Mary-Clare Kennedy is a practising Family Law Barrister in Sydney CBD and previously practiced as an Accredited Family Law Specialist.
She discusses family law & terminology - past and present, mediation & the court process, what to do when first separating, choosing a solicitor & questions to ask and ways to reduce costs.
Family Law & You
Mary-Clare Kennedy LLB
Mary-Clare Kennedy is a practising Family Law barrister in Sydney CBD and previously practiced as an Accreditied Family Law Solicitor. She has been a great advocate for the need to provide a link between the formal side of the Family Court and a client's personal experience.
"Making life work is in every body's best interest - particularly when there are children involved.
People shouldn't get advice on legal matters from friends and family but from a solicitor - preferably an expert in Family Law.
Sometimes your understanding of the law - as filtered through television - is very different to what the law actually is."
To this end, she is working towards demystifying the system.
Mary-Clare talks about:-
- Family Law & terminology - past and present
- Mediation & the court process
- What to do when first separating
- Choosing a solicitor & questions to ask
- Ways to reduce costs
Q. Mary-Clare can you give us a brief history of the family law legislation?
(List of recent changes to the Family Law legislation are listed at the end of the interview)
When two people get married they make a legal agreement / contract under the law.
This means that, should they divorce, they then become subject to the Family Law Act 1975.
This law is governed by the Family Court of Australia and when passed by Parliament in 1976, it took away the need for parties to prove fault in divorce. It now primarily deals with
- children's issues
- division of property &
- maintenance payments
Over the years many, changes have occurred in this legislation to try to improve the system and how it works.
Now couples only need to prove they have been separated from each other, for a period of 12 months prior to - either or both of them - filing an application for Divorce in the Federal Magistrates Court, under the provisions of the Family Law Act, 1975.
The Family Law Act is regularly reassessed and parts of it are repealed frequently.
The most recent round of changes in family law - in respect of parenting - was in 1996. The Act became more children orientated with more parent involvement. The terminology, which had been used in parenting cases, was also changed from
- custody and access
- residence and contact
The meaning of these terms also changed.
Q. How did the meaning change ?
It was felt that custody denoted ownership of the children in the minds of some parents.
What they were trying to do - by changing the wording of the legislation - was to introduce a change in the way people think about parenting children after divorce.
The parliament changed the wording of Division VII of the Family Law Act - that deals with children - and then expressed it in line with international convention relating to children.
The legislation is now expressed as:
" a child's right to have, regular and frequent contact, with either his or her parents or other persons, significant to their care, welfare and development."
This is regardless of whether the parents were married, unmarried, lived together or never lived together.
Instead of gaining custody of children we NOW express parenting orders as
- where the child resides from time to time or
- with whom the child has contact with - such being the child's right.
Q. Could you explain these?
The main ones are:
Residence - the parent/carer with whom the child/children will live from time to time. e.g.:
" Susie will reside with the mother for from Monday after school until Friday prior to school. "
Contact - the period of defined time a child/children spends with a parent or other person e.g.
" Susie will have contact with her father each weekend commencing from the conclusion of school on Friday until Monday morning at the commencement of school. "
This means Susie will spend weeknight with her mother and weekends with her father.
Parental responsibility for the long term care, welfare and development of a child:
This is the ability to make decision about matters which are fundamental to a child's upbringing. Included here would be
- the religion of the child
- the schooling of the child
- other important decisions in relation to the child.
Parental responsibility for the day to day care, welfare and development of a child:
This means decisions - on an ad hoc basis - about a child during the course of period of residence or contact. For example, if a father is exercising contact to Susie and Susie falls and breaks her leg, the father would have the right and responsibility to seek medical treatment for Susie. If there is a question of more significance such as "shall we amputate Susie's leg "? That is a question for both parents jointly.
The Family Law Act, 1975 assumes that parents have joint responsibility for the long term care, welfare and development of the child unless there is an order to the contrary.
Since 2000, significant changes have been made to property settlement law.
Superannuation entitlements are now treated as property and are capable of being split.
If the breadwinner has superannuation entitlements, those spouses' entitlements may be split to provide a separate fund for each spouse.
