The difficult role of an Independent Children's Lawyer

Late last year a Family Court judgement made headlines when orders were made that provided for the children's lawyer to remain appointed until the youngest child turned 18.

An independent children's lawyer is bound to seek Orders in the children's best interests. Their appointment is for the length of the Court proceedings.

The children's lawyer in the matter of Stacey & Woden however was left in a difficult position.

Allegations that the children were at risk of harm from the father had been made by the mother. The Court expert that found that there were risk factors present, a Police investigation commenced and Child Protective Services conducted an inquiry. But in the meantime the parents recommenced the children spending unsupervised time with the father.

Both the Police and Protective Services investigations resolved that no further action could be taken.
    

The Court then had to determine, without the benefit of a contested trial as the mother had withdrawn from the proceedings, whether the existing arrangements whereby one child lived with him and the other spent time with both where in the best interests of the children.

The independent children's lawyer, arguing that the risk was unacceptable but that no other protective course was available, took the unusual step of seeking to remain appointed so that he could continue to liaise with children's school and medical practitioners and Child Protective Services into the future. In making the Orders the Court acknowledged the onerous task ahead for the lawyer. 

Proposed amalgamation of the Federal Courts

Last week the Courts Administration Legislation Amendment Bill 2015 was introduced in the Senate. The proposed legislation is intended to bring the Federal Court of Australia, the Family Court of Australia and the Federal Circuit of Australia into a single administrative entity and make legislative provision for the courts to share corporate services.

In light of the funding crisis being experienced by the Federal Courts at this time it would appear that an aim of this proposed legislation is to save money in relation to administration costs. However, a concern has been raised in relation to the Bill as to whether expected savings can be achieved - without cuts to services.

Family Courts in crisis

You may have seen some media items recently regarding the current state of the Federal Circuit Court (FCC).

The FCC is responsible for the vast majority of family court proceedings.

The media has recently reported that the Chief Judge of the FCC is considering moving Judges from the Wollongong and Parramatta registries to the Sydney registry. The Court was quick to clarify that there was no current intention to close the registries in those areas, just that it was considering moving Judges to Sydney to cover the severe time delays being experienced in the Sydney registry at the moment. It is said that these are steps that the Court does not want to take but must consider in light of the funding crisis.

The media have also reported on a KPMG report, commissioned by the current Federal government, that reportedly concluded that there was an immediate need for the injection of millions of dollars simply to preserve the operation of the Courts.

The Family Law Section of the Law Council of Australia has called on the Federal government to immediately commit the funds to ensure the continued operation of the Courts, including the immediate appointment of Judges to meet the needs of the community. The press release from the Section stated "Families involved in the family law system already face delays of more than three years in waiting for a judge to hear their case. ... For Judge Pascoe to now have to consider closure is an indictment of the government's commitment to the administration of Australia's legal system ... No government that claims to be committed to justice and to addressing the scourge of family violence could permit the Federal Circuit Court to consider the closure of these registries"

Property division 20 years after separation

In the recent case of Vega & Riggs the Court had cause to consider whether proceedings could be bought in relation to a property division some 20 years after the parties separated.

The parties were married in 1979, separated in 1990 and were divorced in November 1992. Any application for property division was therefore required to have been made by November 1993. No such application was made.

The husband commenced proceedings in 2015. The primary asset in dispute was a property the parties owned together.

Section 44 of the Family Law Act 1975 provides that the Court can grant leave for proceedings to be commenced out of time if it is satisfied that "hardship would be caused to a party … if leave were not granted".

The Court stated that two questions needed to be determined: 1) whether the Court is satisfied that hardship would be caused to the husband and 2) should the Court exercise its discretion to grant leave.

The Court stated that the test of hardship could be satisfied if the husband could establish a prima facie case that he has a claim of some significance to pursue and that he would be consequently worse off if leave was not granted for him to pursue that claim.

The Court heard that the husband had contributed to the purchase of the property, contributed his income during the marriage and had continued to pay for the mortgage and other outgoings since separation. The husband had lived in the property since separation. The husband, now 70, had significantly more constrained financial circumstances in 2015 than the wife.

The Court accepted that the husband had a prima facie claim and that he would be worse off if he could not pursue his claim.

In determining the second question of whether the Court should exercise its discretion the Court found that although there had been a delay of some 20 years the parties had in fact been in negotiations off and on during that period and that they had both participated in the delay.

The Court granted leave for the application to be made. 

Family Law Amendment Bill introduced into Parliament

On 25 November 2015 the Government introduced the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 into Parliament.

The amendments proposed in the Bill include measures designed to:

• Address current uncertainties in relation to binding financial agreements;
• enable State and Territory Courts making an interim family violence protection order to suspend or vary existing parenting orders pending further order; and
• strengthen Australia's laws against international parental child abduction by introducing new offences relating to the wrongful retention of a child overseas.

The Bill is yet to be considered by Parliament. 

Changes to passport requirements for children

A number of changes have been made to the legislation that governs passports for children, in particular the consent required for the issuing of travel documents for children. This has obvious importance in relation to family law.

The Passports Legislation Amendment (Integrity) Act 2015 came into force on 8 October 2015 and the new Australian Passports Determination 2015 commenced on 1 October 2015.

Section 11 of the Passports Act has been amended to change the definition of "parental responsibility" to better reflect that used in the Family Law Act. The amendments provide that a person who does not have parental responsibility for a child, even if they spend time with a child in accordance with a Court Order, is not required to consent to the child having an Australian travel document (e.g. a passport).

Other amendments include:

·    that the word "locating" has been removed from the special circumstances where it is not possible to contact the other parent – e.g. this resolves the issue of when you can locate the other parent but not get in contact with them;

·    the requirement, if the other parent is missing, for the other parent to be missing and presumed dead has been modified to missing and/or presumed dead – removing the requirement to produce a death certificate; and

·    the Department may disclose information relating to Court Orders or proceedings to verify if the Orders are correct, remain valid and no other orders have been made or are pending.

Welcome to new Judge

Today the Newcastle and Hunter legal community welcomed Judge Middleton to the city and offered congratulations on his appointment to to the Federal Circuit Court of Australia.

Judge Middleton, who practiced in family law and crime as a solicitor before continuing that practice once he went to the Bar in 2007, is a very welcome addition to the Judges who so ably serve the community here.