Family Law & You

Mary-Clare Kennedy

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.

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Family Law & You
Mary-Clare Kennedy LLB
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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. 
P
eople 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 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The Family Law Act is regularly reassessed and parts of it are repealed frequently.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 
  • to
  • 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
  • -  maintenance
  • - 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.

  • - schooling
  • - bedtime
  • - discipline
  • - 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
  • - schooling
  • - religion.

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 the