Who Can Adopt?

If you are looking to adopt, you are required to be ordinarily resident in the ACT. You must also be on the register of suitable people. To be on the register, you must make an application in writing to the Director-General for approval to be registered as suitable for the placement of a child or young person for adoption.

If you are a couple, you need to have lived together in a domestic partnership for at least 3 years. If you are single or a step-parent, you can apply for an order to be made in your favour.

Consents to Adoptions

If you are wishing to adopt a child or young person, and they have not been previously adopted, you will be required to obtain the consent of each parent or guardian of the child or young person. If the child or young person has previously been adopted, you will need the consent of each adoptive parent or guardian. It is possible, however, to seek the requirement for consent to be removed.

Placement of a child or young person before adoption

During the adoption process, the child or young person will be placed in the care of a person with the Director-General as guardian, or to a person on the register of suitable people (intending to apply for an adoption order for the child).

The Director-General must if practical, provide the child or young person with information about the proposed placement. The child or young person will be allowed the opportunity to freely express their views about the proposed placement, be provided assistance in understanding the information and have counselling if required.

Guardianship before adoption

Prior to adoption, the Director-General is considered the guardian of a child or young person for all purposes except:

• If each person required to consent to the adoption has consented or if consent has been dispensed with; or

• If the application for adoption was made by a step-parent and the other parent of the child or young person has a continuing role as a parent; or

• The principal officer of a private adoption agency is the guardian where consent has been provided by the required persons and they have told the Director-General in writing that they are willing to assume the guardianship.

If you or someone you know is considering adoption, it is important to seek specialist advice from those best qualified to assist you. Robinson + McGuinness is available to provide you with advice about your family law matter, including adoption matters.

Contact our office at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Covid Vaccinations for Children Over 16 Years

Previously, we have spoken about parents not agreeing to vaccinate their children in an article (link) written by Anna-Kate Visser. It stated that such decisions fall within the major, long-term decisions in the scope of ‘parental responsibility under the Family Law Act, together with the recent case of Covington & Covington (2021) FLC 94-014 where it was found that the Family Court has the power to make Orders about vaccinations. But what about children who are over 16 years of age?

The reality is, the older a child is, the more regard the Court must-have for their wishes. This is dictated under section 60CC(3)(a) of the Family Law Act. This is not the primary consideration, however, which are:

1. The benefit of a child having a meaningful relationship with both of the child’s parents; and

2. The need to protect the child from physical or psychological harm.

With regard to a 16-year old, regard will be given to their:

• Maturity;

• Their level of understanding;

• Whether their wishes are well informed;

•  Whether their wishes have been influenced by one of the parents.

This will typically be assessed through an interview by a court-appointed expert.

Regard will also be given to the state-based rules surrounding what ages a child is legally able to obtain a vaccination or booster shot.

Therefore, given the above, it is unlikely that a Court would make parenting orders for the vaccination of a 16-year-old or older given their age and likely maturity to make informed decisions for themselves. This extends to prohibiting a 16-year-old from obtaining a vaccination or booster shot through parenting orders for the same reason. 

If you find yourself in this situation, you should seek specialist family law advice before taking any steps. Medical history and prior circumstances may factor into any decision that needs to be made by a third party about a child obtaining a vaccination or not.

If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Who you appear before in the FCFCoA and what they can do?

In Australia, the Federal Circuit and Family Court of Australia (FCFCoA) determine family law disputes. There is now a range of judicial officers who have varying degrees of delegated power in which to support your matter through the case management pathway that now exists in the FCFCoA. They include Judges, Judicial Registrars and Deputy Registrars, just to name a few.

While a Judge of the FCFCoA – in either Division 1 or Division 2 – is appointed, the balance of judicial offers, who have lesser delegated powers, are employed with varying qualifications and are called Registrars. There are now three types of Registrars in the FCFCoA: Senior Judicial Registrar, Judicial Registrar and Deputy Registrar. Each type of Registrar may become involved at one time or another in your matter once you file and commence Court proceedings, and while you may not appear consistently in front of one or another, they each have different roles in managing your matter from filing to finalisation. 

The different roles are as follows:

1.    Deputy Registrars (DR):

a.    These officers have a constrained delegated power, to deal with procedural, consent or dispute resolution applications, such as:            

• Consent Orders, either parenting, property or both, are filed with the Court for review and finalisation.

