How the New Family Court Structure Will Affect You

How the New Family Court Structure Will Affect You

In February of 2021, Parliament passed the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Arrangements) Act 2021 which essentially proposed to merge the Family Court and Federal Circuit Court into a single unified structure. As the official merger was on the 1st of September 2021, this article will provide an update on how these reforms will impact you.

Navigating the Family Law system can be incredibly challenging at the best of times so it is essential, if you are experiencing familial issues, that you seek experienced legal advice to assist you in navigating these challenges as the Family Law landscape undergoes significant change.

Review of the Changes

We have previously written an article which gave a detailed overview of the proposed changes. By way of summary, the new Federal Circuit and Family Court of Australia will consist of two divisions:

  • Division 1: will only deal with complex Family Law matters and appeals; and
  • Division 2: is the single entry point for all other Family Law matters. Judges will preside over a combination of Family Law and Federal Law matters such as employment and immigration.

The reforms have also resulted in a change to the rules of the family courts. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 were recently finalised and also came into effect on the 1st of September. One of the important features of these reforms is the establishment of a nationally uniform case management pathway which will operate to make proceedings less complex and prioritise alternative methods of dispute resolution. From the 1st of September, family matters will be dealt with in the following manner:

new structure family law

The new Family Law Rules will also retain the need for parties to fulfil the required pre-action procedures. This means that parties should not file proceedings until they have engaged in dispute resolution, exchanged documents and made a genuine attempt to settle the dispute outside of litigation. Undertaking these pre-action procedures can be acrimonious, so it is best to seek out legal advice early to ensure your interests are well represented.

Dispute Resolution

As part of creating a consistent internal case management pathway, dispute resolution has been placed at the forefront to ensure just outcomes are achieved for parties in an efficient manner. It is an expectation of the court that both parties and their legal representatives make every effort to participate in dispute resolution. There are a number of different types of dispute resolution including mediation, negotiation and conciliation, and we have written previous articles explaining these processes.

Under the new case management pathway, dispute resolution must occur within 5-6 months of the date of filing. However, we should note that in circumstances where it is unsafe to conduct alternative dispute resolution, the parties will be given an opportunity to raise these concerns with the Registrar in formal court proceedings.

What the changes hope to achieve

The overarching purpose of these structural reforms is to ensure that the resolution of family disputes is achieved as quickly, inexpensively and efficiently as possible. In a Media Release from the office of the Attorney-General, Christian Porter stated that;

‘bringing the courts together under one amalgamated structure creates a single point of entry for families who will no longer be bounced around between different courts – an issue that occurs too often in the current system and can lead to lengthy delays for families because matters have to begin again.’

The unification of the family courts is hoped to resolve up to 90% of disputes within a 12 month timeframe by:

  • Improving risk identification and the safety of vulnerable parties;
  • Encouraging alternative methods of separation which are less burdensome on the parties;
  • Improving compliance with court orders; and
  • Enhancing access to justice for those from remote or vulnerable communities through the use of technology.

Additionally, as we noted in our previous article, judges hearing Family Law matters in the new amalgamated court will need to satisfy additional appointment criteria to guarantee they are suitable to dealing with more complex Family Law matters, including family violence.

How Etheringtons Solicitors can help?

Understanding the Family Law system can be a confusing and emotionally exhausting task. Our dedicated Family Law solicitors are ready and willing to assist you with your parenting or Family Law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or [email protected]. For more articles on family and other areas of law, see our blog here.

Determining Family Law Disputes Through Arbitration

Determining Family Law Disputes Through Arbitration

Family Law disputes can often be incredibly time consuming and place significant financial and emotional burdens on all the parties who are involved. These burden are exacerbated by the delays and under-resourcing that is prevalent in the broader Family Court system. As such, there has been a push towards resolving disputes and finalising matters through Alternative Dispute Resolution (ADR) methods including Family Arbitration. This article will explain what Family Arbitration is and how it may be advantageous to you if you are experiencing a marriage or family breakdown.

What is Family Arbitration?