There have also been some significant changes to the Family Law Rules which came into force in 2004. One of the major changes on the property side was:
" the duty of full and frank financial disclosure in property matters "
This forces people to undertake - to the Court - that they have given a full and frank financial disclosure of their true financial position.
Although this was always a requirement, it is now a very prominent part of the Act, as a result of case law. A great many financial documents are now required to be exchanged at the earliest stages of the dispute.
Q. What is the Court trying to achieve by all of these changes?
The court is making parents more responsible for decisions about their children rather than relying on a parenting decision made by a third party such as a judge. This has to be good thing.
I do think taking the term " custody " away will ultimately be understood across the board. The intention is for parents not to feel that they need to gain custody of children but focus more on children's rights to have contact with each parent.
I think that it will take at least a generation for those changes to filter through society generally. I also think they are important fundamental changes.
The Federal Government has looked at various models to achieve better parenting decisions. The preferred model which was introduced in 2006 makes provision for a store front counseling regime for people who have separated. I think in principal this is another excellent idea.
The other thing that has been on the agenda at present is:
- a presumption of joint parenting
I think this has pluses and minuses.
The Government was looking at an "equal parenting time regime" with a rebuttable presumption.
In other words, if there was evidence available that shared time was NOT in the child's best interest, then a parent could seek to set aside the presumption that the child spends equal time with each parent.
The difficulty with changes like this is that every single case is different.
I don't know the answer to how we change the legislation to reflect this, but each case has got to be tried on its merit. Every family situation is different, every person is different and it's difficult to make a presumption of equal time in those circumstances.
I think that focusing on a resolution at an early stage of separation is an excellent move forward.
Q. What about Mediation?
The Family Court now requires mediation as its first step in any family law case. This is a procedural matter inside the Court.
Parents are now allowed to meet with counsellors or mediators - rather than a solicitor - and draft their own documents in relation to:
- division of property
- parenting of children
These are called the Consent Orders and can include Parenting Plans. When finished they can be registered at Court and then have the same force as Judge made orders.
They can be in relation to one or a combination of these three areas. You may resolve one of the outstanding areas of dispute leaving the others for a Court to decide.
You may also enter into consent orders at an interim stage of proceedings pending final resolution of the matter. These orders will stay in place for a set duration of time or until there is another order.
Consent orders in relation to children can deal with where the children live, with whom they have contact as well as Specific Issues Orders. You may have partial agreement and enter Consent Orders, leaving the balance of the disputed topics for the Court to rule on.
Parenting Plans can detail residence and contact - where the children physically live on a day to day, week to week, or month to month basis on school holidays and other holidays.
They can also detail Specific Issues Orders, which involve orders, in relation to children and can cover many things e.g.
- religious upbringing
- babysitting - with whom and how often
- medical treatment
- various routines & how they may work
plus any matters that parents can anticipate and agree on in relation to their children's parenting.
These specific issue orders are a fantastic way of focusing parents, on developing a regime or routine -in relation to their children - within two households, giving the children consistency.
The proposed amendments currently before Parliament will introduce pre-action procedures.
Parents will be required to agree on a parenting plan at a large number of parenting centers around the country, before they may approach the Court.
Q. In other words, they can agree on procedures or routines in one home for the next home. How would a Judge approach it if parents couldn't agree?
Orders made by the Judge are never going to be as tailor made as parenting plans that are agreed upon between the parties e.g. it is unusual for Court cases to deal with specifics such as bedtime.
A Judge just can't get that far inside a family home as parents can when they reach consensus.
The bigger issues more often dealt with by the Court are:
- medical treatment
Some of the most difficult Family Court matters are specific issue orders dealing with religion.
When considering Specific Issue Orders the Judge must consider a large number of statutory matters set out in section 68 F (2) of the Act which include
- the child's wishes
- the child's relationship with each parent
- separation costs
- costs of contact
- parents attitudes to the child and to parenting
- domestic violence
- child abuse
- the child's ethnic background
These are the main considerations and the Court must consider the child's best interests as the paramount consideration. The Court must also balance the child's right to know and be cared for by both parents.