• Divorce Orders, in undefended proceedings (i.e. proceedings that are not disputed because one party does not respond or get involved).

• Dispute Resolution processes are facilitated by the FCFCoA, namely Family Dispute Resolution Conferences (FDRCs).

• Orders by consent are procedural and managerial orders that are intended to support the case through the management pathway.  

2.    Judicial Registrars (JR):

a.    These officers have the powers of the DR, plus some limited further powers, including:

• The ability to make cost Orders and security for costs (i.e. requiring someone to put up funds in advance of deciding the proceedings).

• The ability to make location Orders.

• The ability to make parenting, property, or both style of Orders, in undefended proceedings (i.e. where one party does not respond or get involved) in a limited set of circumstances.

• The ability to make parenting, property, procedural, or a combination of all three Orders, when by agreement of the parties.

• The ability to make, vary, discharge or suspend spousal maintenance orders in a limited set of circumstances. 

• The ability to appoint an Independent Children’s Lawyer.

• The ability to make Orders in relation to Subpoenas.

• The ability to make Orders that direct parties to attend upon a Court Child Expert. 

3.    Senior Judicial Registrars (SJR):

a.    These officers have substantive delegated powers, with the aim for them to run and determine interim matters. In addition to what the DR and JR have, the SJR can:

• Make interim parenting Orders.

• Make interim property Orders.

• Make Orders for maintenance, location and recovery.

• Summarily Dismiss proceedings.

• Make Orders for enforcement of parenting or property Orders.

• Grant injunctions until further Orders or in undefended proceedings.

It is important to understand which Registrar you appear before, as their powers will limit the extent to which they can deal with the issues at hand. For advice tailored to the stage and type of family law proceedings you may find yourself in, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

First Return, Mention, Direction, Interim Hearing, Child Dispute event: What do the Court events mean in the FCFCoA?

The Federal Circuit and Family Court of Australia (FCFCoA) have been designed to be a one entry point system to support and facilitate the timely resolution of family law disputes. A downside of this, however, is that there may seem like an overwhelming number of events and Court ‘triaging’ from filing to finalisation. It is important to familiarise yourself with the types of Court events, to help you understand what can and cannot be achieved at a certain time in your matter.

Most matters will involve one or more of the following Court events:

1.  Mention / Directions: this may be before a Judge, Senior Judicial Registrar (SJR) or a Judicial Registrar (JR). Your matter is likely to be one of several, and will usually be allocated a short period of time. The Court is unable to deal with any “meaty” concerns at this time (i.e. where a child is to live, how property is to be divided), but instead looks to confirm whether your matter is ready to proceed to a type of hearing or alternative dispute resolution process, and if not, what needs to happen to get it ready. In a Mention or Directions hearing, Orders may be made for the gathering of further evidence (such as by way of Subpoena, by the production by one party or both, or by the undertaking and preparation of an expert report or valuation).

2. Hearing: this may be before a Judge or an SJR. While an SJR only has delegated power, such as to make a decision on interim arrangements, a Judge has the power to make a decision on both interim and final arrangements. Usually, your matter will have been listed for Mentions and Directions along the way, to ensure it is ready to proceed to hear. If it is an interim hearing, you may be one of a few matters listed on any given day, with a set period of time in which to run your case. If it is a final hearing, you may be the only matter, however, there are still time constraints and your matter will be allocated a set number of days or half days.

3. Conciliation Conference: this is a type of dispute resolution for property matters. This is where a JR will act as a mediator/facilitator, endeavouring to broker an agreement if possible between the parties to achieve a property settlement. The JR does not have the power to make a decision, however, can make Orders if the parties are able to reach an agreement. You may be the only matter listed before the JR in that period of time, however, it is a fixed period of time that it runs for, usually half a day.

4. Court Facilitated FDRC: this is a type of dispute resolution for parenting matters. This is where a JR will undertake an intake with each of the parties on a separate day, to see what the extent of the dispute is and whether there are any common ground/specific issues to be aware of. They will then, if they determine suitably, undertake a mediation on a separate day. While it may be that some of the mediation is held together with all parties involved, at other times, it may be the JR talks to one party (and their lawyer) and the other party has a break. The JR will then talk to the other party (and their lawyer) and see what agreement, if any, can be reached. This is often referred to as a “shuttle” conference. Like a Conciliation Conference, the JR cannot make a decision if the parties are unable to reach an agreement. If an agreement is reached, the JR can however make Orders.

