-
Defence posting relocations, separation and child custody arrangements
October 8th, 2021 | by newwaylawyersPosting relocations are difficult for Australian Defence families at the best of times, but even more so when the move occurs following separation and there are parenting arrangements to consider. Emotions are often intensified and feelings of uncertainty can arise for children and parents alike. Our experienced family lawyers have helped many Defence families with questions about family law and posting relocations. Set out below is some general information that may be helpful to families who find themselves in this situation.
For those newly separated in the Australian Army, Navy or Air Force
there are four approaches parents can take to parenting arrangements after separation. These are a verbal agreement, parenting plan, consent order or parenting order. To determine which might be best for you, take this simple quiz.
Is there separate rules for those in defence?
There are no separate rules for parenting arrangements when it comes to Australian defence relocation or deployment matters. The relevant objects and principles set out in the Family Law Act 1975 (Cth) guide the court, with the child’s best interests as the primary consideration.
What sort of orders can the court make?
The court has the ability to make broad orders including permitting a child to locate ‘wherever’ the parent in question was posted by the ADF, so long as this was in Australia. Two relevant recent cases on this matter are Wendland & Wendland [2017] FamCAFC 244 and Osmond & Brand [2019] FCCA 1696.
For those with a parenting plan in place
If you and your ex spouse or partner already have a parenting plan in place and there is no urgency involved, then the process can involve:
-
If the parties agree to the move
When both parents agree to the child/ren relocating with the defence member, a further parenting plan or consent orders can be drafted. The things that should be considered in a parenting arrangement can be found here.
-
If the other parent doesn’t agree to the move
When there is disagreement between the parents regarding the relocation of the child/ren, then generally mediation is compulsory (there are however some limited exceptions to the requirement for mediation). If an agreement is reached at mediation, then a parenting plan or consent orders can be drafted thereafter. If an agreement is not reached, the parent wanting to relocate may at that point need to seek a parenting order from the Court.
For those with court orders
When there are existing court orders, the parties will need to vary the orders to accommodate the new situation. This can be done by way of a parenting plan or further consent orders if the parties are in full agreement about the new arrangements. .
If the parties have existing orders but they do not agree on the move, then they will generally have to attend mediation first before going to court to seek variation of the orders. If there is no agreement reached at mediation, the parent seeking to relocate may need to make an application to the Court for amended parenting orders. The application would however have to satisfy the Rice v Asplund test. This threshold test is explained here.
Considerations that are relevant to parenting arrangements in Defence relocation / posting matters
It is well established that the best interests of the child include the minimisation of future proceedings and litigation. In light of this, the Court will try to ensure any further orders address the issue of future deployments, even if the details of future postings are unknown at the time the orders are being made.
In light of this, the court may consider whether one parent should have sole parental responsibility rather than an equal shared parental responsibility. The court might also consider whether orders should be made with two alternatives included, one allowing for arrangements that apply when the parents live in close proximity and the other for when the parents are living a long distance apart due to deployment or relocation.
Get expert family law advice early
Defence relocations are complex in nature and the considerations involved in these cases are varied and specific to each family. We highly recommend getting legal advice from expert family lawyers if you or your ex partner/spouse are relocating due to a posting order with the Australian Army, Air Force or Navy.
If you would like to discuss your options or the particulars of your case, phone New Way Lawyers on (07) 3548 5890 or contact us here for a free 20 minute consultation with one of our expert family lawyers. Australia wide consultations are available.
-
-
Parenting Arrangements After Separation
September 15th, 2021 | by newwaylawyersFollowing separation there are four approaches that parents can take when setting up future parenting arrangements for their children. Determining which approach is best depends on several factors.
How should I structure parenting agreements after separation?
If you are a parent who has recently separated, answer the 3 questions below to find out which approach might be suitable for your family. Read each question and answer A, B, C or D choosing the response that best describes your situation .
The communication between you and your ex is generally:
- Very good – we communicate regularly and easily and agree about most parenting matters;
- Good – we communicate when required and when we have differences, we work these out;
- Poor – we communicate mainly by text or email and struggle to resolve our differences;
- Non-existent – we are unable to communicate at all and disagree about everything.
