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The Lighthouse Project – FED

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The Lighthouse Project is a new family-violence and risk screening initiative that will run in both the Family Court and the Federal Circuit Court for parenting matters. The legislative framework is provided by the recent Family Law Amendment (Risk Screening Protections) Act 2020.

The project will be initially available in the Adelaide, Brisbane and Parramatta registries of the courts. It is scheduled to commence before the end of 2020.

The Lighthouse Project includes:

  • early risk screening through a secure online platform;
  • early identification and management of safety concerns; and
  • assessment and triage of cases by a specialised team, who will provide resources and safe and suitable case management.

All cases identified as high-risk following the screening process will be referred to a dedicated list in the court. The specialist list will be known as the Evatt List. This will be a judge-managed list which will focus on early information gathering and intervention through a judge-led, dedicated support team in appropriate cases.

Both courts have a dedicated page on their websites with information about the Lighthouse Project.

The By Lawyers Family Law Children publication has been updated accordingly. Information on The Lighthouse Project has been included under Pre-Action procedures in the full commentary and on the matter plan. Practitioners are also reminded of the related information on family violence and cross-examination of parties, in the Going to court folders.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Notice of risk – FED

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A new Notice of risk form has been released for use in the Family Court and Federal Circuit Court.

The new form is called ‘Notice of Child Abuse, Family Violence or Risk’. It harmonises the approach taken to risk notification in parenting matters. It is intended to assist in ensuring that families receive appropriate and targeted intervention within the family law system.

The new form replaces and consolidates the three previously prescribed forms, being:

  • Notice of Risk,
  • Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case), and
  • Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders).

The new form must be completed by all parties filing an Initiating Application, Response or Application for Consent Orders where a parenting order is sought from 31 October 2020.

Applications that are part completed but have not yet been lodged for filing on the Commonwealth Courts Portal by 31 October 2020 will also need to have the new form completed.

If an allegation of child abuse or family violence, or risk of same, is made in the Notice then an affidavit must be filed setting out the evidence on which the allegation is based. In the Federal Circuit Court, this may be done within the affidavit filed with the Initiating Application or Response.

The Notice must be served on all other parties and any other relevant person as outlined in the form. The Notice of Risk should be eFiled where possible using the Commonwealth Courts Portal.

The new form enables a Judge or Registrar to consider multiple risk issues in addition to child abuse or family violence, at an earlier stage in proceedings. Multiple risk issues include mental health, substance abuse and threats of harm. The Notice will be referred to the relevant child welfare agency where appropriate.

This form is available on the matter plan of the By Lawyers Family Law – Children publication. The commentary has been updated to include some practical information on the use of the form.

101 Family Law Answers – FED

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The By Lawyers reference manual 101 Family Law Answers has been updated with recent cases in the following sections:

Arbitration in family law

See Palgrove & Palgrove [2020] FCCA 846 at [12]-[29] for a discussion of arbitrability and the court’s jurisdiction to facilitate arbitration.

Injunctions

Dunworth & Falletti [2020] FamCA 178 where the balance of convenience favoured the grant of restraint.

Rahman & Rahman [2020] FamCA 156 where the husband’s appeal failed against an injunction that restrained him from leaving Australia until a lump sum payment was made.

Orders – Variation and the rule in Rice & Asplund

See Findlay & Reis [2020] FCCA 425 for an application to vary a parenting order, which was dismissed in accordance with the principles in Rice & Asplund.

Relocation

Franklyn & Franklyn [2019] FamCAFC 256 where a mother’s unilateral relocation was allowed on appeal, as she was still able to adhere to interim consent orders for the father’s fortnightly contact.

Soulos & Sorbo [2019] FamCAFC 231 where the father’s appeal was allowed to set aside the parenting orders permitting the mother and child to relocate overseas.

Section 75(2) factors – Disparity in financial positions

In Metzer & Metzer [2020] FCCA 119 the wife was unable to establish a 10% likely loss of earnings on the evidence presented. An adjustment of 2% only was made in favour of the wife.

