March 3rd, 2022 | by newwaylawyers
You may have heard about the merging of the Family Court and Federal Circuit Court of Australia (FCFCOA) on the first of September 2021, but many are wondering what this means for them as individuals utilising Family Court services.
Essentially the merging of the Courts means that there is now a streamlined single-entry point for Family Court proceedings, with a goal to making processes quicker and easier to navigate. With the merging of the Courts came the introduction of new rules that applied to all proceedings from the 1st of September 2021.
A National Assessment Team has been created to triage and assess matters and allocate them appropriately to any relevant specialist list for example the National Contravention List, the PPP500 List or the Evatt List.
Most useful to applicants, however, is the new Central Practice Direction that provides guidelines for the Court’s case management system. The Central Practice Direction aims to provide a consistent National approach to managing FCFCOA proceedings and ensure that unnecessary costs and delays are kept to a minimum. You can read the Central Practice Direction by going to https://www.fcfcoa.gov.au/fl/pd/fam-cpd
While Family Dispute Resolution (FDR) has been encouraged by the family law system over the past decade, the new FCFCOA emphasises FDR in its case management process. By encouraging FDR more strongly, it is hoped that parties’ identify and resolve issues in conflict independently and without the assistance of the Court. Prior to commencing proceedings in the FCFCOA, for example, parties must attend FDR for financial and/or parenting matters and make a genuine effort to resolve the issues in dispute unless it is unsafe for either party to attend FDR. Failure to attend FDR or genuinely take steps to resolve issues, can result in consequences such as orders for costs being made against a party.
If you have a question about your own situation, feel free to ask your question by joining our facebook group Lunch with a Lawyer or contacting us for a free 20 minute consultation.
July 5th, 2021 | by newwaylawyers
When 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) from a Court Child Expert, although the parties may privately 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.
June 15th, 2021 | by newwaylawyers
At 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.