Dispute Resolution

This week I have added a technical article by Chris Turnbull of Journey about the new Family Dispute Resolution requirements of the Family Law Act that will commence on the 1st July 2007.

We are very proud of Chris. who has just become a Family Dispute Resolution Provider, one of the first in Queensland.

The article has been submitted to Proctor, the Queensland Lawyers magazine and professional journal. This is why it is so detailed. Well done Chris.

WHERE DO I START?

In the course of my daily practice I am often called upon to give advice quickly to men and women who find themselves unexpectedly in the position of either leaving their partner or having been left by their partner.

It is probably true to say that I sometimes get calls from people on the worst day of their lives.

I thought I would write about some of the issues that come up immediately after separation, often before either party gets to see a Lawyer and certainly before anybody has a chance to apply to the Court or reach agreement on issues.

Sometimes, because emotions are so raw people are not even speaking to each other. Yet, it is under these circumstances that big decisions need to be made about who lives in the home, who is going to pay the bills, where are the children going to live and how often do the children get to see their other parent.

I will tackle each of these issues one at a time although they are by no means the only issues that crop up. I hope the information below will be of assistance to anyone who finds themselves in this position.

Who Lives in the Home?

Many times the Father leaves the house and the children and their Mother stay in the home. This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate. Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.

In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”. Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things. Generally the person who has somewhere else to go and the money to fund the move will be asked to leave. Unless he or she can convince the Court that there is no reason why they should leave. It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.

Who Pays the Bills?

There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment. This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.

In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past. It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings. The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.

If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.

Where Will the Children Live?

Now there is an obligation on he Court to consider shared care unless there is some disqualifying factor as set out in that section

I will continue next month to discus issues such as Child Support, and property matters for those difficult early days after separation. REad Chris's article below. Chris published an article in the Proctor ( the Queensland Law Society publication, and the Northern Territory law Journal wjen the laws changed to shared parenting regime under the Family Law Act. His excellent article on recent developments in Children's matters appears below.

Children's cases. ( the case of Goode)

HERE IS THE LATEST ARTICLE BY CHRIS TURNBULL ON CHILDRENS CASES AND IN PARTICULAR INTERIM CHILDRENS CASES. If you are facing something like this, here is a great resource. You may have to read it a few times, as there has been a real change after the case of Goode, late last year.

The Case of Goode: A new approach to interim parenting arrangements

A recent decision of the Full Court of the Family Court of Australia has changed the way that Courts will deal with Interim Applications for Parenting Orders taking into account the changes to Family Law that took place in July 2006.

When most Applications for Parenting Orders are filed in the Family Court of Australia or Federal Magistrates Court of Australia, there is usually an Application for Interim Orders contained with it. This is because, at the moment, it’s taking about one and a half years to two years for an Application for Parenting Orders to proceed to trial in the Family Court and about one year to one and a half years in the Federal Magistrates Court (at least in a Brisbane Registry). Steps are being taken by both Courts to try and speed that process up. But in the meantime, Interim Orders are likely to apply for a significant period of time.

Interim hearings are, by their nature, limited. There is no cross-examination of witnesses (the Court only looks at the Affidavit material provided by the parties). The hearings are limited to a maximum of two hours including reading time. Interim hearings are usually heard in the context of a number of hearings listed before a Federal Magistrate or the Judicial Registrar of the Family Court in one day.

Interim hearings are usually held about six weeks after the date of filing depending on individual circumstances. In the Family Court, a case assessment conference with a Family Consultant and a Registrar may have been undertaken and/or there may have been an appointment with a Family Consultant prior to the interim hearing.

On the 15th of December 2006, the Family Court of Australia delivered the decision of Goode & Goode [2006]FamCA1346 (15th December 2006). This was a decision on appeal from a single Judge of the Family Court of Australia in Parramatta in relation to an interim decision for two children, T (8 years of Age) and J (2 years of age). Essentially, the Court found that it should continue the existing arrangements that were in place as at the date of the interim hearing pending a final decision. Those arrangements had been that children live with the Mother and spend some time with the Father that was largely confined to the “traditional” regime of alternate weekends, school holidays and the like.

