Family Law Practice Manual (Fifth Edition) Update 1 - December 2004 1. Family Court The Family Court has just issued the Family Law Amendment Rules 2004 (No. 3), which purports will result in a lot of changes (the rules run to 110 pages), but in fact change little of substance. There are small changes to the design of some forms, a lot of drafting improvements or typographical corrections to the Rules, and very few changes to everyday practice. Notable changes include: (a) Amendments to all the common forms to place the client s full name more prominently on the front page ensure that the lawyer s name and address is inserted. (b) Amendments made to forms and rules to cover applications and orders that are binding on third party creditors (under the new Part VIIIAA of the Act which commenced on 17 December 2004). These changes are common sense: the creditor must be named as a party and the Form 11 has provision for signing by a third party and their lawyer. (c) Consent Orders under the Form 11 process no longer need to be co-signed on each page by the lawyer (cf Chapter 14). (d) The Form 12 (non-party production notice) has been substantially altered. (e) A new Costs Notice brochure is created which must be given to clients in lieu of the old Costs Notice and Notice of Rights see the website references in Chapter 1. (f) A cover sheet is now attached when filing a Marriage Certificate, Birth Certificate, Family Violence Order or other Court s order (Rule 24.01(l)(h)). (g) Offers of Settlement no longer have to be personally served (Rule 7.03). (h) The expert rules are clarified to ensure that teachers and treating doctors can give evidence without necessarily being the single expert. (i) The penalty interest rate is increased to 10.25% (Rule 17.03). (j) Several Registrar and Deputy Registrars delegation powers are altered. Registrars are [now] empowered to order step-child maintenance. (k) Pre-action procedure brochures need only to be sent once. (l) The costs scale increases by 10.2% and photocopying charges go up to 50c per page. Note (a) A grace period allows all old forms to be used up to 31 January 2005. (b) New forms 2, 11, 12 and 60 should be used after 31 January 2005. (c) From 31 March 2005, the new forms 1, 1A, 2A, 4, 5, 8, 10 and 13 to 20 should be used. After March 2005, the authors are of the view that most of the old forms substantially comply with new forms and ought to be acceptable. However, it is safer to have the latest forms, so ALWAYS check the Court websites to ensure you are up to date. 2. Federal Magistrates Court Be prepared as the Federal Magistrates Court is speedily deciding cases, and a number of Federal Magistrates have just announced that they will decide Child Support Applications on the First Return Date come what may. NB: This may differ from Registry to Registry. 3. Best practice guidelines for Lawyers doing Family Law work The Family Law Section of the Law Council of Australia and the Family Law Council jointly prepared and published these 68 page guidelines. The on-line version is available at www.lawcouncil.asn.au. The guidelines are advisory only and a good deal of their content was anticipated in this edition of the Family Law Practice Manual. Peter Szabo Stephen Winspear Rob McBain 1
Update 2 - March 2006 1. General update This summary includes the principle changes to the Family Law practice since December 2004 and how they impact directly on the edition. 2. Chapter 1 Page 3 Advice to clients regarding Legal costs in Victoria Legal Profession Act 2004 The Legal Profession Act 2004 (Vic) came into effect on 12 December 2005. This new Act requires clients to receive significant information on the costs of providing legal services. Effectively, legal practitioners are now required to enter into a Costs Agreement, even if you are charging under the Family Law scale. You should provide your client with both the Family Law Costs brochure and the relevant brochures under State legislation. Most States have introduced similar legislation. For Law Institute of Victoria members, further information is available at: http://www.liv.asn.au/regulation/lpachanges/ The prescribed Family Law Costs brochure is available at: http://www.familycourt.gov.au/presence/connect/www/home/publications/client_brochures/ brochures/main_page_court_costs 3. Chapter 7, page 107 Open offers no longer to be fi led in court Amendments to Section 117C remove the requirement to file offers. Offers can now be in letter form, and, as a consequence, Form 60 is no longer a court form, and in the Manual, attachment 7AH on page 403 of the FLPM should now be set out in a letter. 4. Chapter 5, pages 52 & 53 Change to terminology in Divorce Orders Decree nisi and decree absolute terminology is now removed. 