Q. So this is an opportunity for the parents to - help make theirs and their children's future life apart - work more successfully. Anticipating the issues that may arise when the children are being parented in different households?
Yes. Statistically parents who reach agreement by themselves - will breach orders much less often, than parents who have orders imposed on them by the Court.
This is a really important point to make.
It is also important to note that most cases these days are resolved without judge made orders. The good news is that, 95% of cases are resolved before a judge is asked to make the decision for the parents.
Q. After the parenting plan has been registered, if either party breaches a Specific Issue Order e.g. - using too many babysitters - would be considered a breach of the Court Orders?
Technically yes. But people are encouraged not to pursue more trivial breaches of orders. Where a parent interferes with the child's right to contact with the other parent, then the Court takes the matter very seriously, including - in the worst cases - a sentence of imprisonment.
Q. Is the Family Court trying to get everything to work better for the children and the parents?
Yes and it is guided by the Federal Parliament.
The Court must work within a statutory framework. It is up to the Australian Parliament to reform the law and to improve ways to reduce disputes outside the rigid system of the Court.
If it gets to the point where a case has to be determined by a Judge - it is then based on principals of law set out in the Family Law Act.
There is also a body of law made by judges and known as Precedent law.
Q. If the parties are unable to agree on Consent Orders, what is the next step?
Firstly, the new Pre Action Procedures under the Family Law Rules, require the parties to
- attempt to mediate the disputed areas and
- provide each other with a long list of financial documents.
Once the above procedures have been satisfied, you may bring an application to the Family Court seeking the orders you would like the Court to make.
Once you commence the Court process, various steps occur - including counselling and mediation - before your matter will come before a Judge for final hearing. If there are urgent issues which require determination, applications may be filed which will come swiftly before a Court to determine.
Q. To get to this point, would the parties would have had to exhaust all other avenues e.g. mediation, counseling, negotiations through solicitors, hearings before Court Registrars?
Correct. The matter becomes very expensive both emotionally and financially. Parties must face a trial before a Judge. Each party - and his or her supporting witnesses - is cross-examined in a formal court hearing.
You would also need to attend:-
- at least one session of mediation
- probably have to attend counselling through the Court
- compulsory round table mediation with your solicitors or your legal representative and the other party usually with a Court Registrar
- interim hearings, where a Registrar or Judicial Registrar imposes interim orders which will last up until final orders are made by a Judge at a defended hearing
Most often those interim hearings are done without cross examination. They are based on the papers and reports sent to the Court. A Court Officer will then make a decision based on affidavits you have sworn and filed in Court.
It is extraordinarily long and extraordinarily expensive. Unfortunately in some cases, a Judge made decision is necessary.
Q. When would a Judge need to impose orders?
You will never get a Judge to hear children's matters unless it is a final hearing in the Family Court. When parents cannot agree usually one of two things will happen.
1. One or the other parent will give up and walk away
2. The case will be determined by a Judge or, on an interim basis a Registrar or Judicial Registrar
The Judges are unlikely to meet the children - although there is some talk of this happening. The children's wishes and the children's specific needs are presented to the Judge often through
- expert's reports e.g. doctors, psychiatrists, psychologists
- or a lawyer appointed to represent the children
The Judge will never know the children and the judge will never know the parents. Therefore it is better in so many cases, for parents to agree on orders about children, without having a Judge impose orders upon them.
Q. Obviously there is a lot of sense in trying to agree together.
Encouraging people to settle their differences is one of the cornerstones of the Family Court.
The Court requires Family Law Solicitors before every Court date, to present clients with
- summaries of their legal costs to date
- estimates of costs to go to the next stage
- estimates of costs to go to final hearing.
The Court uses that as a blunt weapon to encourage parties to settle - but by the same token - it is also important to focus people on the costs before they balloon. They are trying to avoid this from happening,
Q. I know it varies with every situation but the steps you have just explained sound very long and tedious. If someone went to that point, what would it be likely to cost?
For a party to get to a three day hearing in the Family Court, it would be unusual not to have spent less than $30,000 each. I would say that this would be a minimum spend.
