Dec 9, 2016
The current family law framework
- Family Law relates to disputes between parties about the following:
- Parenting arrangements for children
- Property settlement
- Spousal maintenance
- Child Support
- The law applies to people who have been married or were in a de facto relationship or who are parents of a child
- Family Law is the same Australia wide
- There is one Act that applies – Family Law Act 1975
- Fault is not relevant in family law in Australia
- There are three courts that deal with Family Law in Australia
- Federal Circuit Court of Australia
- Family Court of Australia
- Family Court of Western Australia
- All Judges in each of the three courts are referred to as “Your Honour”.
- Part VII of the Family Law Act sets out how parenting disputes are to be determined by the court.
- A person cannot apply for a parenting order unless they have attended or attempted to attend family dispute resolution, or a family dispute resolution practitioner has determined that it is not appropriate for family dispute resolution to take place.  There are also the following exceptions that apply, which would make family dispute resolution unnecessary:
- Abuse of the child by one of the parties
- There would be a risk of abuse of the child if there was a delay in applying for an order
- There have been family violence by one of the parties to the proceedings
- There is a risk of family violence by one of the parties to the proceedings.
- There is urgency
- One of the parties is unable to participate effectively in family dispute resolution
- The objects of Part VII are set out in Section 60B(1) and include:
- 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.
- Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
- Ensuring that children receive adequate and proper parenting to help them achieve their full potential.
- Ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.
- The principles underlying the objects are set out in Section 60B(2) and provide:
- Children have the right to know and be cared for by both their parents.
- Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development.
- Parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
- Parents should agree about the future parenting of their children.
- Children have a right to enjoy their culture.
- Section 60CA of the Family Law Act provides that the Court in deciding whether to make a particular parenting order in relation to a child must regard the best interests of the child as the paramount consideration.
- Section 60CC then sets out the matters the court must consider in determining what parenting arrangements are in the child’s best interests.
- The benefit to the child of having a meaningful relationship with both of the child’s parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (greater weight is given to this consideration)
- Views expressed by the child and any relevant factors which effect the weight to be given to the views (Section 60CE provides that the court nor any person can require the child to express his or her views in relation to any matter).
- The nature of the relationship of the child with the child’s parents and other persons
- The extent to which each of a child’s parents has taken or failed to take the opportunity to:
- participate in making decisions about major long-term issues in relation to the child
- spend time with the child
- communicate with the child
- The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.
- The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living.
- The practical difficulty and expense of a child spending time with and communicating with a parent
- The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.
- The maturity, sex lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
- If the child is an Aboriginal child or a Torres Strait Islander child:
- The child’s right to enjoy his or her culture
- The likely impact any proposed parenting order will have on that right.
- The attitude to the child and responsibilities of parenthood, demonstrated by each of the child’s parents
- Any family violence involving the child or a member of the child’s family. (Section 60CG requires the court when considering what parenting order to make to ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence).
- If a family violence order applies or has applied to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
- Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
- Any other fact or circumstances that the courts thinks is relevant.
- Section 65D(1) provides the court with power to make parenting orders that it thinks are proper subject to a consideration of Section 61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans).
- Section 65DAB provides when making a parenting order in relation to a child, the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.
The presumption of equal shared parental responsibility
- Section 61DA(1) requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
- Section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child has engaged in:
- Abuse of the child or another child, who, at the time, was a member of the parents family (or that other person’s family); or
- Family violence.
- When the presumption applies, the court must then consider the following:
- Whether it is in the best interests of the child to spend equal time with each of the parents and whether it is reasonably practical
IF IT IS NOT – THEN
- Whether it is in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practical. (Substantial and significant time means a child spends time with their parent on days that fall on weekends and holidays and days that do not fall on weekends or holidays and allow the parents to be involved in the child’s daily routine and occasions and events that are of particular significance to the parent and to the child.
Court Orders and Parenting Arrangements
- Parenting arrangements can take many forms:
- Court orders either made by consent or by a Judge
- Parenting plan – a document signed by each party and dated
- Informal arrangements not documented
- There are two types of parenting orders:
- Final orders
- Interim orders
- A parenting order will have a court seal on it
- Look for reference as to whether it says – “until further order”
- A parenting order can be varied by a later parenting plan
- A parenting plan can be varied or revoked by later parenting plan
- In the majority of cases a court order will provide that both parents have equal shared parental responsibility.
