Sydney Family Lawyers - Court & Disputes
Facts, Free Consult & Fees 2023
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Court Disputes in Family Law, Insights and Disputes
How Do Court and Disputes Work in Family Law
Dealing and unravelling court representation or commencing proceedings under the Family Law Act, insights, facts and information with expert legal tips, from Senior Lawyer Jaswinder (Jas) Sekhon, Principal, Goldman Law.
“Guided Self Help” to start or defend court action from fixed fees. Pre-action procedures for court will start from $1,200 in lawyers’ fees. Getting to court to apply or do a defence will be from $5,000.
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Family Court Process Demystified
Steps
Every family’s journey is unique, particularly when navigating the complexities of separation. As an experienced family law practitioner, I’m here to help shed light on some crucial elements of Australian family law: Parenting Orders, Child Support, and Parenting Plans.
Australia’s legal system recognises that a child’s welfare is paramount in any situation. Hence, Parenting Orders are put in place as a formalised structure for parenting agreements. Parents who may require more structure or legally binding commitments often seek this option to ensure adherence from all parties involved.
The Family Law Amendment Bill 2023 (the Bill) will amend the Family Law Act 1975, with the stated purpose being to make the family law system safer and simper, and ensure the best interests of children are placed at its centre.
The need for structural and systemic reform of family law has been a consistent theme in the plethora of inquiries and reports produced over the last 20 years.[4]
Professor Patrick Parkinson, a family law academic argues amending the core elements of the law on parenting after separation, goes very far beyond what is necessary and justified in order to remedy perceived deficiencies in the current law.
professor Parkinson also argues against the removal of many of the provisions that emphasise the importance of children’s relationship with their parents, as this may send a message that parents are no longer to be valued or valued as much as previously.[28]
- Amend the parenting order framework by refining the list of ‘best
- interests’ factors, removing the presumption of equal shared parental responsibility; and
- related equal time and substantial and significant time provision, and clarifying the circumstances in which a court can vary an existing parenting order;
- allow registrars of the Federal Circuit and Family Court of Australia (FCFCOA) to be delegated the power to impose a make-up time parent order in contravention proceedings;
- to introduce ‘harmful proceedings orders’ and extend the ‘overarching purpose of family law practice and procedure’ and the accompanying duty to all proceedings instituted under the Family Law Act 1975.
A less formal approach to organize parenting agreements are Parenting Plans. These are distinct from Parenting Orders due to their informal nature and inherent flexibility. They are non-binding and can be changed as circumstances evolve. Families often choose Parenting Plans when they want to avoid court intervention, preserving an amicable and cooperative parenting environment.
Dr. Bruce Smyth, a specialist in family studies from ANU, notes, “The informality of Parenting Plans can serve as a strength, enabling parents to tailor arrangements to their unique family situations.”
Parenting Orders (Consent Orders) are one way to formalise a parenting agreement. They can address various concerns, including parental responsibilities for both long-term and day-to-day decisions and the time children spend with each parent.
The Child Support Agency administers child support assessments, separate from parenting proceedings in the Federal Circuit and Family Court of Australia. Any parent or non-parent carer can apply for an administrative assessment under the Child Support Assessment Act. The Agency uses a formula based on the actual costs of raising a child and the parents’ respective incomes to determine the amount of child support payable.
“Child support assessment,” states Prof. Patrick Parkinson of Sydney Law School, “is a critical process that ensures a fair and equitable financial support system for the child, putting their best interests at the forefront.”
In instances of separation, grandparents may face challenges in maintaining relationships with their grandchildren. However, the Family Law Act acknowledges the essential role grandparents play and the impact separation can have on their relationships. Thus, the Act permits grandparents to apply for Parenting Orders to spend time with their grandchildren if they wish to do so.
Family Dispute Resolution is a process designed to help families reach an agreement without resorting to court intervention. It involves an independent Family Dispute Resolution Practitioner (FDRP) who helps parents explore various options to resolve disputes, encompassing parenting and financial matters. Parents can then formalise any agreed-upon parenting arrangements through a Parenting Plan or Consent Order.
Prof. Rachael Sharman from the University of the Sunshine Coast shares, “Family Dispute Resolution is a vital tool in minimising conflict and promoting cooperation, which in turn benefits the entire family, especially children.”
Relocation with a child requires the other parent’s consent under Australian law. It ensures the child’s best interest and equal shared parental responsibility, promoting a child’s right to meaningful involvement from both parents. Family law courts can intervene to prevent a relocation that’s deemed against a child’s best interests, but they cannot prohibit a parent from relocating to a new city, state, or country.