It can take up to 18 months. In some Registries in Australia the delay can be a little shorter but in others, it can take a lot longer.
Q. Would this cover all the steps having to get to that point?
Yes. Before a case is fixed for trial all mediation, counselling, conciliation and negotiations have got to be exhausted. The cost will cover all of the above steps.
Some cases can be more expensive. Where a child's legal representative is appointed, the parents usually have to pay - equally - for the costs of the child's lawyer, in addition to the rest.
If parents need to obtain an independent expert - be that a psychologist or psychiatrist - such reports will add to the expense and can cost from $2,000 to $10,000.
Q. Do these costs include barristers? Do you need to use them?
Yes. It will cover a Junior barrister. You may pay more to a Senior / Junior barrister.
It will not cover Queens Counsel or Senior Counsel.
It is very advisable to have a skilled barrister represent a parent in a disputed trial.
I would have to say, in some cases you are forced to spend excessive sums of money. There are cases where people will want to fight every point. It's a legal representative's job to try to defuse those situations but sometimes - they just are not able to be diffused.
Q. What would be an idea of the minimum amount of costs?
Where the parties have reached an agreement and simply want that agreement made official they will not need to pay huge amounts of money.
For example, if the parties are in agreement on
- parenting plans
- consent orders
the estimate of cost could be approximately $1,500 - for each party.
This is the case where parties go to independent solicitors and say:
" here are our property orders and children's orders just make them legal for us."
While these consent orders don't strictly need solicitors, I would strongly advise parties to obtain indepentent advise. I would go so far as to say that parties should not sign any legal documents without advise, otherwise it could affect your interests in ways you do not anticipate and do not intend.
It is important to remember:
- The more you are personally organized and focused the less your costs will be.
- It is really important to maintain good financial records.
Q. Does the Family Court legislation actually specifies that both parties must receive independent legal advice?
Consent Orders in the Family Court don't require independent legal advice, but if you are talking about dividing your property as I said, I would strongly recommend obtaining your own legal advice.
Although parties are not strictly required to obtain legal advice, the division of assets contained in the agreement must be consistent with the Family Law Act. The Court will require sworn financial statements from each party setting out their financial position, value of assets, their contributions made during the marriage and their future needs.
Consent Orders must also be worded in a specific manner.
Q. Mary-Clare, if someone decides to separate, what are the first steps they should follow and why?
It would be ideal if they could agree between themselves, either in relation to children's issues or property issues - even if this is an interim arrangement to get them through the next month.
- sit down, put pen to paper and come up with an agreement - even if it's just a matter of discussing an asset pool
- set up some sort of routine for the children - this is incredibly important
- get basic legal advice & start talking
- if couples can't come to agreement - then seek mediation
- when agreement is reached, consult an Accredited Family Law Solicitor to draw up the papers.
Making life work is in every body's best interest particularly when there are children involved.
People shouldn't get advice on legal matters from friends and family but from a solicitor - preferably an expert in Family Law.
Sometimes your understanding of the law - as filtered through television - is very different to what the law actually is.
Q. Should they see an Accredited Family Law Solicitor or would their general solicitor be suitable?
It is always, advisable to see a person who specialises in Family Law.
The Law Society has a web page with accredited specialists in Family Law in your state.
It is important to determine what percentage of cases - in Family Law - he or she does and to choose a solicitor whose practice does a substantial amount in this area.
There are frequent changes in the legislation and Court practice. There is also a certain culture involved in courtroom practice. If you are there every day of the week, you can pick up what Judges are doing and other matters that make up the culture of the Court.
Solicitors who practice in this area are nearly always up to speed on the changes or on what the Court is doing in certain areas.
Q. What other questions should people be asking? Is it enough that they are on the Law Society list?
To some extent, you have to find a solicitor with whom you feel some sort of bond or trust.
A solicitor who can look you in the eye and answer your questions in a way that you understand is the most important thing.
You are putting all of your trust in these people at a crucial time of your life. You want to be able to feel free to ask questions and to understand their answers.
