obiter | ByLawyers News and Updates

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.

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.

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

Amendments to Family Law Act – FED

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Amendments to the Family Law Act commenced 10 March 2019 relating to family violence and cross-examination of parties.

They will apply to cross-examinations occurring on 10 September 2019 and thereafter, regardless of when proceedings were instituted.

The following sections have been added to the Family Law Act 1975:

  • 102NA Mandatory protections for parties in certain cases; and
  • 102NB Court‑ordered protections in other cases.

Section 102NA provides greater protection for parties in circumstances of family violence where there are self-represented parties.

If a party intends to cross-examine the other party, in certain circumstances, they may not do so personally and cross-examination may only be conducted by a legal representative. Those circumstances are:

  1. there is an allegation of family violence between the examining party and the witness party; and
  2. any of the following are satisfied:
    • either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
    • a family violence order, other than an interim order, applies to both parties;
    • an injunction under s 68B or s 114 for the personal protection of either party is directed against the other party;
    • the court makes an order that the requirements of legal representation for cross-examination are to apply.

If a party intends to cross-examine the other party personally and there are allegations of family violence, the court must ensure that during the cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

The By Lawyers Children and Property Settlement commentaries have been updated accordingly.

Changes to Family Court Consent Orders kit and eFiling

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Changes to Family Court Consent Orders Kit and eFiling procedures have now taken effect, arising out of the Civil Law and Justice Legislation Amendment Act 2018. These include:

  • Updated information pages in the Application for Consent Orders Kit;
  • References to ‘husband’ and ‘wife’ replaced with ‘party to a marriage’ and/or ‘party to a de facto relationship’; and
  • Updated sectional references in the Family Law Act for superannuation in the Application for Consent Orders form.

The updated kit and form are now available in the By Lawyers Family Law publications.

eFiling

The Court recommends that practitioners use the ‘unguided’ process for uploading Application for Consent Orders forms. This process was introduced as part of the Digital Court Program and makes it easier to upload forms without having to input information twice. The ‘guided’ eFiling process will only remain available until 31 March 2019.

For more information about eFiling and the ‘unguided’ process see the By Lawyers Family Law guide, or visit the Digital Court Program on the Family Court website.

Family Law Courts e-filing updates -FED

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The Family Law Courts have announced that they will shortly release a number of enhancements to the online filing system, which are a result of their survey of the legal profession in 2017. In summary, the changes will include:

  • the ability to file a greater number of applications online;
  • support for fee reduction/exemption applications for financial hardship;
  • online lodgement for correspondence;
  • ability to indicate;
    • safety considerations;
    • urgency; and
    • the need for interpreters;
  • ability to upload 30 MB sized documents; and
  • support for parenting orders sought with Family Dispute Resolution (FDR) Exemptions.

More information will be published – and the By Lawyers Family Law Guides updated – when the Court releases more details of the facilities.

Family Law Courts fees increase 1 July 2018

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The fees payable in the Family Court and Federal Circuit Court are changing from 1 July 2018. These increases will impact on Children and Property Settlement matters as well as Divorce/Nullity.

The By Lawyers Family Law guide will be updated where applicable to reflect these amended fees.

Reference manual – 101 Family Law Answers – commentary added

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Commentary has been added to the By Lawyers 101 Family Law Answers reference manual in the Children chapter:

Orders – Variation and the rule in Rice & Asplund
To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final orders. The rationale is founded on the ‘best interests principle’ and the public interest for parties to not continuously re-litigate parenting matters. …

There is no specific timeframe in which a significant change of circumstance must or must not be shown. It depends on the individual case. There was consideration of the rule in SPS & PLS [2008] FamCAFC 16. In that case the court said at [48] … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle” … The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. …

Other useful cases include:

 

Family Law – Property Settlement publication review

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The By Lawyers Family Law author has reviewed the Property Settlement publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Evidentiary issues with spousal maintenance – the best evidence for the effect of health issues on the earning capacity of the applicant is usually that of a medical practitioner; and regarding the attempts made by the applicant to secure paid employment, if acting for the respondent, evidence from a recruitment expert as to the applicant’s employability and likely salary may be useful;
  2. It is best practice to advise clients, even in consent matters, to provide and request disclosure of at least the basic documents. If they do not want to do so, advising them of the risks for an agreement or orders to be set aside on the basis of non disclosure is recommended;
  3. Consent orders and the registrar seeking further clarification – a requisition may be avoided by providing a covering letter or statement of agreed facts along with the documents to be filed, explaining the orders and background which gives rise to what otherwise may appear unjust;
  4. Federal Circuit Court Practice Direction No. 2 of 2017 providing strict directions for affidavits in interim matters;
  5. Section 79(9) and s 90SM(9) of the Family Law Act provides that the court shall not make an order in a property settlement proceedings, other than an interim order or a consent order, unless the parties have attended a conference with a Registrar or Deputy Registrar, i.e. a conciliation conference. If the matter is urgent or there is another special circumstance, the court may make an order notwithstanding parties have not attended a conference; and
  6. If a party seeks to amend their application or response refer to Federal Circuit Rule 7.01 and Family Law Rule 11.10.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

There were only minor amendments to several letters regarding use of the term “initiating applications” as opposed to “application for final orders”.

 

Family Law Rules – Additional changes as of 1 March 2018

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Documents to be used in conjunction with affidavits

As of 1 March 2018, in the Family Court, a document that is to be used in conjunction with an affidavit and tendered in evidence in a court proceeding, must be identified in the affidavit but must not be attached to or annexed to the affidavit, or filed as an exhibit to the affidavit.

There may be exceptions where court orders or the Rules provide otherwise: for example r 15.62 in relation to expert reports.

Any document referred to in the affidavit must be served with the affidavit on the other parties after filing. The document must then be tendered in evidence at the court event when the relevant affidavit is relied upon or as required: r 15.08(2)

While as of 1 March 2018, the Family Law Rules have changed, providing for annexures not to be attached to affidavits: r 15.08, in matters in the Family Court, the Federal Circuit Court continues to permit annexures to be attached. Given the majority of matters are filed in the Federal Circuit Court, not the Family Court, in practice the norm will continue to be that relevant annexures are attached to affidavits.

Undertakings

Rule 17.06 has been added, relating to undertakings. The rule sets out the form of undertakings and, in summary provides:

  • Undertakings may be given orally or in writing.
  • If they are in writing, it must be signed and filed.
  • If they are given orally, a written record must be made, signed, filed and served.
  • A definition of undertakings as to damages.

We have updated our Property Settlement and Children commentaries accordingly.

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