Family Arbitration is a dispute resolution process by which parties’ present arguments and evidence to a Family Arbitrator who then makes a determination in order to resolve the dispute, in a similar manner to court proceedings, but with a few key distinctions. Arbitrators are generally legal practitioners with extensive family law experience and training, who are selected by the parties. This ensures they can facilitate proceedings in the fairest way possible.

Matters that can be referred for Family Arbitration include:

  • Property matters;
  • Spousal maintenance;
  • Financial agreements; and
  • Execution and compliance with court orders.

Advantages and Disadvantages of Arbitration

The primary advantages associated with Family Arbitration include how efficient and relatively inexpensive the process is. Decisions (or ‘awards’) are given within 28 days, which is significantly faster than the formal court system. Not only do parties save on costs associated with preparing a matter for court, but they are not tied up in lengthy litigation preventing them from working and moving forward with their lives. In addition, the Family Arbitration process is more flexible than traditional court proceedings, offering the parties greater autonomy over issues such as the time and date of the arbitration and procedures of how evidence is to be presented. Arbitration is also completely voluntary and confidential, which means the outcome and the issues discussed between the parties and the arbitrator cannot be discussed externally or published.

However, whilst there are numerous benefits associated with Family Arbitration, it is important to note that where family matters are more complex or potentially involve a power imbalance between the parties (such as instances of family violence), it may be more appropriate to engage in the formal court process. In some instances, it may also be more difficult to seek relief if you are unhappy with the Arbitrator’s decision, compared to doing so in court proceedings.

What if I am unhappy with the outcome of Arbitration?

Arbitrators are protected with the same immunities that the courts have. Therefore, the decisions made during Family Arbitration are final and binding on the parties once they have been registered.

However, if an error of law has been made, the decision can be reviewed by a court who can make determinations of issues of law and choose to either uphold or alter the decision made by the Arbitrator. Generally, only an error of law will justify the review of an arbitrator’s decision.

However, in exceptional circumstances of unreasonable or prejudiced decisions, the court can also intervene. In doing so, the court will consider factors including:

  • Whether there as fraud or misrepresentations involved in the decision;
  • Whether the decision is void, voidable or unenforceable;
  • Whether circumstance have arisen that make the decision impractical;
  • Whether there was any bias on behalf of the Arbitrator; or
  • Whether there was a lack of procedural fairness in the arbitration process.

How Etheringtons Solicitors can help with your family law matter

At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in your family law matters. If you are concerned about your property, divorce or parenting disputes, or want to consider Family Arbitration, please do not hesitate to contact our office by calling 02 9963 9800 or via our contact page.

How Long Will I Have to Pay Spousal Maintenance After Separation?

How Long Will I Have to Pay Spousal Maintenance After Separation?

Under the Family Law Act 1975 (Cth), when a relationship ends, a party has an obligation to financially assist their former partner if that person is unable to adequately support themselves. This financial assistance is called spousal maintenance.

Generally, spousal maintenance will only be ordered where there is a significant disparity in the incomes of the parties and such order will ordinarily provide for a payment expiry. However, in the recent case of Bodilly v Hand [2019] FamCA 210, the court held that spousal maintenance could be owed to a party even 17 years after their separation in circumstances where the payer had a new family and was headed towards retirement. This case has re-emphasised the need for parties who are experiencing a relationship breakdown to understand spousal maintenance and be aware of any future responsibilities which they may incur.

What does the court consider when deciding on an order of spousal maintenance?

Spousal maintenance is not an automatic right. In deciding a spousal maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay. This involves considering the parties’:

  • Age and health,
  • Income, property, and financial resources,
  • Ability to work,
  • Ability to earn an income as a result of the marriage, and
  • Standard of living.

An example of when a court will most likely make an order for spousal maintenance is in cases where one party is unable to work due to disability or illness. This liability to maintain a former partner can continue until their death or until they are able to support themselves financially. However, as noted above, usually when making orders for spousal maintenance the court will specify a date or event that will release the payer from their liability. Such events could include re-skilling, securing employment or commencing in a new relationship.