Dr. Judy Cashmore, Associate Professor in Socio-Legal Studies at Sydney University, advises, “Relocation cases can be complex. The best interests of the child are always central in any decision, balancing the right to maintain meaningful relationships with both parents and the freedom of parents to relocate.”
Step 4 How Much and How Long?
Assuming that you can afford to go to mediation or use a government service like Relationships Australia? Relationships Australia usually has a wait of several months and is cheap. Private mediation will definitely cost you a few thousand dollars and is quicker.
Of course, if there is a risk of psychological or physical harm to the children then we don’t need to do the above and can seek urgent interim orders in the best interests of the children.
Of course, all of the above is before you get to Court and the Court may order extra mediation still; and if the dispute continues there may be an ICL involved as well as family reports and psychological assessments. Budget at least $20,000 for all this, before you get to a hearing in a year or so time.
Over the last few years there have been, in theory, quicker contravention lists and if a parent has contravened standing court orders, please contact us to quickly review your facts and we may seek urgent contravention orders to avoid uncertainty for the children.
Conclusion and Help for The Parenting Journey in Family Law
Remember, navigating through family law matters can be complicated and emotionally challenging. But understanding these foundational elements can empower you in making the right decisions for your family. As your guide in this journey, I encourage you to approach our family law experts or seek other legal advice to make informed decisions that protect the interests of all parties involved, most importantly, your children and to stay away from prolonged expensive parenting disputes if you can.
Citations
Following footnotes detail the sources cited:
- Erickson, N. S. (2006). The Lawyer’s Guide to Family Law. American Bar Association.
- Rhoades, H. (2017). “Reforming Australia’s Parenting Laws: A Plea for Practical Realities.” Sydney Law Review.
- Smyth, B. (2009). “Parenting after Separation — A Position Statement prepared for The Australian Psychological Society.” Australian Psychological Society.
- Parkinson, P. (2011). “Australian child custody law and the principle of equal shared parental responsibility.” International Journal of Law, Policy and the Family.
- Fehlberg, B., & Millward, C. (2014). “Family Law in Australia: Family law, gender neutrality, care and parenting.” Journal of Social Welfare and Family Law.
- Emery, R. E. (2012). “The Truth About Children and Divorce: Dealing with the Emotions So You and Your Children Can Thrive.” Penguin Group.
- Sharman, R. (2018). “Conflict Resolution in Family Breakdown: The Role of Family Dispute Resolution Practitioners.” Australian Family Studies Journal.
- Cashmore, J., & Parkinson, P. (2008). “Children’s and Parents’ Perceptions on Children’s Participation in Decision Making After Parental Separation and Divorce.” Family Law Quarterly.
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From Real Family Law FFAQ's (Further Frequently Asked Questions)
Goldman Law summarises the findings of the Joint Select Committee on Australia’s Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
The Joint Select Committee on Australia’s Family Law System: was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019. The committee also tabled its final report on 22 November 2021 with some further recommendations on the family law system.
Recommendation 1- the Lighthouse Project
- The committee recommends that the three-year screening and triage pilot, known as the Lighthouse Project, be expanded to:
- all Federal Circuit and Family Court of Australia registries; and
- to include all parenting; and parenting and property matters.
- The committee also recommends that the expanded Lighthouse Project be appropriately resourced with additional funding for Senior Registrars and Registrars, and relevant professional and technical support staff.
Goldman Law summarises the findings of the Joint Select Committee on Australia’s Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
Priority Property Pools under $500 000 (PPP500) pilot
- 75% of cases are disposed of by Registrars without the need for any judicial involvement;
- Cases are deal with swiftly, with usually only one court event before dispute resolution finalises the case;
- Less than 5% of PPP500 cases need a significant hearing before a Judge; and
- Even when cases are referred to Judges, they are well prepared and easier and quicker to deal with.
The Family Court outlined how PPP500 works in practice:
- The PPP500 List involves intensive work prior to the first court date, and close monitoring of compliance with orders, to ensure parties come to court as little as possible. Parties are given every opportunity to take ownership of their dispute, participate in dispute resolution and settle their case at the earliest possible stage, without expending a large proportion of their assets on litigation. Proactive case management not only leads to early settlements but reduces judicial involvement so that Judges can focus on the most complex cases.