Family Law Practitioners have been using the formula that the Judge at first instance used which comes from a 1999 case called Cowling. It provided that, at an interim hearing:

a) An Order which promotes the child’s stability when living in a well-settled environment should be made unless there are strong or over-riding indications relevant to the child’s welfare the contrary???
b) In the event that the child is not living in a well-settled environment as at the day of the hearing, the Court undertake a limited examination of the relevant factors that were [then] used to determine the best interests of a child or children to ensure the result promotes the child’s best interests.

In most cases, this meant that the arrangements that had been in place since the separation would continue unless some exceptional circumstances applied, such as there being good evidence of family violence, abuse, neglect or such other similar factor.

No doubt, you will be aware that the Family Law Amendment (Shared Parental Responsibility) Act 2006 came into effect on the 1st of July 2006. Much has been said about what the amendments actually mean but, for Lawyers, the process of interpreting the amendments still underway.

In particular, the principles that were applied at an interim hearing had or should have been, up until the 15th of December, exactly the same as that applied prior to 1st of July. The decision of Goode changes the formula for use at an interim hearing.

Things that are the same about an interim hearing:

Goode’s case reminds us that interim proceedings are as they were and are unchanged. This is helpful as there are some suggestions that interim hearings would become “mini-trials” in which the substantiate Applications of parties would be heard.

However, it is still the case in interim proceedings:

a) That they are limited to two hours

b) That the Court can not make or should not make findings of fact in contested as a general proposition

c) There will still be no cross-examination; and

d) The Court will still proceed just on the Affidavit material of the parties, any documents that are tendered and the submissions of the parties or their legal representatives.

The new formula:

Goode’s case says that the “status-quo” or “stability” arguments can no longer be made. It is not good enough for a Court on an interim basis to simply make a finding based on the available evidence and the uncontested facts of certain arrangements that have taken place post-separation and merely preserve those arrangements until a final hearing. In practice, this might mean that it is more likely that the Court will make Orders for equal time on an interim basis. It is our view that it is more likely the Court will make Orders for a child to spend substantial and significant time but may be a little reluctant to Order equal time.

The Family Law Act as it is now written says that there is a presumption of equal shared parental responsibility. That presumption can usually only be rebutted if there is evidence of abuse, family violence or, in an interim case, unless the Court considers it would not be appropriate for the presumption to be applied when making that Order, or it is simply not in the best interests of the child or children.

If there is equal shared parental responsibility, then the child or children will spend either equal time with each of the parents or substantial and significant time with the person with whom the child does not live. “Substantial and significant time” means more than just alternate weekends and half school holidays but does not necessarily mean equal time.

Having taken those relevant sections into account, the Court has indicated that an interim hearing the Court should follow the following formula:

1. Identify the competing proposals of all the parties
2. Identifying the agreed or uncontested relevant facts (these will be given the most weight)
3. Identify the issues in dispute at the interim hearing.
4. Consider the matters in Section 60CC (The section deals with the best interests of the children) that are relevant and make findings about them if possible on the uncontested material (and this may not be possible)
5. Deciding whether the presumption of equal shared parental responsibility applies. If it does not, finding on the available evidence that there is abuse of a child, family violence or it’s simply not appropriate to apply.
6. If presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests.
7. If the presumption applies and is not rebutted, considering making an Order that the child spend equal time, or substantial and significant time, with both parents.
8. If equal time or substantial and significant time is not appropriate, then making such Orders are in the best interest of the child
9. If the presumption of equal shared parental responsibility is rebutted and such other Orders that may be in the best interests of the child or children.

What sort of findings can the Court make on an interim basis?