If a solicitor is talking in a manner that you don't understand, then they are not a solicitor you should employ.
Q. Getting a property settlement and children's orders right is particularly important for the future.
Absolutely, you are unfortunately going to be spending a bit of time with this person. You want to be able to have some sort of connection with them and, significantly trust.
Q. Apart from seeing a solicitor, what else should they be doing?
I would encourage clients to maintain a diary in relation to children setting out:
- contact for the kids and
- the children's reactions to various things
This is going to be important down the track in determining what is working for the children and what is not. It is also used to establish the status quo for the children's orders. This information will be the principal test for interim orders on parenting. Just an exercise book where you write down such things as
- The children's reactions to the events
- Any relevant comments by the children
- Your observations e.g.
- The children's mood
- What worked well
- What upset them
You may also quote direct conversations between you and your partner if necessary.
The other thing I would encourage them to do is photocopy every piece of paper you can find around the house, even current bills.
This information is important in organizing your financial position and where to go to from there. It might also be important down the track for forensic expeditions into finding missing monies.
Q. Mary-Clare when seeing a client for an initial interview, what questions are they likely to be asked?
- General history
- Financial history
- Health of parties and children
- Children's welfare / wishes
- Future needs of the parties
- Expectations for settlement
Q.Is there any standard advice you might give to all clients?
- Go through options for counseling/mediation
- Go through Pre Action Procedures
- Explain the different stages of the Court process
- Give a brief overview of the law
Q. Mary-Clare, I appreciate that time spent - with a solicitor or talking to a solicitor - means money spent.
When dealing with a solicitor, are there any ways clients can reduce their costs, particularly as rates can vary from $400-00 plus per hour.
Preparation is the key!!
1. Prior to your first interview with a solicitor
- do a summary of the history of you and your partner
- include dates of birth
- date of marriage and separation
- details of property sale and purchase
- incomes through the relationship
- insurance payouts received
Try and recreate where monies came from - for the purchase of any properties or pricey items - e.g. husband, wife, relatives or parents. Along with how much each party contributed - if relevant.
Prepare a breakdown of your weekly expenditure - you may need previous
- telephone accounts
- gas/electricity bills
- insurance payments
- car registration & fuel costs
- children's expenses etc
This information will need to be organized, so try to do as much as possible before your first visit. You will save time - and money - by not going over things twice and your solicitor will be able to get to work more quickly.
2. Remember also that your solicitor - whilst being supportive - is not a qualified counsellor.
Legal fees are charged by time and usually in 6 minute modules. Therefore:
- make notes of questions you want to ask your solicitor and tick them off during interview/phone calls
- generally be focused on the issues - this saves time and subsequently money
You may be upset and angry with your spouse, but excessively long telephone calls - to your solicitor when you could be talking to a friend - are going to add up and add up.
3. Supply your solicitor with a copy of all your documents at your interview - as opposed to getting the solicitor to copy them.
Photocopying costs from professional firms can add up.
Q. What about correspondence?
Parties often address correspondence to each other either by letter, email or text message.
Such correspondence, particularly in children's matters can be emotionally charged. I would encourage parties firstly NOT to go into print unless necessary.
If it is necessary to send correspondence on contentious points remember - a Court officer may one day read what you have written.
If the letter involves children's issues make sure your focus is on the children's needs.
Try to make the letters business-like and focused on issues, without name calling.
Q. What is an affidavit?
Affidavits are legal documents which set out your story to the Court. Affidavits present the evidence in written form and are the basis of your case. Affidavits must be carefully drafted to focus on relevant issues and to comply with the laws of evidence. They are executed by taking an oath or an affirmation as to the truth of the contents. Falsely swearing an affidavit is perjury.
Q. What is a Pre-Nuptial?
Under Australian legislation they are know as ' Binding Financial Agreements'.
People can make these agreements:
- or after marriage.
These agreements set out what each party is entitled to should the marriage breakdown.
There are a few things that need to be satisfied before such an agreement is binding that is:
- both parties must have independent legal advice
- each party must provide the other with full and frank financial disclosure.
If those things aren't done then the agreement is set aside and it's not worth the paper it is written on.
