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    Information About Family Law

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    Family Law Proceedings and Protection Orders 770 376 Dorter

    Family Law Proceedings and Protection Orders

    It is an unfortunate reality that an increasing number of Family Law matters have some form of Protection Order in place to protect a party and/or children.

    Protection Orders

    The most common form of protection orders seen in family law matters are either Apprehended Violence Orders and/or Apprehended Domestic Violence Orders (‘AVO’).

    These orders are used to put restrictions on a particular person (the defendant) to provide protection for the person in need of it. In most circumstances, these orders are initially put in place by the police following a domestic violence related event or report being made. The defendant will then be required to appear before a Magistrate of the Local Court, usually a few days later.

    All AVOs will have the following ‘standard’ conditions for the protection of the person in need of it and anyone they are in a domestic relationship with:-

    That a person must not:
    a. assault or threaten;
    b. stalk, harass or intimidate; or
    c. intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the protected person.

    Additionally, other common orders relevant to family law matters are:

    • The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises. This order can also be adapted to include a person’s place of work.
    • ​The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative or as agreed in writing or permitted by an order or directions under the Family Law Act 1975, for the purpose of counselling, conciliation or mediation.
    • The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs.

    When the matter appears in the Local Court, it is commonplace for the defendant to simply accept the terms of the AVO, particularly if the length and conditions proposed by the police are not too onerous. This is mainly due to defendants being able to agree to the AVO on a “without admissions basis. This means that no findings of fact are ever made against the defendant and that the AVO is not recorded as a criminal offence. It is only if the terms of an AVO are breached that a criminal offence is committed.

    If the AVO is contested, then the Local Court will adjourn the matter and list the matter for hearing as well as setting a timetable for the filing of evidence. If there is a related criminal charge(s), the AVO will usually follow the criminal charges without a timetable being implemented.

    At the hearing, a Magistrate will decide whether an AVO is appropriate by assessing whether the person in need of protection holds genuine fears of the defendant. It is important to note that the Magistrate only needs to be satisfied of this on the Balance of Probabilities rather than the much higher standard of Beyond Reasonable Doubt.

    Effect on Family Law Proceedings 

    Despite AVOs being viewed as a less serious alternative to a criminal charge, and that no findings of fact are usually made against a defendant, they are often given significant weight in family law proceedings. 

    The main reason for this is that the Family Law Act dictates that the paramount consideration is always what is in ‘the best interest of the child(ren)’. Furthermore, section 68CG of the Family Law Act requires that when determining what is in the best interest of the child(ren), the Federal Circuit and Family Court of Australia (“the Court”) must ensure that any order it makes does not expose any party to an unacceptable risk of family violence. This, coupled with the ever-increasing concern and public awareness of domestic and family violence, means that the Court will take a cautious approach in most matters, but this is especially the case in circumstances where an AVO is in place.

    It is therefore vital that if a party is issued with an AVO that they also keep in mind the possible ramifications that it could have on any family law proceedings. With that in mind, it is also important for family lawyers to remember that a significant amount of AVOs are put in place with the consent of the defendant and without any findings of fact made against them.

    What else can the Court do?

    If an AVO is not currently in place, or it does not provide adequate protections, then section 68B of the Family Law Act empowers the Court to make an injunction protecting the child(ren) of a relationship and their family members.

    While an injunction pursuant to section 68B is an effective tool at the court’s disposal, there is currently a bill before Parliament which will allow for a nationally recognised order of the court, rather than an injunction.

    If passed, the Family Law Amendment (Federal Family Violence Orders) Bill will introduce a Family Violence Order which, according to the Hon. Daniel Thomas, will:

    “Establish federal family violence orders and provide for their criminal enforcement. This reinforces the government’s recognition of family violence as not a private matter but a criminal matter of public concern. Victims of family violence who have matters before the family courts will no longer need to separately go to a state or territory court to seek enforceable protection and will be able to apply for a federal family violence order”.

    As these orders would grant even more powers to the Court, they will allow for further protection and recognition to the victims of family and domestic violence. This increase of powers and options will have the correlating effect of increasing complexity in matters with any sort of protection order, especially in relation to parenting matters and any arguments about who may pose an unacceptable risk.

    If you or anyone you know are suffering from domestic or family violence, the following organisations which can provide help and support:

    • Rape & Domestic Violence Services Australia

    • 1800Respect

    • Domestic Violence Line (Ph 1800 656 463)

    • No to Violence

    • Relationships Australia

    • Women’s Legal Services NSW

    • Law Access NSW

    • Legal Aid

    We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 where we can arrange for a confidential discussion.