It’s important to consider what sort of findings a Court can really make at an interim hearing. You will find it very unlikely that a Court will make a positive finding at an interim hearing about matters such as drug use, alcoholism or general allegations of neglect (unless really substantiated elsewhere). An example of what sort of findings the Court might make on an interim basis is provided in Goode’s case and it is as follows:

1. T attends school and J attends childcare on three days a week on Monday, Thursday and Friday from 8:30am to 4:30pm when the mother works.
2. Since separation, the Father has been spending time with the children each alternate weekend from Friday afternoon until Sunday afternoon and with the child T on Monday afternoon and Tuesday afternoon each week.
3. The Mother proposes that T spends one half of the school holidays with the Father and J spend block periods of four (4) consecutive days with the Father including two (2) such blocks during school holidays.
4. T spends one half of the July school holidays with the Father.
5. The Mother lives in the former family home and the Father lives with his parents close to the school, day-care and the former family home.
6. The Father has the assistance of his parents to care for the children and works in his family business with them.
7. The Mother conceded that there was no issues of risk to the children, the only issue was the amount of time that the Children should spend with the Father.

Conclusion – Is this a change or not?

It will remain to be seen weather on a day to day basis the Family Court of Australia and Federal Magistrates Court will change the way the make Interim Determinations in parenting cases. While Goode’s case provides a new formula the outcome could well be exactly the same as it was under the old principals of Cowling applying the Family Law Act as it existed apply to 1 July 2006 parties coming to Family Law proceedings and Family Law practitioners will need to be aware though that if Orders are being sort that do not involve a child or children spending equal time or substantial time with both parents they will need to be a very good reason why such orders shouldn’t be made.

Chris Turnbull Solicitor Journey Family lawyers

This is the leading new case in Family Law about shared parenting and what it means. I have put the link only because it is 43 pages long but it makes fascinating reading if you are in a situation where you are concerned about parenting arrangements for your kids.

It is a bit difficult to follow, so don't say you weren't warned! To assist we have also set out the releveant sections of the Family Law Act and a link to the old case of Cowling which is no longer good law.

http://www.familycourt.gov.au/presence/resources/file/eb000e48465af60/2006_FamCA_1346.pdf

http://www.austlii.edu.au//cgi-bin/disp.pl/au/cases/cth/family_ct/1998/19.html?query=cowling

FAMILY LAW ACT 1975 - SECT 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must 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.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

As usual the Americans have invented a tool to enable the clearer assessment and co-ordination of shared parenting. I include the link here and don't necessarily endorse it, but i do think it shows that shared parenting can be achieved without too much disruption to the child.

I am not sure about the graphs though, but see what you think. http://www.parentingtime.net

regards the Journey team

FAMILY LAW: COMPULSORY FAMILY DISPUTE RESOLUTION

The New Regime

Chris Turnbull, Journey Brisbane Family Lawyers

Amendments to the Family Law Act in 2006 provided for a two-stage process for dispute resolution for parties involved in parenting dispute. Stage two in which Family Dispute Resolution became compulsory came into effect on 1 July 2007.

Section 60I the Family Law Act provides that a Court must not hear an application under Part VII (an application for a parenting order) unless a certificate is signed by a Registered Family Dispute Resolution Practitioner indicating that the parties attended Family Dispute Resolution ("FDR"). All attendees had to have made a genuine effort to resolve the issue or issues; or, that both parties attended FDR, but that one, or both of them, did not make a genuine effort to resolve the issue or issues; or, that FDR did not take because of the refusal, or failure of a party or parties to attend.

This section applies to all Courts with jurisdiction under the Family Law Act, i.e. the Family Court of Australia, Federal Magistrates Court of Australia, and (in Queensland) the Magistrates Court of Queensland, independent of any dispute resolution requirements under the rules of those Courts.

The section does not apply where orders are sought outside Part VII (for example, any order sought in relation to property). However, the existing Family Law Rules (setting out requirements for pre-action procedures in all cases - generally) still apply.

The requirements do apply when an application to Court seeks both parenting and property orders, but the Compulsory Family Dispute Resolution may be confined to the parenting issues in dispute.

Family Dispute Resolution is defined by reference to a number of sections and the Family Law Regulations, but the essential elements are that it must be conducted by a person independent from the parties; must be with a view to resolving disputes that arise out of separation (i.e. Marriage Counseling is not FDR), and it must be held in accordance with the procedural requirements of the Family Law Regulations.