- The Family Court put forward the benefits that this pilot could provide if the PPP500 were to be expanded:
- It is well known that litigation in the Courts can be very costly and time-consuming and can lead to long-term acrimony between the parties. Many people, particularly those who have been victims of family violence, are also very reluctant to engage in Court action due to the cost and the ongoing conflict with the perpetrator. The Pilot of the PPP500 process is currently only operating in Adelaide, Brisbane, Melbourne, and Parramatta until June 2023. Given the success of the Pilot, the increasing prevalence of family violence (including financial abuse) and the number of vulnerable litigants engaging in the court process, there is an urgent need for the PPP500 List, which has clearly proven to be effective, to be expanded to all court locations on an ongoing basis. This will mean that all vulnerable litigants with small property pools, including in remote and regional locations, can benefit from this expedited, low-cost option for resolution of their dispute.34
- The committee is supportive of programs and initiatives that reduce costs and delays for all families, and encourage timely resolution of disputes. Sometimes a timely resolution can only be achieved with the assistance of the Family Court. To date, the PPP500 has demonstrated its value in minimising the time in court whilst assisting vulnerable parties to resolve their disputes and move forward without liquidating the modest assets they share. In its second interim report—similarly to the Lighthouse Project—the committee recommended that, subject to a positive evaluation, that this pilot also be expanded.35 The final evaluation will be provided to the government in April 2022. In the meantime, these pilots have been extended until 30 June 2023. The committee is satisfied that the pilot’s extension provides certainty until the final assessment can be completed and considered.
Recommendation 2
The committee recommends that, subject to a positive evaluation, the Priority Property Pools under $500 000 pilot, also known as the PPP500, be expanded to all Federal Circuit and Family Court of Australia registries.
Goldman Law summarises the findings of the Joint Select Committee on Australia’s Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
Federal Family Violence Orders
Minister Tehan explained the purpose of the bill:
The bill 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. 37
Recommendation 3
The committee recommends that if the Family Law Amendment (Federal Family Violence Orders) Bill 2021 is passed, the Australian Government continues to consult closely with the Federal Circuit and Family Court of Australia to ensure that it has sufficient resources to implement and enforce Federal Family Violence Orders.
Goldman Law summarises the findings of the Joint Select Committee on Australia’s Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
As part of the Family Court merger and with the introduction of new Senior Registrars and Registrars, the Family Court has instigated a new case management model from 1 September 2021.
The Family Court described this new model:
- There will be a single consistent case management pathway which will [be] adopted in both Divisions of the [Family Court]. It has been designed to streamline procedures and to enable cases to be moved through the family law system as efficiently, and with as little detrimental impact on families and children, as possible. The new case management model will feature significant assistance from Registrars in the early stages of cases, in the form of triage and early case management. As far as possible, duty lists will be conducted by Judicial Registrars and interim hearings will be conducted by Senior Judicial Registrars. This is designed to alleviate what has historically been a significant front-end case management burden on Judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that truly require judicial attention as quickly and efficiently as possible. This case management process will build on the significant success already experienced in pilots involving front-end registrar case management, including the Registrar Assistance Pilot and the Discrete Property List. 42
- Accordingly, the committee drafted a series of proposed amendments to the Family Law Act 1975 (Family Law Act), some of which would have the effect of authorising the Family Court to compulsorily refer matters involving parenting and property to mediation and arbitration.
- The Family Court also noted that such a power would be consistent with other courts such as the Federal Court of Australia. The Family Court confirmed that it was in support of a similar power to compel parties to arbitration.
- The committee’s proposed amendments to the Family Law Act would also provide immunities for family consultants when conducting mediation for the following reasons:
- The committee echoes its call for a number of amendments to the Family Law Act as specified in Appendix 4 of the second interim report.
Goldman Law summarises the findings of the Joint Select Committee on Australia’s Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
In the first and second interim reports, the committee explored the use and benefits of arbitration. In its submission to the inquiry, the AGD described how arbitration is used by parties to family law matters:
- Arbitration can allow a matter to be resolved by an impartial adjudicator (usually a family lawyer), and the resulting arbitral award can be registered as if it were an order of the court on the consent of both parties. Currently, arbitration is only used in the family law system to resolve property matters and can be undertaken through private agreement between the parties or by referral from a court. While arbitration is usually cheaper than going to court, the cost of private arbitration can be prohibitive for some parties.
- At least one person must be legally aided, but both parties may be legally aided, for LAQ arbitration. The responding person may be privately represented or legally aided. Both parties must be legally represented in arbitration.
- Parties must give full consent to participate in arbitration and can withdraw their consent at any time.
Recommendation 4
- The committee recommends that the Australian Government, subject to a positive evaluation of the two-year trial of lawyer-assisted mediation by legal aid commissions, considers funding and establishing a national arbitration scheme, similar to Legal Aid Queensland’s arbitration program, for property-only disputes in cases where net combined assets are valued at $500 000 or less.
- Development and implementation of this program should be in consultation with the Federal Circuit and Family Court of Australia, legal aid commissions and other relevant stakeholders.
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