The level of trust between you and your ex is generally:
- Very High – we keep our word and uphold our agreements;
- High – there have been a few minor issues with agreements not being followed;
- Low – there have been times when core agreements have not been followed;
- Very Low – there is no agreement to uphold.
Describe your preference regarding the structure for parenting arrangements:
- Very Low: flexibility and being able to change arrangements as needed is a high priority;
- Low: routine has a place but the ability to make changes to arrangements is more important;
- High: routine is important and the ability to make changes should be limited;
- Very High: consistency and certainty are very important.
Your results suggest…
Mostly A’s – A verbal agreement may be the suitable arrangement for your family.
Mostly B’s – A parenting plan may be the preferred pathway for your family .
Mostly C’s – A consent order may be the best option for your family.
Mostly D’s – A parenting order made by the court may be what is needed for your family.
What things should I include in my parenting arrangement?
For the things you should include in your parenting arrangement, see the image below and further information can be found here.
The above should in no way be construed as legal advice. If you would like legal advice about parenting arrangements or other family law matters call (07) 3548 5868 for a free 20-minute phone consultation with one of our family lawyers.
-
FAQs: Merger of Family Court of Australia and the Federal Circuit Court of Australia
September 7th, 2021 | by newwaylawyersThe Family Court of Australia and the Federal Circuit Court of Australia have merged. Let’s navigate the family law court merger together with some FAQs:
Q: When did the merger take effect?
A From 1 September 2021
Q: What will the new Court be called?
A The amalgamated new court will be known as Federal Circuit and Family Court of Australia (FCFCA).
Q: What is the reason for this merger?
The main reason for the merger is :-
- to reduce costs and delay in family litigation and to encourage proceedings to be conducted in a more calm and civil manner
- to facilitate the fair resolution of disputes as quickly, inexpensively, and efficiently as possible
Q: How will delays and backlogs be reduced?
A: The FCFCA will place greater emphasis on encouraging parties to settle their matters, where it is safe to do so through dispute resolution. This means there will be less final hearings and Court events, reducing the Court’s workload.
Q: What protection will be afforded to children?
A: The FCFCA will place emphasis on the need to protect the rights of children, promote their welfare and protect them from family violence.
Q: Will there only be one Court after the family law court merger?
A There will be one court, but two divisions of that court. The Family Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 1). The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
Q: What is the difference between Division 1 and Division 2?
Essentially, applications will be filed in Division 2 and appeals will be heard in Division 1.
Q: Will the current Court forms still apply?
A Yes and no. The FCFCA has streamlined its procedures and new forms are now available on the new FCFCA website. The FCFCA will accept the old forms for a grace period of 90 days from 1 September 2021. After this time, the new forms must be used when applying to the Court.
Q: What is the new FCFCA website address?
A: https://www.fcfcoa.gov.au/
Q: What does this mean for my family law proceedings?
A: You will not be required to do anything if your matter is already in the court system. If your matter was previously in the Family Court of Australia, it will now be listed in Division 1. If your matter was previously in the Federal Circuit Court of Australia, it will now be listed in Division 2.
Q What forms am I required to file if I want to commence a financial or parenting application in Court?
A If you are filing an application in the new Court, you can look at their website to find a list of the forms you will be required to file in support of that application.
The Court’s information about required documents for applications can be found here: https://www.fcfcoa.gov.au/fl/ss-overview
If you require any assistance in your family law matter please call us on 07 3548 5850 or contact us here.
-
Things to consider in a parenting arrangement after separation
August 24th, 2021 | by newwaylawyersThere are several topics that should be included in any post separation parenting arrangement, regardless of whether the parenting arrangement is structured as a verbal arrangement, parenting plan, consent order or court order.
Decision making
A post separation parenting arrangement should outline how major long-term decisions will be made for the children, namely, whether decisions will be made jointly by the parents or whether one parent will make the decisions and then inform the other parent.
Parental communication
Children should not be used as messengers between the parents. Instead parenting arrangements should provide for a standard means of communication between by the parents. Some options include email, text, phone or a communication app. It is also wise for parenting arrangements to include a process for dispute resolution in case an issue arises that cannot be resolved.