Other forms of Dispute Resolution, where the Dispute Resolution Provider cannot execute a certificate (owing to lack of registration at the time of the requirement to execute the certificate) will not be sufficient. If parties have participated in some other form of dispute resolution in the twelve months prior to July 1 such dispute resolution will only be sufficient if the Dispute Resolution provider can now sign a certificate under section 60I, that is, the person or organization is now registered.

There are no limits on the format of FDR. The process can be held in person, in separate rooms, by telephone, by video link, or (potentially) even on-line. Anything said, or document produced during the course of Family Dispute resolution is not admissible in any subsequent Court proceedings.

A Party may, or may not be legally represented at FDR, and does not need to seek independent legal advice prior to participation in FDR.

Registered Providers

It is important for practitioners to note that Registered Family Dispute Resolution Providers are not limited to community based organizations, or to Family Relationship Centres.

There are no specific regulations concerning the cost of FDR processes, and, provided the registration requirements are met, any person or organization can undertake FDR.

The Family Law Regulations set out a number of requirements for Registered FDR providers, and is not necessarily limited to Legal Practitioners. Where Legal Practitioners provide FDR services, those practitioners must have prescribed dispute resolution training and experience.

Exceptions

Parties will not be required to attend compulsory FDR if:

they are applying for consent orders

they are responding to an application made by another party for a Part VII order (as, if appropriate, the family dispute resolution requirement would have applied in relation to the original application)

the court has reasonable grounds to believe that:

	family violence or child abuse has occurred, or
	there is a risk that family violence or child abuse may occur if there were to be a delay in applying for the order

a person has contravened, and shown serious disregard for, an order made in the last 12 months

the matter is urgent (for example, an application to give immediate protection to a child, or for the urgent location and recovery of a child, including cases of child abduction)

one more of the people involved in the dispute is unable to participate effectively in family dispute resolution (for example, because they live in an area that is too remote from a service).

Importantly, it is a matter for the Court (not a party or practitioner) to satisfy itself that an exception applies. It is understood by the writer that amendments to the Family Law Rules are being considered to prescribe a process for the exemptions to apply, but, at least for the time being, the merit or otherwise of the exemption will be considered at the registry.

Consequences of failure to attend

If a party fails to attend Compulsory Family Dispute Resolution or does not act genuinely and reasonably during the course of FDR (and the certificate expresses as such), a Court may take those matters into account when making an order as to costs.

The Court retains the power to order parties to attend FDR under section 13C of the Family Law Act.

Obligations of FDR Providers

PDR providers are required to provide information to assist reconciliation, the availability of parenting plans and information for parties in cases involving family violence or child abuse.

In the writer’s view, PDR providers are also required, prior to any agreement being reached in relation to children, to ensure parties consider whether an equal time arrangement or a substantial time arrangement is in the best interests of a child, or children, and is reasonably practicable (even where neither of the parties may seek it).

FDR providers are required to meet confidentiality and admissibility requirements and the requirements for providing family dispute resolution under section 10K of the Act (including what constitutes a reasonable attempt to contact the other party). In particular, the FDR provider must:

	contact each party who has failed to attend at least twice, with at least one contact being made in writing
	give the non-attending party (or parties) a reasonable choice of days and times for attending family dispute resolution and
	tell the party that if they do not attend family dispute resolution ,you may give a certificate to that effect, which may be taken into account by the court in ordering the parties to attend family dispute resolution or in making a costs order.

There are also a number of obligations in relation to meeting ongoing professional development requirements and in order to maintain inclusion on the Family Dispute Resolution Register.

Practical Matters

A certificate is not required from a Registered FDR provider to prove an exception. For example, in cases of Family Violence, it is a matter for the Court, and there is no need to approach a Registered FDR provider first.

At the same time, if a party falls under one of the exceptions, this does not compel a person to make an application for Court (i.e. if a person remaining willing to participate in Compulsory FDR, then, provided the requirements are met, it can still take place).

