FAMILY LAW INFORMATION SESSIONS

Transcription

1 FAMILY LAW INFORMATION SESSIONS

2 FAMILY LAW COURTS JOINT REGISTRY COMPLEX MATTERS - Family Court: applications about validity/nullity of marriage Hague Convention (removal of children overseas) Special Medical Procedures Certified by legal practitioners as complex. ALL OTHER MATTERS Federal Magistrates Court PROPOSED AMALGAMATION OF FAMILY COURT AND FEDERAL MAGISTRATES COURT 2

3 Family Law Changes 2006 Changes to the law Pre action procedures Changes to terminology Changes to child support laws 3

4 CHANGES TO THE LAW Family Law (Shared Parental Responsibility) Amendments Best interests of child Equal or substantial and significant time Compulsory family dispute resolution Less adversarial court hearings 4

5 Pre action procedures Parties must attend family dispute resolution in all NEW parenting cases. The Court must not hear an application for a parenting order unless the applicant files a Certificate given to them by a Family Dispute Resolution Practitioner. 5

6 Family Dispute Resolution FAMILY & FEDERAL MAGISTRATES COURTS (court ordered children & property only) ANGLICARE KidsAreFirst Parenting Orders Program Hindmarsh (child focussed & inclusive matters only) CENTACARE (free call) (children s & property matters) Adelaide & Murray Bridge Lower SE CENTRECARE Port Pirie Diocese (children s & property matters) Ceduna, Port Augusta, Port Lincoln, Pt Pirie & Whyalla RELATIONSHIPS AUSTRALIA (children s & property matters) Adelaide (no property) Berri, Hindmarsh, Marion, Ridgehaven and Salisbury (no property) 6

7 Family Dispute Resolution LEGAL SERVICES COMMISSION Family Law Conferencing Program A joint conference between the parties and their lawyers and chaired by an independent accredited mediator One party must have legal aid Contact:

8 Court Fees 1/11/10 Family Court N/A / 956 DIVORCE APPLICATION/ RESPONSE (Final orders) CHILD SUPPORT HEARING FEE APPEAL Federal Magistrates Court NIL 444 N/A 60 REDUCED FEE 60 8

9 LEGAL COSTS Legal Aid rate $ Supreme Court rate $ Private rate $ 9

10 Family Relationship Centres (Australia wide) Salisbury/Elizabeth & the Barossa Shop 52a, Elizabeth Shopping Centre Ph Cnr. James & Gawler Street, Salisbury Ph Noarlunga 38 Beach Road, Christies Beach Ph Port Augusta 11 Marryatt Street, Port Augusta Ph Adelaide 55 Hutt Street, Adelaide Ph: Mt Gambier 1 Helen Road, Mt Gambier Ph:

11 Section 60I-Exceptions to Pre-Action Procedures Applying for Consent Orders Responding to a court application Urgency Family violence or child abuse or risk of child abuse One or more of parties unable to participate effectively, i.e. mental health, drug/alcohol, physical remoteness. 11

12 Section 60I What does the Certificate say? A party did not attend due to: refusal or failure to attend; or issues at hand not appropriate for family dispute resolution. Parties attended and: made or did not make a genuine effort to resolve issues; 12

13 Who can issue Certificates? A registered and accredited Family Dispute Resolution Practitioner (FDRP) Register of Family Dispute Resolution Practitioners Legal Services Commission of SA can issue these certificates through its Family Law Conferencing Program 13

14 Applications Involving Children Federal Magistrates Court FILE APPLICATION FILE ANSWERING DOCUMENTS FIRST HEARING DATE ADJOURNED HEARING DATE (S) FAMILY REPORT TRIAL 14

15 Changes to terminology All orders are now parenting orders residence lives with contact spends time with 15

16 Changes to terminology Major long-term issues child s education; child s religious and cultural up-bringing; child s health; child s name; changes to child s living arrangements which make it significantly more difficult for the child to spend time with a parent 16

17 Family Law Act SECTION 65C Who may apply for a parenting order 65C A parenting order in relation to a child may be applied for by: (a) Either or both of the child s parents;or (b) The child; or (ba) A grandparent of the child; or (c) Any other person concerned with the care, welfare or development of the child. 17

18 Family Law Act SECTION 60B 60B(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. 18

19 Family Law Act SECTION 60B 60B(2) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests: (a) children have the right to know and be cared for by both their parents, and (b) children have a right to spend time on a regular basis, with both their parents and with other people significant to their care, welfare and development; and 19

20 Family Law Act SECTION 60B (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture. 20

21 Family Law Act SECTION 60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 21

22 SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD'S BEST INTERESTS The primary considerations are: (a) the benefit of having a meaningful relationship with both parents (b) the need to protect the child from physical or psychological harm (by being exposed to abuse, neglect, violence) 22

23 60CC: Additional factors: Views expressed by the child Relationship of the child with each of the child's parents Willingness to promote a good relationship with the other parent Effect of any changes in the child s circumstances 23

24 60CC: Additional factors: Difficulty and expense of a child spending time with a parent Capacity of each parent Maturity, sex, lifestyle and background of the child Right of an Aboriginal child to enjoy his or her culture 24