5. Chapter 7, page 136 Federal Magistrates Court new Form of Affi davit of Service There is now a specific form of affidavit of service for applications other than Divorce. It is a matter of picking the right form and literally filling in the boxes. The commentary regarding completion of the form remains the same. Attachment 7BE is updated.to obtain a copy please email pszabo@mdlaw.com.au. Otherwise, visit the updates site referred to on page xi of the FLPM 6. Chapter 13, pages 269 & 270 Attachment 13AA A new item 22 has been inserted relating to third parties and the following items have been renumbered. For practical purposes, insert Not applicable the commentary in the Manual remains identical. Other forms that have been changed in minor ways are 1, 1A, 1B, 2 13 and 18. There is no change to the accompanying commentary in the FLPM. You should ensure that you have up-to-date forms from the relevant Court website. 7. Completing Court Forms and keeping up to date generally. Clearly, you must ensure that you maintain up-to-date Court forms. They are available in PDF and Word formats on all of the relevant Court websites. However, as they are tedious to complete in that format, you should consider purchasing the Law Perfect precedent system. Visit the Law Perfect website at http://www.lawperfect. com.au/ to download all of their Court forms. 8. Filing fees increased The filing fees (at July 2005) for an Application and Response (financial or children) are: Family Court $181.00 Federal Magistrates Court $115.00 Family Court Divorce $334.00 These fee changes affect the Manual on pages 95, 154 and 160 for the Family Court, and pages 135, 172 and 176 for the Federal Magistrates Court. Refer to page 41 of the Manual for Divorce filing fees. 2
The Federal Magistrates Court s schedule of fees is available at: http://www.fmc.gov.au/html/fees_family.html The Family Court s schedule of fees is available at: http://www.familycourt.gov.au/presence/resources/file/eb000947b1312ff/court_fees_brochure_1_ July_2004.pdf Regularly check the Court websites for updates as fees normally increase in July of each second year. It is anticipated that the next increase is due on 1 July 2008. 9. Urgent applications Melbourne Registry From 15 August 2005, the operating hours of Counter 6, where urgent applications are filed at the Melbourne Registry, are 9.30am to 12.30pm. 10. Court lists Family Court As from 12 April 2006, all Family Court lists will commence at 9.30am. 11. Children s Cases Program extended to Melbourne Trialled at Parramatta for approximately two years, the Children s Cases Program ( CCP ) is intended to offer shorter and earlier hearings, simplicity and flexibility, and potential cost savings to clients. The major feature of the CCP is the active role of the judge allocated to the case. Unlike tradition adversarial hearings, which resemble a contest where the parties (or their legal representatives) are responsible for deciding how they prove their claims to the Court, a CCP hearing is directed more closely by the judge, and is designed to encourage the parties to focus on future arrangements that are in the best interests of the children. Participation the program is voluntary at this stage; however, this will change over time. Newsletters and brochures on the CCP launching are available from the Family Court s website at: http://www.familycourt.gov.au or via direct link from: 12. Details of Legislative Amendments Changes to legislation effecting Family Law practice since December 2005, include: 12.1 Family Law Amendment Act 2005 No. 98 The Family Law Amendment Act 2005 No. 98 1 amends the Family Law Act 1975 and the Bankruptcy Act 1966. Its main features are: (a) Parenting compliance regime The amendments provide courts with the power to vary on their own motion orders relating to children at a hearing on a contravention application. They also clarify the court s power to send parties in contravention proceedings to counselling and post-separation parenting programs. (b) Costs and offers of settlement Amendments to Section 117 remove the requirement to file Offers of Settlement. Offers can be done in letter form and the Form 60 is no longer required. 2 (c) Private arbitration This expands the matters that can be dealt with by private arbitration to include matters involving financial agreements and superannuation. (d) Change of venue This provides courts with an express power to make an order for a change of venue. (e) Definition of disposition This repeals the current definition of disposition and replaces it with an expanded definition, which includes the issue, grant, creation, transfer or cancellation or variation of rights in an interest in a company or a trust. (f) Appeals This includes six additional types of procedural applications that relate to the conduct of an appeal to the Family Court. (g) Transfers On the State court s initiative, this provides for the transfer of family law proceedings from State courts of summary jurisdiction to the Federal Magistrates Court. (h) Terminology relating to divorce and principal relief 3