It is important to know what Court event your matter is listed for, as this will constrain what you can ask the FCFCoA to do. If you are not prepared for the listing, and it needs to be listed again at another time, you may be at risk of paying some of the other party’s costs in the event it is determined that any waste or delay is your fault. For advice tailored to the stage and type of family law proceedings you may find yourself in, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Can I Adopt an Adult?

Adoption in the ACT is governed by the Adoption Act 1993. This deals with the adoption of children and young people. The adoption of a person who is 18 years old or older is permitted in the Australian Capital Territory under section 10 of the Act. There are certain requirements to be met prior to the adoption taking place. These are:

1. That the adoptor/s have been in a care-giving relationship with the person; and

2. The person has received physical, emotional, intellectual and educational support from the adoptor/s; and

3. The person, or at least 1 adoptor, is ordinarily resident in the ACT.

The Court will not make an adoption order for a person 18 years old or older unless the person consents to the adoption by the adoptor and the court is satisfied that the adoptor is of “good reputation”.

Further considerations for the adoption of an adult over the age of 18 include:

4. Consent by an adoptor for the adoption order is not required;

5. Consent must be signed and attested to under the appropriate form and prescribed regulations;

6. The court may refuse to make an adoption order if it appears that any required consent was:

a. Not given in accordance with the Act;

b. Obtained by fraud, duress or other improper means;

c. The form whereby consent was signed was altered without the authority of the person who gave the consent;

d. When signing, the person who gave the consent was not in a fit condition to give the consent or did not understand the nature of the consent;

7. An adoption order must not be made unless the applicant has, not later than 28 days before the return date for the application, been served written notice of the application and its return date on:

a. Anyone whose consent to the adoption is required but whose consent has not been given.

8. The court has the authority to remove the requirement to serve an application;

9. The court has the authority to direct the adoptor to serve the application on anyone it deems necessary;

10. The court may permit anyone it thinks fit to be joined as a party to a proceeding for the purpose of opposing the adoption application or opposing an application to remove a requirement for consent on a person; 

11. On application, the court may discharge an adoption order if the court considers that:

a. The adoption order or any consent to the adoption was obtained by fraud, duress or other improper means; or

b. Other circumstances that justify the discharging order;

c. Discharging orders must be served by written notice to the adopted person (if over 12 years), each adoptive parent and each person whose consent to the adoption was required.

If you or someone you know is considering adoption, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters, including adoption matters.

If you would like advice in relation to your matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

What To Expect On The First Return Date?

Once you have commenced proceedings in the Federal Circuit and Family Court of Australia your matter will be allocated a first return date.  In most instances, the first return date will be 4-8 weeks from the date that your application was filed and will take place before a Judicial Registrar.

The purpose of a first return date is to triage and assess matters and to put a procedural plan in place for the progression of the matter.

On the first return date, it can be expected that the Court will consider:

1.    Whether any Orders can be made by consent.  This can include procedural orders and more substantive orders in relation to both parenting and property matters;

2.    Whether the pre-action procedures have been complied with.  If you are unsure of your obligations to comply with the pre-action procedure you should click here;

3.    The issues that are in dispute and whether an alternative dispute resolution process such as mediation, or a Court based dispute resolution service will be of assistance in resolving those matters;

4.    If alternative dispute resolution is not appropriate, whether an interim hearing is required; and

5.    What Orders and directions are necessary to progress the matter.

The orders and directions that are made on the first return date will vary depending upon the issues in dispute and how much work has been carried out prior to the first return date.  It can be expected that the following Orders may be considered:

A.   In parenting cases, the Court may make orders in relation to:

a.    The production of notes and records from the Police and child welfare agencies;

b.    The appointment of an Independent Children’s Lawyer; and

c.    The preparation of an expert report if this will be of assistance to the parties and the Court in resolving the matter.  

B.   In property matters, the Court may make orders in relation to:

a.    The exchange of financial disclosure; and

b.    The preparation of valuations, including real property and business entities.