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    What is Jurisdiction and Accrued Jurisdiction? 1024 673 Dorter

    What is Jurisdiction and Accrued Jurisdiction?

    It is becoming increasingly common for litigation to be initiated in multiple jurisdictions about the same subject matter and involving the same litigants.

    Accordingly, it is important for litigants to understand what is meant by:  

    1. Jurisdiction; and 
    2. Accrued Jurisdiction. 

    What is Jurisdiction? 

    The term jurisdiction refers to the authority of a court to hear and determine specific types of cases.

    Some examples of court jurisdiction include:  

    1. The Federal Circuit and Family Court of Australia can hear and make determinations of civil matters relating to family law issues in all States and Territories, except Western Australia; 
    2. The Federal Court of Australia has a broad jurisdiction and can hear and determine almost all civil matters and some criminal matters; and 
    3. The Supreme Court of New South Wales has unlimited civil jurisdiction and also hears serious criminal matters in the State of New South Wales. 

    The jurisdiction that is given to each court will usually depend on the purpose for which the court was established, and it is usually defined in the relevant legislation. 

    Jurisdiction is important because it limits the power of a court to hear certain types of cases. If the courts did not exercise appropriate jurisdiction, then every court could conceivably hear every case brought to them, which would ultimately lead to confusing and conflicting results for litigants. 

    What is Accrued Jurisdiction? 

    The concept of accrued jurisdiction has played an important function in broadening the court’s power and in preventing jurisdictional disputes.

    The term ‘accrued jurisdiction’ within the context of the Australian legal system, refers to the power held over state matters by federal courts. 

    Accrued jurisdiction will occur where multiple relevant cases are brought before the courts and the courts are competing for jurisdiction between them. 

    An Example 

    A de-facto couple separated in 2006 and finalised the division of their property in the Supreme Court of New South Wales. Prior to 1 March 2009 the Supreme Court of New South Wales held jurisdiction in relation to the property division of de facto relationships. 

    After the orders were made, the parties reconciled and continued their relationship for a number of years before finally separating again. 

    After this final separation, the de facto Wife initiated proceedings in the Family Court of Australia to set aside the Orders of the Supreme Court of New South Wales, as the Family Court of Australia now held jurisdiction to determine property disputes of de facto couples (which came into effect on 1 March 2009). 

    However, the de-facto Husband disputed that the Family Court of Australia held this jurisdiction. 

    At Hearing the central issue was whether or not the Family Court of Australia had accrued jurisdiction to determine whether the Orders made by the Supreme Court of New South should be set aside.  

    Ultimately it was found by the Full Court of the Family Court of Australia, that the Family Court of Australia does have accrued jurisdiction to vary or set aside the Supreme Court of New South Wales Orders made in 2006. 

    Dorter Family Lawyers and Mediators specialises in family law disputes that involve multiple areas of jurisdiction and/or multiple Courts. If you require any assistance with the above we can assist. 

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Brittany Meehan
    Solicitor

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    Grandparents and Access to their Grandchildren 1024 576 Dorter

    Grandparents and Access to their Grandchildren

    The Federal Circuit and Family Court permits parents to apply to the Court for orders to enable them to ‘spend time’ with their children, when a parent is not facilitating time with the child.  Similarly, a grandparent or other person ‘concerned with the care, welfare or development of a child’ may apply to the Court to ‘spend time’ with their grandchild.

    Our legislation acknowledges that a child’s wellbeing does not only entail a ‘meaningful relationship’ with their parents, but also recognises the importance of a child having a relationship with their grandparents and other carers. This right exists whilst a child’s parents are in the process of separation or if the child’s parents’ relationship is ‘intact’.

    Our Court has made orders to facilitate children having contact for a myriad of reasons, including:

    • As a consequence of the parent’s separation;
    • As a consequence of a strained relationship with a parent(s);
    • A parent has died;
    • Concerns are held for a child’s safety;
    • The mental health of a parent has declined;
    • It is no longer safe for a parent to care for the child;
    • One or both parents suffer from alcohol or drug addiction problems;
    • There is violence in the child’s home.

    The Court priority remains the ‘best interest of a child’. In deciding what is in ‘the best interest of a child’, our legislation requires the Court to assess two (2) tiers of considerations, known as the primary considerations and the additional considerations. 

    The Primary considerations include:

    • The benefit to the child of having a meaningful relationship with both parents.
    • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    The Court is required to give greater weight to the consideration of the need to protect the child from harm.

