Family Law Changes post 7 June 2012 Copyright

Family Law Changes post 7 June 2012 Copyright WLS NSW 2012

Welcome n Trainers use gendered language that reflects the prevalence of domestic violence against women. n Please share only professional experiences rather than personal experiences. n Participate and enjoy! Copyright WLS NSW 2012

Disclaimer n All care has been taken in the presentation of information in these workshops. n The workshops are not legal advice and not intended to take the place of legal advice given by a qualified legal practitioner familiar with the individual case. n No responsibility is taken for any loss suffered as a result of the information presented. n Reproduction of the material without express written permission is prohibited. Permission may be granted to reproduce, free of any charge, part or all of this publication. n Written requests should be directed to WLS NSW. Copyright WLS NSW 2012

Women’s Legal Services NSW n n State-wide specialist Community Legal Centre for women Free legal advice n Telephone n n Face to Face n n n n Women’s Legal Contact Line Domestic Violence Legal Advice Line Indigenous Women’s Legal Contact Line Outreach- Blacktown, Fairfield, Liverpool and Penrith Family Relationship Centres - Blacktown and Penrith Women’s prisons - Silverwater and Emu Plains Local Courts - AVO duty solicitor at Blacktown, Mount Druitt and Penrith Casework and legal representation Community legal education Law and policy reform Indigenous Women’s Legal Program Copyright WLS NSW 2012

www. womenslegalnsw. asn. au

We will cover: § An overview of family law in Australia § Family violence § Parenting arrangements § Property after separation § Maintenance and child support § Divorce § Where to get help and information Copyright WLS NSW 2012

Family law system n Family law includes: n Divorce n Children n Financial matters n These are all dealt with separately under the law n Family law includes married and de facto relationships n Includes non-court based services like Family Dispute Resolution Copyright WLS NSW 2012

NEW Family law amendments n Family violence amendments to the Family Law Act apply for all new matters filed at court on or after 7 June 2012. Copyright WLS NSW 2012

Legislative reform n Key periods of reform to the Family Law Act 1975: n 1995 - right to contact with both parents n 2006 - shared care, friendly parents and false allegations n 2012 - recognition of the scope of family violence and abuse Copyright WLS NSW 2012

www. safetyinfamilylaw. com Copyright WLS NSW 2012

Overview of amendments § Inclusion of international obligations § § A new object refers to Convention on the Rights of the Child (CROC) CROC can be used where there is ambiguity to interpret n More weight given to safety of children over meaningful relationship with both parents n Broader definition of abuse and family violence n Removing ‘friendly parent’ provision n Removing costs order for ‘false allegations’ n Broader scope to consider interim, consent and past AVOs as well as final and contested Copyright WLS NSW 2012

Old and new definitions Abuse of a child – much broader definition specifically including psychological abuse and neglect. Family violence - makes specific mention of coercion and control -Gives examples of behaviour that may constitute family violence - Clearly states that a child is exposed to family violence even if they were not a direct victim Copyright WLS NSW 2012

www. ag. gov. au § Frequently asked questions – Family Violence Act Copyright WLS NSW 2012

Parenting arrangements for children n When parents can agree: n Informal verbal or written agreement n Parenting n Court n plan orders made by consent When parents cannot agree: n Court order made by a judicial officer Copyright WLS NSW 2012

Family Dispute Resolution (FDR) n Compulsory Family Dispute Resolution (FDR) Must participate in FDR with the other parent before you can make an application to the court. n May become exempt from FDR if have a certificate from a FDR practitioner because for example: n Other party failed to attend; or n n n Genuine effort made to resolve; or Not appropriate to continue dispute resolution – eg DV, child protection issues or urgent May be costs implications for not making a genuine effort. Copyright WLS NSW 2012

Parenting plans What is a parenting plan? n Voluntary written agreement between parents. n Sets out future care arrangements for children such as: n n Who the child lives with and spends times with n Communication the child will have with each parent n n Parental responsibility & form of consultation about decisions How to resolve future disputes Not legally binding - cannot be enforced in court. Copyright WLS NSW 2012

Consent orders What are consent orders? n Parents can formalise their agreement by applying for parenting orders by consent. n Enforceable through Contravention Application to Family Law Courts n In place until child turns 18 n Can only be changed if there has been a significant change in circumstances Copyright WLS NSW 2012

Parenting arrangements for children No conflict between parents “Informal Options” - No agreement When parents can’t agree No exemption from FDR applies Exemption from FDR applies - Informal verbal agreement - Informal written Family Dispute Resolution agreement OR Certificate issued “Formal Options” - Parenting Plan - Consent Order Copyright WLS NSW 2012 Application to Court for orders

Court decisions about children Does the presumption of equal shared parental responsibility apply? Yes Equal Time Best Interests of the Child & Reasonable Practicality Substantial & Significant Time Any Other Arrangement (incl. no time) Copyright WLS NSW 2012 No Presumption is rebutted if there is violence or abuse

Best interests of children n Primary considerations n n n Need to protect child from physical or psychological harm or exposure to abuse, neglect or family violence Benefit to the child of having a meaningful relationship with both parents When applying the primary considerations the court must prioritise the safety of children.