(i) (j) This replaces the terms dissolution of marriage, decree nisi and decree absolute with more modern language. Decree nisi and absolute are replaced by the term divorce order. A divorce order would still take effect one month after it is made. Dissolution of marriage is replaced by the concept of divorce. 3 Appeals to the High Court This removes the appeals based on a certificate of a Full Court of the Family Court on the basis of public interest or an important question of law. Recovery of amounts paid under maintenance orders This allows a person who is found not to be a person who has a duty to support a child to recover monies paid under a child maintenance order. 12.2 Family Law Amendments Rules 2005 (No. 3) The following forms that have been updated in the Manual in accordance with the Family Law Amendment Rules 2005 (No 3) include: 4 (a) Commencing 1 December 2005 Form 11 Application for Consent Orders Form 11 has been revised and includes a new No. 22 relating to third party powers pursuant to ss 79(10) of the Act. With the exception of numbering changes and the inclusion of a new No. 22, the content remains generally the same, although there are some minor changes to wording and commentary in the Manual. 5 comms_forms_form11 (b) Commencing 1 February 2006 Form 1 Application for Final Orders There are minor format changes to this Form; otherwise the content in the Manual remains unchanged. 6 comms_forms_cmd_form_1 Form 1A Response to an Application for Final Orders This form includes a new Section E (& No. 14) About other Court cases and orders. Otherwise, the content in the Manual remains unchanged, with the exception of numbering changes as a result of the inclusion of No. 14. 7 comms_forms_form1a Form 1B Reply With the exception of minor format changes, the content of the Manual remains unchanged. 8 comms_forms_form1b Form 2 Application in a Case With the exception of minor format changes, the content of the Manual remains unchanged. 9 comms_forms_form2 Form 13 Financial Statement With the exception of minor format changes, particularly in Part C, the content in the Manual remains unchanged. 10 comms_forms_form13 Form 18 Application for Contravention There are minor format changes throughout the Form, including new wording and additional clauses at Part A and in Important Notices to the Respondent/s. 11 comms_forms_form18 NB: Law Perfect users will receive automatic updates regularly from: http://www.lawperfect.com.au/ 4
13.3 Federal Magistrates Court Amendment Rules 2006 (No.1) The Federal Magistrates agreed to adopt the Federal Magistrates Court Amendment Act 2006 and Rules (No. 1) 12, which commenced on 6 February 2006. The Rules include miscellaneous amendments, the most significant of which include: (a) (b) (c) (d) (e) (f) (g) Amendments to rules in relation to divorce proceedings, which are consistent with amendments to the Family Law Act. The terms dissolution of marriage, decree nisi and decree absolute are replaced with divorce and divorce order. Amendments to cater for the commencement of the Family Law Amendment Act 2005 insofar as it provides for the enforcement of obligations under a bond. The introduction of a new Affidavit of Service prescribed form for proceedings generally and amendments to the service rules generally. http://www.fmc.gov.au/forms/html/affidavit_serviceg. html A new rule to permit the court to dispense with attendance for cross-examination of a person making an affidavit. A new power delegated to Registrars under the Family Law Act to rescind a divorce order under Section 57 of that Act. Amendments to the subpoena rules to introduce new terms and tighten up the existing rules. The amendment to Rule 15.17 includes a new subrule providing for a minimum amount of conduct money ($25.00). 13 Amendments to the rules in relation to ending a proceeding early to make more consistent Family Court procedures. 1 The Family Law Amendment Act 2005, No. 98 is available via link http://scaleplus.law.gov.au/cgi-bin/download.pl?/scale/data/ comact/12/7012/ 2 Amendments affect Practice Manual pages 107 & 108 & delete Attachment 7AH 3 Practice Manual, pages 52 & 53 4 The Family Law Amendment Rules 2005 (No 3) are available via link http://www.austlii.edu.au/au/legis/cth/num_reg/ flar20053n292o2005353/ For LIV members in a PDF version via link http://www.comlaw.gov.au/comlaw/legislation/legislativeinstrument1.nsf/0/ 02C649548620C907CA2570C8007EFC52/$file/0516405A-051101EV.pdf 5 Practice Manual, pages 269 & 270 & Attachment 13AA 6 Practice Manual, Attachment 7AA 7 Practice Manual, pages 101 & Attachment 7AE & 8AC 8 No example contained in Practice Manual 9 Practice Manual, Attachment 12AA 10 Practice Manual, Attachment 7AB 11 Practice Manual, Attachment 12AG 12 The Federal Magistrates Court Amendment Rules 2006 (No.1) and Explanatory Statements are available from the Federal Magistrates Court s website http://www.fmc.gov.au or via link http://www.fmc.gov.au/law/html/rules.html 13 Practice Manual, page 143 Peter Szabo Stephen Winspear 5