    The Additional considerations include:

    • The child’s views (if age-appropriate) and factors that might affect those views, such as the children’s maturity and level of understanding.
    • The child’s relationship with each parent and other people, including grandparents and other relatives.
    • The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
    • The likely effect on the child of changed circumstances, including separation from a parent or person with whom the child has been living, including a grandparent or other relatives.
    • The practical difficulty and expense of the child spending time with and communicating with a parent.
    • Each parent’s ability (and that of any other person) to provide for the child’s 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.
    • The right of an Aboriginal and Torres Strait Islander child to enjoy his or her culture and the impact a proposed parenting order may have on that right.
    • The attitude of each parent to the child and to the responsibilities of parenthood.
    • Any family violence involving the child or a member of the child’s family.
    • Any family violence order that applies to the child or a member of the child’s family, if: 
      • the order is a final order, or
      • the making of the order was contested by a person.
    • Whether it would be preferable to make the order that would be least likely to lead to further court applications and hearings in relation to the child.
    • Any other fact or circumstance that the Court thinks is relevant.

    Grandparents Rights

    The Court also considers that a way of ensuring the best interests of the child is to consider that the child has 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 (such as grandparents and other relatives)”   

    Grandparent’s therefore need to demonstrate to the Court that the reduced (or withheld) time between them and the child is detrimental to the child and results in a negative effect on their wellbeing.  

    The Court also considers the grandparent’s history of their relationship with the child, the nature of the breakdown, the child’s wishes (if age-appropriate), and the grandparent’s personal and financial circumstances. 

    In many instances the Court considers whether there is hostility between a grandparent and the parent/s, the physical and emotional needs of the grandchild and whether the grandparent is physically able to care for the child and ensure the child remains safe at all times. 

    The Court has demonstrated it will be cautious facilitating time between grandparents and a child/ren where there is acrimony between a parent and grandparent because of the effect it has on the child.

    What process do I take?

    If a grandparent wishes to commence proceedings, they apply to the Court after having complied with the pre-action procedures required by the Court, including attending Family Dispute Resolution (mediation). 

    They may also have a right to ‘join’ proceedings as an additional party, when proceedings are already ‘on foot’. 

    To obtain specialist advice about family law, children, separation and your legal rights, contact our expert family lawyers at Dorter Family Lawyers and Mediators on (02) 9929 8840 and we will assist you. ‘ 

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    The Family Court and Federal Circuit Court Merger 1024 683 Dorter

    The Family Court and Federal Circuit Court Merger

    The Federal Government has recently passed legislation to merge the Family Court of Australia (“FCOA”) and the Federal Circuit Court of Australia (“FCC”) to create the Federal Circuit and Family Court of Australia (“FCFCOA”).

    The new FCFCOA will officially commence operations on 1 September 2021.

    To facilitate these changes the Commonwealth Government has provided more than $100 million in new funding, which has enabled the Court to increase the number of highly skilled Registrars and Judges.

    The architecture of the merger begs the question; Will the FCFCOA be a smarter, quicker and more cost-effective way for litigants to separate without the expenses and stressors of protracted family law litigation?

    What is the aim of the merger?

    The FCFCOA aims to:

    1. provide a single point of entry for family law matters;
    2. provide a quick and fair litigation process without undue delays;
    3. encourage parties to settle their disputes, where it is safe to do so, before proceedings are commenced;
    4. provide opportunities for parties to settle their dispute, where it is safe to do so, during the course of proceedings
    5. provide a more modern, collaborative and transparent system of justice;
    6. improve case management to reduce undue delays;
    7. provide a set of harmonized rules and forms;
    8. improve the court’s Child Dispute Services; and
    9. efficiently deal with Applications regarding breach of Orders and impose appropriate penalties or sanctions where the breach has been proved and the breaching party has failed to demonstrate a reasonable excuse.

    Pre-Action Dispute Resolution

    Parties will be required to participate in dispute resolution prior to filing property or parenting proceedings in the FCFCOA, in circumstances where it is safe to do so.

    In the event dispute resolution is unsuccessful, parties will be required to provide evidence of participation in the dispute resolution prior to filing in the court.

    Court Process

    Matters filed in the FCFCOA will follow a nationally consistent case process. This process will proceed in the following manner:-

    1. Step 1 – The first court event is to take place within 6 to 8 weeks from the date of filing.
    2. Step 2 – The matter will be listed for an Interim Hearing (if required).
    3. Step 3 – The matter will be referred to dispute resolution within 5 to 6 months from the date of filing.
    4. Step 4 – If parties are unable to settle the dispute, the matter will be listed for a Final Hearing within 12 months from the date of filing.
    5. Step 5 – The matter will come before the Court prior to the Final Hearing for a Compliance and Readiness Hearing and, if required, a Trial Management Hearing.

    The above process aims to resolve up to 90% of cases within 12 months from the date of filing.

    If you have any questions about the merger of the Family Court of Australia and Federal Circuit Court of Australia or would like to know how this may impact your family law dispute, please contact us on (02) 9929 8840.