Schedules for the children
A schedule setting out how the children spend time with each parent is an essential part of any parenting arrangement. A consistent schedule can be set up to apply through both the school terms and school holidays or there may be different schedules for the school terms and the school holidays. Any schedule that is set up should be age appropriate and promote the children’s best interest.
Special occasions
Any parenting arrangement should include details of how the children will share their time with each parent on special occasions such as birthdays, Christmas Day, Mother’s Day, Father’s Day and other special occasions.
Changeovers and transitions
To avoid disputes and confusion parenting arrangements should cover how the children transition between each household. These arrangements should include the day and time of the changeover, the location of changeovers and consent to other family members or friends facilitating changeover.
Miscellaneous
There are range of other topics that can be included in parenting arrangements such as extracurricular activities, passports and travel,
Finances
Generally, financial support of the children is dealt with separately from parenting arrangements. Parents who have covered details of financial support for the children in parenting arrangements should seek advice from a family lawyer about how to formalise financial support arrangements.
If you need assistance drafting your parenting plan, or advice on parenting arrangements and legalities, call us today on (07) 3548 5890 or contact us here for a free 20 minute consultation with an experienced family lawyer.
-
When will the Court vary final parenting orders? (Rice v Asplund test)
August 8th, 2021 | by newwaylawyersThe Court will vary final parenting orders only in limited situations, where there has been a significant change in circumstances of the child or the family, or if it would be in the best interests of the child. If the Court decides to re-open a matter, this will likely result in fresh proceedings and new Orders being made upon the hearing of the issues in dispute.
The Rice v Asplund test
The case of Rice v Asplund (1979) set a threshold test for ascertaining whether or not a Final Order can be changed. In Rice v Asplund the Court ruled that before revising final parenting orders, it needed to be satisfied that there had been a significant change in circumstances since the order was made, or some material factor not disclosed at the earlier heading, which would justify “such a serious step”.
The rationale behind the rule
Chief Justice Evatt stated that the Court: “…should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs .” This rule was created to protect children from being exposed to the uncertainty of ongoing litigation. This intent was further expressed in Freeman (1986) where Strauss J commented on the certainty of orders and the importance of supporting them to encourage “stability in the lives of children … an essential prerequisite to their well-being”. This ruling was a manifestation of the best interests of the child principle, as outlined in the Family Law Act (1975).
What is a significant change of circumstances?
What amounts to a significant change in circumstances depends on the individual situation. In some situations, an event or occurrence may amount to a significant change in circumstances but in another situation the same type of event or occurrence may not.
Some examples where the court has determined there to be a significant change of circumstance include:
- A party is seeking to relocate with the children;
- The parties have since consented to new parenting arrangements (e.g. entered into a parenting plan) and therefore, the current orders are no longer reflective of the actual arrangements for the children;
- A substantial period of time has elapsed between the final orders being made and the application being brought;
- One or more of the parties has re-partnered;
- There has been abuse of the children;
- A party to the proceedings or the child is in ill-health.
- The current orders were made without all the relevant information being before the court.
Other specific examples include:
-
- Psychological and physical changes in children as they grow up;
- The child has matured and changed their views on the current parenting orders;
- A parent has, by their own choice, spent no time with the children for over a year;
- A parent’s employment has changed, and they are able to spend more time with the children; and
- Conflict between the parents has risen to the point where the current orders are unworkable.
Book your free 20 minute consultation with one of our experienced family lawyers today on (07) 3548 5890.
-
Interim hearing versus final hearing in family law
July 30th, 2021 | by newwaylawyersSo you have progressed your matter past the first court appearance and you are told that you have to attend an Interim Hearing or a Final Hearing… what does this actually mean? Legal jargon can sometimes feel like a different language and the Courts can feel like a different planet.
To help makes sense of it, the team at New Way Lawyers are going to break it down and share key information about Interim and Final Hearings.
Interim Hearing in the Federal Circuit Court
An Interim Hearing usually occurs when two parties cannot agree on parenting or property arrangements. The Court makes an order before the final decision is made (an interim order). The Interim order is a temporary order and stays in place until a final decision is made by the Court or agreement reached by the parties.
What do you need to do before a family law Interim hearing?