Best interests of children n Additional considerations include: n n n n n Views of the child Nature of the child’s relationship with parents or caregivers Effort made by parents to be involved Practical difficulties of spending time with and communicating with the child Parent capacity to meet child’s needs Parent attitude to child and parenting Family violence involving child or a member of their family Maturity, sex, lifestyle and background of child and parents Whether parent Is meeting obligation to maintain child

How the Family Courts respond to violence n Exemption from FDR n “Form 4” - How the court is notified of allegations n Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged. n Independent Children’s Lawyer (ICL) n Family Reports n Specialist program – Magellan Copyright WLS NSW 2012

Contraventions of parenting orders n n n Family Dispute Resolution or exemption Application to Court What can the court order? n n n n Make up time Pay all or part of other party’s costs Attend post-separation parenting program Compensation for expenses incurred Variation of order Enter into a bond Serious cases - community service, fines or imprisonment Copyright WLS NSW 2012

Child abduction n Application for a Recovery and Location Order. Reduce risk of overseas abduction n n Keep passports safe. Court order preventing a parent from taking children out the country. Ask passport office to stop issue of passports. Notify Australian Federal Police and place child on the ‘Watch List’ Hague Convention or Bilateral Agreements Copyright WLS NSW 2012

Interaction with ADVOs What if the ADVO is made after the Family Law Parenting Orders are made (s 68 R)? n n n Local Court power to change a parenting order: n Court can vary, suspend, or revoke an earlier parenting order when making a final ADVO - when making an interim ADVO only for 21 days. n There must be new material not before the court that made the order. Will need to alert police prosecutor or lawyer that there are parenting orders that need to be varied. Take a copy of parenting orders to court for any proceedings relating to the ADVO. Copyright WLS NSW 2012

Interaction with ADVOs What if the Family Law Parenting Orders are made after the ADVO? n Parenting orders that are inconsistent with an ADVO will override the ADVO. n If this happens, the Court must: Specify inconsistency n Give details as to how the order will work n Explain the order to all affected parties n Serve a copy on police and the Local Court n Copyright WLS NSW 2012

Financial matters after separation Family Law Act 1975 (Cth) n Married couples n De facto couples including same sex couples who separated after 1 March 2009; or Copyright WLS NSW 2012

Financial matters after separation Types of matters n Division of property n Spousal maintenance Time limits n Married couples: n within 12 months of divorce becoming final. n De facto couples: n within 2 years of separation. Copyright WLS NSW 2012

Financial matters - four steps Division of property (s 79 factors) - four steps 1. Identify and value property of the relationship, including superannuation and inheritances. 2. Consider contributions of both parties: 1. financial and non financial contributions; 2. homemaker / parent contributions; 3. in exceptional circumstances, negative contributions may be considered e. g. domestic violence, gambling, drug and alcohol addiction. New Family Violence definition applies in property matters 3. Consider present and future needs of both parties (s 75(2) factors). 4. Is it fair in the circumstances? Copyright WLS NSW 2012

Spouse maintenance n n n Both married and de facto relationships Application to Local Court or Family Court or Federal Magistrates Court. General right to spouse maintenance. Subsequent marriage to another party ends entitlement. The court will consider: n Does the applicant need financial support? n Can the respondent afford to pay? n How long will the applicant require maintenance? Copyright WLS NSW 2012

Child support n Child support laws provide for the assessment, collection and enforcement of child support payments. n The child support laws are administered by Child Support Agency. n Parents caring for children and receiving Centrelink payments, may be required to seek child support from the other parent. Copyright WLS NSW 2012

Child support n Calculation of child support using a formula that is based on: n Both parents income n How many children there are n Care arrangements for the children n Any n other dependant children Minimum child support payment is currently $7. 11 per week (indexed annually). Copyright WLS NSW 2012

Divorce n n ‘No fault’ - irretrievable breakdown of the relationship 12 month separation required Parties may reconcile once for up to 3 months ‘Separation under one roof’ n Parties live separate lives. n No domestic tasks performed for each other. Copyright WLS NSW 2012

Divorce n To apply for a divorce you must: n Be an Australian citizen; or n Be a permanent resident; or n Have lived in Australia for at least 12 months before the divorce application. Copyright WLS NSW 2012

Where to get help Women’s Legal Services NSW womenslegalnsw. asn. au http: //safetyinfamilylaw. com/ n Women’s Legal Contact Line (WLS NSW) Telephone Legal advice and assistance with a focus on family law, domestic violence, sexual assault and discrimination n Monday 9. 30 pm - 12. 30 pm, n Tuesday 1. 30 pm - 4. 30 pm, n Thursday 9. 30 am - 12. 30 pm n Sydney (02) 8745 6988 n Rural Freecall 1800 801 501 n Telephone Interpreter Service 131 450 Copyright WLS NSW 2012

Where to get help n Domestic Violence Legal Advice Line (WLS NSW) Telephone Legal advice and assistance where family violence is the issue n Monday 1. 30 pm - 4. 30 pm Tuesday 9. 30 am - 12. 30 pm n Thursday 1. 30 pm - 4. 30 pm Friday 9. 30 am - 12. 30 pm n Sydney (02) 8745 6999 n Freecall 1800 810 784 n Indigenous Women’s Legal Contact Line (WLS NSW) Legal advice, appropriate referral for legal assistance and advocacy Monday, Tuesday and Thursday: 10. 00 am - 12: 30 pm n Sydney (02) 8745 6977 n Freecall 1800 639 784 n Copyright WLS NSW 2012

Where to get help n Law. Access NSW 1300 888 529 www. lawaccess. nsw. gov. au n n Legal Information with referral to in-house solicitor for complex or urgent matters Legal Aid NSW www. legalaid. nsw. gov. au n n Brochures and kits for parents and lawyers (including contravention and recovery of children) Family Law Courts 1300 352 000 www. familylawcourts. gov. au n Forms and fact sheets Copyright WLS NSW 2012

Where to get help Child Abduction / Urgent applications n Family Court of Australia n National Contact Centre 1300 352 000 (Emergency 24 hrs) n Federal Police Family Law Coordination Centre Airport Watch List Alerts 02 6126 7999 n International Family Law Section, Commonwealth Attorney General’s Dept. 1800 100 480 n Passports Office 131 232 Copyright WLS NSW 2012

Any questions? Copyright WLS NSW 2012