In general, Orders will not be made on the first return date for parties to attend dispute resolution until such time as the Court is satisfied that the matter is ready to progress to that stage.   However, if on the first return date the Court is satisfied that the matter is ready to progress to mediation it is open to the Court to make those Orders.  

Sometimes there is urgency attached to a matter or an issue in dispute such that the issue requires immediate determination.  In those circumstances, and should the Judicial Registrar consider it necessary, the matter can be transferred to a Senior Judicial Registrar or a Judge for interim determination.  

As family law solicitors, we at Robinson + McGuinness are able to advise you in relation to your rights and entitlements and assist you to finalize matters following separation.  We are also able to represent you in litigation before the Federal Circuit and Family Court of Australia. Please contact us today on (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Peta Sutton

Can I get Orders dealing with overseas assets as part of my Property Settlement?

In this day and age, it is not unusual for people going through separation to hold overseas assets. They may have emigrated to Australia after building up assets in another jurisdiction, or travelled and lived overseas for a period of time. Sometimes people just choose to invest overseas. These assets can include overseas pensions, real estate, shares, companies and bank accounts. Regardless of how the assets came about, if they are owned by people who are going through a family law settlement they will likely need to be address in some way.

While it may sound a little odd. Australian Courts do have the power to make Orders dealing with assets held overseas if the Court decides that it is appropriate to do so. This is because section 31(2) of the Family Law Act gives our Court power to make Orders about ‘things’ and ‘people’ outside of Australia. The Orders will not be directed specifically to the asset, but rather to a party to the proceedings – requiring that person to do something with the asset, like transfer it to someone else. Sell it and disburse the proceeds in some way. Or even just to retain it in their own name.

Even though the Courts do have that power, dealing with overseas assets in a property settlement can still be a tricky area of family law if one person does not want to ‘play ball’ with the process. The first problem you may encounter if the other person is being evasive or not properly disclosing their holdings is proving that the asset exists at all, and then after you have done that, establishing precisely how it is legal owed. Once that has been done, you will need to establish what the asset is worth. This can mean obtaining valuations from afar, which can be logistically difficult and expensive. These issues can usually be worked out, but it can take some time.

Perhaps the most significant issue that people can run into in this area is deciding what to do once and Order has been made about overseas assets, but the person who is supposed to do the thing – e.g., transfer the asset, sell the asset, simply refuses. Some overseas jurisdictions will recognise and Australian Order and enforce it as if it had been made in that country, but other jurisdictions will not – it is up to each country. The Court may try to avoid this issue altogether if there are enough assets held within Australia to simply assign the overseas assets to the person who already holds them, and giving the other person a greater share of the Australian assets instead. Whether this is appropriate will of course turn on the particular facts of each case.

If you or your former partner own assets overseas and you are going through a property settlement, or think you might be in the future, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Anna-Kate Visser

Navigating your post-separation relationship: General obligations which parents have to each other

Following separation, parents have the difficult task of developing and navigating a new type of relationship. Although they have co-parented throughout their relationship, co-parenting while separated understandably becomes more difficult as a result of changes in living arrangements, communication, and a range of other challenges. Many parents simply follow their gut instincts when making decisions about how to parent post-separation.

What many parents may not know however is that the Family Law Act sets obligations upon parents to encourage and facilitate a child’s relationship with the other parent, where there are parenting orders in place. The purpose of these obligations is to promote the right of a child to have a meaningful relationship with both of their parents, and to ensure that both parents are able to have a say in the future parenting of their child and to exercise decision making in relation to their child. 

Pursuant to the Family Law Act, parents who share parental responsibility (the rights and responsibilities which parents have in relation to decision making for their child) are encouraged to consult with each other and attempt to reach an agreement about matters relating to the care, welfare and development of a child. This may include, for example, what school a child will attend, whether they will participate in particular religious activities, or certain medical treatments. 

Parents who share parental responsibility do not have an obligation to consult with each other on day to day matters which are not long term issues, such as what a child wears to school or what items are packed in their lunch box.

 So, what other obligations might you have?

Where there are parenting orders in place providing for a child to live with one parent, the other parent must not, contrary to any parenting order:

Remove the child from the care of that parent;

Refuse or fail to deliver or return the child to that parent; or

Interfere with that parent exercising their parental responsibility in relation to that child.

