FAMILY LAW AND DOMESTIC VIOLENCE An overview
Presented by Dina Lioumis Legal Aid Commission
Family Law Parenting System
Shared Parental Responsibility amendments have introduced significant changes to family law including: Family Relationships Centres Significant reforms to how a court makes decisions about children Changes to the court process
Pre-Action Procedures
Parties are required to make a genuine attempt to resolve their matter before commencing an application – pre action procedures are set out in the Family Law Rules Requirement to obtain a certificate from family dispute resolution practitioner
Exceptions to requirements Allegations of child abuse and family violence Urgent application Intractable dispute Divorce/Child Support
Parenting plans and Orders
PARENTING PLANS Section 63C(2) defines parenting plans Need to be in writing, signed and dated but made without duress or coercion ORDERS Can be by consent or made by a court Are enforceable
Terminology
Equal shared parental responsibility Live with orders Spending time with orders Communication and consultation orders Equal time / Substantial and significant time
Parenting orders
Section 64B – what Orders can deal with
Person with whom a child lives with Time a child is to spend with another person Allocation of parental responsibility Form of consultation people sharing PR are to have Communication a child is to have with another person Steps to be taken to vary order and to resolve disputes
Best interests of child
Section 60CA – When making a parenting order, court must regard the best interests of the child as the paramount consideration Section 60CC – primary and additional considerations “(2)The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
Objects of the Act
Objects and principles are set out in section 60B
“to ensure that the best interests of children are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Family violence
Defined as
“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
Shared Parental Responsibility
must consider making order for child to spend
If a Court makes a finding of Shared Parental Responsibility the court
equal time (and if not reasonably practicable), then substantial and significant time with parents 65DAA)
Substantial and significant time includes: Days that DO fall on weekends and holidays and days that DO NOT fall on weekends and holidays Time that allows parents to be involved in the daily routine of the child Occasions and events of particular significance to the child
Equal time & substantial and significant time
2 considerations – reasonably practical and best interests of the child. Reasonably practical includes: How far apart the parents live Parent’s capacity (current and future) to implement Parent’s capacity (current and future) to communicate/resolve difficulties Impact on child
Exceptions to shared PR
3 exceptions or qualifications to presumption
1. 2. 3.
Where there is abuse or family violence Interim orders – may not be appropriate Rebutted by evidence that not in child’s best interest
Spending time orders
If a case does not result in an order for shared parental responsibility the court still needs to consider how a child will spend time with their parents. A child has a right to have a meaningful relationship with both parents provided that it is in the best interests of the child and that the child is safe (Objects of the Act). This can include orders for : Orders for some time with the child that is not equal or substantial and significant. Supervised time No orders for spending time on the basis of a finding of unacceptable risk
Domestic Violence Orders
Section 60 CC (3) of the Family Law Act has a number of additional considerations. In relation to DV orders the Act says: (j) any family violence involving the child or a member of the child’s family; (k) any family violence order that applies to the child or a member of the child’s family if: (i) the order is a final order; or (ii) the making of the order was contested by a person
How Does the Court gather Evidence
Appoint a Independent Children’s Lawyer Family Reports or a Single expert witness report Have access to Subpoenaed Material from doctors, police, health professionals, school reports Affidavits filed by the parties.
Legal Aid
What we do… Free legal advice and minor assistance – clinic 5 days from 9 am to 4 pm Duty services, referral, information and interpreter services Legal representation (“legal aid”) to disadvantaged people casework Free community education including divorce classes – monthly Family Dispute Resolution – using the lawyer assisted model
How To Apply for a Grant of Aid
Make an appointment at a Legal Aid, or submit an application to Legal Aid and if aid is granted it will be allocated to an inhouse solicitor OR Ask a private lawyer who does legal aid work Verification: bank statements for last 3 months, last 3 pay slips, statement from Centrelink
Conflict of Interest
Legal Aid cannot provide an in-house legal service to both parties to a dispute Conflict of interest prevents staff knowingly acting for both parties to a dispute People who cannot be assisted in-house can apply for a grant of legal aid through a private lawyer. Legal Aid are currently developing a panel of Family Lawyers who will be able to accept and lodge an application for Legal Aid