If your matter has been listed for an Interim Hearing, the Court will most likely have told you what documents you need to file. It is important to comply with timelines for filing documents, otherwise your matter may be delayed (adjourned) or the Judge may grant the orders the other party is seeking. Failing to follow directions given by the Judge can also sometimes result in a ‘costs order’ being made, requiring you to pay money to the other party or their solicitor to cover their costs.
An interim hearing is generally heard ‘on the papers’ which means the Judge will make a decision after reading the documents that have been filed. It is rare for witnesses to be called or cross examined during interim hearings.
Final Orders in the Federal Circuit Court
A Final Hearing is a formal court hearing where all documents are presented to the Court. In addition, witnesses are called and cross examined. The Court considers all of the evidence before making a final decision. There can be a significant length of time, often 1-4 years. between when court proceedings are commenced and a final hearing being set.
How can you prepare for a final hearing in the Federal Circuit Court?
Preparing for final hearing is a vey involved and time intense process. Prior to the final hearing the Judge will make trial directions, which set all the steps that the parties need to take prior to the final hearing. This will include what additional documents needs to be filed, what further disclosure needs to be exchanged between the parties and arrangements for the payment of court fees. It is at this point that a barrister will often become involved in preparing the matter for final hearing.
It is important to be prepared for your final hearing by having all of your documents with you. A good tip is to remember to call the Judge, ‘Your Honour’ and present yourself appropriately as the final hearing is formal.
Can you appeal a final order?
After a final orders have been made people often wonder if the orders are able to be changed.
If final orders were made by a Judge at final hearing the orders may be able to be appealed. The grounds for appealing final orders include that an error of law or an error of fact was made by a Judge who was presiding over the final hearing. An appeal must be on the basis of one of these valid grounds, it is not possible to appeal simply if the outcome is different to what a party was hoping for or not as favourable as expected.
There may be circumstances following the making of final orders where a significant change in circumstance has arisen, which was not contemplated by the final orders. This change in circumstances may give rise to the ability for an application to be made to the Court to change or vary the final orders. It is important to obtain legal advice if you wish to make an application to vary final orders as it is necessary for a threshold test to be satisfied before the Court will consider the actual application to vary. This threshold test is known as the Rice and Asplund test.
At any point after the making of final orders the parties can agree between themselves to vary or change the orders but both parties must agree, changes are not able to be unilaterally made by just one party.
Call us today on (07) 3548 5868 if you would like a free 20 minute consultation with one of our experienced family lawyers.
-
What is a Direction Hearing / Mention?
July 23rd, 2021 | by newwaylawyersWhen you first start navigating the family law system, it can feel like trying to navigate a map in another language. The forms, process, time frames and the terminology can all feel bamboozling!
Let’s make it simple and explain some of the key steps involved in family law processes.
Firstly, there are two courts in Australia that oversee family law matters; the Federal Circuit Court and the Family Court of Australia (FCoA). Most cases are heard in the Federal Circuit Court (FCC). The FCoA is reserved for more complex matters, like these.
Main types of court dates in the Federal Circuit Court
There are three main types of court dates in the FCC and they are;
- Direction Hearings or Mentions
- Interim Hearings
- Final Hearings
Direction Hearings / Mentions in the Federal Circuit Court
Direction Hearings or Mentions are brief Court appearances where the Judge or Registrar makes orders for the next steps that need to be taken to progress and resolve the matter. For example, dispute resolution, financial valuations, disclosure or family therapy may be ordered. Sometimes there is more than one Direction Hearing and as these are focused on determining the next steps for progressing the matter, there generally won’t be an opportunity for the actual issues in dispute to be decided or determined.
How long after filing an application will a matter be heard in the Federal Circuit Court?
Usually, the first court date will be held 6- 8weeks after the applicant (the person making the application) has filed their application with the Court. An application can be filed either in person at the Court registry or online. If you file in-person, registry staff will write the date, time and location of your first Court date on your application. If an application is filed electronically, a range of available dates will be indicated and the Applicant will choose one of the available dates.
If you are the respondent to an application in the Federal Circuit Court, when do you find out hearing dates?