Five factors were listed at [182] that are usually considered when determining residual earning capacity:

  1. physical capacity, including the reasonable restrictions required by reason of injuries;
  2. psychological capacity, taking into account any necessary restrictions, of which there was no evidence in this case;
  3. vocational capacity, for suitable jobs within suitable occupations, including all of her education, training and experience and transferable skills;
  4. labour market, including factors such as the existence of such jobs in the real world labour market which is to be considered, including any barriers to entry and competitiveness including by reason of work history and age; and
  5. earnings, including the likely range of earnings for such available jobs by reference to reliable published labour market statistics or current labour market research information.

101 Family Law Answers is a valuable resource for practitioners. It is available as a related guide and in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

Transfer of real property – Family Law – FED

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Often the resolution of Family Law matters requires a transfer of real property between the parties. Transfers pursuant to the Family Law Act 1975 attract transfer duty exemptions or the payment of only nominal duty. Each state and territory has its own process to effect the transfer of real property in the context of relationship breakdowns.

Information has been added to the 101 Family Law Answers reference manual which helpfully sets out the processes for the transfer of real property due to relationship breakdown. The relevant stamp or transfer duty information for each state or territory is also available in 101 Family Law Answers.

The necessary forms for transferring property between parties are accessible from the Property Settlement matter plan. They are located in the Library of real property transfer and duties forms in the Settling it early or Finalising the matter folders.

The process is the same whether the relationship was a marriage or a de facto relationship.

101 Family Law Answers is available as a related guide in all By Lawyers Family Law publications. It provides more detailed information and relevant cases on the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers some general procedural issues and the enforcement of orders.

Parenting orders and the Coronavirus – FED

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The Chief Justice of the Family Court has issued a comprehensive and helpful bulletin on parenting orders and the Coronavirus.

A key point in the bulletin is His Honour’s call that:

As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements.

His Honour notes that the Courts remain open to assist parties and to provide parents with general guidance. The Family Court’s general Coronavirus arrangements are available on the Court’s website and are being regularly updated.

The most important point regarding Coronavirus and parenting arrangements is that the best interests of the children remains the paramount consideration: s 60CA Family Law Act 1975.

In accordance with their obligations to act in their children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements, notwithstanding the ‘highly unusual’ current circumstances. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders. This is where sense and reason need to be applied by the parties, and where lawyers can play a critical role.

For more information about parenting orders and the Coronavirus, including what the parties should consider and what the Court will consider when making orders, see the commentary on parenting orders in the By Lawyers Family Law – Children Guide.

 

Keep up-to-date with our latest COVID-19 News & Updates

Priority property pools – Family Law – FED

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‘Priority property pools’, where the matrimonial assets are valued at less than $500,000 are the subject of new arrangements in the Federal Circuit Court.

The Brisbane, Parramatta, Adelaide and Melbourne registries of the Federal Circuit Court have implemented a new regime for applications for property and spousal maintenance filed after 1 March 2020. It targets net asset pools of less than $500,000 including superannuation interests – called Priority property pools (‘PPP500’). The new procedure applies where:

  • there are no entities such as a family trust, company, or self-managed superannuation fund that might require valuation or expert investigation; and
  • the case is only financial, not involving other matters such as parenting orders or enforcement.

An Initiating Application is required, along with the PPP500 Financial Summary document. No affidavit or financial statement is required.

Prior to the first court date, the registry will make case management orders. These may include financial disclosure, alternative dispute resolution, valuations, the filing of affidavits in relation to any interim issues and affording procedural fairness to the trustee of any superannuation fund if a split is sought.

The first court date will be before a registrar and will focus on case assessment and preparations for alternative dispute resolution. If required, urgent issues will be referred to a judge.

The alternative dispute resolution that follows will involve either an internal conciliation conference or external mediation. If agreement is reached, orders can be made by the registrar after the conciliation conference, or by submitting orders to the court.

If no agreement is reached, the registrar will check and re-settle the balance sheet and refer the matter to a judge.

The process to this point is intended to take no more than 90 days.

The matter will then proceed before a judge in the traditional manner, with directions for filing of affidavit material and other directions for hearing.

The By Lawyers Property Settlement guide has been updated accordingly.

Family Law guides – FED

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Author review

A full review of the By Lawyers Family Law guides has been conducted to ensure that all content is in line with current law and practice.

This review was conducted by our experienced author Keleigh Robinson, a Family Law Accredited Specialist.