Update 3 August 2006 Note: These changes are automatically incorporated into the Internet Edition of the Family Court Practice Manual. The link is at www.flpracman.com.au. You can view those changes in context (green text) in the first five chapters. You should also refer to Comments on Update 3, available on that site. References to legislation in this update on the internet are also hyperlinked for ready reference. 1. Shared Parental Responsibility Legislation Set out below this commentary is a summary of the main changes since the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Changes impacting directly on the Manual, with page references are: 2. Chapter 2, Page 9 Changes to pre-action procedures Delete the bottom paragraph and insert: The amendments to Part VII of the Family Law Act which commenced on 1 July 2006 made significant changes to children s cases. The dispute resolution provisions of the Family Law Rules now apply in any Court in which it is proposed to issue an application for parenting orders (Family Court, Federal Magistrates Court or State Magistrates or Local Court) Section 60I(3). From 1 July 2007, prior to commencing proceedings for a parenting order, it will be compulsory to obtain a certificate from a family dispute resolution practitioner (for the definition, see Section 10G) as to their attendance upon the practitioner with or without the other party and as to whether the parties have made a genuine effort to resolve the issue or issues Section 60I(7) & (8). The family relationship centres will be high on the list of popular family dispute resolution practitioners, and some of them commenced operating on 3 July 2006 for non-mandated services. (Unless otherwise mentioned, the Rules referred to in this chapter are the Family Law Rules). 3. Chapter 2, Page 10 Changes to pre-action procedures Delete everything appearing before the section titled Exceptions. 4. Chapter 2, Page 14 Insert reference to parenting plans At the end of the last paragraph, insert: Alternatively, refer to chapter 14 for a discussion on parenting plans. 5. Chapter 3, Page 16 Change to jurisdictional limit of Federal Magistrates Court Delete the third last paragraph and insert: From 1 July 2006, all property matters can be commenced in the Federal Magistrates Court, regardless of the value of the relevant assets. Prior to that the technical limit was $700,000.00 gross value (although by consent of the parties the Court could deal with a matter involving more money). 6. Chapter 3, Page 17 Change in time to reach hearing Delete first line of the second paragraph and substitute: Time delays for Federal Magistrates Court final hearings in Melbourne is now less than one year. Point 3 under the heading Family Court of Australia, delete and substitute: Complex cases which will run for well over 2 days. 6
7. Chapter 4, Page 22 Delivery of pre-action procedure documents Insert after the end of fifth paragraph: From 1 July 2006 the Rules requiring the delivery of pre-action procedure documents to the other side prior to commencing proceedings also apply in the Federal Magistrates Court in children s matters Section 60I(3). 8. Chapter 4, Page 26 Relaxation of rules of evidence Insert at the bottom of the page: Applicable rules of evidence: For some proceedings, the rules of evidence have now been substantially modified by virtue of the new Division 12A of the Family Law Act which applies to proceedings under Part VII (Children s Proceedings). The new Rules apply to any matter commenced by an application filed from 1 July 2006. They also apply to earlier proceedings by consent of the parties and the leave of the Court. The new Rules also apply to adult child maintenance proceedings, applications for the payment of child bearing expenses, parentage testing proceedings and the like, and proceedings to vary or relating to State family violence Orders see Section 69ZM for the definition of child-related proceedings. Sections 55 and 56 of the Commonwealth Evidence Act importantly still apply. These effectively mean that any evidence which is relevant is admissible. Basically, the Court is given the power to decide what evidence to allow in and what matters require investigation Section 69ZQ(1). The Court also has much more control over the trial process, being able to prescribe the length of submissions, restrict the time for cross-examination, limit oral argument etc. Section 69ZX. The rules of evidence and the provisions in the Evidence Act, which are now excluded, included rules about hearsay and opinion, to mention perhaps the two most important categories. Fundamentally, the Court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying Section 69ZT(2). It is suggested that legal common sense needs to be applied. For example, if your client offers you a hearsay account telling you the observations of a third party, it is likely to have more weight with the Court if you actually produce the third party to give original evidence. If there is a credible reason for not producing the original evidence then it may well be appropriate to rely on the hearsay. 9. Chapter 7B, Page 129 Change to jurisdictional limit of Federal Magistrates Court Delete the second paragraph and substitute: Property matters must be transferred to the Family Court if the trial is likely to take more than two days (rule 8.02(4)(f) of the FMC rules). As previously mentioned the monetary limit on cases in the Federal Magistrates Court has been removed. 