- For day to day decisions they can be made by the parent the child is spending time with at the time
- For major long-term issues, they are to be made jointly, with the parents required to consult each other about the decision to be made and make a genuine effort to come to a joint decision.
- As a mental health professional you are not required to establish before acting on a decision about a child communicated by one of the parents, that the decision has been made jointly.
- Major long-term issues include:
- The child’s education
- The child’s religious and cultural upbringing
- The child’s health
- The child’s name
- Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent
What if there is no court order
- Both parents have exactly the same rights.
- Each parent has parental responsibility for the child.
- Parent responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
- When each parent has parental responsibility that means that either one of them can make decisions about a child
- Consider the impact of only acting from one parent’s perspective
- Ability to apply for a child’s name to be placed on the airport watch list
The Role of the Mental Health Professional
Treating a client
- Are you providing a therapeutic role or forensic role?
- Your evidence could be important to establish that a parent has taken steps to minimise any risk
- If your client is a child, are you getting input from both parents?
- Any notes that you take will have to be produced if you are served with a subpoena
- If served with a subpoena, it will either be for:
- Production of documents
- Requirement to attend court to give evidence
- Both of the above
- A subpoena must be personally served upon you, unless you agree otherwise
- You are not required to comply with the subpoena if you have not been served correctly or if no conduct money was provided to you at the time of being served
- The conduct money you are entitled to is an amount sufficient to meet your reasonable expenses of complying with the subpoena and at least $10
- If you don’t object to compliance with the subpoena and you have been provided with sufficient conduct money, they you can follow the directions on the subpoena (for production of documents only) and post the documents to the court. Do not send the documents to the person who issued the subpoena
- For a subpoena requiring you to give evidence, always make contact with the person or legal representative who issued the subpoena about the following:
- Your anticipated costs in complying with the subpoena – include travel costs, parking, your time
- When you will be actually required to attend
- Provide contact details so that arrangements can be made
- If you wish to object to the subpoena, or seek additional conduct money, you must attend at court (if in the Family Court). In the Federal Circuit Court you must file a Notice of Objection, which is attached to the subpoena.
- There are restrictions on the use of documents you produce pursuant to subpoena
- There are time limits for subpoena
- You must be served with a subpoena to produce documents at least seven (7) days before the court date
- You must be served with a subpoena to give evidence at least two (2) days before the court, however it is not unusual for a court to issue an urgent subpoena, within a two day period.
Location Order/Recovery Order
- You could be subject to a location order, directed to you, for you to provide information about the location of your client. You are required to comply in spite of anything in any other law
- If you provide information about the location of your client, the information can only be disclosed to limited persons:
- The registry manager of the Court
- An officer of the court
- A process server engaged by an officer of the court
- A legal representative
- A court can make a recovery order, if a person takes custody of a child contrary to a court order
- If a recovery order is made, no person must prevent or hinder the taking of action by the Federal Police to recover the child.
- If you prevent or hinder the taking of action under a recovery order, you may have the following penalty applied:
- A fine of up to $1,700
- A bond
- Imprisonment up to three months
- Despite a court order being in existence for parenting arrangements for a child the state police have no authority to take action pursuant to a Family Court or Federal Circuit Court Order, it is only the Federal Police, after the issuing of a recovery order
Should you provide a report?
- Your client may request that you provide a report for them to file in court
- The correct way to submit evidence in the Family Law Courts is to swear an affidavit.
- You should consider the following when preparing a report
- Stick to your expertise and knowledge
- Refrain from offering an opinion about what parenting orders are best for the child (that is the job of the judge)
- Do not make statements that you cannot back up
- Disclose the source of any knowledge you are relying on to form an opinion
- Set out how many consultations you had with the client and the dates, as well as whom was present
- If your client was a child, clearly report what contact you have had with each parent, and if only with one parent, why
- Different processes apply for an interim hearing and a final hearing (trial).
- At interim hearing your affidavit will be read by the Judge and there will be no testing of it. The Judge is limited in their capacity to make findings of fact.