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    Adult Child Maintenance 1024 576 Dorter

    Adult Child Maintenance

    Child Maintenance Application

    Child Maintenance for children aged over 18 years

    If you are a parent with a child who is nearing their 18th birthday, you may be able to seek adult child maintenance for your child or children.

    To successfully apply for financial assistance from the other parent, you must show that the maintenance is ‘proper’ in the circumstances, meaning it is necessary to assist a child to complete his or her education, or because the child has a mental or physical disability.

    An application for adult child maintenance can be made by a parent or the child.

    An application for adult child maintenance will take into consideration two primary factors:

    1. The financial support required for the child: and
    2. Each parent’s financial capacity to pay, and the level of financial support already provided for the child and any other dependents.

    The order will cease to be in force if maintenance was granted for educational purposes and that course comes to an end. Equally, if a child is granted maintenance because of a disability and the child no longer has that disability, the maintenance will cease.

    The financial needs of the child

    An application for adult child maintenance will consider the ‘proper needs’ of the child and will consider the age of the child, the level of education being sought and the parent’s expectations in relation to their child’s education.

    A maintenance order does not necessarily impose the child’s university fees on the parents but rather considers the child’s reasonable ongoing living expenses to enable them to complete their education and will take into account the child’s income and earning capacity.

    Necessary expenses may include a contribution towards their living expenses and the purchase of textbooks and equipment. However, HELP-HECS payments for student fees are not deemed to be a necessary expense. The Family Court has previously ruled that university students can earn an income whilst studying fulltime and are capable of assisting with the ongoing costs of studying.

    For adult children with a special need or disability, expenses associated with their need or disability can also be considered.

    Examples of Adult Child Maintenance cases

    In Re AM [1], a 28-year-old daughter developed a disability as an adult requiring ongoing care which prevented her from working. The daughter sought a maintenance order against her father. The father argued that the disability must carry over from childhood for him to meet the requirement. The Court stated that there is no aged-based limitation and the disability as referred to in the Family Law Act refers to the consequence of the disability rather than the cause.

    In Charlton & Crosby [2] the mother sought financial assistance for a child over 18 who was living with her and studying full-time at university. The child was estranged from the father.

    The mother sought a maintenance order for the child’s weekly expenses arguing the child was unable to work whilst completing his studies. The father argued the child was able to work part-time and assist with his expenses.

    The court determined that the mother and father were expected to provide a ‘level’ of financial support as the child was not capable of fully supporting himself. The court ruled that because the father was estranged from the child it was not proper for both parents to contribute equally, as was sought by the mother. The court ordered that the father meet 20% of the child’s expenses.

    In O’Dempsey and Van Raay [3], the court considered the meaning of a course of education. The adult child sought maintenance from his father to transfer his pilot training course from part-time to fulltime to complete the course in 12 months. The court determined that a pilot training course is a course of education and the meaning of ‘education’ is not limited to statutory categories of education.  However, the father in this case was not ordered to pay maintenance as it took into consideration the child’s current income and his capacity to pay for the course as a part-time student.

    In FM v FM [4], a mother was unsuccessful in her application for adult child maintenance for her 19-year-old daughter who had cerebral palsy and was intellectually impaired. The mother did not satisfy the requirement that her daughter was unable to work in any capacity or was unsuitable for employment.

    In Wadsworth and Wadsworth [5], a father successfully overturned an order for adult child maintenance for his twin sons on the basis that they refused to work whilst completing their university degrees. The judge found that the children’s refusal to work justified a reduction in maintenance.

    The Full Court in Everett & Everett [6], considering an appeal against an order made for adult child maintenance, made the following observations:

    1. It is not a necessary element, before adult maintenance can be ordered, that there be a warm relationship between the parent and the child;
    2. An application for an adult child maintenance order should not include a detailed examination of the relationship between the child and the respondent; however
    3. The attitude or behaviour of the child to the respondent could be a special circumstance which, if not taken into account, would result in an injustice or undue hardship.

    If you have any questions about adult child maintenance or would like to know if your child could obtain financial assistance as an adult, please contact us on (02) 9929 8840.

    Tim Russell
    Solicitor

    Rebekah Dorter
    Principal


    [1] Re AM (Adult Child Maintenance) (2006) FLC 93-262.

    [2] Charlton v Crosby [2010] FMCAfam 207.

    [3] O’Dempsey and Van Raay (1990) FLC 92-178.

    [4] FM v FM (1997) FLC 92-738.

    [5] Wadsworth & Wadsworth [2013] FCCA 2043.

    [6] Everett & Everett (2014) FLC 93-604.