10. Chapter 8A, Page 151 Changes to procedure in children s cases Delete the first three paragraphs and substitute: In a sense, there are three models for handling children s matters the old, the transitional and the new. The old model is a traditional Court process which is similar to the process followed by property proceedings but overlaid by requirements for counselling / mediation and welfare reports. It is the model described in the first four Editions of this Practice Manual and in the original version of the 5th Edition of the Practice Manual. The transitional model has been called the Children s Cases Program. It started as a pilot program in Sydney and Parramatta and subsequently came to Melbourne. It has been confined to the Family Court, and the Federal Magistrates Court continues to follow the traditional procedure. The transitional model is closer to the European inquisitorial model than the traditional model. At the first hearing date, a single (continuing) judge is allocated to the case. The parties are sworn in and are invited to be actively involved. Everything they say is treated as evidence (potentially). From then on the judge is actively involved in deciding what evidence should be allowed in, what subpoenas should be issued etc. The Court time can in practice flow between mediation, discussion and adjudication without the judge being disqualified from subsequent hearings. 7
From 1 July 2006 the Family Law Act has been substantially amended for all children s cases so that they look much like the Children s Cases Program in their processes. The important thing is that the procedural amendments are in the Family Law Act rather than in the Rules, hence clearly applying to children s proceedings in all Courts Family, Federal Magistrates and State Magistrates or Local Courts. The new procedures compulsorily govern all children s Applications commenced after 1 July 2006 as well as other children s matters in which the parties consent to the Application of the new procedures Section 69ZM. Importantly, if you have a children s matter which also has property issues involved, you can consent to the new procedures governing financial issues. If you do not, then there may be two trials on the children and property issues following different procedures. Seek counsel s advice before consenting to the new procedures which are, of course, untested. The ramifications may be potentially disastrous. Suffice to say, tread cautiously. It follows that children s cases commenced before 1 July 2006 which are not in the Children s Cases Program will continue to follow the traditional procedure unless the parties consent to a change to the new process. Hence the original version of this Chapter of the 5th Edition of the Manual is still very relevant. It is expected that matters in the Children s Cases Program will be governed by the new procedures since the new procedures are virtually a codification of the Children s Cases Program, although with more discretion as to the processes being specifically given to the presiding judge. It is hard to see how the Federal Magistrates Court process will look dramatically different under the new procedures. Traditionally, in the Federal Magistrates Court, a specific magistrate is allocated to a case at the outset, which is one of the strengths of the Federal Magistrates Court and ensures continuity of adjudication. However, the Federal Magistrates Court will often have 30, 40 or 50 matters listed on a first return date and it would seem to be inconceivable that magistrates can be very actively involved in many cases at least on the first date. It is thought that most of the work on the first return date will continue to be done by the lawyers negotiating in a corridor and obtaining procedural directions or consent orders for part or entire settlements. Having said that by way of introduction, it is still considered that most children s matters should be issued in the Federal Magistrates Court for the simple reason that the estimated time to final hearing is less than half (with variations in each Registry) as compared with the Family Court. See Chapter 3 for further discussion regarding Choice of Court and Chapter 8B for more detail on the Federal Magistrates Court process. 11. Chapter 8A, Page 152 Shared parental responsibility presumption Insert at the end of the first paragraph: Note, however, that this does not establish a presumption to be applied by the Court when making a parenting order see note 2 to Section 61C(1). Under Section 61DA(1) there is a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility. This presumption does not apply if there is abuse or family violence Section 61DA(2). Delete reference in point 2 to Section 65E and substitute 60CA and 65AA. Delete final paragraph. 