25 60CC: Additional factors: Attitude to the child, and to the responsibilities of parenthood Family violence Least likely to lead to the institution of further proceedings Any other relevant factor 25

26 Equal shared parental responsibility & Substantial and significant time Presumption- parents are to have equal shared parental responsibility NOT time Equal Time v Substantial and significant time: -Time with the child on weekdays, weekends & holidays - Involved in child s daily routine, special events and occasions. 26

27 The Independent Children s Lawyer Can be either Court Ordered OR By agreement of the parties if the Court agrees 27

28 The Role of the Independent Children s Lawyer The primary duty of the Independent Children s Lawyer is: 1. to ensure that all matters and witnesses relevant to the child s welfare are before the Court 2. to assist the Court reaching a decision that is in the child s best interests 28

29 Case Study 1 The father secretly brought the child to Australia. The Family Court awarded residence to the mother. The father deliberately avoided the court s order. The child was located. The father applied to the Court for residence of the child, then aged 5. The mother argued that because of his conduct he should be disqualified from obtaining an order for residence. 29

30 Case Study 2 Facts: The 4 year old child lived with the mother, and the father had regular contact. The father remarried. The mother was retrenched. The mother wished to relocate from Sydney to Melbourne to live with her parents and near her extended family, including a twin sister. The father applied to restrain the child from being removed from Sydney. Father Said: His contact would be reduced. His new wife was pregnant. He had bought a new house in Sydney and couldn t relocate himself to Melbourne. The child was seeing her paternal grandparents regularly and this couldn t continue if the child moved to Melbourne. 30

31 Case Study 3 Rice & Asplund Variation of orders Rice & Asplund threshold test Substantial change in circumstances or some new factor arising or not previously disclosed which would have been material 31

32 Children s Contact Centres Where, at change over of children from one parent to the other, the children are exposed to parental conflict or there may be safety considerations, that changeover may occur at a child contact centre. Supervised contact sessions may also be available. 32

33 Children s Contact Centres Berri Campbelltown Hindmarsh Mt Gambier Morphett Vale/Mt Barker Port Augusta Salisbury Whyalla

34 WEB SITES Family Law Courts: Federal Magistrates Court Legal Services Commission includes the Law Handbook SA 34

35 FAMILY LAW DUTY LAWYER The Legal Services Commission has a lawyer based at the Family Court and Federal Magistrates Court to assist people who come to court unrepresented. Contact: or

36 Legal Services Commission For FREE independent legal information and advice please call the Child Support Unit on Or

37 Legal Services Commission 82 Wakefield Street Adelaide Regional Offices Elizabeth Holden Hill Mount Barker Noarlunga Port Adelaide Port Augusta Whyalla Plus outreach to Murray Bridge ADVICE interviews by appointment Telephone Advice 9.00am pm Cost of a local call Representation in house lawyer or private practitioners 37

38 Family Law Services Telephone Advice FDR Unit Child Support Unit Legal advice by appointment Seminars and talks to community groups Publications Interpreters Prison Advice Duty lawyers Domestic Violence Worker 38

39 LEGAL AID APPLICATION PROCESS LEGAL SERVICES COMMISSION PRIVATE LAWYER Client completes Legal Aid Application Form Forwards completed Application Form with covering letter Applications Verified Applications Assessed Rejected Appeal Approved Private lawyer In-house lawyer 39

40 Property Settlement Family Law Act Time Limit Application for property settlement must be filed within one year of the divorce order or within two years after the end of the de facto relationship Section 79 Section 79 The court may make such order as it considers appropriate 40

41 Property Settlement Family Law Act Assessment of Property Settlements ASSETS CONTRIBUTIONS FUTURE NEEDS JUST & EQUITABLE 41

42 Applications Involving Financial Matters FILE APPLICATION (including statement of financial circumstances) FILE ANSWERING DOCUMENTS DIRECTIONS HEARINGS CONCILIATION CONFERENCES TRIAL 42

43 NUNN FAMILY ASSETS: 1) House value $250,000 less (40,000) Equity $ 210,000 2) Cars Neil's $ 20,000 Nerissa's $ 5,000 3) Super (Neil) $ 65,000 TOTAL ASSETS $300,000 43

44 NUNN FAMILY Wife $165,000 $210,000 $ 5,000 $215,000 $ 50,000 - $165,000 $300,000 55:45 Husband $135,000 $ 20,000 $ 65,000 $ 85,000 +$ 50,000 $ 135,000 44

45 DE FACTO RELATIONSHIPS Changes from 1 March 2009 Includes heterosexual and same sex de facto couples Four requirements Relationship of at least 2 years; or Child of the de facto relationship; or A party has made substantial contributions and a failure to make an order would result in serious injustice to the applicant; or Relationship registered under a prescribed law of State or Territory 45

46 Child Support Formula Changed 46

47 URBAN MYTHS The court favours women The court favours men I m entitled to 50:50 If I avoid being served, it will go away! I m disadvantaged because I am on Legal Aid 47

48 URBAN MYTHS I can come back to the court at any time Judges believe everything they hear My child wants to live with me My child can decide where he/she wants to live at the age of 14 The house is in my name, so the other party is not entitled to anything 48