Q. Mary-Clare, when parties divorce should they make another will?
Yes, separation and divorce are events which terminate your existing will.
Under the Family Provisions Act, an ex-spouse is an eligible person who may make a claim against your estate. Therefore a new will is necessary.
If there has not been a property settlement at time of death, your ex-spouse may also have a claim against your estate.
Mary-Clare thank you for your time.
CHANGES TO FAMILY LAW LEGISLATION
1995 The Family Law Reform Act 1995 (Cth) attempted to re-focus attitudes away from the notion of the ownership of children towards greater emphasis on their best interests. The terms ‘custody’ and ‘access’ were changed to ‘residence’ and ‘contact’. The concept of guardianship was replaced by ‘parental responsibility’. It also introduced recognition of the potential impact of family violence on children within the legislation.
1990 Federal Magistrates Act 1999 (Cth) established a federal magistracy service as a lower level court below the Family Court of Australia and Federal Court of Australia, to deal with simple family law matters more speedily and at a lower cost. (The Court was subsequently renamed the Federal Circuit Court in 2012.)
2002 Family Law Legislation Amendment (Superannuation) Act 2001 came into operation, enabling superannuation, for the first time, to be treated as property and split between divorcing couples. Western Australia gave the same rights to de facto and same sex couples as divorcing couples in property disputes under the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) and the Family Court Amendment Act 2002 (WA).
Western Australia gave the same rights to de facto and same sex couples as divorcing couples in property disputes under the Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA) and the Family Court Amendment Act 2002 (WA).
2004 The new Family Law Rules 2004 created changes aimed at simplifying court procedures, instituting new requirements for parties to attempt to resolve their disputes before commencing a case in court (called pre-action procedures) and creating tougher penalties for parties and their lawyers who use delaying or other inflammatory tactics in a case.
2005 The Bankruptcy and Family Law Legislation Amendment Act 2005 provided that the creditors of a bankrupt spouse (other people to whom the spouse owes money) would come to argue for their share in a property settlement in the Family Court alongside the spouse of the bankrupt person. Previously, the spouse had to argue for any share in the remaining property in the bankruptcy court, and often missed out as the bankruptcy court does not take child-rearing or homemaking contributions into account in assessing the fair division of available financial and property resources.
2006 changes to the Family Law system was to encourage greater involvement of both parents in children's lives following separation, by including the introduction of a presumption in favour of "equal shared parental responsibility" provided that the children are protected from family violence, child abuse or neglect.
While the changes were designed to encourage parental involvement generally, they were also specifically designed to encourage shared care time where such arrangements are reasonably practicable and in the child's best interests.
2008 Family Law Regulations 2008 introduced the new system of compulsory family dispute resolution. The Regulations included a system for registration and accreditation of family dispute resolution practitioners. This included the need for couples applying to the Court for a Parenting Order to now obtain a Family Resolution Certificate from registered practioners to prove they have praticipated in family dispute resolution or attempted to do so.
2009 a significant change also occurred with disputes arising on breakdown of de facto relationships in New South Wales. The Federal Magistrates’ Court or the Family Court now deal with such matters.
They have exclusive jurisdiction to determine such disputes as arise from de facto relationships which break down after that time, provided certain “gateway” requirements (eg relationship of 2 yrs, or children, contribution to relationship by applicant) are met by the relationship.
The important consequence is that the Family and Federal Magistrates’ Courts apply the powers and discretions contained in the Family Law Act.
2012 changes were aimed at providing better protection in family law cases where there is family violence and abuse.
The Family Violence Act
The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 was part of the Government’s agenda to improve the family law system’s response to family violence and abuse.
- remove disincentives to disclose family violence to the courts
- update the definitions of family violence and child abuse to clearly set out what type of behaviour is unacceptable – such as physical and emotional abuse
- and the exposure of children to family violence, and
- ensure appropriate action is taken to prioritise the safety of children in family law disputes.
These changes put the safety of children front and centre in family law matters, without compromising a child’s right to a meaningful relationship with both parents where this is safe.
Please discuss all related issues with your Family Law solicitor.