Where there are parenting orders in place providing for a child to spend time with another parent, the other parent must not prevent the child from spending time with that parent, as provided in the parenting orders or interfere with the other parent and the child having the benefit of spending time with each other.

Where there are parenting orders in place providing for a child to communicate with a parent, such as via telephone or FaceTime, the other parent must not prevent the communication from occurring or interfere with that communication.

There can be serious consequences for breaching these obligations. The Court may require parents to participate in post-separation parenting courses, or order that there be “make up time” to account for any communication or time that was not exercised with a child. In cases of more serious breaches of parenting orders, the Court may require parties to enter into a bond, pay a fine or serve a term of imprisonment.

If you have questions about separation or would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Margot McCabe

Financial matters in the FCFCoA: where am I going and what am I filing?

On 1 September 2021, the two Courts which previously conducted family law matters in Australia merged, becoming the Federal Circuit and Family Court of Australia (“the FCFCoA”). While the overarching Family Law Act 1975 that legislates how to resolve divorce, parenting and property issues arising from the conclusion of a marriage or de facto relationship has remained the same, there are new Rules that support how any resolution is to be achieved. There are also comprehensive Practice Directions that have issued to assist in understanding how to approach the new FCFCoA system.

With the FCFCoA bringing a stronger focus on parties complying with their pre-action duties and resolving, where possible and appropriate, their matter through dispute resolution alternatives to litigation, it is important that you are aware of your duties and obligations before making an application to the FCFCoA to resolve your property matter.

The Family Law Rules 2021 sets out a clear procedural pathway for the resolution of property matters:

1. Complete Pre-Action Procedures set out in Schedule 1 of the Family Law Rules 2021.

a. You may fall into one of the limited circumstances where exceptions to completing the pre-action process are permitted.  

2. Failing resolution of your matter at the Pre-Action stage, you may then need to progress to alternative means of dispute resolution such as:

a. Mediation.

b. Private Arbitration.

c. Collaborative process.

3. Failing resolution at the dispute resolution stage, and subject to pre-action procedures being complied with, or an exception relevant to your circumstances being available, you may then need to progress to litigation:

a. If the total property pool is less than net $ 500,000 – filing in the “Priority Property Pools” list after reading the relevant Practice Directions.

b. If the property pool is greater than net $ 20,000,000 or otherwise involves a complex issue in dispute – filing in the “Major Complex Financial Proceedings” list after reading the relevant Practice Directions.

c. For all other property matters – filing in the usual manner after having read the relevant Practice Directions.

d. Although you may be in litigation, there are still a range of Court facilitated dispute resolution processes available to you, including:

i. Financial mediation through a Conciliation Conference facilitated by a Registrar of the Court.

ii. Court Ordered Arbitration managed through the National Arbitration List.

4. Following the conclusion of litigation, a Judge will make a determination and issue Orders. At any stage during litigation, it remains open to the parties to resolve their matter by agreement.

The agreement can be formalised by way of Consent Orders that are filed with the Court, or in certain circumstances, by entering into a Binding Financial Agreement.

It is important to remember that whether your property matter is resolved by way of decision of the Court, arbitrator, or jointly by the parties, the resolution must be just and equitable to both parties if the Court is required to make the Orders.

A failure to comply with your obligations at any stage of your matter, and particularly the pre-action stage, may see a resolution of your property matter delayed, or disadvantaged. It may help you better understand how to cost effectively progress your property matter by getting specialist family law advice tailored to your circumstances. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

What is the role of an Independent Children’s Lawyer (ICL)?

An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Court to assist the Court in determining what parenting arrangements are in the child (or children’s) best interests.

ICLs are experienced family lawyers who have completed the national ICL accreditation program. Their fees are usually met in the first instance by the local Legal Aid authority, but parties are often requested to make a contribution to the costs of the ICL, and the Court may order that they meet the costs of the ICL.

An ICL is not appointed by the Court in every parenting matter. The Court can appoint an ICL on its own motion, or following an application by one or more of the parties. When considering whether to appoint an ICL the Court may take into account factors, including:

• Any allegations of risk or family violence;

• The age and maturity of the children;

• Where there is significant conflict between the parties; or

• Where one (or both) parties are not legally represented.