12. Chapter 8A, Page 153 Shared parental responsibility changes Insert before the section Making an application for final residence/contact orders : TRANSITIONAL PROVISIONS FOR EXISTING COURT PROCEEDINGS Practice Direction No.1 of 2006 makes it clear that where people have old proceedings still on foot after 1 July 2006, they need to file Amended Applications and Responses with the Court setting out the Orders sought in words which comply with the new legislation. If the matter has already been listed for Trial, the Applicant must file an amended Application at least 28 days prior to Trial or as otherwise directed and each Respondent must file an Amended Response at least 21 days prior to Trial or as otherwise directed. In all cases commenced prior to 1 July, the parties should file further Affidavits limited to dealing with any new issues under the new Legislation. 8
DRAFTING PARENTING ORDERS (a) Shared responsibility When making orders under the new legislation there is a presumption of equal shared parental responsibility Section 61DA. An appropriate and normal type of court order would be: That the parties have equal shared parental responsibility for the children of the marriage Jim John Bloggs born 1 January 1995 and Jane Jenny Bloggs born 2 July 1999. Section 65DAC specifies the effect of a shared parental responsibility order. In the absence of a court order to the contrary, if a decision is to be made which is about a major long-term issue then a decision is required to be made jointly (subsection 2). Each person is required to consult the other person with responsibility and to make a genuine effort to come to a joint decision (subsection 3). The note to subsection 2 makes it clear that decisions about issues that are not major long-term issues are made by the person with whom the child is spending time and without a need to consult the other person. This is reinforced by Section 65DAE. In practice this means that when a person has a child with them they can make whatever decisions they like for the care of the child, as long as there is no court order to the contrary and as long as it does not involve a major long-term issue. Such major issues include (but are not limited to) issues about: (a) the child s education; (b) the child s religious and cultural upbringing; (c) the child s health (on its face this requires consultation even about the most minor health issues which are of concern); (d) the child s name; (e) any living arrangements for the child which make it significantly more difficult for the child to spend time with a parent. The upshot of this is that there is no need for what used to be called a short-term care, welfare and development order because short-term decision making is implicit in and flows from the living arrangement of the child at the time. On occasions there will be sole parental responsibility orders made along the following lines: That the wife have sole parental responsibility for the children of the marriage Jim John Smith born the 1 January 1995 and Jane Jenny Smith born 1 July 1999. (b) Living arrangements The legislation refers to parenting orders including orders as to: (a) the person or persons with whom a child is to live; (b) the time the child is to spend with another person or other persons Section 64B(2). The legislation tries to elevate the rights of third parties including grandparents and other relatives who would generally be most likely to have modest amounts of time with a child. It seems that the thrust or implication of the legislation is that if a party has substantial time with a child then that should be phrased as a lives with order. If the time is very modest then it can be phrased as a spends time with order. It is recommended that in the average husband/wife case, the orders should be framed on the basis that the child lives with the respective parents during the defined times. (Please note that in this Manual there remains occasional usage of the old jargon of contact to discuss the minority parent s time with the children, since this is grammatically much easier than referring to their spends time with time!) Suggested orders could be one or more of the following: 1. That the children live with the husband and the wife in alternate weeks with change over to take place each Monday morning. 2. That the children live with the wife. 3. That the children live with the husband as follows: a. each alternate weekend from after school Friday until the following Monday morning commencing on b. for one week in each of the school term holidays; c. for half the long summer school holidays; d. half Christmas day each year; 9
