does the law protect? Objects - must protect from abuse, neglect Best interests: Primary considerations - need to protect Additional considerations - family violence - family violence orders

30 Family Law - abuse and violence Where does the law protect? Mandatory FDR - exception Court process - fast track abuse cases No presumption of equal shared P.R.

31 Family Law - abuse and violence How is abuse dealt with? Court does not punish Court does not make a finding of guilt Best Interests is paramount Finding of “unacceptable risk”

32 Family Law - abuse and violence Local Court power to change parenting order S 68R - Court can vary, suspend, revoke earlier parenting order on the making of a Family Violence Order Must have new material not before the Court that made the order

33 Family Law - abuse and violence Parenting order made after FVO S68P - 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

34 Grandparents 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

35 Grandparents and Family Law What is new? Principles child’s right to spend time with grandparents

36 Grandparents 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

37 Grandparents and Family Law What is new? Orders that can be made by the Court -parenting order can be made in favour of grandparents

38 Relocation under the new law Previous position Had to show: genuine reasons for move good proposals for contact best interests of child

39 Relocation 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