Applications for spousal maintenance for married couples must be made within 12 months of their divorce being finalised, whereas applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship. While it is possible to apply outside the time limits, the court does not always grant these late applications so these limitation periods should be noted.

Case Study: Bodilly v Hand [2019]

The parties involved in this case had separated in 1998 and subsequently reached an agreement that the Husband would pay to the Wife spousal maintenance of $500 per week in 2000. In the 17 years that followed, the parties had little contact and the Husband continued to pay spousal maintenance. By November 2009, the Wife was housebound with a diagnosis of multiple sclerosis and begun receiving benefits from the NDIS.

The Wife made an application to the court seeking further spousal maintenance orders, such that the Husband pay to the Wife $3,000 per week. The Husband sought a discharge of the previous spousal maintenance orders and a fresh consideration of the necessity of any order being made in favour of the Wife.

In determining the application, the Court considered whether there exists a point in time where it is no longer appropriate for an order for spousal maintenance to continue, such as retirement or anticipation of retirement. The Court held that the Wife still had a need for spousal maintenance as she was unable to support herself adequately from her own income. The Husband was thereby ordered to continue paying spousal maintenance of $500 per week with no date upon which the order would cease.

The Court also considered whether the receipt of NDIS payments had an impact on spousal maintenance payments. Justice Cronin held that the Wife is not entitled to argue that any shortfall in the budget from her NDIS payments should be met by the Husband as part of her maintenance claim, as this would go beyond the intention of the scheme.

How Etheringtons Solicitors can help with your family law matter

A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time. The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and the time limits which apply. If you know someone who needs help and would like to have a confidential discussion, please arrange for them to call Etheringtons Solicitors on (02) 9963 9800 or contact us via our contact form.

How do Apprehended Violence Orders affect Parenting Orders?

How do Apprehended Violence Orders affect Parenting Orders?

It is important to consider how an Apprehended Violence Order (AVO) may affect Parenting orders. Parenting orders set out the specific parenting arrangements for children which can include how much time the children spend with each parent, who the children live with as well as any other aspects of their care, welfare or development. A court must make parenting orders with the child’s best interests being held as the paramount consideration. When there are instances of family violence and an Apprehended Violence Order is in place or has been applied for, this can impact arrangements under the parenting order. This article will discuss some of these ambiguities. Given the stressful and complex nature of these situations, it is crucial to contact family law experts such as Etheringtons Solicitors.

What is an Apprehended Violence Order (AVO)?

An Apprehended Violence Order (AVO) is issued when one person has made the other person fearful of or exposed to domestic violence in any form, including physical or verbal abuse, harassment, intimidation or coercive and controlling behaviour. Specifically, an Apprehended Domestic Violence Order (ADVO) is issued when the two people are married, in a de facto relationship or are related family members. A child is exposed to family violence if they see or hear it, or experience it themselves. We have addressed applying for AVOs and how they are considered by the court in another article. Breaching the conditions of an AVO is a criminal offence with a maximum penalty of a $5500 fine and/or two years in prison.

AVOs and parenting orders may conflict

AVOs and parenting orders may conflict due to the interconnected nature of family law. For example, an AVO may prevent a parent from approaching the other, but a parenting order may require them to attend an arranged changeover so that the children may spend time with the other parent. The different conditions of the AVO will determine what parenting orders would potentially conflict. All parties must strictly comply with the terms of both the AVO and parenting orders to avoid the penalties of contravention. The Family Law Act 1975 (Cth) provides that where a parenting order is inconsistent with an existing AVO, the AVO may be deemed invalid. This is because parenting orders are made by courts with Federal jurisdiction while AVOs are made by courts with State jurisdiction.

Parenting orders are also not the same as parenting plans. Parenting plans are written agreements about parenting arrangements which are not made by the court and are therefore not legally enforceable. Where inconsistencies arise between a parenting plan and an AVO, the AVO will be given preference but the existing parenting plan may be taken into consideration when the court makes the AVO.