e. from 5pm on the Saturday prior to Father s Day until the following Monday morning each year; f the children live with the wife from 5pm prior to Mother s Day until the following Monday morning each year; g. as may otherwise be agreed between the parties from time to time. 4. The children live with the wife at all other times. If a grandparent or other person has a modest period of time with the child it would be appropriate to have an order along the following lines: That the children spend time with the paternal grandmother each alternate Sunday from 2pm until 6pm. (c) Other responsibility orders It is possible and appropriate in some cases to have specific orders dealing with specific parental responsibility issues Section 64B(2)(c). This might particularly apply to health issues. It is suggested that a parental responsibility order could be along the following lines: That the party with whom the child is living at the time the child becomes unwell have the sole responsibility to arrange appropriate treatment for the child in all cases where the illness is minor or routine (such as routine colds or sore throats or the like) but provided that that party is required to inform the other parent as soon as practicable of the details of any medical treatment received by the child. (d) Communication orders The Act particularly provides for orders being made about the communication a child is to have with another person Section 64B(2)(e). A suggested order would be as follows: That the children communicate with the parent with whom they are not living at the time by telephone each Wednesday evening between 7pm and 8pm. Whether the Application is old or new, the actual type of documentation required to be filed is the same. Very minor amendments have been made to a number of the forms and it is always appropriate to check your paperwork complies with the current versions of the forms which have been published. The new substantive laws relating to children apply to all proceedings, although the new procedures, as mentioned, only apply to Applications issued after 1 July 2006 unless there is consent by the parties and leave from the Court. Dramatically, the rules of evidence have been to a large extent done away with. Evidence that is relevant is admissible Sections 55 and 56 of the Evidence Act. Traditional Rules relating to hearsay and opinion have been done away with. The Court now has a very broad power to give such weight if any as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying Section 69ZT(2). The effect of this is that your client can give evidence of what the next door neighbour told her, although it is suggested that if the neighbour s evidence is particularly important, it would have more credibility coming directly from the neighbour. Furthermore, all and sundry are entitled to give their opinion of what they think is in the best interests of the children. Traditionally, of course, only experts could give opinion as evidence. It is thought that this freedom should not be abused in drafting your documents. The Court will not really be interested in the opinion of the usual crowd of friendly supporters who may be backing up your client s case and who will hardly be impartial. Of course, there are qualifications to this. If the supporters have credentials as teachers or in helping professions but are not technically experts, their opinions may at least have some probative value. It is understood that in the Family Court, generally speaking, at a first return date a judge and family consultant (formerly called a court counsellor) will sit in on the case. The parties can be sworn in at that stage and will remain under oath at subsequent hearings. The Court will endeavour to keep continuity of judge and family consultant. Judges are given extensive powers, both to direct what matters should be investigated and on what to file evidence, and also as to the uses of written submissions, the length of those submissions, limiting the time for oral argument, limiting the time for giving evidence, limiting the time for crossexamination, limiting the number of witnesses etc Section 69ZX. Judges now have wide powers to control prolix litigants (not to mention litigants with other problems in presenting their case), and this has the capacity to change the complexion of proceedings quite substantially. 10
(e) Going to Court The following describes the traditional Court process. The Court is in a state of flux moving over to the new procedures. Due to limited resources, it is not clear whether all registries will be immediately able to undertake all children s matters in the labour intensive way intended under the new legislation, which mirrors the procedure under the Children s Cases Program. In any event, the paperwork in the traditional and new processes is the same. If interim issues need to be decided then an interim application will need to be issued. The same paperwork will apply. The principal difference under the new process will be that the same judge that has been involved previously, will, if practicable, hear the matter on an interim basis. Under the circumstances, the detailed discussion which follows is almost entirely directly applicable to proceedings under the new rules, as well as proceedings issued prior to 1 July 2006. Delete point 6 under Pre-Action Procedures. 