Once appointed, the ICL will read all of the documents filed by the parties, consider any relevant subpoena material, express their view (where applicable) to the parties about any issues that arise, and attend and participate in each listing of the matter before the Court.

Although the ICL may meet with the children to discuss their views and may communicate those views to the Court, they are not appointed to be a lawyer for the children or to act on their instructions. Instead, their role is to provide an independent view and assist the Court in working out arrangements that are in the children’s best interests. This may, or may not, be consistent with the children’s views or the views held by the parties.

The ICL also helps the Court by ensuring important evidence is available for the Court’s consideration, such as by issuing subpoenas to obtain relevant records from the children’s schools, the police or child protection bodies.

If the matter proceeds to a final hearing, the ICL will also ask each of the parties questions during cross-examination and, having read, heard and considered all of the evidence, make submissions to the Court about the final orders that they consider are in the best interests of the children.

The ICL plays an important role as an independent ‘honest broker’ between the parties and can help negotiate a settlement of their parenting matter without the need for a determination by the Court, such as by organising and participating in a mediation with the parties and their lawyers.

Although the ICL’s view is likely to carry some weight in the proceedings, the ultimate determination about the children’s arrangements rests with the Court.

If you think an ICL may need to be appointed you should seek legal advice from a family lawyer about whether this is appropriate in the circumstances of your matter.

Welland & Hawthorn – A cautionary tale; the risks of delay when making a property application with the Court

There are strict time limits that apply when making an application to the Court in relation to family law property matters. Section 44 of the Family Law Act 1975 (Cth) (“the Act”) specifies that a married person must make an application in relation to property matters within 12 months of a Divorce Order taking effect. For de facto couples, a person must make an application within 24 months of the breakdown of the de facto relationship. If an application is not made within these time periods, then the Court must provide leave (or special permission) for an application to be made out of time; and leave is not always granted.

Section 44(6) of the Act stipulates that the Court may grant an extension of time if the applicant demonstrates that they will experience hardship if they are not given the chance to bring proceedings for substantive relief. If hardship is demonstrated, numerous factors can influence whether the Court allows an application to be made out of time, including the length of the delay, the adequacy of reasons for the delay, and the prejudice the respondent would suffer if the application for extension of time was granted. This means the application to extend time is not guaranteed and might not be granted. The onus rests with the applicant to demonstrate why an extension of time should be granted.  It is not up to the respondent to demonstrate why the application should be refused.

The recent case of Welland & Hawthorn [2021] FCCA 1232 highlights the importance of making an Application in relation to property matters within the required time period. In this case, the parties were in a de facto relationship for around 16 years, commencing a relationship in 2000 and separating in February 2016. They had 2 children together.

After the parties separated in 2016, the Wife engaged several lawyers throughout 2017, 2018 and 2019 and obtained advice in relation to property matters. On her own evidence, she was advised by her lawyers on several occasions that she needed to make an application within the required time period, and she was also advised that she was running out of time to make an application. Notwithstanding this advice, the wife failed to make an application regarding property matters until November 2019, almost 2 years late.

On appeal, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction dismissed the Wife’s application for property orders out of time, on the basis that, while the Court was satisfied that the applicant would suffer hardship, she did not provide an adequate explanation as to the reason for her delay. The Court considered that she had willingly engaged lawyers, attempted mediation and engaged in negotiations with the Respondent, and as such there was no satisfactory reason for why she didn’t commence proceedings in the required time frame.

If you have recently experienced a relationship breakdown, we recommend that you contact our office as soon as possible to obtain advice about resolving property matters, within the required time period. Delay or procrastination in these circumstances could result in you not being entitled to a property settlement, that you would otherwise be entitled to, if made in the appropriate time period.

Author: Ellen Russell

Why can’t we be friends? – The necessity of judicial impartiality in family law

In the usual course, practitioners who excel in their application of the law and in advocating for their client’s interests quite often are the ones who are appointed later in their careers as judges. In what is now known as the Federal Circuit and Family Court of Australia (the Court), judges have often spent years working as barristers, requiring them to have close and positive relationships with members of the legal profession. In the highly specialised field of family law, this may mean those practitioners who were once colleagues may find themselves appearing in front of judges that are well known to them, and who they may consider to be friends.

