Family Law-the new changes

1. Family Law-the new changes Presented by Sara Blazey

2. Family Law Act 1975 • Federal Act • Applies to all children regardless of whether parents are or were married or living in de facto relationship • Courts - Family Court,Federal Magistrates Court Local Court • 1 July 2006 - major amendments came into force

3. Summary of changes Presumption of equal shared parental responsibility Emphasis on equal or substantial parenting time Parenting orders now called “live with” and “spend time with” Mandatory family dispute resolution Creation of Family Relationship Centres New enforcement and breach of orders procedure New “hands on” and less adversarial court process

4. What you need to know • Parents must consult and make joint decisions • There is no presumption of equal shared care • Court must consider equal time • Court must consider substantial /significant time • Important provisions about family violence • Once a fortnight and half the holidays • no longer the norm

5. Objects of the Act s60B(1) (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

6. Objects of the Act s60B(2) b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

7. Principles of the Act s60B(2) b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care,welfare and development (such as grandparents and other relatives)

8. Best Interests of the child s60CA “in deciding whether to made a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration”

9. HOW ARE DECISIONSABOUT CHILDREN MADE? • Informal agreement • Informal written agreement • Parenting plan • Consent order made by Court • No agreement - application to Court -> court order

10. PRE-ACTION PROCEDURES • Attempt Family Dispute Resolution • Before issuing put in writing - issues in dispute - orders sought - genuine offer to resolve dispute - 14 days to respond - give a copy of pre-action procedures • Costs implications if not followed

11. MANDATORY FAMILY DISPUTE RESOLUTION • Phased in from 1 July 2007 • Certificate required stating: - other party failed to attend - genuine effort made to resolve - one party did not make genuine effort - case not appropriate for family dispute resolution • Costs implications for not making genuine effort

12. MANDATORY FAMILY DISPUTE RESOLUTION Exceptions • Consent applications • “reasonable grounds” there has been or is a risk of abuse or family violence • Some contravention applications • Urgent applications • Unable to participate eg. disability, remote area

13. PARENTING PLANS • Voluntary written agreement • Not enforceable • Will override previous order • Must be made free from threat, duress or coercion • No requirement to get legal advice • Mandatory requirement that advisors must tell clients about parenting plans • FRC expected to encourage clients to enter into parenting plans

14. PARENTING PLANS • Can include: • who the child lives with • who the child spends time with • allocation of parental responsibility • how to consult where equal P.R. • communication child will have with parent • maintenance (unenforceable unless registered) • how to resolve any disputes about plan • any aspect of care, welfare,development

15. Going to Court New Court procedure • Judge managed • Strict rules of evidence abolished • Less adversarial • Family Consultants • Independent Children’s Lawyer

16. Best Interests of the child • Primary considerations • The primary considerations are: • the benefit to the child of having a meaningful relationship with both of the child’s parents; and • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

17. Best Interests of the child • Additional considerations • (3) Additional considerations are: • (a) any views expressed by the child and any factors • (such as the child’s maturity or level of • understanding) that the court thinks are relevant to • the weight it should give to the child’s views; • (i) the attitude to the child, and to the responsibilities of • parenthood, demonstrated by each of the child’s • parents;

18. Best Interests of the child • Additional considerations (continued) • any family violence order that applies to the child or a member of the child’s family, if: • (i) the order is a final order; or • (ii) the making of the order was contested by a • person;

19. Best Interests of the child • Additional considerations (continued) • New Section (4) creates “friendly parent” considerations • Has the parent taken the opportunity to participate ? • Has the parent facilitated or failed to facilitate the other • parent ? • N.B. S (4 A) consider post separation behaviour

20. Parental Responsibility • Presumption of “equal shared parental • responsibility” • Does not apply if - • reasonable grounds to believe there • is abuse or family violence • interim order and presumption not • appropriate • Presumption is rebutted on grounds • of best interests only

21. Parental Responsibility • If equal - must consult and agree on • “major long term issues” • Education • Religious and cultural upbringing • Health • Name • Changes to child’s living arrangements

22. Court Orders • Parenting Orders • where the child lives • who they spend time with • allocation of parental responsibility • how parents must communicate • communication child is to have, • including by email, text etc.

23. Equal time or substantial and significant time If equal shared parental responsibility order made: -> equal time, if not -> substantial and significant time Must apply “reasonable practicality” test Must apply best interest of child

24. Equal time or substantial and significant time Substantial and significant time defined • days that fall on weekends and holidays • days that do not fall on w/e and holidays • involves child’s daily routine • involves special occasions and events

25. Equal time or substantial and significant time Reasonable practicality test • how far apart do the parents live? • parents capacity to implement • parents capacity to communicate • impact on the child • any other relevant matter

26. Breach of orders Court has extensive powers to deal with breaches Costs orders can be made Make up time ordered Compensation for expenses incurred Variation of order (could involve changing which parent child lives with) Serious cases - fine,imprisonment

27. Family Law - abuse and violence • Balancing exercise • Right of parent to be involved with • child v right of child to be protected from • violence • Now have to establish reasonable grounds • Threat of order for costs for “knowingly” • making a false allegation or statement

28. Family Law - abuse and violence • New definition of family violence • “..means conduct, whether actual or • threatened by a person towards, or towards • the property of, a member of the person’s • family that causes that or any other member • of the person’s family reasonably to fear • for, or reasonably to be apprehensive about, • his or her personal wellbeing or safety”

29. Family Law - abuse and violence • Where does the law protect? • Objects - must protect from abuse, neglect • Best interests: • Primary considerations - need to protect • Additional considerations • - family violence • - family violence orders

30. Family Law - abuse and violence • Where does the law protect? • Mandatory FDR - exception • Court process - fast track abuse cases • No presumption of equal shared P.R.

31. Family Law - abuse and violence • How is abuse dealt with? • Court does not punish • Court does not make a finding of guilt • Best Interests is paramount • Finding of “unacceptable risk”

32. Family Law - abuse and violence • Local Court power to change parenting • order • S 68R - Court can vary, suspend, revoke • earlier parenting order on the making of • a Family Violence Order • Must have new material not before the • Court that made the order

33. Family Law - abuse and violence • Parenting order made after FVO • S68P - if order will be inconsistent with FVO • Order must specify inconsistency • Give details as to how order will work • Explain order to all affected parties • Serve a copy on police, Local Court

34. Grandparents and Family Law • Law has not changed: • grandparents have always been able to • apply for parenting orders • child’s relationship with grandparents has • always been a relevant consideration

35. Grandparents and Family Law What is new? Principles child’s right to spend time with grandparents

36. Grandparents and Family Law • What is new? • Best Interests • - nature of relationship with grandparents • effect of separation from grandparents • capacity of grandparents to provide for needs

37. Grandparents and Family Law • What is new? • Orders that can be made by the Court • parenting order can be made in favour • of grandparents

38. Relocation under the new law • Previous position • Had to show: • genuine reasons for move • good proposals for contact • best interests of child

39. Relocation under the new law • Position now? • Court will have to consider: • principle of meaningful involvement • presumption of equal parental responsibility • emphasis on equal/substantial time • child’s right to spend time with parents • parent’s ability to encourage close • relationship with other parent