If you are the respondent (the person who has not made the application but is responding to an application), you will be notified of the date, time and location of the first Court Date when you are served with the application.
Book a free 20 minute consultation with one of our experienced family lawyers and we can help you make sense of these complex processes in light of your matter today on (07) 3548 5868.
-
What is a family report in family law?
July 5th, 2021 | by newwaylawyersWhen parties are unable to reach an agreement about the care arrangements for the children a family report may be written to assist the Court in making a decision about what is best for the children. The report is written by an independent family consultant who is a qualified social worker , psychologist, or psychiatrist with skills and experience in working with children and families post separation. They provide an assessment of the issues in the case, with the child’s best interests as the focus of this analysis.
Who engages and pays for the family report writer?
Usually, the Court will order the report (pursuant to section 62G of the Family Law Act 1975), although the parties may engage a consultant, either prior to court proceedings or during court proceedings.
The court can fund the report at no cost to the parties or alternatively sometimes the Court may order the parties contribute to the cost if they have the means to do so. Private family reports are always paid for by the parties.
How does the report writer gather information for a family report?
The family consultant through individual interviews gathers information from the parties, the children and other significant family members. Children can express their own views and wishes if they would like to. Usually interviews are completed at the office of the family consultant, not at the home of the parties.
The consultant might also observe the child’s interactions with parents or other important people (like grandparents, partners, siblings and step or half siblings).
What information will the family consultant need to prepare the Family Report?
The family consultant may request your permission to contact teachers, doctors or other relevant professionals for more information about your child/ren. The Court may also direct that the family consultant have access to any material that has been filed with the Court or provided to the Court by subpoenae.
What happens after the interviews and observations?
The family consultant will collate relevant information they have gathered in the family report. All the parties will receive a copy of the family report. Sometimes, matters may settle as a result of the findings in the family report and the parties may agree to consent parenting orders.
If the matter proceeds to hearing, the consultant may be required to give evidence in Court.
Who will see the family report?
Once the report writer has finished writing the family report, a copy will be given to:
- the court
- the independent children’s lawyer (if one has been appointed)
- you or your lawyer (if you have one)
- the person you are in dispute with or their lawyer (if they have one).
No one else will be given or shown a copy of the report, unless an order is made by the Court allowing the report to be provided to another person or organisation; this is protected under s121 Family Law Act 1975.
What if I don’t agree with the Family Report?
It is important to remember that this is not the only evidence the court will consider. The Court is also not bound by any recommendations made in the report. This evidence can be challenged at court by cross-examining the report writer and asking them questions about the contents of the report. Other parties will have the same opportunity to do this if they are called as witness.
If you would like to discuss your specific situation further with our experienced team of family lawyers, please contact us here or phone (07) 3548 5868. -
What is the role of an independent children’s lawyer?
June 15th, 2021 | by newwaylawyersAt the heart of family law policy is that the children’s best interests are protected in any parental dispute. One way that legislation provides for this is through the use of an Independent Children’s Lawyer (ICL). The Court appoints an ICL and their role is to represent the children’s best interests and they can be ordered to find out the child’s views on the matter to which the proceedings relate.
Who can request an Independent Children’s Lawyer be appointed to a case?
Section 68L of the Family Law Act 1975 allows for the Court to appoint an ICL on the application of:
- a child,
- an organisation concerned with the welfare of children or
- any other person, to represent and promote the best interests of a child in family law proceedings.
When will the Court appoint an ICL without application by one of the parties?
When more of the following circumstances exist the Court will often appoint an ICL:
How does the ICL determine what is in the children’s best interests?
What is a family report and do I need one?
If required, a family report may be organised by the independent children’s lawyer or ordered by the Court. This is an independent report prepared by a Court appointed family consultant to assist the judge to make decisions about the child/ren or the parties to reach an agreement.
Who pays the costs of the ICL?
The Legal Aid Authority in the state or territory where court proceedings are being heard will normally pay most of the costs associated with the appointment of the ICL. However, the court also has the power to make an order that one or both parties contribute to the costs of the ICL, based on their individual financial capacity.
If you would like to know more or are considering engaging a lawyer for your family law matter, please contact us on (07) 3548 5868 or contact us here.