Applications for passports (unless they are brought under Part VII) are not matters subject to the section.

The section applies to all parties who may have standing to make an application for a parenting order (including Grandparents, relatives, or any other interested person with standing) must also comply with the requirements.

Certification that a person has failed to attend FDR must come from the Registered FDR provider, and, importantly, the invitation to attend / contact with the other party must be by, or on behalf of, the Registered FDR provider.

Information provided for, or on behalf of, a party is not sufficient for an FDR provider to sign a certificate.

The Regulations also provide for careful screening and intake procedures and more likely than not registered FDR providers will have formal intake processes.

Tips for practitioners:

The following is a brief checklist of matters for practitioners to consider when contemplating an application for parenting orders:

Has there been a past order or past proceedings? If so, then attendance may not be required (for now).
Compulsory FDR applies to all persons seeking parenting orders, including grandparents, relatives and anyone else with standing.
Has there been any FDR in the past 12 months by an FDR provider that could now issue the certificate? If so, does the FDR relate to the issue or issues now in dispute (or something different?) If the FDR was in relation to a different issue, or issues, should there be a further attempt at FDR?
In cases of urgency, what sort of orders should be sought (for example, if an application is made for urgent orders to protect a child, should an order be sought for Family Dispute Resolution once the urgent matters are dealt with?)

Mediation is an important tool in resolving disputes. This is a brief description of the service ...

Key Benefits

	A quicker end to your uncertainty that you might get in Court
	Usually More Cost effective.
	A dignified and respectful way to end your financial relationship and plan for your children's future.

WHAT IS MEDIATION?

Many of you will have heard of people recommending mediation for the resolution of neighbourhood disputes or family law separation. There are many trained Mediators in Queensland, many of them are Barristers or Solicitors or Social Workers who have undertaken formal training to mediate disputes. Now there is a legal requirement to attend Family Dispute Resolution before starting court proceedings in children's matters. Chris Turnbull of our office is a registered Family Dispute Resolution Practitioner who is able to issue certificates to enable people to go to Court. He has been very successful in mediating disputes and is available at all of our offices by appointment although he is based in Bread House, Gregory Terrace in our city office. Click on the children's tab to the left to read his latest article about the changes to the Law effective from the 1st July this year.

People often choose to attend mediation at a Court, at a Legal Office or at Relationships Australia with a view to not only keeping legal fees down, but also with a view to having control of the ultimate result.

Also, a mediation can usually be accomplished and completed with any agreement recorded and filed in the Court within a few weeks compared with the many months that litigation can take.

There are situations where mediation is not appropriate and those are where there is an imbalance of power between the parties. That is, where one party tends to dominate the other or where there has been domestic violence.

It is generally considered not viable to mediate disputes between parties such as this as there is a risk that one party will agree to a settlement that is to their disadvantage simply because they are unable to stick up for themselves.

The Family Court had a mediation program running for some time but that as temporarily been suspended however people who find themselves in a situation where the prosect of going to Court is looming, would always be able to find a mediator in Queensland to assist them in coming to a resolution. Even if the parties are unable to entirely resolve matters during the meditation session, I find that it helps them to narrow the issues about which they are in dispute and accordingly reduce the time spent in Court arguing before a Judge.

In practical terms, if you believe that you and the person with whom you are in dispute would benefit from mediation, you ought to ring the Queensland Law Society on 3842 5888 and ask for a list of their Law Society Approved Mediators.

Alternatively, you may ring the Bar Association or Relationships Australia. Typically the Mediator requires payment in advance or an undertaking to share the cost equally between the parties. A mediation can go for 2 hours or occasionally go for several hours.

In some cases, the mediator prefers the client to bring their Solicitor with them and in other cases the matter is mediated directly between the parties.

As a Queensland Law Society Approved Mediator myself, I say that I prefer the presence of Solicitors to advise the client on their legal rights before they reach agreement.

With good will on both sides and a genuine belief that a negotiated result is better then being told by “some bloke you don’t know” what should be done, many matters can be successfully mediated.

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