AVOs implemented before parenting orders are made

Courts are unlikely to create parenting orders which would conflict with existing AVOs, as it is not in the best interests of the child to expose them to harm or family violence. The Family Law Act 1975 (Cth) prioritises protecting children from risks of physical or psychological harm when considering what is in their best interest. Therefore, the court must be informed of any AVOs or allegations of family violence when applying for parenting orders. This is regardless of whether the AVO was ordered with or without admissions, as courts do not need to make a finding of guilt in family law matters as they would in criminal law ones, but instead work to protect children from the “unacceptable risk” of harm.

In the above example, it is likely the parenting order would set out a particular time and place at which the parent may collect their child from the aggrieved parent and doing so would not constitute a breach of the parenting order or AVO. However, approaching the aggrieved person at that place at another time would be a breach. If a parenting order is made which is inconsistent with an existing AVO, the court is required to explicitly state that it is inconsistent and provide a detailed explanation of the order and the rights and responsibilities of the parties involved.

AVOs implemented after parenting orders are made

If a domestic violence issue commences after parenting orders are made, a final AVO may be issued to vary, discharge or suspend the pre-existing parenting orders as appropriate, under the Family Law Act 1975 (Cth). This prioritises the best interests of the children while ensuring that all parties can comply with all the relevant enforceable orders. However, as determined in Rice v Asplund (1979) FLC 90-725, there must be a significant change of circumstances to justify an amendment to pre-existing final parenting orders. An AVO made after a parenting order may include additional terms which act as exceptions so that the person can comply with the existing parenting order.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with applying for parenting orders or an AVO as appropriate, or drafting a parenting plan.

If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via [email protected].

How Sydney’s current COVID-19 restrictions will impact parenting arrangements

How Sydney’s current COVID-19 restrictions will impact parenting arrangements

The current COVID-19 lockdown has caused many familial disruptions, particularly given students across Greater Sydney, having been on school holidays, are likely to be remaining at home for the next couple of weeks as the new school term is expected to be via remote learning. This may cause some confusion for blended families and separated parents whose parenting plans are largely structured around the school term and travel restrictions limit access to public meeting points. This article will discuss how to approach parenting arrangements during stay-at-home orders to ensure you are still complying with your obligations.

Parenting arrangements

A parenting agreement is a written record of an understanding between separated parents about the care of the child/ren and often how time with the child/ren will be shared between the parents. This  can take the form of a written agreement between the parties or a formal consent order that has been approved by the Family Court. This agreement is formulated with the best interests of the child as the paramount consideration.

In the instance of court-ordered parenting arrangements, it is very important that parents ensure they are proactively complying with the terms set out by the court. If a court finds that you have breached a parenting order without a reasonable excuse, it can impose penalties ranging from varying the parenting order, compensation for time lost with the child, or fines and imprisonment.

Therefore, if you are concerned that you are unable to meet your parenting obligations under a court order, or you feel as though your ex-partner has breached an order, it is essential to seek proper legal advice.

Reasonable excuses for breaching COVID-19 restrictions

The current COVID-19 situation in Greater Sydney is understandably causing significant concerns for parents and families across the region. Under Sydney’s current COVID-19 restrictions, anyone living in Greater Sydney, including the Blue Mountains, Central Coast, Wollongong and Shellharbour, cannot leave home without a reasonable excuse. Fortunately, it is considered a reasonable excuse to leave home for existing parenting arrangements which ensure access to and contact between parents and children. Parenting arrangements include those set out in parenting plans or court orders. This reasonable excuse includes travelling to:

  • Collect and drop off children as set out in parenting arrangements
  • Provide child-minding services at someone else’s home if the person needs to leave the house for essential reasons or you are the parent or guardian of that child, provided this is in keeping with existing parenting arrangements.

Follow existing parenting arrangements

The health and safety of parents and children is of the utmost importance in these challenging times. Therefore, you should, whenever possible, follow existing parenting orders and arrangements. However, in extenuating circumstances, when doing so would place someone at risk, then non-compliance may be deemed necessary and reasonable changes to the arrangements should be made.