- At a final hearing your affidavit will be read by the Judge and all other parties are entitled to have you present at the trial to answer questions about your evidence (cross-examination)
- You are entitled to be paid conduct money to be present to answer questions about your evidence
- You should bring all your notes in relation to the matter to court with you, as you can request permission from the Judge to refer to your notes if necessary
Independent Children’s Lawyer
- A court may appoint an independent children’s lawyer to represent the best interests of a child
- The independent children’s lawyer does not operate on the child’s instructions, instead they are an independent legal representative who is required to:
- Form an independent view, based on the evidence available of what is in the child’s best interests
- Act in relation to the proceedings, in the best interests of the child
- Act impartially in dealings with the parties to court
- Ensure that any views expressed by the child in relation to matters to which court relates are fully put before the court
- If a report relating to the child is to be used in the proceedings, they must analyse that report and ensure the court is aware of the significant parts of the report which will assist the court in deciding what is in the best interests of the child.
- Endeavour to minimise the trauma to the child associated with court
- Facilitate an agreed resolution
- An independent children’s lawyer is not obliged to disclose to the court any information that a child communicates to them, but they can if they think it is in the best interests of the child to do so, even if the child does not wish the information to be disclosed
Compliance with court orders
- You can be guilty of an offence under the Family Law Act
- If you intentionally prevent compliance with a court order by a person who is bound by it or aided or abetted a contravention of the order by a person who is bound by it
- You won’t be found guilty of contravening an order if you can establish that you believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person and the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person.
- The penalties that can be imposed against you, if you are found to have contravened a court order include:
- Entry into a bond
- Impose a fine
- Payment of compensation to the parent who was unable to spend time with the child pursuant to the order, for expenses incurred by them
- Payment of the parents legal costs in bringing a contravention application against you
- A community service order
- A period of imprisonment of no more than 12 months.
Family Counselling and Family Dispute Resolution
- Family counselling is a process where a family counsellor helps:
- People deal with personal and interpersonal issues in relation to marriage; or
- People (including children), who are affected, or likely to be affected by separation or divorce to deal with:
- Personal and interpersonal issues
- Issues relating to the care of children
- A family counsellor is
- A person who is accredited as a family counsellor under the accreditation rules; or
- A person who is authorised to act on behalf of an organisation designated by the Minister (Refer to Annexure 1 for the list of designated organisations)
- An employee of the Family Law courts, authorised by CEO to act as a family counsellor
- Family dispute resolution is a process in which a family dispute resolution practitioner helps people affected, or likely to be affected by separation or divorce to resolve some or all of their disputes with each other and the family dispute resolution practitioner is independent of all the parties involved in the process.
- A family dispute resolution practitioner is
- A person who is accredited as a family dispute resolution practitioner under the accreditation rules; or
- A person who is authorised to act on behalf of an organisation designated by the Minister
- An employee of the Family Law courts, authorised by CEO to act as a family dispute resolution practitioner
- A family counsellor and a family dispute resolution practitioner must not disclose a communication made to the counsellor while the counsellor is conducting family counselling except:
- If consent is given by the person over 18
- If all persons with parental responsibility for a child give consent
- A family counsellor and a family dispute resolution practitioner has discretion to disclose information from family counselling if they believe the disclosure is necessary:
- To protect a child from the risk of harm (whether physical or psychological)
- To prevent or lessen a serious and imminent threat to the life or health of a person
- To report the commission, or prevent the likely commission or an offence involving violence or threat of violence to a person, or intentional damage to property of a person or threat of damage to property
- To prevent or lessen a serious and imminent threat to the property of a person
- To assist a lawyer independently representing a child’s interests (under court order)
- If a family counsellor or family dispute resolution practitioner refers a person including a child to you (as a mental health professional) for professional consultation, while you are carrying out professional services for the person, evidence of anything said is not admissible in court, except if the information suggests that a child has been abused or is at risk of abuse.
- If a family counsellor refers you a person, they must inform you of the effect of the above section
Duty of Care of Mental Health Professional
Mandatory Reporting of Child Abuse
- The relevant act is the Child Protection Act 1999 (Qld)
- The relevant authority is currently Department of Communities, Child Safety and Disability Services (“the Department”)
- Any person may inform the Department if they suspect a child may be in need of protection, or an unborn child may be in need of protection after they are born.