Resulting updates and enhancements to our Family Law guides include:

Children

  • New commentary on Watch list order applications.
  • New tables summarising:
    • Family violence legislation; and
    • Appeals from the Federal Circuit Court and the Family Court.
  • Amendments to the matter plan to cover potential issues, interim and urgent applications in the one section.
  • New example content precedents:
    • Application in a case for substituted service;
    • Affidavit in support of the application in a case for substituted service; and
    • Changing parenting orders by consent.

Property settlement

  • Expanded commentary on Conciliation conferences in the Federal Circuit Court.
  • A new table summarising appeals from the Federal Circuit Court and the Family Court.
  • ‘Going to Court’ sections on the matter plan updated in line with current practice.
  • New example content precedents:
    • Application in a case for substituted service; and
    • Affidavit in support of the application in a case for substituted service.

Financial agreements

  • Expanded commentary on the Court’s power to set aside a financial or termination agreement and Death of a party to a financial agreement.
  • Expanded table comparing financial agreement legislation for marriages and de facto relationships, including de facto relationships in Western Australia.
  • New precedent letters for drafts of the different types of financial agreements.
  • Improved accessibility on the matter plan to real property transfer forms for the different jurisdictions.

Divorce

  • Expanded commentary on:
    • The filing process for same-sex couples;
    • The application and service;
    • Marriage certificates;
    • Separation under the one roof;
    • Reduction of court fees;
    • Substituted service and dispensation of service; and
    • Finalising the divorce.
  • A new table and accompanying notes on property division.
  • A new same sex couples section on the matter plan.
  • Revised service section to reflect current practice.

101 Family Law Answers

  • New cases and commentary on:
    • Urgent and interim spousal maintenance;
    • Interim costs orders;
    • Amending applications, responses and other documents; and
    • Private mediation and lawyer attendance.

Keep up to date with By Lawyers

This review of our Family Law guides is part of By Lawyers commitment to regular updating and enhancement of our publications. With By Lawyers always keeping you up to date you can enjoy practice more.

Setting aside financial agreements – FED

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A recent case on setting aside financial agreements has been added to the By Lawyers 101 Family Law Answers publication.

Section 90K(1) of the Family Law Act 1975 provides for the limited circumstances in which a court will consider setting aside financial agreements entered into by married couples. The equivalent section for de facto couples is s 90UM.

In Frederick & Frederick [2019] FamCAFC 87, the Full Bench of the Family Court set aside a financial agreement on the grounds that there had been a material change in the circumstances relating to the care, welfare and development of a child of the marriage and the applicant would suffer hardship if the agreement were not set aside – s 90K(1)(d).

See 101 Family Law Answers and the By Lawyers Family Law commentary for more information.

Retaining children overseas – Family Law – FED

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Retaining children overseas is now an offence under the Family Law Act 1975 (Cth).

Existing offences

Subdivision E of Division 6 of Part VII of the Act provides for the ‘Obligations under parenting orders relating to taking or sending children from Australia’. Sections 65Y and 65Z already provide that it is an offence to take or send a child overseas if there is a parenting order in force, or sought in a live application, unless there is written and authenticated consent of each person in whose favour the order was made or sought, or it was done in accordance with a court order. The penalty for contravention is imprisonment for three years.

As part of the Civil Law and Justice Legislation Amendment Act 2018 subdivision E has been amended, with new sections added that deal with retention of children overseas. These amendments have effect from 26 April 2019. Sections 65Y and 65Z have been renamed and re-organised in the Act, but essentially remain the same. The only addition is an exception described below.

New offences

Under the amendments, any person retaining children overseas now commits an offence pursuant to the new sections 65YA and 65ZAA, unless they are doing so in accordance with authenticated consent in writing, or a court order. This applies whether or not the person originally took or sent the child outside Australia. The penalty for contravention is imprisonment for three years.

Statutory exception

There is one legislative exception to the offences created under subsections 65Y(1), 65Z(1), 65YA(1) and 65ZAA(1). The subsections do not apply if the person who takes, sends, or retains the child outside Australia believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them. This applies regardless of whether or not the person who takes, sends, or retains the child is or was the party to the proceedings.

Commentary updated

The Children commentary in the By Lawyers Family Law guide has been updated accordingly.

 

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