Where it is possible, parents should work together to prioritise their children’s best interests by protecting the child from harm and ensuring they may benefit from a meaningful relationship with both parents. For example, if one parent is told to self-isolate pending the results of a COVID-19 test, then it is reasonable to maintain contact via phone or FaceTime and consider arranging “make-up time” when feasible, once that parent has received a negative result or recovered from an illness.

Where possible, parents should communicate directly to re-arrange their contact with the child/ren, or do so with the assistance of a third party such as an experienced lawyer from Etheringtons Solicitors. Any alternative arrangements should be documented in writing.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via [email protected].

Who is a Parent for the Sake of Parental Responsibility?

Who is a Parent for the Sake of Parental Responsibility?

The term ‘parent’ has expanded beyond merely describing a person who is the biological mother and father to a child, which has created legal difficulties in determining who has parental responsibility and their rights in relation to non-biological children. ‘Parent’ is not defined within the Family Law Act 1975 (Cth), leaving it to the Court to interpret the term with its ordinary dictionary meaning.

Being a parent requires more than common biology

As most parents would understand, being a parent is about more than sharing biological data or genes. This is recognised at common law by the interpretation of the Family Law Act 1975 (Cth) in cases involving children conceived through Assisted Reproductive Technology (ART) or IVF procedures. Sperm donors supply their genetic material for a child’s conception, and thereby fit the definition of a biological father to the conceived child. However, the Courts will not impose parental obligations on a person who merely donated biological material and has no other involvement in the child’s life in terms of parenting capacity. This further demonstrates that being a ‘parent’ requires more than just common biology.

Can a genetic donor be a parent?

The High Court in Masson v Parsons & Ors [2019] HCA 21 held that a sperm donor can be found to be the legal parent of a conceived child in certain circumstances, which significantly extends the scope of the definition of a “parent” beyond the traditional mother and father. In 2006, Masson provided his semen to his friend, Parsons, so she could conceive a child through IVF under the presumption that he would be involved in the child’s life. Parsons commenced a de facto relationship after the child’s conception with another person, and Parsons then sought to move to New Zealand in 2015 with the child. Masson commenced proceedings to order a restraint on relocating the child and to seek equal shared parental responsibility.

The High Court of Australia upheld Masson’s appeal from the Full Court of the Family Court, ordering that Masson was a legal parent of the child, despite him only being a sperm donor. Masson’s inclusion on the birth certificate as the child’s biological father, contributions of financial support and act of taking on the responsibilities of being a parent who had the intention of ongoing involvement regarding the child’s health, education and general welfare, were pertinent factors in making the decision. The High Court held that as a legal parent, Masson was entitled to equal shared parental responsibility which required him to be consulted on major long term decisions, including potential relocation to New Zealand.

Can a de facto partner be a parent?

Parsons’ de facto partner was not held to be the legal parent of the child. The High Court noted the significance that they had not been involved in a de facto relationship at the time of conception. The Family Law Act 1975 (Cth) provides that a partner to a woman who has a child via IVF must prove they were married or in a de facto relationship at the time of conception to establish that they are a parent of the conceived child. This meant that despite the de facto partner’s substantial presumed involvement in the child’s life after the conception, the High Court determined they were not a legal parent.

Relevance for parental responsibility

Determining who legally constitutes a child’s parent is most relevant for determining who has parental responsibility for the child. Parental responsibility involves decision making powers relating to the duties, powers, responsibilities and authorities which parents have in relation to their child. A presumption exists that it is in the child’s best interests for their parents to have equal shared parental responsibility. Equal shared parental responsibility, as ordered between Masson and Parsons, requires both parents to partake in major long term decisions, such as relocation, health care or education (as discussed in another article). The Family Law Act 1975 (Cth) provides that it is in the child’s best interests to have a meaningful relationship with both parents, as encouraged by this requirement for joint involvement in important decision making.

How Etheringtons Solicitors can help you

A solicitor at Etheringtons Solicitors can provide clarification you with of the relevant family laws and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with navigating proceedings for parenting orders or assigning parental responsibility.

If you need further advice or assistance with family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.