13. Chapter 8A, Page 156 Change to terminology Insert in the section Guidelines : Attachment 8AB of the hard copy of the Manual lists the traditional criteria for appointing an ICL. The role of the ICL is codified now in Section 68LA and in brief summary the ICL must be impartial; independent; represent the child s best interests (not their instructions); must ensure that a child s views are fully put before the Court (subsection 5(b)); cannot be required to disclose to the Court any communications by the child (subsection 6(b)); and may disclose any communication by the child to the Court. 14. Chapter 8A, Page 157 Court s taking account of offers to settle Insert before the section Disclosure of documents : Note, however, that under Section 117C, the Court is specifically empowered in certain circumstances to take into account offers of settlement when considering costs. Section 117C(1)(b) specifies that Section 117C does not apply to most children s matters (with the exception of location and recovery orders, registration of overseas orders and other odds and ends). This does, however, leave the discretion to order costs in children s matters theoretically open. Section 117(2) allows the Court to order costs if the Court is of opinion that there are circumstances that justify it in doing so. (At least in theory this overrides Section 117(1) which says: subject to subsection (2) each party shall bear their own costs). 15. Chapter 8B, Page 170 Delete reference in point 2 to Section 65E and substitute 60CA and 65AA. Delete final paragraph. 16. Chapter 8B, Page 179 Commentary on parenting plans Insert at the end of the page: Finalising Children s Matters: Parenting Plans v Court Orders Parenting plans are agreements in writing, between the parents of the child, signed by them and dated Section 63C(1). Those are the formalities so almost any signed document about the children can be a parenting plan! Furthermore, this applies to documents signed before 1 July 2006. Parenting plans can include all provisions relating to parenting matters and can also include a non-parent as a party to the agreement (as long as both parents also sign the agreement) Section 63C(2A). Interestingly, as part of your advice to your client, you must inform your client that they could consider entering into a parenting plan Section 63DA(1)(a). The trouble is that a parenting plan is not enforceable and technically not legally binding. As a result you will usually tell your client that you recommend court orders over parenting plans to finalise their children s case. 11
Despite a parenting plan not being enforceable, it can override a parenting order. A parenting order is subject to a later parenting plan (Section 64D) and hence an application to have a person dealt with for breaching a parenting order would be likely to be unsuccessful if a later parenting plan justified non-compliance with the earlier order. Parenting plans can be very informal as long as they comply with the minimum requirements of Section 63C(1) referred to above. Section 63C(1A) interestingly provides that an agreement is not a parenting plan unless it is made free from any threat, duress or coercion. It is suggested that the word any makes it relatively easy to prove that an agreement is not a parenting plan. There will be situations where a demanding party insists that another party signs and the second one gives in for the sake of peace. That may well constitute duress rendering the parenting plan ineffective for all purposes. Parenting plans are of limited utility except between parties who are relatively civil and sensible and where you think the chances of a breach or enforcement issue arising are pretty low. In most situations you will probably prefer to use parenting orders rather than parenting plans if only because your client will be entering into consent property orders to finalise property matters which makes it rather simple to add in parenting orders as well. A sample parenting plan is included in the Internet Edition as Attachment 8B. 17. Chapter 11, Page 215 Changes to formulae Insert at the beginning: From 1 July 2006 modest amendments to the child support formula commenced including the reduction of the maximum cap under which the formula is calculated. More substantial amendments are coming in two further phases commencing on 1 July 2007 and 1 July 2008. None of these changes need further discussion here. 18. Chapter 12A, Page 226 Change to pre-trial procedure Insert in section Procedures before filing : From 1 July 2007 it will be compulsory for clients to attend a family dispute resolution practitioner (including employees of family relationship centres to obtain a certificate as to family dispute resolution attempts, before commencing legal proceedings Section 60I. That compulsion is not yet applicable. Peter Szabo Stephen Winspear Peter Szabo, Stephen Winspear and Rob McBain 2004 Leo Cussen Institute has the exclusive licence to publish this work. All rights reserved: these materials are copyright. Apart from any fair dealing for the purpose of private study, research or as permitted under the Copyright Act, no part may be reproduced or copied in any form or by any means without prior permission. Any requests should be addressed to the publishers. 12