Some practitioners may hold these friendships out as a benefit to clients. The High Court of Australia has sought to temper this, with the recent case of Charisteas v Charisteas [2021] HCA 29 strongly warning practitioners that contact with judges during proceedings is not on except in “the most exceptional of cases”.

In the long running case of Charisteas v Charisteas, the High Court set aside certain property orders made by the Trial Judge on the basis of apprehended bias. The difference of apprehended bias, versus actual bias, is an important distinction. What this means is that there were no allegations that the Judge engaged in behaviour or conduct that was prejudicial against one party over another. Rather, it means that a normal, everyday person (known as the “fair-minded lay observer”), may have perceived the judge to be biased.   

In this particular case, the circumstances involve the Trial Judge and the barrister for the Wife, who during the course of the proceedings:

1. Met for “drink or coffee” on no less than four occasions; and

2. Spoke on the telephone; and

3. Exchanged text messages during the trial, pausing for submissions, but continuing again before judgment had issued.

The barrister for the Wife failed to disclose the relationship, or the communications to the lawyers for the Husband or their barrister. Instead, the lawyers for the Husband found out through “gossip”.

It was in this context that the High Court found that the “fair-minded lay observer” would likely have thought the Trial Judge’s impartiality was compromised. The basis for this perception was the communications that were not disclosed, and the meetings on several occasions. The Husband successfully appealed to the High Court and the Wife was ordered to pay his costs along with some of the orders being set aside.

The important takeaway from Charisteas v Charisteas is that there is no excuse for communicating improperly with the Court. All communications, ideally should:

1. Include all other parties either in writing or in their presence;

2. Be agreed, down to the wording, prior to contacting the Court;

3. Be proper with all relevant parties, from the judge down to the Court registry staff;

4. Be mindful and courteous up to the time judgment issues.

At any stage of litigation, the importance of judicial impartiality cannot be understated. It is a confusing and sometimes misunderstood element of going to Court. It may help you better understand judicial impartiality, and its impact on your Court proceedings, by getting advice tailored to your circumstances. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

What’s in a name? Changing a child’s surname after separation

While it may sound unusual, situations can arise when parents may wish to change their child’s name. A child may have always informally been known by one name, but legally has a different name and now wants to make that change formal. A child may no longer have a relationship with the parent whose surname they bear and wish to have the surname of the parent who cares for them full time. Parents may have separated, and one parent may decide that they would like to add their own surname to the child’s surname, or substitute it for their existing surname. In very rare cases, a parent may need to change their child’s name as a safety measure to try to conceal them from the other parent who is a significant risk to that child.

If both parents agree, changing a child’s surname is a relatively straightforward process. But if there is no agreement, a parent seeking the change will need to apply to the Court for Orders which will permit them to change their child’s name without the consent of the other parent. That application can form part of a broader application for Orders about parenting arrangements, or can be a ‘single issue’ application brought by one parent without seeking any other Orders.

When considering an application to change a child’s name, the Court will treat the child’s best interests as the paramount consideration. To determine whether or not the particular change is actually in a child’s best interests, the Court will look at a number of factors including the long and short term effects of the change, any embarrassment to the child, whether the change will cause the child confusion in their identity, the contact each parent has with the child, and the degree to which the child identifies with each parent.

Ultimately whether or not it is appropriate to change a child’s name after they are born will turn on the particular facts of each case. If you are considering applying to change your child’s name, you should seek specialist family law advice.

If you would like to make an appointment to discuss your circumstances with a member of our team, please contact us on (02) 6225 7040, via email on info@rmfamilylaw.com.au or get started online here.

Is Family Violence relevant in Property Proceedings?

Family violence can absolutely be a relevant factor in property proceedings. Depending on the specific circumstances of each case, a person who has experienced family violence may find that they are entitled to a greater share of the asset pool than they might otherwise have received had they not been subjected to violence.