- In forming a reasonable suspicion about a child the matters you can take into account are:
- There are detrimental effects on a child’s body, or the child’s psychological or emotional state
- The nature and severity of the detrimental effects
- The age of the child
- You are protected from liability in relation to providing information to the Department about a child you suspect may be in need of protection.
- Your identity as a notifier will remain confidential.
- Unless you are a doctor, registered nurse, police officer or a person engaged to provide a child advocate function under the Public Guardian Act 2014, you are not required to report
- You should also consider your duty of care as a mental health practitioner to your client and consider whether that would mandate you making a report to the Department of Communities, Child Safety and Disability Services
What happens if you report your suspicion of child abuse?
- Details will be taken from you by a staff member working for the Department and the matter will be assessed based on the information provided as to the next steps required.
- Reference will be had to any other activity for the child with the Department
- Staff at the child’s school may be contacted and asked whether they have any concerns about the child
- If deemed appropriate the child will be interviewed by a Departmental officer, quite often at school
- If the child is deemed to be at risk the Department can take the child into their immediate custody
- The Department will try an organise a family member to care for the child if they are able to assess that family member
- Otherwise the child will go into foster care
- The parent or abuser will be contacted by the Department and interviewed
- The Department can enter into an intervention with the parents agreement, where the Department works extensively with the parents to address any concerns
- If the Department forms the conclusion that the child is need of care and protection they can apply for an appropriate order in the Children’s Court of Queensland.
- The orders that can be applied for are:
- A temporary assessment order (for a period of three (3) business days)
- A court assessment order (for a period of up to four (4) weeks)
- A temporary custody order (for a period of three (3) business days – but can be extended)
- A child protection order
- Deals with custody, guardianship and contact with parents
- Short term custody or guardianship orders can be for up to two (2) years
- Long term custody or guardianship orders apply until the child is eighteen (18) years of age.
What if you are treating a child subject to a Child Protection Order?
- Unless the order provides that the Department has guardianship, then the parents retain parental responsibility and can make decisions about seeking health treatment for their children.
A case example – Parker & Grames (2012) FMCAfam 401
- An email was sent by the classroom teacher to the school social worker.
- On 29 November 2011 the social worker had a discussion with the classroom teacher.
- On 1 December 2011 the social worker had an initial session with the child (parents not notified).
- The child told the social worker that:-
- If Mum found out I was seeing you, she would be really angry
- I have to do so many jobs, I have to wash up all plates every night while they sit and watch tv
- My step-father play fights with me and I don’t want him to.
- My step-father and Mother call me a spoilt brat
- They tell me I have to play with my step-sister – she is so annoying – I just want to be on my own
- I like being with my Dad, he is kind, I just want to be with him
- Mum said I can’t go and live with Dad
- My little sister (step-sister) gets everything she wants
- The social worker then spoke to the child about the law and what parenting orders could be made and that her views would be taken into account.
- On 2 December 2011 the social worker sent an email to three staff members at the children’s school saying, “as there are safety issues for the child… and even if Mum found out.. given our duty of care to the child I can and will continue to see her provided we think it is in the child’s best interests to do so.”
- Over the Christmas 2011/2012 school holiday period the child spent an extended period of time with her Father.
- On 16 February 2012 weekly sessions with the social worker recommenced.
- On 16 March 2012 a notification was made to the Department that step-father threatened to break the child’s wrist.
- The court found that the Family Law Act 1975 (Cth) contains a complete code relating to parental responsibility for children.
- Section 61B of the Family Law Act provides that “parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which parents have in relation to children.”
- Each of the parents of a child who is not 18 has parental responsibility for the child.
- A school social worker does not have power to override parental responsibility whether or not they refer to “duty of care”.
The court was highly critical of the approach adopted by the social worker, of keeping the Mother in the dark by not even notifying her of the matters raised by the child or that the child was seeing the social worker.
It is important to be aware of the complexity of parenting disputes and the emotions involved and not step over the mark.
To read the full case go to http://www.austlii.edu.au/au/cases/cth/FMCAfam/2012/401.html
Thanks to Deborah Awyzio from DA Family Lawyers
for guest authoring this post.