The effects of family violence can be relevant at several stages of the property settlement process, and must be considered in the context of the case as a whole. In some cases, one party may be able to demonstrate that their contributions to the relationship, either financially or otherwise, were impacted or made ‘more onerous’ by their experience of violence, and so should be given greater weight than the contributions of the other party. In other situations, one party may be able to demonstrate that their experience of violence has had an ongoing impact on their healthcare needs, or will negatively affect their ability to work or care for children into the future. This may lead to them receiving an adjustment in their favour to account for their greater future needs over and above those of the violent perpetrator.

The matter of Coad & Coad [2011] FamCA 622 is a clear example of a case where both of the above situations applied. In this matter, the parties were together for 10 years and had one child. At the time of separation, the Wife was severely assaulted by the Husband and he was convicted of attempted murder, intentionally causing serious injury, and endangering life in respect to a person who came to her assistance. He was sentenced to a lengthy term of imprisonment. During the incident, the Wife suffered a fractured eye socket and cheekbone, a broken nose, and was so severely bruised her child did not recognise her in the hospital. Her cheek had to be reconstructed with a titanium plate, she was not able to see properly for several months, and she had difficulty balancing, breathing and bathing herself. The Judge accepted that not only had the Wife’s injuries made her care of the child after separation more onerous than it ordinarily would have been, she had sustained life-long injuries that would continue to impact her capacity to work and care for her child. The Judge assessed the parties’ contributions at 60% to the Wife and 40% to the Husband, and awarded the Wife a 30% adjustment in recognition of her greater future needs meaning the Wife received 90% of available asset pool.

If you are experiencing family violence, it is important to seek support and advice from those best qualified to help you. Robinson + McGuinness is available to assist you with your family law matters. In the case of an emergency, you should call 000.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Divorce Applications – what are the service requirements?

A Divorce Application has been filed and you have been listed before a Judicial Registrar or Deputy Registrar for a Divorce Hearing. What do you need to do to ensure that the Application can proceed at the Divorce Hearing?

In the event you have filed a joint Application for Divorce, there is no requirement for you to serve the Application upon the other party.

If you have filed a sole Application for Divorce, you will need to ensure that you have affected service no less than 28 days prior to the Divorce Hearing.  This is to ensure that the Respondent is aware of the Application and has an opportunity to respond should they choose to do so.

A failure to serve an Application for Divorce in accordance with the Federal Circuit and Family Court Rules 2021 may result in the Divorce Hearing being adjourned to a later date.

What documents need to be served?

The following documents will need to be served on the Respondent:

1. The sealed Application for Divorce and supporting documents;

2. The Marriage, Families and Separation brochure published by the Court; and

3. An Acknowledgement of Service (Divorce).

How do I serve the documents?

In accordance with the Federal Circuit and Family Court Rules 2021 service of an Application for Divorce can be affected in two ways; (1) by hand / personal service (i.e. a process server) or (2) by post. You cannot serve it on the other party yourself.

In the event you choose to serve the Application for Divorce by post, you will need to provide the Respondent with a pre-addressed return envelope to your address for service, and if the Respondent is in Australia, the correct postage for the envelope to be returned to you.

Once you have affected service, and prior to the Divorce Hearing, you will need to arrange for the relevant Affidavit of Service to be filed with the Court, proving you have done so.  In the event service of the Application for Divorce was affected by a person who does not know the Respondent (i.e. a process server), the Applicant will also need to file an Affidavit Proving Signature prior to the Divorce Hearing.

What if I was unable to serve the Application?

If you have been unsuccessful in serving the Application for Divorce despite your attempts, you may need to make a separate Application to the Court and seek Orders dispensing with the requirements for service, or an order that provides for the documents to be served in another way (i.e. via email). Your application will need to be supported by an Affidavit setting out the steps you have taken to try to serve the other party.

It is important that all necessary steps are taken to comply with the service requirements of an Application for Divorce. A failure to do so may result in the Application being delayed, or in some instances, it may be dismissed.

The service requirements for an Application for Divorce have changed since the Federal Circuit and Family Court Rules 2021 commenced on 1 September 2021. If you are unsure how to serve an Application for Divorce, or the Application itself you should seek advice from a specialist family law solicitor.

As specialist family lawyers, we at Robinson + McGuinness will be able to advise you and act for you in relation to your Application for Divorce.  We offer fixed fees in relation Divorce Applications.  We can also act for you in the event an appearance is required by you or on your behalf at Court.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

 Author: Peta Sutton